Jules Davids and
Jonathan M. Nielson
A vital function of American diplomacy is the protection of persons, property, and trade interests of U.S. citizens, both native-born and naturalized, in foreign countries. Such protection is commonly referred to as "extraterritoriality." However, extraterritoriality was also applied within the United States in regions claimed by or ceded to sovereign Indian nations. For example, beginning in the 1830s in Indian Territory (Oklahoma), Indians charged with offenses on white land and whites charged with offenses on Indian land within the territory were compelled to stand trial in white courts in Missouri. Extraterritoriality embodies a regime of protections, immunities, and exemptions, claimed on behalf of citizens of one nation living abroad, from the legal system and territorial jurisdiction of the state in which they are resident. Such immunities may be limited, that is, they are restricted to a specific territory or region. Or they may be unlimited or nonspecific, that is, global in their application. Guaranteeing such protection, especially in Islamic and Asian countries, resulted in the eventual development of a system of extraterritoriality which the United States established through negotiation or unilateral imposition in fifteen nations: Algeria (Algiers), Borneo, China, Egypt, Iran (Persia), Japan, Korea, Libya (Tripoli), Madagascar, Morocco, Samoa, Tanzania (Zanzibar/Muscat), Thailand (Siam), Tunisia (Tunis), and Turkey (Ottoman Porte).
In establishing such a regime of diplomatic relationships, the United States drew upon established theoretical principles and historical antecedents. The principle and practice of extraterritoriality is fundamentally a state's de jure claim of sovereignty and a de facto expression of its diplomacy and foreign policy. Most authorities would accept the broad view that sovereignty is a system of order and relationships among states that is based on a "mutual recognition of one another's right to exercise exclusive political authority within its territorial limits." Whereas sovereignty involves a state's claim of jurisdiction over citizens within its borders, extraterritoriality extends those claims beyond them.
ORIGINS OF EXTRATERRITORIALITY
While the practice and claims of extraterritoriality originated in antiquity, most notably in Egypt, Greece, and Rome, it was during the Middle Ages that its modern principles were established. As early as the twelfth century, Italian cities such as Genoa, Venice, and Pisa secured protection for their merchants in Egypt, Constantinople, and the Barbary States of North Africa. In northern Europe, the Hanseatic League obtained jurisdictional rights for its merchants within its trading region. During the next three centuries, Turkey granted so-called capitulary rights to Great Britain, the Netherlands, Italy, Denmark, Germany, Russia, Spain, Portugal, and the United States.
The problem of guaranteeing such protection, especially in the Islamic and Asian countries, was responsible for the eventual development of a system of extraterritoriality. Although differences in cultures, religions, and legal systems between Western Christian countries and those of Africa, the Near East, and Asia motivated Western countries to secure legal and economic exemptions for their nationals, the roots of extraterritoriality can be traced to ancient times. During antiquity, legal rights and obligations in Egypt, Greece, and Rome were deemed an integral part of membership in the community and could never be extended to aliens—the "strangers within the gates." However, merchants and traders traveling to distant lands were often permitted to reside and to establish trade factories, to manage their own affairs, to build temples, and to live according to their own customs, ceremonies, and rites.
By the end of the eighteenth century, a significant change had occurred in the concept of extraterritoriality. Before the Treaties of Westphalia (1648), which ended the Thirty Years' War and established the basis for the modern European system of nation-states, the notion of territorial sovereignty had not taken definite and concrete form. Sovereignty was generally viewed as personal rather than territorial, and it was related to the theory of the personalization of laws: that a foreigner carried his own law wherever he went. It was the ruler's duty to protect those who swore personal allegiance to him. Such allegiance was usually rendered by military service, and, in the case of Asian nations, by the payment of tribute as well. Following the Treaties of Westphalia, however, the concept of territorial sovereignty collided with the notions of personal sovereignty and the personality of laws, especially when the national right of territorial jurisdiction became a basic tenet of Western international law.
The recognition of territorial sovereignty in the West had a profound impact on the Ottoman Empire and in the Orient, where the principle that law was personal rather than territorial persisted for a long period of time. It affected, in particular, the relationships between Christian Europe and the Islamic and Asian countries, which were viewed as outside the pale of "civilization." Since these states were considered beyond the sphere of international law, it was held that European subjects and citizens had to be protected from the barbarities of "uncivilized" peoples, at least until the latter conformed to the standards of law and justice that Europeans considered just and equitable. Europeans chafed at the idea of being subservient to the laws of "inferior" civilizations. Such subservience, they felt, did violence to their dignity, pride, and concepts of justice. On their part, Muslims and Chinese held foreigners in disdain because they believed in the superiority of their own virtues and civilization.
From the earliest times, foreign ambassadors, government officials, and diplomatic representatives were granted a special status and exemption from local jurisdiction. This privilege later became known as the right of "exterritoriality." Diplomatic immunities were acknowledged in Western countries and in most non-Western states as well. Extraterritoriality was distinguished from exterritoriality in that it applied not simply to foreign diplomats and government officials, but to foreign nationals residing abroad. The special rights and immunities involved were specifically defined in treaties, and were not reciprocal. Although initially the bestowal of extraterritorial rights did not connote any loss of territorial sovereignty, but instead symbolized the beneficence of the grantor state, such was not the case following the Treaties of Westphalia. The imposition of extraterritoriality clearly came to represent the superiority of Western Christian countries over inferior, backward, and "uncivilized" peoples. In this sense, modern extraterritoriality served not only as a protective shield but also as an instrument to further penetration and imperialistic expansion.
Before the Declaration of Independence, colonial Americans who engaged in trade in the Mediterranean and with the Barbary States were dependent upon the British for protection from Barbary piracy. France had led the way in securing definite rights or protection not only for foreigners but also for natives in the employ of foreigners. The first treaty granting these privileges was concluded between Morocco and France in May 1767; other nations soon gained similar rights through a most-favored-nation clause. When the United States declared its independence in 1776, England withdrew its admiralty passes. To prevent the plundering of American ships, a committee of the Continental Congress immediately urged the negotiation of a treaty with France to obtain a royal pledge to protect and defend American vessels as effectively as England had previously done. Although Louis XVI promised in the Treaty of Amity and Commerce between the United States and France, signed on 6 February 1778, to interpose with the Barbary States "for the benefit, convenience, and safety" of his American ally, this agreement proved to be of little value.
After the American Revolution, the U.S. Congress took the initiative to establish direct contacts to secure the protection of American ships and seamen in the Mediterranean area. In May 1784, Thomas Jefferson, John Adams, and Benjamin Franklin were commissioned to negotiate treaties with the Barbary States. When an American ship, the Betsey, was seized by Moroccan pirates and taken to the port of Tangier, the commissioners authorized Thomas Barclay, the U.S. consul general at Paris, to go to Morocco and act as their agent to conclude a treaty with Morocco. Barclay's mission was successful. In 1786 he signed an agreement with Sultan Sidi Mohammed, which was ratified by Congress on 18 July 1787. This treaty, which established the basis for American extraterritorial rights in Morocco, was modified and renewed in 1836 and again in 1886, and remained in effect until 1956. The United States soon negotiated treaties with the dey of Algiers in 1795, with the sultan of Tripoli in 1796, and with the dey of Tunis in 1797; it did not relinquish these treaty rights until 1912, when Libya became a colony of Italy. But neither the treaty with Morocco nor those concluded with the Barbary States provided protection to American commerce. Tripoli declared war on the United States in 1801, and hostilities ensued with the Barbary pirates until 1816, when new treaties were imposed upon Algiers, Tripoli, and Tunisia. Following the War of 1812, the United States was no longer harassed by piracy in the Mediterranean.
In the Islamic countries, the protectorate system created serious difficulty. Under bilateral treaties, European consuls obtained both almost complete jurisdiction over the persons and properties of their own nationals, and the right to offer this protection to anyone they employed. These persons were not subject to local law and were exempt from all personal or direct taxation or forced levies. The system lent itself to abuses, since many local citizens gladly paid large sums of money to secure these exemptions.
Foreign consuls found the selling of protection an excellent way to augment their incomes. As early as 1859, the Moroccan government demanded more careful regulation of the protectorate system. Complaints were also voiced against the unwarranted interference by consuls in the local courts. Efforts to remedy the situation were made in 1877, when the sultan sought to limit and control the extent of foreign protectorate claims, and to obtain the return to Moroccan jurisdiction of Moroccan subjects who, after naturalization in a foreign country, had returned to live in Morocco. But the discussions with the diplomatic corps brought no agreement, and the United States, while expressing its willingness to remedy the abuses, insisted that naturalized citizens were equal to native-born citizens, and therefore not subject to Moroccan jurisdiction if they returned to that country.
At the Conference of Madrid in 1880, protectorates were the main item on the agenda. Britain favored conceding to Moroccan demands, whereas France urged that no abridgment be made on the right of protection. The conference adopted the French point of view, and the Convention of Madrid not only validated the protectorate system but also, by clarifying, defining, and legalizing the situation, strengthened it by converting the former bilateral treaties and simple consular agreements into an international convention. After the Madrid Convention an orgy of protection selling began, and the protection problem became linked to political penetration.
During the latter decades of the nineteenth century, imperial rivalries steadily exerted a profound impact on extraterritoriality. As European powers pressed to partition Africa and carve out their colonial empires, the danger of the dismemberment of Morocco became increasingly ominous. In 1871 the sultan of Morocco, fearful that his country might be partitioned by European countries, offered to place his entire nation under an American protectorate. Although refusing to accept the offer, the State Department proffered its friendly offices to prevent such an act. To forestall dismemberment or the establishment of hegemony in a region by any one power, and at the same time ensure the maintenance of treaty rights and extraterritoriality, the United States espoused the creation of international settlements, such as that in Shanghai, which had been set up in the 1850s, and the Open Door policy.
Political and economic competition among the European powers intensified efforts to maintain and broaden extraterritorial rights. In Morocco particularly, a decisive shift occurred from concern with persons and property to an interest in economic exploitation and trade. The Moroccan crisis that almost triggered conflict between France and Germany, and was a prelude to World War I, was occasioned by Germany's desire to prevent French economic control of that country. The intervention of President Theodore Roosevelt in this dispute led to the Algeciras Conference in 1906. While the Act of Algeciras effected a compromise that guaranteed equality of economic opportunity and the Open Door, France and Spain secured privileged positions with the Moroccan police force.
The interests of France, Spain, and Britain converged on Tangier, which overlooks the Strait of Gibraltar. England and Germany strongly favored internationalization of Tangier, but France resisted this proposal, insisting on French and Spanish preponderance. Following the Act of Algeciras, France swiftly took steps to establish a protectorate over Morocco. Germany attempted to counter this move by dispatching a gunboat, the Panther, to Agadir to "protect German interests." This action, in 1911, precipitated a second Moroccan crisis. But again a compromise was reached. In a Franco-German accord, concluded in November 1911, Germany conceded France a free hand in Morocco in exchange for a sizable slice of the French Congo. After firmly establishing its position in Morocco, and working out arrangements with Germany and Spain, France agreed to cooperate in the creation of an international regime for Tangier, modeled on the International Settlement of Shanghai. A statute was finally approved by most of the Algeciras powers by November 1914.
The American extraterritorial treaties with Morocco were very similar to those with other Islamic states. However, abrogation of American extraterritorial jurisdiction in Morocco was a complicated matter. France established a protectorate in Morocco in 1912, designating special zones for Spain and an "international zone" in Tangier. After the protectorate was established, France began pressing the United States to renounce its extraterritorial rights.
Following the establishment of the French protectorate in Morocco, many countries surrendered their capitulatory rights. With the signing of the Tangier Statute in 1923, the protectorate system was eliminated. England was the last of the signatory powers to formally renounce its right of protection and all capitulatory rights, in a 1937 accord with France. But the United States refused to accept the Tangier Statute or the modification in 1928 that officially established the basis for the internationalization of the city. Since Americans had few political or economic interests in Tangier, Washington decided it would be more advantageous to remain outside the international settlement, thus retaining both its diplomatic status and its extraterritorial rights.
Some vestiges of extraterritoriality persisted after World War II. For example, American extraterritorial rights were not ended in Morocco until 1956, when Moroccan independence was attained; the final economic integration of Tangier was secured only in October 1960. When the United States finally gave up its extraterritorial jurisdiction in Morocco, one issue was its desire to support Arab nationalism without antagonizing France. Moreover, it was sensitive to the danger that the Soviet Union could exploit Moroccan irritation with American extraterritorial claims. Finally, the United States wanted to preserve its military bases in the region and increase the number of American troops.
Meanwhile, prompted by developing interests and problems of missionaries and trade in the Ottoman Empire, the U.S. government initiated direct contacts with Turkey. Efforts to arrange a treaty of amity and commerce were initiated in 1799, but a Turkish-American agreement that extended capitulation privileges to the United States was not concluded until 1830. Article IV of that treaty stipulated that "citizens of America, quietly pursuing their commerce, and not being charged or convicted of any crime or offense shall not be molested; and even when they have committed some offense, they shall not be arrested and put in prison, by the local authorities, but they shall be tried by their minister or consul, and punished according to their offense."
Although the treaty recognized that American plaintiffs and defendants in civil cases would be subject to Turkish law, this was not enforced. Indeed, while the United States relinquished some narrow judicial authority to Turkey with respect to land and real estate transactions in 1874, it continued to claim broad extraterritorial rights, in large measure because it considered the Turkish legal system to be unjust. As the State Department put it, "The intercourse of the Christian world with the Mohammedan world is not founded upon the principle of the law of nations," because "International Law, as professed by the civilized ideas subsisting between them [is] based upon a common origin, and an almost identical religious faith." With the outbreak of World War I, Turkey was the first country to take advantage of the conflict by declaring its intention to rid itself of the capitulatory regime. In September 1914 the Turks, asserting that the capitulatory rights were "in complete opposition to the juridical rules of the century and to the principle of national sovereignty," proclaimed that Turkey's relations with all states would be based on the "general principles of international law" after Turkey abrogated the capitulatory agreements, effective 1 October 1914. The United States promptly denied Turkey's right to abolish the capitulations unilaterally, claiming that such action could be taken only by agreement among all the nations concerned. Nevertheless, Turkey made it clear that it considered the capitulations dead.
Turkey experienced dramatic social, political, and legal changes in the early twentieth century. Kemal Ataturk's nationalist revival and secularization of Turkey helped transform the legal system by granting non-Muslims more equal legal status with Muslims. With these reforms, extraterritoriality did not seem necessary to protect the legal rights of Americans in Turkey. Therefore, the United States was willing to renounce extraterritoriality, Ambassador Joseph Grew informed Turkish foreign minister Tevfik Aras in 1931.
Although the Ottoman Empire was the first to enact a capitulatory system that established the basis for extraterritorial privileges, it was in China that the extraterritoriality system was developed most extensively. The origin of extraterritoriality in China has been traced to the T'ang dynasty (618–907). As early as the ninth century, the Chinese allowed Arabs to reside and trade along the coast of Chekiang province and to govern themselves under their own headman. When the Portuguese arrived in Macao in 1557, the emperor permitted them to live according to their own customs and laws. In the first treaty with Russia in 1689, China agreed that each nation would be responsible for its own subjects.
However, though China treated all barbarians equally, permitting them to enjoy the blessings of Chinese civilization and granting to all the privilege of trade, barbarians were required to accept China's conditions of trade. The Chinese exempted foreigners from their law in part because they believed that foreigners lacked the capacity to understand the complex rules of Chinese society; in part because such exemption freed the Chinese from the difficulty of trying to govern aliens who had strange customs, language, and traditions; and in part because the Chinese felt the barbarians should be given a chance to observe their civilized way of life and, by so doing, eventually become assimilated. The Chinese always insisted upon complete control over foreign residence, and Westerners ultimately secured the acknowledgment and extension of extraterritorial rights only by the threat or use of force.
In China, the tribute system established the basis of relationships with barbarians. Foreigners who wanted to trade with China were compelled to abide by the rules and regulations set forth by the emperor. Until the first Anglo-Chinese (Opium) War (1839–1842), Western merchants accepted China's institutional framework and adapted to Chinese requirements of trade. This meant adhering to the Canton system, which confined all foreign trade to the Canton area—the "factory" section of the city and at Whampoa and Macao—and its supervision by the Co-Hong, a Chinese merchants' guild. The Canton system in effect preserved a tribute-and-trade nexus that coincided with the traditional Chinese way of dealing with barbarians.
The Opium War shattered this institutional arrangement. It was replaced by the Western "treaty system," built on treaties signed by China with England, the United States, France, and Russia. The British-dictated Treaty of Nanking (1842) led to the collapse of the Co-Hong system; the opening to trade of the ports of Canton, Amoy, Foochow, Ningpo, and Shanghai; and the altering of relations with China. The treaty system pivoted on two significant stipulations: a most-favored-nation clause, which automatically extended concessions granted by China to one nation to other treaty powers, and the right of extraterritorial jurisdiction.
Before the Opium War, the British and other Europeans had willingly acknowledged, for the most part, China's jurisdiction in both civil and criminal matters. But a gap steadily widened between the British and Chinese on the interpretation and procedures of the law, on matters of responsibility, on evidence, and on punishment. On occasion, the British resisted compliance, particularly by refusing to surrender their nationals who were accused in homicide cases. Westerners were also alarmed by the Chinese practice of torturing prisoners and by the corruption of Chinese magistrates and judicial authorities. Americans, however, readily submitted to China's laws and jurisdiction to avoid interference with trade.
The position of the United States changed drastically after the signing of the Treaty of Nanking, and the supplementary Bogue Convention (1843), which gave British consuls limited jurisdiction to deal with crimes committed by British nationals. Although England first took the initiative in asserting jurisdiction over British subjects in China nearly a decade before the Chinese formally agreed to the principle of extraterritoriality, no direct steps were taken to establish a court of justice, with criminal and admiralty jurisdiction, at Canton. Because this measure was opposed by the Chinese and lacked approval of Parliament and the public, England hesitated to take any action. As a result, the imposition of an extraterritoriality system in China was effected mainly by the United States.
Caleb Cushing, who was appointed the first official American envoy to China in 1843, was responsible for obtaining China's full recognition of the principle of extraterritoriality. Cushing argued that jurisprudence of Western Christendom alone guaranteed equitable treatment of foreigners. "This fact," he boldly claimed, was "the result of evidence of the superior civilization and respect for individual rights consequent thereon, which prevail in Christendom." Cushing insisted that the United States demand extraterritorial rights in China for American citizens, not as a concession on China's part, but as a principle of established international law.
Cushing's major achievement was the negotiation of the Treaty of Wanghia, signed on 3 July 1844, which granted the United States the right not only to determine punishment of American offenders but also to exercise absolute extraterritorial jurisdiction in both civil and criminal cases. Article XXI of the treaty stipulated: "Subjects of China who may be guilty of any criminal acts towards citizens of the United States, shall be arrested and punished by the Chinese authorities according to the laws of China: and citizens of the United States, who may commit any crime in China, shall be subject to be tried and punished only by the Consul, or other public functionary of the United States, thereto authorized according to the laws of the United States." From the mid-nineteenth century to World War II, American diplomacy in China was occupied with problems relating to the administration of judicial affairs, shipping regulations, piracy, and claims. Other matters that explicitly concerned extraterritorial rights dealt with the buying and leasing of land; crimes against American persons and property; ensuring the guarantee of fair trials, whether in Chinese courts or consular courts; the safety of travel inland; and the rights to trade, to worship freely, and to propagate the faith. At the same time, extraterritoriality became a cloak for the development of successful foreign commercial enterprises and a means to secure control over much of China's foreign trade. It also offered a protective shield to Christian missionary activities, buttressed the creation of international settlements, and stimulated the use of foreign gunboats. By the twentieth century, the protection of Americans and other foreign nationals was provided not only by gunboats but also by the presence of foreign troops.
Between 1842 and 1942 the principal symbol and exercise of foreign power in China were the treaty ports, small territorial enclaves or enclosures where foreign governments established extraterritorial jurisdictions throughout much of coastal and eastern China. In them were located foreign consulates, local offices of foreign businesses and commercial concerns, concessions, and settlements. Here also were separate courts, police with foreign officers and staff, and often small military and security forces.
Treaty ports, usually on the coast or along navigable waterways, were open to foreign commerce and contained a Chinese maritime customs office administered by foreigners. In many instances these ports had a de jure foreign district. Direct commercial activities, residence, and property rights were restricted to designated treaty ports and other specified cities open to foreign trade.
Settlements and concessions were municipalities separate from the surrounding Chinese cities. Both foreigners and Chinese were allowed to lease or own property and to live in the settlement area. Foreign nationals dominated the municipal councils of these settlements until the late 1920s. Settlements were generally considered Chinese soil governed by foreigners. Concessions were de jure colonies of the nation leasing the property. Most were organized with a municipal council that had ultimate administrative and political authority over the concession. The law of a concession, which was leased foreign soil, could exclude Chinese and nationals of other countries excluded from entry, residence, and property ownership.
Setting up the machinery and administrative apparatus of the extraterritoriality system produced many problems. For example, down to 1906, few American consuls in China had adequate knowledge or competence to handle legal disputes. Many consuls were attached to American mercantile firms; their meager consular fees and dependence on commercial houses seriously affected judicial administration. Bias for one's own nationals could not be eliminated. Moreover, the complexity of laws and procedures, and the difficulties of appeal, as well as of securing witnesses or producing evidence for trials of foreigners who had committed offenses in the interior, made the handling of cases onerous. The creation of a mixed court at Shanghai in 1864 sought to remedy these judicial problems; a Chinese magistrate presided and a foreign consular "assessor" sat with him as a co-judge. Although the removal of consular appointments from politics and the establishment of the U.S. court at Shanghai in 1906 helped to improve the situation, the abuses of extraterritoriality persisted.
In the 1840s, the Chinese were not aware of the implications of extraterritoriality or of other concessions granted to foreigners. Nor were they disturbed by consular jurisdiction, since it did not directly affect China's political structure. But as foreign control over the Chinese economy steadily increased, these expectations rapidly disappeared. First applied to about 350 foreigners in five treaty ports, the extraterritoriality system by the beginning of the twentieth century was extended to about ninety treaty ports and some twenty-five ports of call for steamships, and embraced approximately a third of a million foreign residents.
For more than a half-century after the Opium War, China was racked by insurrections, economic dislocations, and the spread of European and Japanese imperialism. Compelled to accept the West's goods and ideas, China by the turn of the twentieth century reached the depths of humiliation with its defeat in the first Sino-Japanese War, the crushing of the Boxer Rebellion, and the signing of the Boxer Protocol in 1901. The latter provided for a huge indemnity and the permanent quartering of foreign troops in the capital as legation guards.
Nationalism and reform movements, however, steadily gained momentum. As they did so, the "unequal treaties" and extraterritoriality in China increasingly became targets of attack. To counter the agitation, the Western powers and Japan signed a series of treaties in 1902 and 1903. The agreements indicated the willingness of these powers to help China in its efforts to effect judicial reform so that extraterritoriality could, in time, be ended. In the treaty of 1903, the United States conferred upon China more jurisdiction over domestic affairs, including mineral rights, coinage, and the regulation of trademarks, patents, and copyrights. Article XV conditioned the renunciation of extraterritorial rights on the "Westernization" of Chinese law: "The government of China having expressed a strong desire to reform its judicial system and to bring it into accord with that of Western nations, the United States agrees to give every assistance to such reform and will also be prepared to relinquish extra-territorial rights when satisfied that the state of Chinese laws, the arrangements for their administration, and other considerations warrant it in doing so."
When China entered World War I on the Allied side in 1917, steps were immediately taken to cancel the extraterritorial privileges of Germany and Austria. At the Paris Peace Conference, the Chinese delegation set forth a program that called for the return of all foreign concessions, settlements, and leased territories; the gradual abolition of extraterritoriality; and complete tariff autonomy. But to their dismay and anger, Woodrow Wilson endorsed Japan's claims to Shantung, which had been obtained in 1914 by the expulsion of the Germans. Delegates at the Paris Conference refused to reconsider the Shantung question or China's arguments on the abolition of extraterritoriality. As a result, the Chinese declined to sign the Treaty of Versailles.
After World War I, extraterritoriality was viewed as a key symbol of foreign domination. At the Washington Conference in 1921–1922, the Chinese delegation again made a strong bid for recognition of its full sovereignty. But the United States, Britain, France, and Japan balked at agreeing to treaty revisions. Although the Nine-Power Treaty (1922) confirmed China's independence and its territorial and administrative integrity, the agreement upheld the existing privileges of the signatory powers in the country. China secured only the promise of a study on the question of extraterritoriality, and real tariff autonomy was postponed indefinitely.
Although the Western powers and Japan resisted the relinquishment of extraterritorial rights in China, stressing that significant treaty revisions had to await China's progress in legislation and adoption of adequate judicial reforms, the extraterritoriality system deteriorated during the interwar years. Meanwhile, the Bolshevik Revolution made itself felt in China, spurring the growth of nationalism and radicalism in the country. Affirming its desire to deal with China on the basis of equality, the Soviet Union renounced extraterritoriality, and in May 1924 a Sino-Soviet agreement officially relinquished Russia's privileges.
Although the Washington Conference adopted a resolution that provided for the establishment of a fact-finding commission to investigate extraterritoriality in China, the chaotic conditions in the country and a squabble between France and China over Boxer indemnity payments delayed the convening of the Commission on Extraterritoriality until January 1926. After almost a year of investigation and the assembling of a mass of detailed information on China's judicial system and practices of extraterritoriality, the members unanimously concluded that until more effective judicial reforms were carried out, the abolition of extraterritoriality was unwarranted.
In the meantime, the Nationalist revolution coalesced under Chiang Kai-shek's leadership, and by 1928 defeated the northern government. Pledged to end the extraterritoriality system, the Kuomintang (Nationalists) adopted a provisional constitution in October and immediately took steps to establish a new basis of relations with foreign powers. At the end of the year, China reached agreements with Belgium, Denmark, Italy, Portugal, and Spain that provided for tariff autonomy; accepted, in principle, the ending of extraterritoriality; and promised that rights would be relinquished when other states had done so.
In May 1929 the Kuomintang government announced that it intended to promulgate civil, criminal, and commercial laws to replace the extraterritoriality system. Three months later, it issued regulations that ended the provincial and local handling of diplomatic matters and prescribed new procedures for dealing with aliens. But the Nationalists did not unilaterally abrogate extraterritoriality. They expressed the hope, instead, that the system could be abolished by mutual consent by 1 January 1930. Since the United States and Britain insisted upon a gradual relinquishment of extraterritorial rights—and only if China gave evidence of improvements in its judicial system that ensured "effective enforcement of jurisprudence"—the Kuomintang declared its dissatisfaction with this response. On 28 December 1929, the Western powers were informed that beginning 1 January 1930, "all foreign nationals in the territory of China who are now enjoying extra-territorial privileges shall abide by the laws, ordinances, and regulations duly promulgated by the Central and Local Government of China." This mandate was qualified two days later, when China stated its intent was merely to abolish extraterritoriality in principle. With the understanding that 1 January would be regarded simply as the date from which the process of gradual abolition would be said to have commenced, Washington, London, and Tokyo agreed to further negotiations "within a reasonable time."
For almost a year and a half, the United States and Britain attempted to work out an acceptable agreement with China. By June 1931 the points in dispute were resolved, but London, Washington, and Tokyo left final agreement in abeyance, pending an examination of the treaty terms. When the Japanese invaded Manchuria on 8 September 1931, the treaties, not yet ratified, were suspended indefinitely. Efforts to resume negotiations and to arrive at final agreements on the abolition of extraterritorial rights were made in the mid-1930s, but the outbreak of the second Sino-Japanese War in July 1937 once again halted the discussions.
The issue of extraterritoriality was not further considered until World War II. After Japan's bombing of Pearl Harbor in December 1941 and America's entry into the conflict, the State Department decided that it would be advantageous to end extraterritoriality. On 11 January 1943, China simultaneously concluded with the United States at Washington, and with Britain at Chunking, the Treaty for the Relinquishment of Extraterritorial Rights in China and the Regulation of Related Matters. By these treaties, together with exchanges of notes, the United States and England surrendered not only their extraterritoriality rights but also their unilateral privileges in China that had previously been acquired by the "unequal treaties." American and British nationals would now be subject to the jurisdiction of the government of the Republic of China, in accordance with the principles of international law and practice. The long-standing grievances relating to extraterritoriality, concessions, settlements, legation quarters, and the right to station foreign warships in Chinese waters and foreign troops on Chinese soil were thus ended.
The United States also strengthened the basis for extraterritorial rights in Japan. This was accomplished by Townsend Harris, a New York businessman and merchant who was appointed the first American consul at Shimoda, Japan, in 1855. Three years later, in July 1858, he concluded a treaty of amity and commerce that greatly extended the privileges secured by Commodore Matthew C. Perry in 1854. Perry's treaty, which opened Japan, contained no extraterritorial provisions, but Harris persuaded the Japanese to grant Americans jurisdiction in both civil and criminal matters.
Although critical of the inefficiency of Japanese judicial administration, the Western powers were negligent—as they had been in China and elsewhere—in improving the system of extraterritoriality. Gross interference occurred in the enforcement of Japanese laws, especially with regard to quarantine regulations, drawn up in 1873, and the control and regulation of the opium trade. The British minister, Sir Harry Parkes, adamantly insisted that British subjects could be tried and punished only for violation of British laws. He declared that the Japanese government could not enact laws applicable to British nationals. The United States and the Netherlands opposed this position, claiming that there was no danger in recognizing all Japanese laws as long as the power to try and punish foreigners remained in the consular courts. England subsequently modified its policy.
During the 1880s the Japanese government raised the matter of treaty revision. A concerted attempt was made to secure tariff autonomy and the repudiation of extraterritorial privileges. These efforts provoked vigorous opposition, especially from England. Despite this resistance, Japanese leaders took steps to obtain full judicial autonomy by completing the codification of their laws. At the same time, they pressed for an immediate end to consular jurisdiction over matters relating to police administration, partnerships between Japanese and foreigners, and customs affairs. In January 1882 a preparatory conference for treaty revision, attended by the ministers of twelve treaty powers, was convened at Tokyo. Japan proposed the abolition of extraterritorial jurisdiction in five years and the employment of foreign judges in Japanese courts during the transition period. In return, the Western powers were offered an extension of foreign rights to residence and land tenure within treaty ports and the opening of the country to all foreigners. By 1885 a general agreement was reached that the treaties should be revised. On 1 May 1886, the official conference of the treaty powers opened at Tokyo, and after many lengthy sessions a draft jurisdictional convention was approved.
Although the prospects for treaty revision looked bright, they were quashed by the strong popular opposition to Westernization and the proposals advanced by Japan's leaders. Agitation was especially directed against the system of mixed courts and the promise to submit the constitution of the courts and the codified laws to the Western powers for their approval. Unable to reach a general agreement, the Japanese attempted to abolish extraterritoriality and to obtain tariff autonomy by bilateral treaties. The United States was first approached, and in February 1889 the American minister, Richard D. Hubbard, concluded a treaty with Japan that included the abolition of consular courts in five years. His successor, John Franklin Swift, opposed the treaty's adoption, and Secretary of State James G. Blaine withheld it from the Senate. Meanwhile, Japan signed new treaties, practically the same as that with America, with Germany and Russia.
In 1890 the British agreed to treaty revision, on condition that Japanese jurisdiction over foreigners would be postponed for five years and that the newly codified Japanese laws would be in actual and satisfactory operation for one year before the expiration of that period. In July 1894 the compromise Anglo-Japanese Treaty of Commerce and Navigation was signed. The agreement specified that foreigners would be treated on an equal footing with Japanese in regard to travel, residence, and trade. Consular jurisdiction and foreign settlements were abolished. The implementation of the treaty was made contingent upon the satisfactory operation of Japan's newly codified laws, and provision was made for its termination at the end of twelve years.
The United States thus was not the first power to relinquish extraterritorial rights in Japan. Further delays were caused by Washington's objection to a clause in the Anglo-Japanese treaty that provided for the reciprocal rights of entrance, travel, residence, and property ownership. However, after Japan agreed to include a clause for mutual exemption of laws relating to laborers and labor immigration, a new treaty was signed in November 1894. Early in 1895 the American-Japanese treaty was ratified by both nations. Japan fulfilled all of the conditions that had been specified within the prescribed period of time, and in 1899 extraterritorial jurisdiction in the Japanese Empire was abolished.
The ending of extraterritoriality in Japan coincided with Japan's victory in the Sino-Japanese War (1894–1895) and its emergence as a major world power. However, the retreat of the Western powers in Japan did not immediately have an impact on other countries.
Extraterritorial jurisdiction continues to exist in the Panama Canal Zone, where, on the basis of the Hay-Bunau-Varilla Treaty of 1903, the United States exercises "all the rights, power and authority within the zone" that it "would possess if it were the sovereign of the territory … to the entire exclusion of the exercise by the [Panama] Republic of any such sovereign rights, power or authority." Although in 1965 President Lyndon B. Johnson indicated a willingness to negotiate a new treaty, and a Joint Statement of Principles in 1974 affirmed this desire, it was not until 1978 that President James Earl Carter's administration was able to persuade the Senate to ratify treaties recognizing Panama's sovereignty and jurisdiction in the Canal Zone by the year 2000.
TWENTY-FIRST CENTURY EXTRATERRITORIALITY
For the most part, the extraterritoriality system that prevailed in the nineteenth century, and was maintained, especially in China, down to World War II, is now a relic of the past. However, military status-of-forces agreements negotiated after World War II with Japan, Korea, Taiwan, and the Philippines, among others, embody in a new form extraterritorial jurisdiction affecting American military personnel abroad. However, the abandonment of regional or national extraterritoriality by the United States did not mean the abrogation of all extraterritorial claims. Beginning in 1945, U.S. courts commenced redefining the scope of their sovereign jurisdiction over the activities of American corporations doing business abroad.
In three significant cases the United States broadened the definition of sovereignty and proprietary economic hegemony. Authority for such claims was the Sherman Antitrust Act of 1890. However, in its first substantive ruling involving application of the Sherman Act to overseas commercial disputes, the Supreme Court issued a narrow opinion restricting extraterritorial rights. In American Banana Company v. United Fruit Company (13 U.S. 347), the Court asserted in essence that extraterritoriality was appropriate only on the high seas or in countries where unjust laws prevailed. Subsequently, it declined to assert the jurisdiction of U.S. courts in Costa Rica and stated that the Sherman Act did not apply outside of American sovereign (that is, territorial) jurisdiction. Indeed, in a similar case, Underhill v. Hernandez (168 U.S. 250), the Court ruled that "Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own country."
Since World War II, the Supreme Court has abandoned this narrow interpretation of sovereignty. In a series of rulings—United States v. Aluminum Company of America (148 U.S.2d 416), Timberlane Lumber Company v. Bank of America Nt&SA (549 F.2d 597), and Mannington Mills, Inc. v. Congoleum Corp. (595 F.2d 1287)—the Court has evolved complex tests for ascertaining what constitutes an "act of state," and has come to justify claims of extraterritorial jurisdiction to address the growing economic interdependence of the global economy. It would appear that the United States gradually has broadened the nineteenth-century definition of exclusive territorial sovereignty, now clearly transcended by twenty-first-century developments. It has been replaced by new legal conceptions of sovereignty and by the principles of universal rights that are imperative in international relations, especially in developing countries that once were colonies. There appears to be a growing legal sensitivity to the global impacts of activities by states beyond narrowly territorial considerations that will challenge them to creatively define what were once condoned as "extraterritorial rights."
Finally, it is appropriate to note the application of extraterritoriality in matters of ocean travel, airspace, and international terrorists. Whereas private vessels are subject to local laws, rights of extraterritoriality extend to state-owned vessels in foreign territorial waterways and ports, where they are customarily exempt from local jurisdiction. Likewise, the advent of national "territorial airspace" has given rise to extraterritorial claims, although such claims have found little consensus for an international regime beyond limited bilateral agreements.
In response to terrorist attacks on U.S. embassies and their personnel, in 1999, Congress passed, and President Bill Clinton signed into law, legislation making terrorism abroad a crime punishable as if the attack occurred in the United States (and thus was subject to U.S. laws). In accordance with normal diplomatic practice, the United States retains jurisdiction over its diplomatic officials abroad. It also claims jurisdiction over U.S. military personnel on American military bases abroad. The United States has also criminalized some activities engaged in by Americans abroad. For example, the Foreign Corrupt Practices Act prohibits American companies from paying bribes to foreign officials. However, this legislation is very different from the past practice of extraterritorial jurisdiction over Americans abroad, because it covers American companies. It is, in a sense, a hybrid of regional and global extraterritoriality.
Many states have enacted "blocking statutes" that prevent their citizens and companies from complying with American extraterritorial laws and court rulings. They include Australia, Canada, Denmark, Finland, France, Italy, Japan, Mexico, New Zealand, Norway, Sweden, Switzerland, and the United Kingdom. The European Union and the Organization of American States have also lodged formal protests against American extraterritorial claims.
Clearly, then, the concept of extraterritoriality historically has been an evolving expression of state sovereignty, which, one suspects, will continue to transform to meet the needs of an everchanging international system.
Abbey, Phillip R. Treaty Ports and Extraterritoriality in China (www.geocities.com/vienna/5048/treatyol.html). Offers a detailed discussion of treaty ports, concessions, and legations.
Anderson, David L. "Anson Burlingame: American Architect of the Cooperative Policy in China, 1861–1871." Diplomatic History 1, no. 13 (1977). Explores the formative stages of American policy and its contrasts with European practices.
Bevans, Charles I. Treaties and Other International Agreements of the United States of America, 1776–1949. 13 vols. Washington, D.C., 1968–1976.
Bland, Randall Walton. The Black Robe and the Bald Eagle: The Supreme Court and the Foreign Policy of the United States, 1789–1953. San Francisco, 1996. Provides authoritative discussion of the Court's role overseas in shaping American diplomacy and foreign policy.
Burley, Anne-Marie. "Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine." Columbia Law Review 92, no. 8 (December 1992). Offers useful discussion of sovereignty and interstate relations.
Chan, K. C. "The Abrogation of British Extraterritoriality in China, 1942–43: A Study of Anglo-American Relations." Modern Asian Studies 1, no. 2 (1977). Explores Allied discussions with the Nationalist government for a new relationship with China.
Clyde, Paul H. "Attitudes and Policies of George F. Seward, American Minister at Peking, 1876–1880: Some Phases of the Cooperative Policy." Pacific Historical Review 2, no. 4 (1933). Contains Seward's views on extraterritoriality and other matters.
Congressional Quarterly Press. A Collection of Treaties and Alliances Presented to the United States. Washington, D.C., 2000. Provides one of the best sources for these diplomatic instruments and specific treaty provisions regarding extraterritorial rights.
Davids, Jules, ed. American Diplomatic and Public Papers: The United States and China. Serial I. The Treaty System and the Taiping Rebellion, 1842–1860. 21 vols. Wilmington, Del., 1973. Volumes 8–11 contain documents on consular regulations, judicial affairs, and major cases and problems relating to extraterritoriality in China.
Fishel, Wesley R. The End of Extraterritoriality in China. Berkeley and Los Angeles, 1952. An excellent, well-balanced account of the abolition of extraterritoriality in China.
"From Personalism to Territoriality: State Authority and Foreign Policy in Medieval and Modern Europe." Paper presented at the International Studies Association Conference, 16–20 April 1966. Offers substantive analysis of extraterritoriality, its early European practice, and the nature of the American regimes in China, Turkey, and Morocco.
Grayton, Jeffrey T. "From Here to Extraterritoriality: The United States Beyond Borders." Paper presented at the International Studies Association Conference, Toronto, Canada, March 1997. Offers substantive analysis of extraterritoriality; its early European practice, and the nature of the American regimes in China, Turkey, and Morocco.
Griffin, Joseph P., ed. Perspectives on the Extraterritorial Application of U.S. Antitrust and Other Laws. Chicago, 1979.
Hackworth, Green Haywood. Digest of International Law. 8 vols. Washington, D.C., 1940– 1944. These volumes, published by the State Department, include the original texts of diplomatic documents on extraterritoriality.
Hall, Luella J. The United States and Morocco, 1776–1956. Metuchen, N.J., 1971. Explores the American involvement in Morocco.
Hinckley, Frank E. American Consular Jurisdiction in the Orient. Washington, D.C., 1906. An old work but still useful as a survey of American consular jurisdiction in Turkey and East Asia.
Jones, Francis Clifford. Extraterritoriality in Japan and the Diplomatic Relations Resulting in Its Abolition, 1853–1899. New York, 1970. Jones's thesis, originally published in 1931, this is the best detailed study of the extraterritoriality system in Japan.
Keeton, George W. The Development of Extraterritoriality in China. 2 vols. London and New York, 1928. Comprehensively surveys extraterritoriality in China from a historical and legal point of view.
Krasner, Stephen. "Sovereignty: An International Perspective." Comparative Political Studies 21, no. 1 (April 1988). Offers interesting discussion of the changing nature of sovereignty.
Lacey, John R., ed. Act of State and Extraterritorial Reach: Problems of Law and Policy. Chicago, 1983.
Land, Dieter, and Gary Born, eds. The Extraterritorial Application of National Laws. New York, 1987.
Liu, Shuh Shun. Extraterritoriality: Its Rise and Decline. New York, 1969; originally published 1925. Viewing extraterritoriality from the perspective of the Chinese, Liu traces its origins and development, the problems of consular jurisdiction, and the reasons for its decline in China.
Lowe, A. V., ed. Extraterritorial Jurisdiction: An Annotated Collection of Legal Materials. Cambridge, Mass., 1983. An indispensable guide to these sources.
Malloy, William M. Treaties, Conventions, International Acts, Protocols, and Agreements Between the United States of America and Other Powers, 1776–1932. 4 vols. Washington, D.C., 1910–1938. One of the best sources for these diplomatic instruments and specific treaty provisions regarding extraterritorial rights.
Mooney, Eugene F. Foreign Seizures: Sabbatino and the Act of State Doctrine. Lexington, Ky., 1967.
Rosenthal, Douglas E., and William M. Knighton. National Laws and International Commerce: The Problem of Extraterritoriality. London and Boston, 1982.
Stuart, Graham H. The International City of Tangier. 2d ed. Stanford, Calif., 1955. Explores the background to the creation of the international city of Tangier and its problems from the standpoints of geography, history, and diplomacy.
Susa, Nasim. The Capitulatory Regime of Turkey: Its History, Origin, and Nature. Baltimore, 1933. Emphasizes custom and usage as the major reason for the granting of capitulary rights to foreigners by the Islamic states.
Thomson, Janice E. Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe. Princeton, N.J., 1994. Provides interesting discussion of the complex relationship among these interests.
Townsend, James B. Extraterritorial Antitrust: The Sherman Act and U.S. Business Abroad. Boulder, Colo., 1980.
Trask, Roger R. The United States Response to Turkish Nationalism and Reform, 1914–1939. Minneapolis, Minn., 1971. Offers insights into the normalization of Turkish-American relations.
Treat, Payson J. Diplomatic Relations between the United States and Japan, 1853–1895. 2 vols. Stanford, Calif., and London, 1932. Based primarily on archival sources, this study thoroughly surveys American-Japanese relations and includes extensive material on Japan's efforts to secure treaty revision and the abolition of extraterritoriality.
Wendt, Alexander. "Anarchy Is What States Make of It: The Social Construction of Power Politics." International Organization 46, no. 2 (spring 1992). Explores modern concepts of power in international context.
Zimmerman, James Michael. Extraterritorial Employment Standards of the United States: The Regulation of the Overseas Workplace. New York, 1992. Offers essential discussion, legal precedent, and case law.
See also Ambassadors, Executive Agents, and Special Representatives; International Law; Protection of American Citizens Abroad .
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.
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.
Piggott, Francis Taylor. Exterritoriality: The Law Relating to Consular Jurisdiction and to Residence in Oriental Countries. Hong Kong: Kelly & Walsh Ltd., 1907.
Sousa, Nasim. The Capitulatory Régime of Turkey, Its History, Origin, and Nature. Baltimore, MD: The Johns Hopkins Press, 1933.
Around the turn of the century, the Supreme Court placed strict territorial limits on the application of United States constitutional and statutory law. In the case of In re Ross (1891) the Court held that a citizen could be tried by an American consular court, without indictment by grand jury and without trial by jury, for crimes aboard an American ship in Japan. The Court flatly declared that "[t]he Constitution can have no operation in another country." And in American Banana Co. v. United Fruit Co. (1909) Justice oliver wendell holmes asserted that "[a]ll legislation is prima facie territorial." Although he acknowledged that exceptions could be found in the case of laws applying on the high seas or in "uncivilized" countries, Holmes said "the general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done." No doubt these sweeping statements, even then, were not literally followed. In any event, today doctrines limiting the extraterritorial application of both the Constitution and statutory law have been abandoned.
In reid v. covert (1956) the Court effectively overruled Ross and held that Congress could not deprive a citizen of the right to a jury trial in a court-martial abroad where capital punishment was potentially involved. Justice hugo l. black said: "When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." This decision signaled the end of territorial limitations on the Constitution.
In United States v. Toscanino (2d Cir. 1974) a lower court applied the fourth and Fifth amendments where American officials instigated enforcement activity by foreign officials that included torture and violated United States treaty obligations. Although other courts have declined to apply constitutional remedies in the circumstances of particular cases before them, they agree that the Bill of Rights may apply where the United States government instigates conduct that "shocks the conscience." The just compensation clause of the Fifth Amendment has also been held applicable to takings of property abroad in several lower court cases. As a general rule, therefore, the Constitution now unquestionably applies to acts of government abroad.
At the same time the special circumstances that are invariably present in these cases influence the scope of constitutional protection afforded. Although the court only occasionally confronts these questions, it seems clear that protection against government action abroad is more difficult to obtain than in similar cases without a foreign element. This is especially true when foreign policy or national security interests are at issue, as was the case in united states v. curtiss-wright export corp. (1936). Indeed, in haig v. agee (1981) the Supreme Court questioned whether the first amendment would apply at all to government suppression of speech abroad, where the speech threatened American intelligence activity.
Perhaps the most accurate description of the modern approach to extraterritorial application of constitutional law was made by Justice john marshall harlan in Reid v. Covert. He took exception to the broad suggestion that "every provision of the Constitution must be deemed automatically applicable to American citizens in every part of the world." He believed that "the question is which guarantees of the Constitution should apply in view of the particular circumstances, the practical necessities, and the possible alternatives which Congress had before it." The Harlan view seems more likely to prevail in a world of increased American involvement and interdependence than the absolutist approach of Justice Black.
A related issue of historical interest was whether the Constitution applied to territories acquired by the United States. Constitutional guarantees limiting legislative and executive power were applicable only when Congress, expressly or by clear implication, "incorporated" the acquired territory into the United States. In unincorporated territories only undefined "fundamental" liberties were guaranteed.
Finally, the courts have repeatedly applied federal statutes to conduct abroad, assuming other jurisdictional prerequisites were met. Occasionally limitations on the application of a particular statute have been imposed, but those limitations have normally been based on the presumed intent of Congress or on international comity, not the Constitution.
Phillip R. Trimble
Coudert, Frederick R. 1926 The Evolution of the Doctrine of Territorial Incorporation. Columbia Law Review 26:823–850; Iowa State Bar Association Report 1926:180–228.
Henkin, Louis 1972 Foreign Affairs and the Constitution. Pages 266–269. Mineola, N.Y.: Foundation Press.
Kaplan, Steven M. 1977 The Applicability of the Exclusionary Rule in Federal Court to Evidence Seized and Confessions Obtained in Foreign Countries. Columbia Journal of Transnational Law 16:495–520.
Note 1985 Predictability and Comity: Toward Common Principles of Extraterritorial Jurisdiction. Harvard Law Review 98:1310–1330.
The operation of laws upon persons existing beyond the limits of the enacting state or nation but who are still amenable to its laws. Jurisdiction exercised by a nation in other countries by treaty, or by its own ministers or consuls in foreign lands.
In international law, extraterritoriality exempts certain diplomatic agencies and persons operating in a foreign country from the jurisdiction of the host country. Instead, the agency or individual remains accountable to the laws of the native country. The effects of extraterritoriality extend to troops in passage, passengers on war vessels, individuals on mission premises, and other agencies and persons.
The concept of extraterritoriality stems from the writings of French legal theorist and jurist Pierre Ayraut (1536–1601), who proposed the theory that certain persons and things, while within the territory of a foreign sovereign, remained outside the reach of local judicial process. Classical writers such as hugo grotius (1583–1645) and Samuel von Pufendorf (1632–94) gave Ayraut's ideas greater circulation. In 1788, the multilingual translation of Georg Friederich von Martens's Summary of the Law of Nations put the actual word extraterritoriality into the international vocabulary.
Extraterritoriality for ambassadors and other diplomatic representatives gained widespread acceptance during the reign of Queen Anne of Great Britain (1665–1714). In this period, British officials arrested a Russian ambassador who had run up substantial debt to the British government. An international incident ensued as Russian officials and others throughout the world objected to Britain's disregard for the diplomat's immunity. Because of the outcry, Britain passed the Act Preserving the Privileges of Ambassadors in 1708. Other nations followed Britain's example, and the United States enacted an essentially identical statute in 1790.
In the modern world, the united nations has held a key position in upholding extraterritorial law. In a 1961 agreement made in Vienna, the U.N. Conference on Diplomatic Intercourse and Immunities extended exemption from the laws of host countries to the staff and family of diplomatic agents. In addition, officials of the United Nations and the members of the delegations of its member states receive extensive procedural, fiscal, and other immunities from the jurisdiction of the host country. Separate and special arrangements govern the United States and Switzerland because the United States hosts the U.N. headquarters and Switzerland has U.N. offices in Geneva.
The general laws binding nations to extraterritorial agreements still rest on principle more than established order. The modern, global marketplace has put an additional dimension into extraterritoriality. The United States has consistently held that unless international jurisdiction conflicts are managed or mitigated, they have the potential to interfere seriously with the smooth functioning of international economic relations. The United States has therefore declared that it cannot disclaim its authority to act where needed in defense of its national security, foreign policy, or law enforcement interests.
The policies of the United States with respect to extraterritoriality have caused crises in other nations. In 2002, two U.S. servicemen allegedly killed two young girls in a traffic accident in South Korea. Despite protests from South Koreans to have the servicemen tried in a Korean court, the soldiers were tried—and acquitted—by a U.S. military court. The treatment of the men caused anti-American protests throughout South Korea.
Castel, J. G. 1988. Extraterritoriality in International Trade. Toronto, Canada: Butterworths.
Hermann, A. H. 1982. Conflicts of National Laws with International Business Activities: Issue of Extraterritoriality. London: British-North American Committee.