 This is Think Tech Hawai'i, Community Matters here. Good morning everybody, aloha. My name is Mark Shklav. I'm the host of Think Tech Hawai'i's Law Across the Sea program. Today, our program is titled Larson vs. Hawaiian Kingdom, and my guest is David Keanu Sai. Keanu, as we call him, Keanu Sai has a PhD in political science and teaches at Windward Community College. Quite a few years ago, Keanu represented the Hawaiian Kingdom as its agent before the permanent court of arbitration in the Hague, in the Netherlands. In a case involving claims by a citizen of Hawai'i named Lance Larson. Mr. Larson claimed that the Hawaiian government had been negligent by allowing American laws to be imposed in the Hawaiian Kingdom. This is an interesting case. I went to arbitration in the Hague, we'll ask about the results, we'll discuss the case, its background, its history, its meaning, its ramifications, and current status. In events, we'll bring this case to the forefront soon. First of all, aloha, good morning, Keanu. Good to see you. Thanks for inviting me. My pleasure. Now, I need to ask you, Hawaiian Kingdom, I thought we were the state of Hawai'i. And before that, the territory and before that, maybe a republic or provisional government. So Keanu, you're going to have to explain to me, is there a Hawaiian Kingdom? Is there a Hawaiian government? What's the difference? Please. Okay. Well, that's a good question. I thought the same thing as you before. When I'm speaking about the Hawaiian Kingdom, so let me give it some personal context. My great-grandparents, so my tutu's parents on both mother and father's side were born in the 1880s. In the 1880s, this place here in Hawai'i was called the Hawaiian Kingdom. So I'm referring to that country called the Hawaiian Kingdom. Okay. Now, in order to explain why I say the kingdom still exists today, that's not a sovereignty proposition. It's not an aspiration. What I'm speaking to is the legality and the facts that the country, the Hawaiian Kingdom, still exists. So in 1893, the Hawaiian Kingdom was actually one of 44 independent states in what was known as the family of nations. Okay. Only 44. Today, there's 193. Actually, 195, if you don't include those that are members of the UN, such as Kosovo and Rotonga. So in 1893, Hawai'i was its own country, its own nation, its own government. Okay. Exactly. It had treaties with all the European powers, including the United States. By 1893, it had over 90 embassies and consulates all over the world. It was a constitutional system, very progressive. And by 1864, it adopted the separation of powers doctrine, which was quite amazing given the timeline of Hawai'i's constitutional evolution, which began in 1840. Now, we're just talking 24 years later. So that country itself, as it adopted the separation of powers doctrine, in 1893, Queen Lili Wokalani was the executive monarch. Okay. So you had an executive, you had a legislature, I assume is what you're saying, and a judicial. Exactly. Okay. Okay. Now, in international law, as it existed at that time, as it exists now, the country itself, the Hawaiian kingdom, was referred to as a state, an independent and sovereign state. Now, the term independence is a political term. It means the laws that exist over Hawai'i is exclusively only administered over Hawaiian territory independent of other laws that may be administered over other territories, such as the United States, Mexico, and so forth. So when anybody comes into the Hawaiian kingdom, they are subject to Hawaiian kingdom law. Okay. Okay. Now, let me compare that to Japan at the same time. Japan did not have independence. Its independence was not recognized, nor did China. These were non-European powers. They were states, but they weren't independent. They were the subject of unequal treaties. So like in Japan, if an American citizen gets into trouble in Japan, let's say in 1880, he could only be prosecuted under American law through the American consulate called consulate jurisdiction. The same applied in China as well, Siam, Persia, Ottoman Turks. Did you know the Hawaiian kingdom had an unequal treaty with Japan that if any Hawaiian subject got into trouble in Japan, let's say in 1880, he could only be prosecuted under Hawaiian kingdom law by the Hawaiian consulate through consulate jurisdiction. No, I didn't know that. So they were clearly a member of the family of nations. Okay. They bought into that regime too. Yeah. Okay. Yeah. Actually, it was the Hawaiian kingdom that was the first to recognize Japan's full independence, Queen Deli Okalani, January 18, 1893, where the Hawaiian kingdom rescinded consulate jurisdiction, thereby subjecting Hawaiian subjects to the full scope and application of Japanese law. Okay. Interesting. So that was a system of what the Hawaiian kingdom was at that time where my great grandparents lived in. Okay. Yeah. So that was a system. Now, international law separates the government, which is the physical apparatus that exercises the sovereignty of the state. So the Hawaiian kingdom in international law is the state, the government is its physical apparatus that exercises that authority. Okay. Why that is so important is international law recognizes that the state would still exist if its government was militarily overthrown. All right. That's important. You can't erase the state just because somebody comes in, takes over the physical bodies, the physical government. Exactly. Okay. Now, a contemporary example today would be Iraq in 2003. The Iraqi government was overthrown through shock and awe, and everybody saw it on CNN. But the overthrow of the Iraqi government did not equate to the overthrow of Iraq as a state. International law still recognized Iraq's existence because Iraq is the subject of international law, whereas the government is a subject of its domestic law, whether it's constitutional, absolute, combinational, or whatever you have, might be the case. Okay. So how would you change? How do you get rid of the state? You have to merge, right? So within international law, there are two types of states, original states, successor states. Okay. Now a successor state is one that separates itself from another state. So that would be the American Revolution. There are British colonies, but in 1783, King George III, through the Treaty of Paris, recognized the 13 former colonies as 13 independent states in a confederation, a Lucian Union of independent states. So that's called secession, and that is where the United States became the successor state of Great Britain. Okay. So why do you say the Hawaiian kingdom still exists today? Why do you say it's still a state? What was done in 1893 was the overthrow of the Hawaiian government, illegal, as concluded by President Grover Cleveland in his investigation. You mean when those Marines came off the boat? January 16th Marines landed, assisted in the overthrow of the Hawaiian government, which President Cleveland investigated through James Blount, who was the special commissioner to investigate, and concluded that his words specifically, by an act of war, the government of a friendly and confiding people has been overthrown. Now from an international law standpoint, once a head of state makes a statement by an act of war, he just triggered state of war. Okay. So in international relations, you have both state of war, state of peace. The purpose, the goal is to stay in a state of peace, but you could go into a state of war through an act of war, and that's when humanitarian law is activated. In order to transform that situation back to a state of peace, you need a treaty of peace. And we have no treaty. We have no treaty of peace. And the state has not become a successor state, and so you're saying there has been no change to the state. Right. I see. Okay. So, all right, I understand that proposition. Now how about Larson? What is Larson versus the Kingdom of Hawaii? What is that about? So given this background, in this context of the state still existing, no government, state of war, right, humanitarian law allows for a principle to be used called the principle of necessity. Now the principle of necessity is really the mother of all inventions. A lot of things during the military is based on necessity, but also during occupations, as well as what is called governments in exile. So when a state has its government illegally or not illegally, but its government overthrown irrespective of whether illegal or legal, you could create a government in exile to represent the state. And that's what happened with Belgium. And when King Leopold was captured by the Germans, Belgians fled to London, formed a government in exile. That's right. So what they do is they represent the state because their mandate did not come from the people. There's no elections during occupations. That's called necessity, a doctrine of necessity. When I was in the Army, a private can become a lieutenant in time of war, he assumes a chain of command. It's not his choice. It's actually his duty in order to maintain the command structure. But he's just an acting lieutenant until a properly commissioned officer comes and he gets relieved, goes back down being a private. That same principle applies at the international level. So in 1995, I had come to this realization that Hawaii is not a part of the United States. Its government was illegally overthrown, never reinstated. So the government was taken over, the mechanical aspects of the government are taken over. But nothing changed with regards to the state. So that's the difference. And that's the cornerstone of everything. So the key is, where did the state go? Not where is the government. So if that state still exists, which I found that it did in 1995, we took steps to reinstate the government as it stood in 1893, send it to a government in exile, but we did it instead a government in situ, which is within the territory. So that's what we did. Alright. And when you say we, who are we talking about? There are certain individuals that were a part of this. I purposely not share exactly who they are because it can get a bit contentious. You might say from my experience, people don't take this information quite well, but I can take the attacks. You're involved. You might say I run point. Just like a military, I run point. But I can assure you there's more people involved in that, just me. So Larson has a claim based upon the fact that the state still exists. The government apparatus does not of the kingdom. Is that right? Or explain? So let me back up as to how did Larson come to make this claim? Because Lance Larson is just a regular person who's an electrician who lives on the island of Hawaii. He's not an academic. He's not a lawyer. He's just a person who is, he's a good man. But how did he get to that point? So the government that was formed, which is called the provisional government of the Hawaiian kingdom, the acting government by necessity, it operates on three aspects of its mandate because it's not representing the people, but rather representing the state through its legal system by necessity. Its first purpose is to expose the occupation. Second purpose is to ensure compliance to humanitarian law, which is the law of occupation. And then third, to finally provide for an effective transition to a permanent government when the occupation ends. And that's pretty much what governments in exile do. It's just we're here in the country. I was on the Big Island back, I would say 1997, and I gave a presentation about Hawaii being occupied and that people need to follow the laws. In particular, Section 6 of the Hawaiian Civil Code, as it stood in 1893, specifically states that the laws are obligatory upon all persons, whether subjects of this kingdom or citizens or subjects of any foreign state, while within the limits of this kingdom. Lance Larson heard this, understood the presentation, and he decided to test it. He decided to test it. So you're saying even though the state doesn't exist, the laws of the state remain enforced? No, the state exists, and the laws exist, but the government may have been overthrown and we're just the acting government exposing it. So the legal system is basically what is independent within this state called the Hawaiian kingdom. So it's Hawaiian kingdom law. It's the Civil Code, the criminal code, the constitutional law, common law. Those are the laws that I'm speaking to, which is the legal order of the Hawaiian state. So the state exists, state remains, its laws remain in effect. The government apparatus is gone. I'm beginning to get there, beginning to understand, but we're going to have to take a break. And then when we come back, you're going to have to go into the Larson claim. No problem. All right, so we'll be back in a minute. This is Think Tech Hawaii, raising public awareness. We have this crazy thing going on today. I was just walking by and all these DJs and producers are set up all around the city. I just walked by and I said, what's happening, guys? They told me they were making music. It's a little talent, and then it's set down, and kind of entwined. So we'll do it. Welcome back. My name is Mark Shklav, and I am the host of Think Tech Hawaii's Law Across the Sea. And today we are here with Keanu Sai, talking about Larson versus Hawaiian Kingdom. And we've got to the point where Mr. Larson heard Keanu talking about the fact that the state, the Hawaiian Kingdom state, still exists, its laws still exist. Even though the apparatus, the government may have been taken over, not exist. And he heard Keanu talk, and Keanu, what happened then? So when Larson was in the audience, there were other people there, I not only explained why you need to follow Hawaiian Kingdom law, not just because it's the law of the Hawaiian Kingdom, Section 6 of the Hawaiian Civil Code, but also as to the reason why we're in this place today. So in 1893, when the government was illegally overthrown by the United States military, they naturally carried, as a consequence of that act, a responsibility. And their responsibility, which was customary international law at that time, which was later codified in the Hague Convention, was the occupier, the one who overthrew the government, was mandated to administer the laws of the occupied state. No different than in Iraq. So in Iraq, when the government was overthrown, they established the Coalition Provision Authority to administer Iraqi law during the Iraqi occupation. They were not administering American law. So this was the presentation, not just Hawaiian Kingdom law. Okay, so we've got to follow the law. Got to follow the law. And the state of the Kingdom still exists, got to follow that law. I knew the problem of following the law, but my job being a member of the acting government was to expose and to present that law. Okay, so what was Mr. Larson? So Mr. Larson, upon his own self, took it upon himself to look into the law, he found out that there was no law that regulates driver's licenses. Okay. Because 1893, there were no automobiles. There was no law of the Kingdom. No law of the Kingdom. Okay. But American laws remain in America. Okay. Okay. So he decided to test this out, and he went to his truck, he lives on the east side of Hawaii Island, and he took off his license plate, his license plate. He took off his registration safety stickers and so forth, and he put a big placard on the back of his truck that restated section six of the Hawaiian Civil Code. The laws are obligatory. And then he started to drive around Hilo, and he got a lot of tickets. Oh yeah. Yes, that would happen, yeah. Okay. He went to court. He was represented by Nenia Parks and Attorney, okay. And his argument was, he cannot follow American law away by statutes dealing with driver's license, because this is the Hawaiian Kingdom. And the Hawaiian Kingdom law is still controlled. Exactly. I see. And that if he does follow American law, he would be committing treason against the Hawaiian Kingdom. That was his argument. So Judge Sanjay Shudi was a judge, presenting judge. So I was actually called in by his attorney to serve as an expert witness. So I was qualified as an expert witness through Judge Shudi, and I explained there's no treaty. And that a joint resolution of annexation, which the US Congress enacted in 1898, supposedly annexing Hawaii, really didn't annex anything, because the United States could no more pass along annexing Hawaii than it could pass along today annexing Canada, right. There's still no treaty. So that's when Judge Sanjay Shudi made a decision, fined him $900. And I was there, I watched this whole thing. And she asked him, are you going to pay this? And he said, no. If I pay it, I'm committing treason against my country. So she ordered him to be locked up for 30 days, 7 days solitary confinement. Now from an international law standpoint, what you got right there is an unfair trial, which is a war crime under Article 147 of the Geneva Convention. And you also have unlawful confinement, another war crime. And then when he was forced to pay his fine, in order for him to be released, now that's pillaging. So his attorney was very concerned for her client who was being put in prison. I think she was concerned for his safety. And this was kind of outrageous to her 30 days, 7 days solitary confinement. That's kind of going overboard. So she didn't know what was going to happen behind the scenes. So she was very concerned. She turned to me and she says, the provisional government, the acting government is liable because you're supposed to be protecting my client from the unlawful imposition of American laws that put her client into this predicament. And an arbitration agreement was eventually agreed upon. And the Permanent Court of Arbitration received it in November of 1999 from Lance Larson's council, who's the moving party against the Hawaiian Kingdom, being the defendant or the respondent. And you went there and there was an arbitration. Yes. And what happened on the arbitration? Well, the first thing the Permanent Court of Arbitration had to do was to verify whether or not the Hawaiian Kingdom exists as a state in order to fulfill its institutional jurisdiction to form the tribunal. They did. They verified it. So hearings were held in December of 2000. They eventually won the case, the Hawaiian Kingdom, because Lance Larson was not able to come after the acting government on negligence without the United States being a party called an indispensable third party. And why did they have to have the United States? I mean, I can understand that logically, but what's the principle? So there are two precedent cases in international cases, international court cases, Monetary Gold and East Timor. These dealt with an indispensable third state is necessary for a moving state to proceed against defendants. Okay. So they have their place somewhere in the substance of the decision. The rule is a tribunal cannot review the conduct of a state unless that state is present in the proceedings. In order to defend itself or to make some sort of a presentation. Because there's no subpoena powers at the international level. And at this arbitration in The Hague, the question involved the United States. And was the United States invited to be a participant? Yes. And what happened? Yes. Actually, before the tribunal was formed, I was contacted by the Secretary General of the Permanent Court of Arbitration, Secretary General Van Den Hout, he's a Dutch national. And when he spoke to me on the phone, now he's speaking to me as the defendant. I'm representing the defense in this case. We're not the moving party. But we're the government. And he told me, in specific words, he said that the registry cannot find any evidence that the Hawaiian kingdom does not exist. You notice he didn't say that the Hawaiian kingdom is still recognized because you're looking at the subject. And that he also acknowledged that the Hawaiian Dutch treaty was not canceled because we're in the Netherlands. So then he says, and I say his specific words, he said, in order to maintain the integrity of this case. He highly recommended that the Hawaiian government, with Lance Larson's attorney, provide a formal invitation to the United States to join in the arbitration. So on March 3rd, I traveled to Washington, D.C. March 3rd, what year? 2000. Okay. We had a meeting with John Crook from the U.S. State Department, with Nina Parks, the attorney for Lance Larson, and he was given an official invitation to join in the arbitration. You might say, I'm calling the bluff. But if you can prove that the Hawaiian kingdom doesn't exist, step into an international tribunal, we'll renegotiate an arbitration agreement for you to prove that. He began to quickly watch his P's and Q's because I told him that our conversation would be reduced to writing and sent to the court for the record. That very next week, I get a call from the deputy secretary general, Phyllis Hamilton, who's an American. He tells me that the American embassy in the Hague notified the court that they're not accepting the invitation to join in the arbitration, but they asked permission from the Hawaiian government and Lance Larson to have access to our records, pleadings, and transcripts. That's pretty interesting. That's called explicit recognition of the Hawaiian government, its existence. But it's also not denying the existence of the Hawaiian kingdom as a state. If Hawaii was the 50th state, they would have proved it, but it's an American law that took Hawaii to begin with, which didn't affect Hawaii under international law. So they didn't choose to challenge the fact that the state of Hawaii still exists, or I'm sorry, that the state of the kingdom still exists. Exactly, because there's no evidence that it was extinguished. So that's when, that very next month in April, was when the tribunal was formed. And that eventually led to the hearings in December after pleadings were submitted before the oral hearings. In the few minutes we have left, I'd like you to tell me what happened at that arbitration and what's happening now. So the tribunal stated that because of the indispensable third party rule, they cannot rule on whether or not Lance Larson's rights were violated during his trial and incarceration if the United States is not participating. So the Hawaiian kingdom won the case, okay, we prevail. Now the tribunal also left open in the award, arbitral award, backfinding. An international commission of inquiry could get around the indispensable third party rule because the international commission of inquiry under the permanent court of arbitration serves similar to a grand jury, where they look into the facts and they assign responsibility to those facts, criminal, possible criminal or civil. It's like a combination of special counsel Miller with the grand jury together. That's what an international commission of inquiry is. That international commission of inquiry, we entered an agreement with Lance Larson on January 19th, 2017. Two of the commissioners have already been selected these past two days, waiting for the third commissioner, which could be a judge for the international criminal court. And the first sitting will be here in Hawaii for the commission of inquiry on January 16th and 17th, marking the 125th year of the invasion and illegal overthrow of the Hawaiian government and its occupation. When the Marines came on shore, okay. So what are they going to be charged with finding? What are they going to determine? What is this commission, this fact-finding commission going to do? Three things. First, what is the role and function of the Hawaiian government within the framework of international humanitarian law, the laws of war and occupation? Second, what is the duty and obligation of the Hawaiian government toward Lance Larson? And by extension to all Hawaiian subjects within Hawaii and resident abroad. And third, what is the duty and obligation of the Hawaiian government toward protected persons, resident within Hawaii, and those that are transients? So protected persons is in humanitarian laws, identification of non-Hawaiian subjects and non-American citizens. So let's say a French national here. That person under humanitarian law is called a protected person. And the laws of occupation also protect that individual. So those are the three areas that the commission will be reporting. But they will have to look at who's responsible for the unlawful imposition of American law here. And then look at what is our role. Because within an occupied state, you have a duality of legal systems, the occupied and the occupier. We're in this position because the occupier did not conform and comply with international humanitarian law. OK, so the United States is still not a party to this? Yep, because it's like a grand jury. They're just looking at the facts, assigned responsibility. It'll be up to if they issue what could be called indictments. It will be up to other governments throughout the world to prosecute for war crimes under what is called universal jurisdiction or the International Criminal Court, or whoever the commission feels or recommends that can handle this type of situation. Our goal here is not to exacerbate the problem. Our goal here is to address the problem, have a procedure that is set and recognized and move toward compliance. We need to ensure that international law is complied with. That's the goal. We are now dealing with the fact that it hasn't been complied with for over 125 years. Well, coming up to 125 years. So it's a hard pill to swallow, but I can assure you it's real. And people just need to be educated on this. And we're here to fix the problem. And we're coming up in January to a hearing or a fact-finding commission. And so we're going to hear more about this in the future. Absolutely. Keanu, I want to thank you very much for being here today and telling us about this very interesting case and what is going to happen in the future. Thank you. Thank you. Mahalo. Mahalo.