Extraterritoriality

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Extraterritoriality is the state of being exempted from the jurisdiction of local law, usually as the result of diplomatic negotiations. Extraterritoriality can also be applied to physical places, such as foreign embassies, military bases of foreign countries, or offices of the United Nations. The three most common cases recognized today internationally relate to the persons and belongings of foreign heads of state, the persons and belongings of ambassadors and other diplomats, and ships in foreign waters.

Extraterritoriality is often extended to friendly or allied militaries, particularly for the purposes of allowing that military to simply pass through one's territory.

It is distinguished from personal jurisdiction in the sense that extraterritoriality operates to the prejudice of local jurisdiction.

Historical cases[edit]

14th Century[edit]

During the thirteenth and fourteenth centuries, the Italian sea republics of Genoa and Venice managed to wrestle extraterritoriality for their quarters (Pera and Galata) in the Byzantine capital, Constantinople. They even battled among themselves for further control of the weakened empire.[1]

East Asia[edit]

The most well-known cases of historical extraterritoriality concerned European nationals in 19th century China, Japan and Siam under the unequal treaties.

China[edit]

A hearing of the International Mixed Court at Shanghai, c. 1905

Extraterritoriality was imposed upon China in the Treaty of Nanking, resulting from the First Opium War. Shanghai in particular became a major center of foreign activity, as it contained two extraterritorial zones, the Shanghai International Settlement and the Shanghai French Concession. Chinese and non-treaty state nationals in these settlements were subject to Chinese law but were tried by the International Mixed Court[2] which had a Chinese judge and foreign assessor sitting on it.[3] After the collapse of the Chinese government in 1911, its members were subsequently appointed by the Western powers until 1927,[4] when it was replaced by the Shanghai Provisional Court,[5][6] which continued until 1929.[7] Foreign Nationals of treaty powers were tried by consular courts. The United Kingdom established the British Supreme Court for China in Shanghai in 1865 and America the United States Court for China[8] in the early 20th Century.

Extraterritorial rights were not limited to Western nations; Japan and China granted each other reciprocal extraterritorial rights when both opened to trade. Later, in 1895, under the Treaty of Shimonoseki China gave up its extraterritorial rights in Japan and Japan obtained further rights in China. Japan later claimed extraterritorial privileges elsewhere in Asia.

Extraterritoriality in China for non-diplomatic personnel ended at various times in the twentieth century. In 1937, the status with respect to the various foreign powers China had diplomatic relations with was thus:[9]

Status of extraterritoriality with respect to China (1937)
Ceased to have effect No extraterritorial rights Will surrender privileges "when all other powers do so" Rights continued to have effect
 Germany
 Austria
 Hungary
 Soviet Union
 Mexico (lapsed 1928)
 Bolivia
 Chile
 Czechoslovakia
 Finland
 Greece
 Persia
 Poland
 Turkey
 Cuba
 Uruguay
 Panama
 Bulgaria
 Belgium
 Italy
 Spain
 Denmark
 Portugal
 Norway
 Sweden
  Switzerland
 Brazil
 France
 United Kingdom
 Japan
 Netherlands
 United States

Germany and Austria-Hungary lost their rights in China in 1917 after China joined the allies in World War I; the Soviet Union gave up its rights in China in 1924; the United States and United Kingdom gave up their rights in 1943; Italy and Japan gave up their rights by virtue of being at war with China in World War II; and Portugal was the last country to give up its rights, in 1946.

Japan[edit]

Japan recognized extraterritoriality in the treaties concluded with the United States, the United Kingdom, France, Netherlands, and Russia in 1858, in connection with the concept of the "most favoured nation".[10] Most countries exercised extraterritorial jurisdiction through consular courts. Britain established the British Court for Japan in 1879.

Japan succeeded in reforming its unequal status with Britain through the Anglo-Japanese Treaty of Commerce and Navigation signed on 16 July 1894 in London. Similar treaties were signed with other extraterritorial powers at the same time. These treaties all came into effect in 1899.[11]

Elimination of extraterritoriality with respect to Japan
Abolished in 1899
 United Kingdom
 United States
 Russian Empire
 German Empire
 Austria-Hungary
 France

Siam[edit]

King Mongkut (Rama IV) of Siam signed the Bowring Treaty granting extraterritorial rights to Britain in 1855.[12] Sir Robert Hermann Schomburgk, British Consul-General from 1859 to 1864, gives an account of his judicial training and responsibilities in a letter to his cousin dated 6 September 1860.[13] Unequal treaties were later signed with 13 other European powers, as well as Japan.

In 1925–1926, the treaties were revised to provide for consular jurisdiction to be terminated, and nationals of the parties to the treaty were to come under the jurisdiction of Thai courts after the introduction of all Thai legal codes and a period of 5 years thereafter.[14] By 1930, extraterritoriality was in effect no longer in force.[15] After absolute monarchy was replaced by constitutional monarchy in the bloodless Siamese revolution of 1932, the constitutional government promulgated a set of legal codes, setting the stage for new treaties signed in 1937–1938 which canceled extraterritorial rights completely.[16]

Elimination of extraterritoriality with respect to Siam
Abolished in 1917 Abolished in 1937-1938
 German Empire
 Austria-Hungary
  Switzerland
 Belgium
 Luxembourg
 Denmark
 Sweden
 United States
 Norway
 United Kingdom
 Italy
 France
 Japan
 Netherlands
 Portugal

Current examples[edit]

See also[edit]

References[edit]

  1. ^ Browning, Robert (1992). The Byzantine Empire. Catholic University of America Press. p. 237. 
  2. ^ Meighen, John F.D. (1926). "The International Mixed Court of Shanghai". Commercial Law League Journal 31: 529. Retrieved 23 January 2014. 
  3. ^ Hammond, Kelly (2007). The Shanghai Mixed Court 1863-1880 – Colonial institution building and the creation of legal knowledge as a process of interaction and mediation between the Chinese and the British (Thesis). Simon Fraser University. 
  4. ^ Stephens, Thomas B. (1992). Order and Discipline in China: The Shanghai Mixed Court, 1911-27. University of Washington Press. ISBN 0-295-97123-1. Retrieved 23 January 2014. 
  5. ^ Hudson, Manley O. (July 1927). "The Rendition of the International Mixed Court at Shanghai". The American Journal of International Law 21 (3): 451–471. JSTOR 2189169. 
  6. ^ Yen, Hawkling (March 1930). "The Shanghai Provisional Court: Past and Present". Pacific Affairs (University of British Columbia) 3 (3): 294–298. JSTOR 2749872. 
  7. ^ "The Provisional Court Settlement: Chinese Courts in Shanghai". Pacific Affairs (University of British Columbia) 3 (4): 383–389. April 1930. JSTOR 2750562. 
  8. ^ Helmick, Milton J. (12 September 1945). "United States Court for China". Far Eastern Survey (Institute of Pacific Relations) 14 (18): 252–255. doi:10.1525/as.1945.14.18.01p1654e. JSTOR 3021415. 
  9. ^ Wan, Ching-Chun (July 1937). "China Still Waits the End of Extraterritoriality". Foreign Affairs (Council on Foreign Relations). 
  10. ^ Duus, Peter (1998). Modern Japan, Second Ed. New York: Houghton Mifflin Company.
  11. ^ Jones, F.C. (1931). Extraterritoriality in Japan. Yale University Press. p. 158. 
  12. ^ Thai Ministry of Foreign Affairs, "Extraterritoriality"
  13. ^ Guehler, Ulrich (1949). "A Letter Written by Sir Robert H. Schomburgk H.B.M.'s Consul in Bangkok in 1860" (PDF). Journal of the Siam Society (Siam Society). 37.2f (digital): images 3–4. Retrieved November 30, 2013. Translation of a letter written in German by Sir Robert H. Schomburgk ... sheds a light on living conditions in Siam at the time, especially so on the life at the British Consulate. 
  14. ^ "The Elimination of Extraterritoriality". Ministry of Foreign Affairs (Thailand). Retrieved 25 January 2014. 
  15. ^ Eric Lawson (former Commissioner of Police, Bangkok), "Extra-Territoriality as viewed by a police officer", The Police Journal, 3:1, 1930
  16. ^ "Complete Independence". Ministry of Foreign Affairs (Thailand). Retrieved 25 January 2014. 
  17. ^ http://www.orderofmalta.int/news/39146/after-two-centuries-the-order-of-malta-flag-flies-over-fort-st-angelo-beside-the-maltese-flag/?lang=en
  18. ^ "BIPM website". Retrieved 5 May 2013. 
  19. ^ "Statutory Instrument 2002:1826 – The International Maritime Organisation (Immunities and Privileges) Order 2002". The Stationery Office Limited. 16 July 2002. Retrieved 10 December 2010. 
  20. ^ Evans, D. M. Emrys (1965). "John F. Kennedy Memorial Act, 1964". The Modern Law Review 28 (6): 703–706. 
  21. ^ "American Battle Monuments Commission". Retrieved 13 March 2013. 

Further reading[edit]

  • Cassel, Kristoffer. Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (Oxford University Press, 2012)
  • Kayaoglu, Turan. Legal imperialism: sovereignty and extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010).


External links[edit]