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Arbitration—UNCITRAL Rules—justiciability and indispensable Third parties—legal status of Hawaii

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman ,
David J. Bederman  and
Kurt R. Hilbert
Kurt R. Hilbert
Affiliation:
Wheeler & Hint LLP
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Extract

Lance Paul Larsen v. The Hawaiian Kingdom. At <http://www.pca-cpa.org>.

Permanent Court of Arbitration Tribunal, February 5, 2001.

In Larsen v. The Hawaiian Kingdom Lance Paul Larsen, a resident of the state of Hawaii, sought redress from the Hawaiian Kingdom for its failure to protect him from the United States and the State of Hawaii. The parties, who agreed to submit their dispute to arbitration by the Permanent Court of Arbitration (PCA), shared similar goals and wished the Arbitral Tribunal (Tribunal) to address the question of the international legal status of Hawaii.

Type
International Decisions
Information
American Journal of International Law , Volume 95 , Issue 4 , October 2001 , pp. 927 - 933
Copyright
Copyright © American Society of International Law 2001

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References

1 Larsen v. Hawaiian Kingdom, at <http://www.pca–cpa.org> (Permanent Ct. Arb. Trib. Feb. 5, 2001) [hereinafter Award]. The Tribunal comprised James Crawford, Gavan Griffith, and Christopher Greenwood. Under the parties’ agreement to arbitrate, the appointing authority for the Tribunal was Keoni Agard.

2 The merits of the arbitration were designed by both parties to the arbitration to address the legal consequences of the Hawaiian coup of 1893, when the United States invaded Hawaii and dethroned the Hawaiian Queen, Liliuokalani. See Award, supra note 1. The coup was virtually forgotten until November 1993, when former President Clinton acknowledged byjoint resolution the hundredth anniversary of the January 17, 1893, overthrow of the Kingdom of Hawaii, and offered an apology to the native Hawaiians on behalf of the United States. See Pub. L. No. 103–40; Award, supranote 1, Annexure 2.

3 15 ILM 701 (1976), available at <http://www.uncitral.org>.

4 Award, supra note 1, para. 2.1 (quoting the parties’ agreement to arbitrate).

5 32 ILM 572 (1993), available at <http://www.pca–cpa.org>1; see Award, supra note 1, para. 2.2.

6 Award, supra note 1, para. 3.1.

7 Id., para. 10.10.

8 Id., Procedural Order No. 3, para. 8 (July 17, 2000), reproduced in Award, supra note 1, para. 6.2.

9 Award, supranote 1, para. 10.7 (emphasis added).

10 Id., para. 10.8 (emphasis added).

11 Id., para. 10.10.

12 Id., para. 11.3.

13 Id.

14 Id.

15 Id.

16 Northern Cameroons (Cameroon v. UK), Preliminary Objections, 1963 ICJ Rep. 15, 27–38 (Dec. 2).

17 East Timor (Port. v. Austl.), 1995 ICJ Rep. 90, 99–100 (June 30).

18 Award, supra note 1, para. 11.4.

19 Id., para. 11.6.

20 Id., para. 11.7.

21 Id., para. 12.5.

22 The parties sought an order requiring the United States government, including the State of Hawaii as its political subdivision, to take all measures atits disposal to ensure its compliance with the 1907 Hague Conventions IV and V as they are applicable to the territorial dominion of the Hawaiian Kingdom, and to inform the UN Secretary-General or some duly authorized body of all the measures that it has taken in implementation of that order. See id., para. 5.7.

23 Id., Special Agreement No. 2, Art. 1 (Aug. 2, 2000); see Award, supra note 1, para. 5.7.

24 Award, supra note 1, para. 12.6 & Procedural Order No. 4 (Sept. 5, 2000), reproduced in Award, para. 6.5.

25 Award, supra note 1, para. 11.16.

26 The argument was made that a different test should be applied—namely, “substantial risk of prejudice to the absent State.” Id., para. 11.18. The Tribunal discarded this argument easily, however, by asserting that domestic legal principles have no persuasive force in this particular international legal context. Id., paras 11.19–.21

27 The Tribunal stated that in contractual disputes, application of the doctrine may be different. Id., para. 11.17.

28 Id.

29 See Monetary Gold Removed from Rome in 1943 (Italyv.Fr./UK/U.S.), 1954 ICJ Rep. 19, 32 (June 15), quoted in Award, supra note 1, para. 11.10. This doctrine is in keeping with international principles of comity and dispute settlement.

30 Award, supra note 1, para. 11.17.

31 Id., para. 11.20.

32 1954 ICJ Rep. 19.

33 See id. at 32.

34 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Declaration of Intervention, 1984 ICJ Rep. 215 (Oct. 4).

35 Award, supra note 1, para. 11.8 (emphasis added).

86 1954 ICJ Rep. at 32, quoted in Award, supra note 1, para. 11.10.

37 Award, supra note 1.

38 Id., para. 11.12.

39 Certain Phosphate Lands in Nauru (Nauru v. Ausri.), Preliminary Objections, 1992 ICJ Rep. 240 (June 26).

40 East Timor (Port. v. Austl.), 1995 ICJ Rep. 90 (June 30).

41 Award, supra note 1, para. 11.13.

42 1992 ICJ Rep. at 261, para. 55, quoted in Award, supra note 1, para. 11.13.

43 1992 ICJ Rep. at 261–62, para. 55, quoted in Award, supranote 1, para. 11.13.

44 1995 ICJ Rep. at 102, para. 28, quoted in Award, supra note 1, para. 11.15.

45 Award, supra note 1, para. 11.17.

46 Id., para. 11.23. The Tribunal did point out exceptions to the Monetary Gold test: (1) the principle may not apply if the legal finding against an absent third party could be assumed, without decision, citing the East Timor case; and (2) the principle may also not apply where the finding involving the third party was merely a finding of fact that did not require any legal determination. The Tribunal emphasized that it was asked to do more than merely determine facts in the underlying case. Id., para. 11.24.

47 Id., para. 11.3.

48 In East Timor, Portugal also framed its application from a bilateral perspective, focusing only on Australia’s conduct, with no reference to that of Indonesia, but it complained only of the objective conduct of Australia in disregarding Portugal’s exclusive treaty–making power in relation to East Timor. Despite this styling, the ICJ pierced the party pleadings and concluded that “Australia’s behaviour cannot be assessed without first entering into the question why it is that Indonesia could not lawfully have concluded the [Timor Gap] Treaty.” 1995 ICJ Rep. at 102. For further discussion of this point, see Manooher, Mofidi, Prudential Timorousness in the Case Concerning East Timor (Portugal v. Australia), 7 J. Int’l L. & Prac. 35 (1998)Google Scholar.

49 See supra notes 9–11 and accompanying text.

50 See supra note 45 and accompanying text.