Extraterritoriality
In international law, extraterritoriality or exterritoriality is the state of being exempted from the jurisdiction of local law, usually as the result of diplomatic negotiations.
Historically, this primarily applied to individuals, as jurisdiction was usually claimed on peoples rather than on lands. Extraterritoriality can also be partly applied to physical places. For example, such is the immunity granted to diplomatic missions, 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 and government, the persons and belongings of ambassadors and other diplomats, and ships in international waters.File:SanPaoloFuoriLeMura1.jpg|thumb|Plaque on an external wall of the Basilica of Saint Paul Outside the Walls indicating its extraterritorial status
Forms
In the past, pre-modern states generally claimed sovereignty over persons, creating something known as personal jurisdiction. As people move between borders, this led, in the framework of a territorial jurisdiction, to certain persons being under the laws of countries in which they did not reside. Extraterritoriality, in this sense, emerges from the interaction of these two conceptions of jurisdiction, personal and territorial, when laws are applied based on who a person is rather than where they are.Extraterritoriality can now take various forms. Most famous are examples of diplomatic extraterritoriality, where diplomats and their belongings do not operate under the laws of their host nations, but rather, under the laws of the diplomat's nation.
Similarly, many nations claim the right to prosecute foreign combatants and violators of human rights under doctrines of universal jurisdiction, irrespective of the nationality of those persons or the place in which the alleged crimes occurred. This extends to domestic criminal codes as well: for example, the People's Republic of China claims the right to prosecute Chinese citizens for crimes committed abroad and Canada will prosecute sexual abuse of minors by a Canadian anywhere in the world.
In some military and commercial agreements, nations cede legal jurisdiction for foreign bases or ports to other countries. For example, Japan cedes jurisdiction over American military bases on its soil in Okinawa to US military tribunals pursuant to a bilateral status of forces agreement.
In maritime law, a ship in international waters is governed by the laws of the jurisdiction in which that ship is registered. This can be conceived of as a form of extraterritoriality, where a nation's jurisdiction extends beyond its border.
Historical cases
14th century
During the 13th and 14th centuries, the Italian sea republics of Genoa, Venice and Pisa obtained extraterritoriality for their merchants who operated in designated quarters in the Byzantine capital, Constantinople, as well as in Egypt and the Barbary states.Ottoman Empire
were made in the form of treaties between the Sublime Porte and Western nations, from the sixteenth through the early nineteenth centuries. The legal impenetrability of the Ottoman legal code created during the Tanzimat era began to weaken continuously through the spread of European empires and the prevalence of legal positivism.The laws and regulations created for Ottoman subjects to abide by often did not apply to European nationals conducting business and trade in the provinces of the empire, and thus various capitulations were brought into effect with respect to many foreign powers. The various overlapping governmental laws led to legal pluralism in which jurisdiction often was left up to the great powers to institute and organize their own legal structures to represent their citizens abroad.
The capitulations ceased to have effect in Turkey in 1923, by virtue of the Treaty of Lausanne, and in Egypt they were abolished by the Montreux Convention in 1949.
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 and the members of the United States Armed Forces were entirely governed by their own laws, even in criminal cases.United States
Historically, the United States has had extraterritoriality agreements with 15 nations with non-Western legal systems: Algeria, Borneo, China, Egypt, Iran, Japan, South Korea, Libya, Madagascar, Morocco, Samoa, Tanzania, Thailand, Tunisia, and the Ottoman Empire. Americans in the military or civilians working on American military bases overseas generally have extraterritoriality, so they can only be tried by the U.S. military. This is regulated by a status of forces agreement.Canada
was born on 19 January 1943 in Ottawa Civic Hospital in 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 famous cases of extraterritoriality in East Asia are those of 19th century China, Japan, and Siam, emerging from what is termed the "unequal treaties". The practice of extraterritoriality, however, was not confined to the 19th century or these nations, as the monarchs and governments of pre-modern East Asia primarily claimed sovereignty over people rather than tracts of land.China
The creation of extraterritoriality for treaty nations "was not introduced into East Asia ex novo, but built atop a long-standing legal edifice". Jurisdiction in Qing China, with differential treatment for Han and Manchu subjects, was not determined by geography, but rather, by the identity of the subjects. For example, the ruling Manchu elite possessed legal privileges which placed them outside the jurisdiction of local ethnically Chinese administrators.Before the 1842 Treaty of Nanking, which ended the First Opium War, foreign merchants were not satisfied with the state of the Qing legal system. Prior to the Treaty, British merchants were only able to trade in the region of Canton, exclusively with Chinese merchants called Cohongs. Chinese merchants benefitted significantly out of the deal, contributing to the British dissatisfaction with the Chinese. British merchants were "suspicious of what they regarded as a tendency in the Qing legal order to impose collective responsibility; they were also resentful of the Qing practice of meting out capital punishment in cases of accidental manslaughter". After the Lady Hughes affair, a controversial 1784 incident where a British sailor was executed for fatally wounding two Chinese subjects while firing a gun salute, East India Company officials generally spirited away Britons before Qing officials could react.
Grants of extraterritoriality were regular in China. In the 1830s, when the Qing government concluded a treaty with the Uzbek khanate of Khoqand, it granted extraterritorial privileges to its traders. And in dealing with foreign merchants through the centuries, the Qing government rarely attempted to impose jurisdiction based on territorial sovereignty, instead entrusting the punishment of foreigners to the respective authority in practically all cases except homicide.
At the negotiations of the Treaty of Nanjing, Qing negotiators readily extended a grant of extraterritoriality. Cassel writes "the imperial commissioner and Manchu nobleman Qiying readily conceded extraterritorial privileges to the British in an exchange of notes with Pottinger at the time of the conclusion of the treaty". This was in line with Qing practices at the time, where sovereignty was held by peoples rather than imposed on lands.
A more formal declaration of extraterritoriality was concluded in the 1843 Supplementary Treaty of the Bogue, which established that "Britons were to be punished according to English law and Chinese were to be 'tried and punished by their own laws'". These provisions only applied to the treaty ports, since foreigners were barred from entering the Chinese interior.
Under imperial edict earlier in the year, these privileges were extended to most western countries. Other nations wanted reassurances and guarantees. For example, the United States negotiated the 1844 Treaty of Wanghia, which stated in article 21:
The Wanghia treaty included an exception for American trading in opium and also subjected American ships trading outside treaty ports to confiscation by the Chinese government in articles 33 and 3. Similarly, the French also pursued protections in the Treaty of Huangpu, which further introduced a distinction between criminal and civil jurisdiction and gave Frenchmen the full protections of Chinese law outside concessionary areas.
The 1858 Sino-British Treaty of Tientsin, which ended the Second Opium War, expanded the rights of western visitors. They were permitted to enter the Chinese interior after passporting. However, extraterritorial rights were not extended outside the treaty ports. Similar rights were granted to the interested western powers due to the "most-favoured-nation" clause: all privileges the Qing empire granted to one power were automatically granted to the others. In 1868, when the Tientsin treaties were renegotiated, British merchants clamoured to lift the travel restrictions on the Chinese interior. The Qing position was adamantly opposed, unless extraterritoriality was also abolished. No compromise was reached; and the Qing government was successful in preventing foreigners from visiting the Chinese interior with extraterritorial privileges.
Extraterritorial rights were not limited to Western nations. Under the 1871 Sino-Japanese Friendship and Trade Treaty, Japan and China granted each other reciprocal extraterritorial rights. China itself imposed reciprocal extraterritoriality rights for its own citizens in Joseon Korea. However, in 1895, under the Treaty of Shimonoseki after the First Sino-Japanese War, China gave up its extraterritorial rights in Japan, without reciprocity.