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. Historically, this applied to individuals. 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

14th Century

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]

British India

During the Second World War, the military personnel of the Allied Forces within the British Raj were governed by their own military codes by the Allied Forces Ordinance, 1942^[2] and the members of the United States Armed Forces were entirely governed by their own laws, even in criminal cases.^[3]

Canada

Princess Margriet of the Netherlands was born on 19 January 1943 in Ottawa Civic Hospital, Ottawa, Ontario, as the family had been living in Canada since June 1940 after the occupation of the Netherlands by Nazi Germany. The maternity ward of Ottawa Civic Hospital in which Princess Margriet was born was temporarily declared to be extraterritorial by the Canadian government. Making the maternity ward outside of the Canadian domain caused it to be unaffiliated with any jurisdiction and technically international territory. This was done to ensure that the newborn would derive her citizenship from her mother only, thus making her solely Dutch, which could be very important had the child been male, and as such, the heir of Princess Juliana.

East Asia

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

China

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

Extraterritoriality (without reciprocity) was first imposed upon China by the British in the Treaty of Nanking, resulting from the First Opium War. It was subsequently imposed upon China by the Americans under the Treaty of Wanghia and the Treaty of Tientsin. 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^[4] which had a Chinese judge and foreign assessor sitting on it.^[5] After the collapse of the Chinese government in 1911, its members were subsequently appointed by the Western powers until 1927,^[6] when it was replaced by the Shanghai Provisional Court,^[7][8] which continued until 1929.^[9] 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 the United States the United States Court for China^[10] 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.

In 1921, an international resolution was signed expressing the willingness of the parties to end extraterritoriality in China once a satisfactory legal system was established by China.^[11] As a result of the resolution, a commission was established in 1926 that published a detailed report containing its findings and recommendations for the Chinese legal system.^[12]

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:^[13]

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. For relinquishment by the United States and United Kingdom, see the Sino-American Treaty for Relinquishment of Extraterritorial Rights in China and Sino-British Treaty for the Relinquishment of Extra-Territorial Rights in China respectively.

Japan

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".^[14] 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.^[15]

Elimination of extraterritoriality with respect to Japan

Abolished in 1899
United Kingdom  United States  Russian Empire  German Empire  Austria-Hungary  France

Siam

King Mongkut (Rama IV) of Siam signed the Bowring Treaty granting extraterritorial rights to Britain in 1855.^[16] 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.^[17] 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.^[18] By 1930, extraterritoriality was in effect no longer in force.^[19] 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.^[20]

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

• Examples where countries have ceded some control (for example, the right to enter at will for law enforcement purposes) without ceding sovereignty include the following:
  • Official visits of heads of state
  • Extraterritorial properties of the Holy See in Italy
  • Headquarters of the Sovereign Military Order of Malta in Rome
  • Fort St. Angelo in Malta.^[21]
  • United Nations headquarters in New York, United Nations offices in Geneva, Vienna, Nairobi, The Hague (International Court of Justice), Hamburg (International Tribunal for the Law of the Sea), Copenhagen and elsewhere.
  • CERN (European Organization for Nuclear Research) - for convenience, some facilities that cross into France are under Swiss jurisdiction
  • European Patent Office in Munich, Berlin and The Hague
  • Longwood House on St. Helena
  • International Maritime Organisation Headquarters in London^[22]
  • Shenzhen Bay Port in Shenzhen where an area in a port is leased by Shenzhen to Hong Kong and Hong Kong law applies, though both jurisdictions, Shenzhen and Hong Kong, are in the same state^[23]
  • Special Concessions for cemeteries and memorials. National governments can also own property or special concessions in other host countries without gaining any sort of legal jurisdiction or sovereignty, in which case they are treated similarly to other private property owners. For example, ownership of land under the John F. Kennedy Memorial at Runnymede, England, was given to the United States by the United Kingdom in the John F. Kennedy Memorial Act 1964.^[24] Another example of these types of special concessions are the numerous cemeteries and monuments administered by the American Battle Monuments Commission. These are located in Belgium, Cuba, France, Gibraltar, Italy, Luxembourg, Mexico, Morocco, the Netherlands, Panama, Papua New Guinea, the Philippines, the Solomon Islands, Tunisia, and the United Kingdom.^[25] The most popular site among these is the Normandy American Cemetery and Memorial in France.
  • Various free ports exist outside the main customs territory of their host country.
  • U.S.–Japan Status of Forces Agreement
• Contrary to popular belief, diplomatic missions do not generally enjoy full extraterritorial status and are not sovereign territory of the represented state.^[26]

See also

• Akmal Shaikh
• Antarctic Treaty System
• British Supreme Court for China and Japan
• British Court for Japan
• Demilitarized zone
• Diplomatic Immunity
• Enclave and exclave
• EuroAirport Basel-Mulhouse-Freiburg
• Extraterritorial jurisdiction
• Extraterritorial operation
• Harris Treaty
• Imperialism in Asia
• International waters
• International zone
• Law of the Sea
• Moon Treaty
• Neutral territory
• Outer Space Treaty
• Prerogative
• Rasul v. Bush
• Status of forces agreement
• United States Court for China
• U.S.–Japan Status of Forces Agreement

References

1. Browning, Robert (1992). The Byzantine Empire. Catholic University of America Press. p. 237.
2. Allied Forces Ordinance, 1942, Ordinance No. LVI of October 26, 1942
3. Allied Forces (United States of America) Ordinance, 1942, Ordinance No. LVII of October 26, 1942
4. Meighen, John F.D. (1926). "The International Mixed Court of Shanghai". Commercial Law League Journal. 31: 529. Retrieved 23 January 2014.
5. 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.
6. 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.
7. 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.
8. Yen, Hawkling (March 1930). "The Shanghai Provisional Court: Past and Present". Pacific Affairs. University of British Columbia. 3 (3): 294–298. JSTOR 2749872.
9. "The Provisional Court Settlement: Chinese Courts in Shanghai". Pacific Affairs. University of British Columbia. 3 (4): 383–389. April 1930. JSTOR 2750562.
10. 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.
11. "Extraterritoriality and Administration of Justice in China: Resolutions adopted by the Conference on the Limitation of Armament at Washington, Dec. 10, 1921, 2 U.S.T. 329."
12. "Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926, being the report to the governments of the commission appointed in pursuance to Resolution V of the Conference on the Limitation of Armaments, together with a brief summary thereof."
13. Wan, Ching-Chun (July 1937). "China Still Waits the End of Extraterritoriality". Foreign Affairs. Council on Foreign Relations.
14. Duus, Peter (1998). Modern Japan, Second Ed. New York: Houghton Mifflin Company.
15. Jones, F.C. (1931). Extraterritoriality in Japan. Yale University Press. p. 158.
16. Thai Ministry of Foreign Affairs, "Extraterritoriality"
17. 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 30 November 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.
18. "The Elimination of Extraterritoriality". Ministry of Foreign Affairs (Thailand). Retrieved 25 January 2014.
19. Eric Lawson (former Commissioner of Police, Bangkok), "Extra-Territoriality as viewed by a police officer", The Police Journal, 3:1, 1930
20. "Complete Independence". Ministry of Foreign Affairs (Thailand). Retrieved 25 January 2014.
21. 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
22. "Statutory Instrument 2002:1826 – The International Maritime Organisation (Immunities and Privileges) Order 2002" (PDF). The Stationery Office Limited. 16 July 2002. Retrieved 10 December 2010.
23. Shenzhen Bay Port Hong Kong Port Area Ordinance
24. Evans, D. M. Emrys (1965). "John F. Kennedy Memorial Act, 1964". The Modern Law Review. 28 (6): 703–706. http://hansard.millbanksystems.com/lords/1964/jul/28/john-f-kennedy-memorial-bill
25. "American Battle Monuments Commission". Retrieved 13 March 2013.
26. "Laws and Rules Regarding Extraterritoriality". Integrity Legal Blog. Integrity Legal. 14 July 2009. Retrieved 6 July 2016.

Further reading

• Cassel, Par Kristoffer. Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (Oxford University Press, 2012)
• Clark, Douglas (2015). Gunboat Justice: British and American Law Courts in China and Japan (1842-1943). Hong Kong: Earnshaw Books., Vol. 1: ISBN 978-988-82730-8-9; Vol. 2: ISBN 978-988-82730-9-6; Vol. 3: ISBN 978-988-82731-9-5
• Kayaoglu, Turan. Legal imperialism: sovereignty and extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010).

External links

• Columbia Encyclopedia—"Extraterritoriality"
• Shih Shun Liu, Extraterritoriality, Its Rise and Its Decline (1925)
• Frelinghuysen, Frederick T. (29 April 1882). Extraterritoriality: A Letter from the Secretary of State to the Chairman of the Senate Committee on Foreign Relations concerning the judicial exercise of extraterritorial rights conferred upon the United States. Washington, DC: Government Printing Office.
• Law Ministry of India