Shih Shun Liu : Extraterritoriality (recapitulation and conclusion)

In the foregoing study the author has attempted to show that in its origin extraterritoriality was by no means a novel device contrived at any particular date to meet the special situation existing in any particular country. It was nothing but a legacy of the undefined or, at best, vaguely defined status of the alien in the ancient world, and a survival of the mediaeval theory of the personality of laws, which was once prevalent everywhere in Europe. The fact that there have existed in modern Europe countless vestiges of the latter principle is conclusive evidence of its abiding influence. Writers on international law in the seventeenth and eighteenth centuries, moreover, have not failed to bear testimony to the judicial competence of the foreign consul.
The Mohammedan religion coincided perfectly with the legal conceptions of ancient and mediaeval Europe. The Koran ordained the infidel to be outside the pale of Mussulman jurisdiction, and he was compelled to live under his own national laws. Long before the Europeans carried their crusading spirit into the Levant, Mohammed and his descendants had been in the habit of granting to foreigners the right to submit to their own jurisdiction. When the Crusades began, the conditions were favorable to the transplantation of the European system of "judge-consuls" to alien soil. Unwonted commercial opportunities were opened up, and numerous and important interests awaited protection against untoward mishaps. Furthermore, in order to induce the maritime States to keep up their indispensable assistance, the Christian conquerors were obliged to dole out exceptional privileges. These factors combined to establish in the territory conquered by the Crusaders the system of consular jurisdiction.
At the same time, the Mohammedan world was on the point of a steady expansion. Barred by their inborn disposition from seafaring adventure, the Mussulmans were compelled to invite external assistance. To the foreigners who flocked to their coasts they extended the privilege of judicial extraterritoriality, partly as an inducement to their enterprise, partly in deference to the commands of the Koran, and partly in accordance with established usage.
In 1453, the Turks conquered Constantinople. In the midst of transcendent glory, the sultans voluntarily perpetuated what is now regarded as the abnormal régime of the Capitulations. The motives responsible for this action were manifold. Influenced by the religious differences which divided Islam and Christendom, by the prospects of commercial development, and, above all, by the force of custom, the sultans left not only the foreign merchants, but also the non-Moslem subjects of the Porte, to follow their own persuasion and government. The grants to the foreigners were made in a series of public acts known as Capitulations. In essence, these Capitulations were gratuitous concessions on the part of the victorious sultans, who made them without the least intention of derogating from their sovereignty. In other countries of the Levant and of the African continent, privileges of the same nature were extended to foreigners.
In the Far East, the origin of extraterritoriality differed entirely from the rise of the Capitulations in the Levant. Neither differences of civilization, nor religious discrepancies, nor commercial considerations could have influenced the establishment of the extraterritorial régime in Eastern Asia. With the exception of Japan, the force of custom was rather against such a régime than in favor of it. The only plausible explanation is to be sought in the alleged imperfections of the native judicial systems. With the merits of the allegation we are not concerned here, but the fact is that in their intercourse with the Eastern Asiatic Powers, Western nations have not infrequently been led to voice their dissatisfaction with the local jurisdiction.
With the introduction of the territorial basis of sovereignty, to which the feudal system signally contributed, the theory of the personality of laws inevitably gave way to that of absolute territorial jurisdiction. In Europe, the system of "judge-consuls" began gradually to decline, and the incumbent of the consular office was forthwith converted into a mere commercial representative, although even there, as described in Chapter I, numerous survivals of the old régime have existed well into comparatively recent times.
Outside of Europe, the system of consular jurisdiction has likewise undergone a process of decline, the inception, of which has, however, been late in coming. In the main, this process may be said to have dated from the middle of the nineteenth century. It was in the nineteenth century, as is well known, that the growth of nationalism reached its very climax in Europe. The contagion of national consciousness soon took hold of the entire world, and was destined sooner or later to exert an influence upon the progress of many an awakening race. Imbued with the spirit of nationalism, the peoples which have been burdened with extraterritoriality have realized its absolute incompatibility with their independence and sovereignty. In Turkey, Japan, China, Siam, and every other country where the system has prevailed, attempts have been made to put an end to it and to restore judicial autonomy.
The methods by means of which the abolition of extraterritoriality has been brought about or attempted are (1) annexation. (2) transfer of jurisdiction, (3) separation, (4) protection, (5) unilateral cancellation, and (6) diplomatic negotiation.
Of the reasons which have been responsible for the decline of extraterritoriality, the growth of national sovereignty has undoubtedly been an influential one. In the case of the territories annexed to countries which cede no rights of jurisdiction, the assertion of the principle of sovereignty as disallowing the continuance of the extraterritorial regime is, of course, implied. On the other hand, the independent Powers which have moaned under the yoke of consular jurisdiction have never failed to contend expressly for their sovereign rights in their fight for the restoration of judicial autonomy.
A second dominating reason for the decadence of extra-territoriality is to be found in the innumerable defects and abuses of the system itself.
It is true that many efforts have been made by the Powers to remedy these disadvantages. The Mixed Court régime in Egypt and the International Court system in Siam represent conscientious endeavors to remedy some of the evils incident to the operation of conflicting jurisdictions. (*A)
But there are many abuses inherent in the system, which are neither remo-vable nor remediable. (*B)
As an eminent authority (*C) says: "The actual organization of [consular] jurisdiction is very unsatisfactory in many respects, and it provokes the just complaints of the peoples and governments of the countries where it exists" [1].
In elaboration of this statement, another writer makes this remark:

It is futile to find out ... if a consul and, notably, if the assessors or judges who live so far from their country, in necessary and daily contact with their nationals, can always restrain themselves from the sometimes involuntary sentiment of weakness, partiality, and indulgence, toward their compatriots. I repeat, all that is not indispensable to my subject. In my opinion, the evil is not with the persons; I even affirm as a general thesis, their capacity and their conscience. It is the institution of consular jurisdiction which is defective and from all points of view, inferior to the sole jurisdiction of the territorial sovereign, from the moment the territorial sovereign possesses a complete judicial organization which responds to the exigencies of the general community of law [2].

The third and most important reason is the general improvement of the judicial systems in the various countries concerned. Whatever may have been the original justification of extraterritoriality, in the course of time it has come to be adapted to meet the need of coping with a defective system of jurisprudence. As soon as reforms are introduced into the latter, however, it is evidently unjust and unnecessary to maintain an extraterritorial regime. In their claims for the restoration of judicial autonomy, all the governments concerned have invariably made use of this argument, calling the attention of the foreign governments to the reforms, if any, which have been inaugurated. Likewise, in their pledges for immediate or remote consent to the abolition of their extraterritorial rights, governments have been solicitous about conditioning their promises on the judicial guarantees that are offered to the life and property of their nationals. Indeed, even in the case of protectorates, the mere assumption of the power of protection does not necessarily transfer the rights of jurisdiction, which is usually dependent on the maintenance by the protecting Power of regularly constituted judicial authorities in the country over which it exercises protection. (*D)
Besides these reasons, there have doubtless been others peculiar to the different cases discussed. Sometimes, political as well as commercial considerations have entered into this complex situation. The abandonment of foreign jurisdiction in Japan, for instance, is in a large measure ascribable to the Japanese consent to open the entire country to foreign intercourse. At other times, widely varying conditions have been placed upon the ultimate surrender of extraterritorial jurisdiction. Great Britain gave up her jurisdiction in Madagascar only after France engaged to do likewise in the future in Zanzibar. The United States, in 1914, was unwilling to put an end to her extraterritoriality in Morocco, before certain pending issues regarding American interests in the Shereefian Empire were settled. Still other illustrations might be given, but they are not necessary. For such considerations as have just been pointed out are not essential to the present study, inasmuch as in the first place they are peculiar to each case individually, and in the second place they explain nothing in the continual development of extraterritoriality.
Such, then, is the story of extraterritoriality. It grew up at a time when the principle of territorial sovereignty was unknown. It has steered its course through centuries of legal transformation, and in its journey has kept abreast of the times. Now that the science of international law is developed to a point where territorial sovereignty has become the cornerstone of state existence, extraterritoriality is doomed to decay. (*E) For one reason or another, it has not completely disappeared from the structure of international intercourse. It is believed, however, that from an understanding of the salient facts connected with the rise and decline of consular jurisdiction those countries, whose judicial power is still impaired (*F), may take fresh impetus in their attempt to get rid of the yoke of exterritoriality, and those countries which are still beneficiaries of this system may realize that it is a decadent institution and that reasonable demands for its progressive abrogation should at times be countenanced and granted. The interests of justice and fairness will best be served by the conscientious endeavor of the one side to improve the judicial system and on the other to refrain from introducing into what is primarily a legal question irrelevant considerations of a political nature. (*G)

Notes by the Author (^)

[1] Martens, Traité de droit international (Paris 1883-87), vol. ii, p. 132.

[2] Paternostro, "La Revision des traités avec le Japon au point de vue de droit international," R.D.I., vol. xxiii, p. 176.

Notes by John Zube (^)

(*A) They are not any more conflicting than are territorial jurisdictions, especially when individual choice is involved. – J.Z., 4.1.05.

(*B) Giving its individual customers free choice and introducing free competition for the suppliers, too, was something that was only very rarely tried and, perhaps, never quite consistently. – J.Z., 3. 1.05.

(*C) There are still no eminent authorities on jurisdiction. All are partisans, biased for their favourite system. – J.Z., 3.1.05.

(*D) Perhaps there are not many other words which are as much abused as is the term "protection". – J.Z., 6.1.2005.

(*E) This statement is, rather, the unchecked and quite wrongful premise for the existence of States and governments and juridical communities! – J.Z., 4.1.2005.

(*F) Their power to provide genuine justice is most impaired by the monopoly for jurisdiction that they desired, established and maintained for themselves, regardless of the wishes of individual "customers" of their "services". – J.Z., 4.1.05.

(*G) In what country has the government monopoly for jurisdiction introduced, in the meantime, full recognition of all individual rights and liberties, especially the economic ones? – J.Z., 4.1.2005.