Extraterritoriality




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.

BIBLIOGRAPHY

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.

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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.

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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.

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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 .

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