Extraterritoriality
In international law, extraterritoriality 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.[1] Extraterritoriality can also be partly applied to physical places, such as 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.
Forms[edit]
In the past, pre-modern states generally claimed sovereignty over persons, creating something known as personal jurisdiction.[1] 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.[2] 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[3] and Canada will prosecute sexual abuse of minors by a Canadian anywhere in the world.[4]
In practice, it means Chinese national security laws and restrictions on freedom of speech apply to every Chinese citizen across the world, while in Canada's case, local ages of consent are ignored in favour of the Canadian law, meaning a Canadian engaging in sexual activity with a person above age of consent in a jurisdiction which is lower than Canada's, they will be prosecuted according to Canadian law. For example, in Poland where the age of consent is 15, were a Canadian adult to participate in such an activity, they would be prosecuted in Canadian law regardless of what local law says, for a crime committed outside Canadian jurisdiction. The same applies to China: restrictions on freedom of speech, such as criticism of the Chinese Communist Party, will be prosecuted according to Chinese law when that person steps foot on Chinese soil, regardless if said comments were made by a student in London or Vancouver.
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.[5]
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[edit]
14th century[edit]
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 (Pera and Galata) in the Byzantine capital, Constantinople, as well as in Egypt and the Barbary states.[6]
Ottoman Empire[edit]
A series of capitulations were made in the form of treaties between the Sublime Porte and Western nations, from the sixteenth through the early nineteenth centuries.[7] 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.[8]
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[edit]
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[9] and the members of the United States Armed Forces were entirely governed by their own laws, even in criminal cases.[10]
United States[edit]
Historically, the United States has had extraterritoriality agreements with 15 nations with non-Western legal systems: Algeria, Borneo, China, Egypt, Iran, Japan, Korea, Libya, Madagascar, Morocco, Samoa, Tanzania, Thailand, Tunisia, and the Ottoman Empire.[11] 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.[12][13]
Canada[edit]
Princess Margriet of the Netherlands was born on 19 January 1943 in Ottawa Civic Hospital, 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.[14] 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.[15]
East Asia[edit]
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,[16] as the monarchs and governments of pre-modern East Asia primarily claimed sovereignty over people rather than tracts of land.[17]