Shih Shun Liu

The present thesis is not an exhaustive treatise on the vastly complicated subject of extraterritoriality. It does not pretend to deal with the legal intricacies of this peculiar institution, on which numerous works of unsurpassable value and insight are in existence. All it attempts to do is to present briefly the historical development of the system of consular jurisdiction as a whole, to show how it arose, how it later grew in importance, and how finally it has in recent years declined. It is the author's firm conviction that most aspects of international law have or ought to have their raison d'être somewhere in the cumulative experience of centuries gone by, and his belief seems to be borne out by the history of extraterritoriality. Though the latter is an institution essentially incompatible with modern conceptions of territorial sovereignty, on which the science of international law is founded, the story of its rise and decline will nevertheless serve to demonstrate the

In making this study, the attitude adopted by the author is one of impartial investigation. His sole obligation is to bring to the light of day all the salient facts connected with the rise and decline of extraterritoriality, and to draw such conclusions as the facts warrant. He advocates nothing, and suggests nothing. He presents no practical solution of the as yet unsettled problems arising out of the existence of extraterritoriality, but he has sought to furnish the background of historical fact, which is the first condition to a philosophical as

As to the material used, the author has relied chiefly upon the treaties, diplomatic correspondence and other state papers published from the archives of the leading countries of the world. Secondary works have been employed only as clues to the sources, and many of them have been of unusual assistance to the author. Such works as Miltitz's Manuel des consuls and Martens's Das Consularwesen und die Consularjurisdiction im Orient are indispensable aids to every student of the development of the consular office. The author's indebtedness to them can hardly be measured by the references made in the body of the thesis.

This monograph was written under a Fellowship awarded by the Carnegie Endowment for International Peace. Part of the manuscript was submitted to the criticism of Professor John Bassett Moore, whose example and inspiration have not infrequently kept the author from faltering in the face of the innumerable obstacles confronting a research student at every step. Professor Moore's retirement from Columbia University left the author to finish his work with Dr. Julius Goebel, Jr., to whom he is under the heaviest obligations. Dr. Goebel has not only read and re-read the manuscript with the care of a discerning scholar, but has suggested many alterations and emendations, which have added much to the work. Acknowledgment should also be made of the assistance rendered by Mr. Edward R. Hardy in reading some difficult mediaeval documents. To Dr. Edward M. Earle, of the Department of History, who read the sections on the Near East, the author is indebted for a number of helpful hints and suggestions. Finally, thanks are due to Chang Wei Chiu, a fellow student as well as a close friend.

Shih Shun Liu
Columbia University
New York City
March, 1925.

Note about the Author (^)

Shih Shun Liu was born on July 19, 1900, at Hsiang-hsiang, Hunan, China. A graduate of Tsing Hua College, Peking, he was sent by the Chinese Government in 1920 to pursue higher studies in the United States. In September of that year he entered the John Hopkins University, from which he received the degree of Bachelor of Arts in October 1921. The he went to Harvard University, where he took graduate courses under Professor Albert Bushnell Hart and George Grafton Wilson. While at Harvard, he was awarded a Fellowship in International Law by the Carnegie Endowment for International Peace, which he held successively for two years (1922-24). In 1922, he entered the University of Michigan and did advanced work with Professor Jesse S. Reeves. At the end of the Academic year 1922-1923, he took the degree of Master of Arts from Harvard University. He came to Columbia University in the fall of 1923. At this institution, he took courses under Professor John Bassett Moore and Howard Lee McBain as well as Professor Moore's seminar.

Introduction (^)

It is a recognized principle of modern international law that every independent and sovereign State possesses absolute and exclusive jurisdiction over all persons and things within its own territorial limits. This jurisdiction is not qualified by differences of nationality, and extends to the persons and property of subjects and foreigners alike [1]. Nowhere is this principle of territorial jurisdiction more effectively pronounced than in the case of The Schooner Exchange v. M'Faddon & Others, where Chief Justice Marshall gave his opinion in this oft quoted passage:

"The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its own sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restrictions. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source." [2]

In this passage due allowance is made for the limitations upon the main principle; and in practice there are a number of well-known exceptions to the general rule [3]. One of the most important of these exceptions is the system of extraterritoriality.

The word "extraterritoriality" is often used interchangeably with the word "exterritoriality" to denote the special status of foreign ambassadors, who enjoy the right of exemption from the local jurisdiction. By a confusion of ideas, the persons to whom this immunity is attached are deemed to be legally removed from the territory in which they actually reside [4], and consequently, it has been maintained by some writers, foreign ambassadors may exercise civil and criminal jurisdiction over their suite [5]. This theory is now found to be inconsistent with the facts and is discarded by the most competent writers on international law. After discussing the extent and nature of the immunities enjoyed by foreign ambassadors, etc., Hall declares that "it is clear that the fiction of exterritoriality is not needed to explain them, and even that its use is inconvenient" [6]. For this reason, he has avoided the expression throughout his discussion of the subject. Today, the term "extraterritoriality " is generally employed to describe the condition of law existing in certain Oriental countries, under which foreigners are exempt from the local jurisdiction and are subject to their national authorities, by virtue of well-established usage or treaty arrangement [7]. In the present treatise, an attempt is made to examine into the rise and decline of the system of extraterritoriality in all the countries in which it has existed or still exists.

Notes by the Author

[1] Hall, A Treatise on International Law (7th ed., Oxford, 1917), p. 49; Phillimore, Commentaries upon International Law (3rd ed., London, 1879-89), vol. i, p. 443.

[2] 7 Cranch 116, 136

[3] For the immunities of foreign sovereigns, diplomatic agents, military forces and public vessels, see Hall. op. cit., pp. 179-209; Phillimore, op. cit., vol. i, pp. 475-481, vol. ii, pp. 139, 140, 141; The Schooner Exchange, 7 Cranch 116. The whole system of private international law is an important exception to the exercise of territorial jurisdiction, but being founded in international comity and constituting, in fact, a part of municipal law, it does not fall within the province of public international law. See Phillimore, op. cit., vol. iv, pp. 1 et seq.; Westlake, A Treatise on Private International Law (6th. ed., London, 1922), p. 1.

[4] Under the section "the rights of exterritoriality and inviolability," Lorimer says: "An English ambassador, with his family and his suite, whilst abroad in the public service, is domiciled in England, and his house is English ground." Institutes of the Law of Nations (Edinburgh & London, 1883-84), vol. i, p. 248. Cf. Wheaton, Elements of International Law (Dana's edition, Boston, 1866), p. 300, where the American jurist says: "To give a more lively idea of this complete exemption from the local jurisdiction, the fiction of extraterritoriality has been invented, by which the minister, though actually in a foreign country, is supposed still to remain within the territory of his own sovereign."

[5] "It follows from the principle of the extra-territoriality of the minister, his family, and other persons attached to the legation, or belonging to his suite, and their exemption from the local laws and jurisdiction of the country where they reside, that the civil and criminal jurisdiction over these persons rests with the minister, to be exercised according to the laws and usages of his own country." Wheaton, ibid., p. 302.

[6] Op. cit., p. 210. Cf. Moore, A Digest of International Law (Washington, 1906), vol. ii, pp. 774-779.

[7] Cf. Moore, ibid., p. 593: "Owing to diversities in law, custom, and social habits, the citizens and subjects of nations possessing European civilization enjoy in countries of non-European civilization, chiefly in the East, an extensive exemption from the operation of the local law. This exemption is termed 'extraterritoriality.' "