SHIH SHUN LIU
Its Rise and Its Decline
- With the growth of the territorial theory of law, States fettered with the anomaly of extraterritoriality have labored again and again to throw it off. Little by little, the statesmen of these countries have awakened to the fact that what had once been a normal practice had become a distinct limitation and derogation of their sovereignty.
They have come to realize that the system is regarded as a humiliating sign of backwardness, which the Christian States had seen fit to put an end to, and which the non-Christian States should also claim a right to depart from. But the attempts of the latter have not been greeted with uniform success, and it is only by fulfilling many conditions that some States have been able to rid themselves of the increasingly distasteful anomaly (*B).
The methods by means of which the abolition of extra territoriality has been accomplished or attempted are varied. Broadly speaking, they may be classified under the following six categories: (1) by passing under the sovereignty of States which do not recognize or grant the right of exemption from local jurisdiction; (2) by passing under the temporary jurisdiction of such a State; (3) by breaking off from a State in which the extraterritorial system exists; (4) by becoming a protectorate of a State which does not concede rights of extraterritoriality; (5) by unilateral cancellation; and (6) by diplomatic negotiation leading to a mutual agreement on the abolition or the preliminaries to it.
- Extraterritoriality ceases when part or all of a country with such a system passes under the permanent sovereignty of a country without it.
In 1830, Algiers was captured by France, and consular jurisdiction forthwith came to an end. The Algerians were clothed with French citizenship and came under French jurisdiction in the Ottoman Empire. On August 10, 1834, an ordinance was issued, concerning the organization of the judicial system in the French possessions of North Africa. Article 4 of this ordinance sets forth that "the jurisdiction of the tribunals of Algiers, Bone, and Oran extends over all the territory occupied by each of these Provinces up to the limits which shall be determined by a special order of the Governor" .
II. MADAGASCAR (^)
On December 17, 1885, the island of Madagascar was by treaty placed under the protection of France . It was understood, however, that this treaty "changes nothing in the Treaties already existing between the Hova Government and other States" .
Shortly after the establishment of the French protectorate over Madagascar, the French Government contemplated the inauguration of a French tribunal in the island and was desirous of receiving an assurance from the British Government that the latter would be prepared to accept for British subjects the jurisdiction of such a tribunal and to forego in its favor the extraterritorial privileges which they enjoyed under existing treaties with Madagascar . To this proposition, the Marquess of Salisbury showed himself to be favorably inclined. He stated that his government was willing to give the assurance and to consent to the establishment in Madagascar of a jurisdiction similar to that which was introduced in Tunis in 1883, and that the procedure adopted in that year regarding the waiver of British, jurisdiction in Tunis would be followed closely .
On February 11, 1896, the British Government was informed of a military occupation of Madagascar by France . In taking cognizance of this information, the British Government reserved all its rights in the island pending the communication of the terms of the treaty understood to have been concluded between France and Madagascar . It was later brought to the knowledge of the British Government that no treaty had been concluded between France and the Malagasy Government, but that "in consequence of the military operations rendered necessary by the resistance of the Malagasy authorities to the exercise of the French Protectorate, the French Government have simply taken possession of the island. The Queen of Madagascar," it was added, "to whom the annexation was notified, has submitted to this decision, and accepted conditions which it was thought needful to impose in order to secure the proper administration of the country" . Under these circumstances, the French Government proposed to exercise jurisdiction over foreigners in Madagascar, and to that end had organized French courts in that country, by a decree of December 28, 1895 . Consequently, the British consent to surrender consular jurisdiction was requested .
In his instructions to the British Ambassador at Paris relative to the above French note, Lord Salisbury alluded to the treaty of 1865 between Great Britain and Madagascar giving the British subjects their extraterritorial rights in the island; to the assurance made by the French Government in 1885 that the protectorate did not affect the treaty rights of foreign Powers; to the declaration exchanged between the British and French Governments on August 5, 1890, in which the former agreed to recognize the protectorate of France over Madagascar "with its consequences," and the latter engaged that the establishment of the protectorate should not "affect any rights or immunities enjoyed by British subjects in that island; "  and to later declarations to the same effect. It was contended by Great Britain that the Act signed by the Queen of Madagascar on January 18, 1896, did not confer sovereignty on France, and that "the position of the Queen remains in every respect the same as it was under the October treaty, in which it was expressly recorded that the status of her kingdom was that of a protectorate" . To the argument that there was a similarity between the status of Madagascar and that of the protected States of India, the British note replied:
The States of India are not annexed to, nor incorporated in, the possessions of the Crown. The rulers have the right of internal administration subject to the control of the Protecting Power for the maintenance of peace and order and the suppression of abuses. The latter conducts all external relations. The position has been defined as that of subordinate alliance. It has, however, never been contended that if those States had had pre-existing treaties with foreign Powers the assumption of Protectorate by Great Britain would have abrogated these treaties.
In conclusion, it was reiterated that "the treaty between Great Britain and Madagascar is still in full and undiminished force," but France was given to understand that the British Government would give its consent to the cessation of British extraterritorialilty in Madagascar, on condition that a similar cessation of French extraterritoriality in Zanzibar, over which Great Britain exercised a protectorate, should take place .
On August 18, 1896, the British Government was apprised of the final organization of the French courts in Madagascar by the Decree of June 9, 1896. "The French courts constituted by this Decree," it was pointed out by the note transmitting it, "take cognizance of all civil and criminal suits between Europeans or those in a similar position [assimilés], and between Europeans or those in a similar position [assimilés] and natives; likewise of all crimes, misdemeanors, and offences committed within the area of jurisdiction, whatever the nationality of the persons accused or inculpated." These courts were formally established, and necessary instructions had been sent for them to exercise their jurisdiction over all the inhabitants of the island of Madagascar. The British Government was, therefore, requested to notify the British Consul in Madagascar to that effect .
In reply, the British Government stated that it would comply with the request on learning from the French Government that instructions would also be given to the French consular officers in Zanzibar to terminate their exercise of extraterritorial jurisdiction in that country . In the later negotiations between the British and French Governments, the former took the position that it would renounce the British rights in Madagascar on "receiving from the French Government a note undertaking to renounce their exterritorial rights in Zanzibar, as soon as they should be satisfied, that adequate provision had been made for the administration of justice by the Tribunals, in cases where French subjects were concerned." The French Government contended that there was no analogy in this matter between Madagascar and Zanzibar, since Great Britain had not as yet established courts in the latter, and that when she had done so, France would make no difficulty about admitting their jurisdiction over French citizens. She would not, however, give an assurance as to a future contingency, of which there was then no prospect .
Contrary to the apparent firmness of the above statement, the French Government shortly afterwards gave the assurance desired by the British Government, that "the Government of the Republic are prepared to abandon the exercise of their rights of jurisdiction over their nationals at Zanzibar, as soon as the administration of justice there, by regularly constituted British tribunals, shall be assured" . Consequently, the British Government gave instructions to the British consular officers in Madagascar to recognize the jurisdiction of the French courts over the British subjects in that island . Thus, the British rights of extraterritoriality in Madagascar were formally renounced.
On February 12, 1896, the United States Government was informed of the French occupation of Madagascar . In his reply, Secretary Olney observed that "the Department has noted the contents of your note with due reserve as to the effect of the action of the Government of France upon the treaty rights of the United States" . The American Ambassador at Paris was instructed to obtain from the French Government an " explicit statement" on the effect of the occupation upon American treaty rights .
In the meantime, the French Resident at Tamatave had informed the United States Consul there of the raising of the siege of Madagascar and of the fact that "Madagascar having become a French possession, justice will be henceforth rendered to your nationality and those under its jurisdiction, by the French tribunals" . In reply, Mr. Wetter, United States Consul at Tamatave, stated that as Consul of the United States he had received no formal notification of Madagascar having become a French possession, and that pending instructions from his government he could not " accept or acquiesce in any abridgment or change of American interests and of the powers of this consulate under the treaty of 1881-1883" .
In the subsequent negotiations, the French Government indicated "that in the opinion of the Government of the Republic, the maintenance of the treaty of May 13, 1881, is inconsistent with the new order of things created by the taking possession of Madagascar," and "that, on the other hand, the Government of the Republic is disposed to extend to the great African island the whole (ensemble) of the conventions applicable to the Government or citizens of the United States in France and in French possessions, and which have enabled them to entertain their relations of all kinds so profitable to both countries" . But the Government of the United States desired a "categorical statement" that the American treaty with Madagascar had been superseded by those with France "in virtue of complete absorption of Madagascar and the substitution of a wholly French government for that of the Hovas," with which the United Slates had theretofore maintained relations . Pending the receipt of such a "categorical statement," Secretary Olney instructed the American Consul at Tamatave by telegraph to suspend, until further instruction, the exercise of his judicial functions in all cases where the operation of an established French court was ascertained to be available for the disposition of judicial cases affecting American citizens or interests .
On July 22, 1896, M. Patenôtre, French Ambassador at Washington, informed the American Government of the passing by the Chamber of Deputies and the ratification by the Senate of a bill to the effect that "the island of Madagascar, with its dependent islands, is declared a French colony" . The bill was promulgated by the President as law on August 6 . Thereupon, the French Ambassador inquired at the State Department whether further instructions were necessary to ensure the transfer of the jurisdiction exercised by the American Consul at Tamatave to the French tribunals . In reply, Mr. Rockhill, Acting Secretary of State, stated that the instructions already given to the United States consulate at Tamatave on the subject in question were deemed sufficient by the Department .
III. SAMOA (^)
By the General Act of Berlin, June 14, 1889, Samoa was recognized by Great Britain, Germany, and the United States as an independent power, and a supreme court was established, the chief justice of which was to be nominated by the three governments in common accord and appointed by the Samoan Government. With a few exceptions, the court had jurisdiction over all the residents of Samoa .
The regime established by the Berlin Act lasted only ten years. In 1899, the Samoan Islands were divided between Germany and the United States, and each renounced its extraterritorial rights in the part falling under the sovereignty of the other .
IV. CONGO (^)
On April 28-30, 1885, resolutions were passed by the Belgian Chamber of Representatives and Senate, authorizing King Leopold II to be the Chief of the Congo Free State, and declaring the union between Belgium and the Congo Free State to be exclusively personal . In 1908, the personal union was dissolved, and the Congo Free State was placed under the sovereignty of Belgium as one of her colonies . This put an end to the system of extraterritoriality in that country.
V. COREA (^)
In 1910, Corea was annexed by Japan. Article 1 of the treaty of annexation, dated August 22, 1910, provided that the annexation covered "all rights of sovereignty over the whole of Corea" . On August 29, 1910, a Declaration was published by the Japanese Government, announcing that ''The Imperial Government of Japan undertake the entire government and administration of Corea." A number of rules were drawn up relating to the status of foreigners in Corea, one of which abolished all the treaties of Corea with foreign Powers . On the same day a statement was issued by the Japanese Foreign Office to the following effect:
At the same time, the right of extraterritoriality which foreigners have hitherto enjoyed in Corea comes definitely to an end from today. The Japanese Government believe that they are entirely justified in regarding such right of extraterritoriality as ended upon the termination of Corea's treaties in consequence of the annexation, considering that the continuance of that system would inevitably prove a serious obstacle and interfere with the unification of the administration of Corea. Moreover, it seems only natural that foreigners, being allowed to enjoy in Corea the same rights and privileges as in Japan proper, should be called upon to surrender the right of extraterritoriality which is not granted to them in Japan proper .
All the Powers but the United States acquiesced in the Japanese announcement. The United States maintained that consular jurisdiction should be continued until the old Corean system was completely replaced, under Japanese supervision, by actually operating laws and courts, in substantial conformity to those of Japan itself; or that the trial of American citizens under Japanese laws should be limited to such courts in Corea as were maintained at a high standard of efficiency . The Japanese reply was that the judicial system in Corea was substantially the same as in Japan, and that the system of consular jurisdiction being wildly unsuited to the new condition of things, its revival would be "both unnecessary and inadvisable."  The United States persisted for a while in its original attitude , but although no agreement has been reached on the subject between the American and Japanese Governments, the former appears no longer to enjoy extraterritorial rights in Corea .
VI. TRIPOLI (^)
After the Turco-Italian War of 1911-1912, the Italian Government took possession of Tripoli. By a Decree of October 17, 1912, it was declared that in accordance with a Law of February 25, 1912, "Tripoli and Cyrenaica were placed under the full and entire sovereignty of the Kingdom of Italy" . A year later, on February 28, 1913, the American Secretary of State informed the Italian Chargé d'Affaires that instructions had been issued to the diplomatic and consular representatives of the United States to conform to the judicial regime established by Italy in Libya and to discontinue their extraterritorial jurisdiction .
Notes by the Author (^)
 State Papers, vol. xxii, p. 351.
 Parliamentary Papers, 1886 [C. 4652], Africa, no. 2 (1886), p. 4; State Papers, vol. lxxvi, p. 477.
 M. de Freycinet to the French Ambassadors abroad, Dec. 27, 1885, ibid., p. 7.
 The following summary is made from Parliamentary Papers, 1898 [C. 8700], Africa, no. 8 (1897).
 The Marquess of Salisbury to M. Waddington, May 6, 1892.
 Baron de Courcel to the Marquess of Salisbury, Feb. 11, 1896.
 The Marquess of Salisbury to Baron de Courcel, Feb. 30, 1896.
 See the Declaration of the Queen, Jan. 18, 1896, ibid., p. 14.
 Parliamentary Papers, 1898 [C. 8700], Africa, no. 8 (1897), p. 17.
 M. Geoffray to the Marquess of Salisbury, Apr. 10, 1896.
 See Parliamentary Papers, 1890 [C. 6130], Africa, no. 9 (1890).
 Art. I, State Papers, vol. lxxxviii, p. 447.
 The Marquess of Salisbury to the Marquess of Dufferin, Apr. 25, 1896.
 Baron de Courcel to the Marquess of Salisbury, Aug. 18, 1896.
 The Marquess of Salisbury to Baron de Courcel, Aug. 24, 1896.
 The Marquess of Salisbury to the Marquess of Dufferin, Sept. 14, 1896.
 M. Hanotaux to Mr. Gosselin, Apr. 5, 1897.
 Sir E. Monson to M. Hanotaux, Apr. 12, 1897.
 M. Patenôtre to Mr. Olney, Feb. 12, 1896, U.S. Foreign Relations, 1896, p. 118.
 Mr. Olney to M. Patenôtre, Feb. 26, 1896, ibid., p. 119.
 Mr. Olney to Mr. Eustis, Mar. 30, 1896, ibid.
 M. Ferraud to Mr. Wetter, Feb. 18, 1896, ibid., p. 120.
 Mr. Wetter to M. Ferraud, Feb. 18, 1896, ibid., p. 120; cf. Same to Same, Feb. 20, 1896, ibid., p. 121.
 M Bourgeois to Mr. Eustis, Apr. 16, 1896, U.S. Foreign Relations, 1896. p. 123; cf. M. Patenôtre to Mr. Olney, Apr. 18, 1896, ibid., p. 124.
 Mr. Olney to Mr. Eustis, Apr. 27, 1896, ibid., p. 125; cf. Mr. Olney to M. Patenôtre, May 2, 1896, ibid., p. 126.
 Mr. Olney to M. Patenôtre, May 2, 1896, ibid., p. 127.
 M. Patenôtre to Mr. Olney, July 22, 1896, ibid., p. 133.
 Ibid., p. 135.
 M. Patenôtre to Mr. Olney, Aug. 8, 1896, ibid., p. 134.
 Mr. Rockhill to M. Patenôtre, Aug. 12, 1896, ibid., p. 135.
 Malloy, vol. ii, pp. 1577-1579.
 Treaty of Dec. 2, 1899, between Great Britain, Germany and the United States, art. 2, State Papers, vol. xci, p. 77; cf. arts. 1 and 3 of the treaty between Great Britain and Germany, Nov. 14, 1899, ibid., p. 71.
 Ibid., vol. lxxvi, p. 327.
 Decree of Mar. 5, 1908, State Papers, vol. ci, p. 731.
 Ibid., vol. ciii, p. 993.
 Ibid., vol. cv, p. 687.
 Ibid., p. 691.
 The Acting Secretary of State to the American Ambassador, Sep. 18, 1910, U.S. Foreign Relations, 1911, p. 321.
 The Minister for Foreign Affairs to the American Ambassador, Oct. 6, 1910, ibid., p. 324.
 "In all my conversations with Mr. Ishii [acting Japanese Minister for Foreign Affairs] and others since the Treaty of annexation was published, I have consistently made the point that American consular jurisdiction was not abolished and could not be so until some definite action to that end had been taken by the Government of the United States." The American Chargé d'Affaires to the Secretary of State, Nov. 29, 1910, ibid., p. 327.
 In reply to an inquiry addressed by the author, the United States Department of State "regrets that it has no information on this subject available for dissemination."
 State Papers, vol. cvi, p. 1079.
 U.S. Foreign Relations, 1913, p. 609.