Extraterritoriality

Extraterritoriality is usually defined as the practice of exempting certain foreign nationals from the jurisdiction of their country of residence. The most common application of extraterritoriality is the custom of exempting foreign heads of state and diplomats from local jurisdiction. Another form of extraterritoriality is the limited immunity from local jurisdiction that U.S. servicemen on overseas duty enjoy under the Status of Force Agreements. In the nineteenth and early twentieth centuries, extraterritoriality was often used synonymously with consular jurisdiction, which was the practice of consuls exercising jurisdiction over their nationals in certain non-Western countries.

The origins of consular jurisdiction are usually traced back to medieval practices of merchant self-government in the Mediterranean region as well as to Muslim law. Proponents of the practice usually justified it by referring to the alleged incompatibility between Western and non-Western legal systems. The sultan of the Ottoman Empire gave the first formal recognition of consular jurisdiction in 1535, when he granted extraterritorial privileges to French merchants. These privileges were later extended to most European nationals in the seventeenth and eighteenth centuries in treaties collectively referred to as the Capitulations. These privileges applied mostly to civil suits and to criminal cases involving foreigners only. In East Asia, the earliest origins of consular jurisdiction are more obscure, but it is generally agreed that Chinese authorities allowed foreign merchants in the coastal ports to resolve disputes among themselves. China also has a long tradition of subjecting different ethnic and professional groups to different jurisdictions, dating back as far as to the Mongol Yuan dynasty (1279–1368).

In the eighteenth and nineteenth centuries, functionaries of the European trade companies, such as the English East India Company (EIC), often exercised limited jurisdiction over European merchants residing in Guangzhou, the only Chinese port open for overseas trade. When the monopoly of the EIC on Sino-British trade was rescinded in 1834, the British Parliament also moved to set up a consular court in China. The aim was to withdraw Britons from Chinese jurisdiction entirely, since Chinese penal practices were widely resented by British merchants. Chinese authorities did, however, resist this move and China did not formally concede extraterritorial privileges to Britons until after the Sino-British Opium War (1839–1842). These privileges were later extended to other Western countries in a number of treaties, which subsequently became known as the unequal treaties.

Western diplomats usually claimed that in contrast to the Ottoman Capitulations, the Chinese treaties granted foreigners near complete immunity from Chinese jurisdiction and they endeavored to introduce this form of extraterritoriality to other East Asian countries that were not under direct colonial control. By the 1880s, most European and North American countries had concluded extraterritorial agreements with China, Japan, Korea, Siam (Thailand), and the Ottoman Empire and its dependencies. The Treaty Powers were also able to expand the scope of extraterritoriality to include corporate entities, natives in foreign employ, and Christian converts. Consequently, extraterritoriality was increasingly resented as an instrument of indirect colonial control. In the late nineteenth century, many countries reformed their legal systems to convince the Treaty Powers to relinquish extraterritoriality.

Japan was the only country that succeeded in abolishing consular jurisdiction through legal reform prior to 1900. However, the fall of the Qing (1911) and Ottoman Empires (1923) as well as the weakening of Western imperialism following the First World War (1914–1918) increased the momentum to abolish consular jurisdiction. By the 1920s, consular jurisdiction had been eliminated in most countries except in China and Egypt, where it was not abolished until the late 1940s. Extraterritoriality has left a controversial legacy in the countries in which it was practiced and it forms an integral part in collective memories of injustices inflicted by Western imperialism.

see also Law, Colonial systems of.

BIBLIOGRAPHY

Cassel, Pär. "Excavating Extraterritoriality: The 'Judicial Sub-Prefect' as a Prototype for the Mixed Court in Shanghai." Late Imperial China 24, (2) (2003): 156-82.

Cochran, Charles L., and Hungdah Chiu, eds. U.S. Status of Force Agreements with Asian Countries: Selected Studies, Occasional Papers/Reprints Series in Contemporary Asian Studies 28 (7) (1979).

Edwards, R. Randle. "Ch'ing Legal Jurisdiction over Foreigners." In Essays on China's Legal Tradition, edited by Jerome Alan Cohen, R. Randle Edwards, and Fu-mei Chang Chen. Princeton, NJ: Princeton University Press, 1980.

Koo, V. K. Wellington. The Status of Aliens in China. New York: Columbia University, 1912.

Piggott, Francis Taylor. Exterritoriality: The Law Relating to Consular Jurisdiction and to Residence in Oriental Countries. Hong Kong: Kelly & Walsh Ltd., 1907.

Scully, Eileen P. Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1844–1942. New York: Columbia University Press, 2001.

Sousa, Nasim. The Capitulatory Régime of Turkey, Its History, Origin, and Nature. Baltimore, MD: The Johns Hopkins Press, 1933.