Extraterritoriality
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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 foreign embassies, 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, the persons and belongings of ambassadors and certain other diplomatic agents, and 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.
It is distinguished from personal jurisdiction in the sense that extraterritoriality operates to the prejudice of local jurisdiction.
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.[citation needed] 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 unequal treaties. Extraterritoriality was imposed upon China in the Treaty of Nanking, 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. Chinese and non-treaty nationals in these settlements were subject to Chinese law but, until 1927, were tried by a hybrid Mixed Court which had a Chinese judge and foreign assessor sitting on it. Foreign Nationals of treaty powers were tried by consular courts. Great Britain established the British Supreme Court for China and Japan in Shanghai in 1865 and America the United States Court for China in the early 20th Century.
Extraterritorial rights were not limited to Western nations; Japan and China granted each other reciprocal extraterritorial rights when both opened to trade. Later, in 1895, under the Treaty of Shimonoseki China gave up its extraterritorial rights in Japan and Japan obtained further rights in China. Japan later claimed extraterritorial privileges elsewhere in Asia.
These extraterritorialities officially ended only during or after the end of World War II. The last example of extraterritorial jurisdiction maintained by the United States was in Morocco, which ended in 1957.
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 the "most favoured nation".[1] However, Japan succeeded in reforming its unequal status with Britain through the Anglo-Japanese Treaty of Commerce and Navigation signed on 16 July 1894 in London. Similar treaties were signed with other extraterritorial powers at the same time. These treaties all came into effect in 1899.
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.
Siam signed a treaty granting extraterritorial rights to Britain in 1855 during the reign of King Rama IV.[2] 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.[3]
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.[citation needed] They were instead pieces of sovereign territory retained by the United Kingdom, until they were finally ceded to the Free State's successor, the Republic of Ireland, 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, though the Knox-Castrillo Treaty contains no mention of Maine or railroads.[dubious – discuss]
In American Indian contact with Euro-Americans, extraterritoriality once denoted the same idea that beyond given points/lines—e. g., the Indian Southern Boundary in colonial times—Indian tribes were beyond white jurisdiction and non-Indians were not to trespass or occupy any lands. With the establishment of reservations, extraterritoriality soon lost this meaning or became a moot designation.[4]
Royal Births
There are a few examples of extraterritorial agreements concerning the birth of royals:
In January 1943 the maternity ward of Ottawa Civic Hospital in which Princess Margriet of the Netherlands was born was temporarily declared to be extraterritorial by the Canadian government. 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 Princess would derive her citizenship from her mother only, thus making her solely Dutch.[5]
Similarly in 1945, the birth of Alexander, Crown Prince of Yugoslavia happened in Suite 212 of Claridge's Hotel in London, England, which was temporarily ceded as Yugoslavian territory.[6]
Current examples
Examples where countries have ceded some control (for example, the right to enter at will for law enforcement purposes) without ceding sovereignty include the following:
- Official visits of heads of state[citation needed]
- Extraterritorial properties of the Holy See in Italy
- Headquarters of the Sovereign Military Order of Malta in Rome
- United Nations headquarters in New York, United Nations offices in Geneva, Vienna, Nairobi, The Hague (International Court of Justice), Hamburg (International Tribunal for the Law of the Sea), Copenhagen and elsewhere.
- The International Bureau of Weights and Measures at the Pavillon de Breteuil in Sèvres[citation needed]
- The NATO (political) headquarters in Brussels and the headquarters of Allied Command Operations, SHAPE near Mons, Belgium[citation needed]
- CERN (European Organization for Nuclear Research) - for convenience, some facilities that cross into France are under Swiss jurisdiction
- Guantanamo Bay Naval Base, leased by the United States from Cuba (disputed by Cuba)
- European Central Bank in Frankfurt[citation needed]
- European Patent Office in Munich, Berlin and The Hague
- Moldauhafen (Vltava port), a lot in the port of Hamburg, Germany, leased to the Czech Republic until 2028
- International Maritime Organisation Headquarters in London[7]
Contrary to popular belief, diplomatic missions do not enjoy full extraterritorial status and are not sovereign territory of the represented state.
Various free ports exist outside the main customs territory of their host country.
National governments can also own property or special concessions in other countries without gaining any sort of legal jurisdiction or sovereignty, in which case they are treated similarly to other private property owners. For example, ownership of land under the John F. Kennedy Memorial at Runnymede, England, was given to the United States by the United Kingdom in the John F. Kennedy Memorial Act 1964.[8]
Another example of special concessions granted by host nations for areas or locales of significance are the numerous cemeteries and monuments administered by the American Battle Monuments Commission. These are located in Belgium, Cuba, France, Gibraltar, Italy, Luxembourg, Mexico, Morocco, the Netherlands, the Northern Mariana Islands, Panama, Papua New Guinea, the Philippines, the Solomon Islands, Tunisia, and the United Kingdom.[9] The most popular site among these is the Normandy American Cemetery and Memorial in France.
See also
- Extraterritorial jurisdiction
- Enclave and exclave
- Status of forces agreement
- Diplomatic Immunity
- Antarctic Treaty System
- Demilitarized zone
- EuroAirport Basel-Mulhouse-Freiburg
- Harris Treaty
- Imperialism in Asia
- International waters
- International zone
- Law of the Sea
- Moon Treaty
- Neutral territory
- Outer Space Treaty
- Prerogative
- Rasul v. Bush
- Akmal Shaikh
References
- ^ Duus, Peter (1998). Modern Japan, Second Ed. New York: Houghton Mifflin Company.
- ^ Thai Ministry of Foreign Affairs, "Extraterritoriality"
- ^ Thai Ministry of Foreign Affairs, "Complete Independence"
- ^ DeVorsey, Louis,1966,The Indian Boundaries in the Southern Colonies, 1763–1775 (Chapel Hill: Univ. of North Carolina Press); Sutton, Imre, 1976, "Sovereign States and the Changing Definition of the Indian Reservation," Geographical Review,66(3):281-95.
- ^ CBC Digital Archives: "Netherlands' Princess Margriet born in Ottawa"
- ^ Alexander,_Crown_Prince_of_Yugoslavia#Birth_and_childhood
- ^ "Statutory Instrument 2002:1826 – The International Maritime Organisation (Immunities and Privileges) Order 2002" (PDF). The Stationery Office Limited. 16 July 2002. Retrieved 10 December 2010.
- ^ Evans, D. M. Emrys (1965). "John F. Kennedy Memorial Act, 1964". The Modern Law Review. 28 (6): 703–706.
- ^ "American Battle Monuments Commission". Retrieved 13 March 2013.