Definitions

extraterritoriality

extraterritoriality

[ek-struh-ter-i-tawr-ee-al-i-tee, -tohr-]
extraterritoriality or exterritoriality, privilege of immunity from local law enforcement enjoyed by certain aliens. Although physically present upon the territory of a foreign nation, those aliens possessing extraterritoriality are considered by customary international law or treaty to be under the legal jurisdiction of their home country. This immunity from law enforcement is reciprocal between countries and is generally provided for visiting heads of state, those in the diplomatic services of foreign nations and their families, and officials of the United Nations. Generally such persons are exempt from both civil and criminal action; they may not be sued or arrested. Their property and residences are inviolable, and they are usually exempt from both personal and property taxes. While extraterritoriality insures that a diplomat will not be prosecuted for illegal behavior, it is emphasized that he is expected to adhere to the laws of the land in which he is serving. Any major transgressions may result not only in a formal complaint to his government but possibly in a demand for his expulsion. Extraterritoriality also extends to public (i.e., state-owned) vessels in foreign territorial waterways and ports. With the exception of the right of a state to regulate navigation within its own waters, a foreign public ship is entirely exempt from local jurisdiction. A private ship, on the other hand, is subject to local laws. With the growth of air transportation, air space over national territory has also become a question of extraterritoriality. There is little agreement, however, concerning the adoption of uniform standards of jurisdiction. Consequently all air agreements are currently bilateral. Extraterritoriality was in the past often granted to aliens not occupying diplomatic positions. After the conquest (1453) of Constantinople by the Turks, for example, extraterritoriality was bestowed as a courtesy upon several European states, notably Venice and Genoa. In the 19th cent. Western powers, often through coercion, secured unilateral extraterritorial rights for their citizens in China, Egypt, Japan, Morocco, Persia, Siam, and Turkey in the belief that these "uncivilized" states were incapable of establishing justice. Consequently the Western consul was assigned to handle all civil and criminal cases involving his countrymen. Extraterritoriality of this type was strongly resented as an infringement of sovereignty and was abolished in Japan in 1899, in Turkey in 1923, and in Egypt in 1949. In China opposition to extraterritoriality was but one phase of resistance to foreign control, which included the treaty port system and territorial concessions in the major cities. In 1924 the USSR voluntarily abandoned its privileges in China, as did the United States and Great Britain in 1943. Italy and Japan lost their special status during World War II because they were enemies of China. In 1946, when France abandoned its privileges, nondiplomatic extraterritoriality in China came to an end.
Extraterritoriality is the state of being exempt from the jurisdiction of local law, usually as the result of diplomatic negotiations. Extraterritoriality can also be applied to physical places, such as embassies, consulates, or military bases of foreign countries, or offices of the United Nations. These places remain the sovereign territories of the host country, and although they are not subject to local law, local law enforcement agencies do have the duties of protecting them from outside disturbances and can in some cases arrest a person there for crimes committed on the host state's soil.

The three most common cases recognized today internationally relate to the persons and belongings of foreign sovereigns, the persons and belongings of ambassadors and certain other diplomatic agents, and public 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.

Extraterritoriality can also refer to the extension of the power of a nation's laws to its citizens abroad. For example, if a person commits homicide abroad and goes back to his country of citizenship, the latter can still try him under its own laws, although this is likely to involve transfer of evidence and other judicial information.

Historical cases

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.

Perhaps the most well-known cases of historical extraterritoriality concerned European nationals in 19th century China and Japan under the so-called unequal treaties. Extraterritoriality was imposed upon China in the Treaty of Nanjing, resulting from the First Opium War. Shanghai in particular became a major center of foreign activity, as it contained two extraterritorial zones, the International Settlement and the French Concession. These extraterritorialities officially ended only after the end of World War II.

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 "Most Favored Nation." However, Japan succeeded in reforming its unequal status with Western countries through the Anglo-Japanese Treaty of Commerce and Navigation signed on July 16, 1894 in London.

Extraterritoriality in China for non-diplomatic personnel ended at various times in the twentieth century. 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 France was the last country to give up its rights, in 1946.

Thailand signed a treaty granting extraterritorial rights to Britain in 1855 during the reign of King Rama IV. Unequal treaties were later signed with 13 other European powers, as well as Japan. After the absolute monarchy was overthrown in 1932, the constitutional government promulgated a set of legal codes, setting the stage for new treaties signed between 1937 and 1938 which canceled extraterritorial rights.

The Treaty Ports in Ireland, which were sovereign bases created by the United Kingdom in 1922, did not enjoy extraterritoriality from the Irish Free State. They were instead pieces of sovereign territory retained by the United Kingdom, until they were finally ceded to the Free State in 1938.

A historic case of extraterritoriality was the seizure of the railways of Nicaragua by Brown Brothers Harriman, a U.S. banking firm. Under the Knox-Castrillo Treaty of 1911 these railroads became legally part of the State of Maine, according to former president of Guatemala, Juan José Arévalo, in his book The Shark and the Sardines (Lyle Stuart, New York, 1961), pp. 210-220.

Examples of current extraterritoriality

See also

External links

References

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