Its Rise and Its Decline




Notes by the Author

THE second method by means of which the abolition of extraterritoriality has been brought about consists in the subjection of portions of the territory of a country in which the system exists to the temporary occupation, administration or jurisdiction of a country in which it does not. In some cases, the temporary transfer of jurisdiction has ended in outright annexation, while in others, as in those of the leaseholds in China, the legal ownership of the territory has been retained to this day by the lessor sovereign. But in either case, the rights of jurisdiction have been exercised by the temporary occupant or usufructuary of the territory concerned, and the extraterritorial system has been suspended during the term of the temporary occupation, administration, or leasing.


In 1878, the island of Cyprus was assigned by Turkey "to be occupied and administered by England" [1]. Shortly afterwards, an additional article was agreed upon, declaring that for the term of the occupation, the Queen of England should have "full powers for making Laws and Conventions for the government of the Island in Her Majesty's name, and for the regulation of its commercial and consular relations and affairs free from the Porte's control" [2].
In accordance with these agreements, a British Order in Council, dated September 14, 1878, made provision for a High Commissioner for the administration of the island. Article 21 of the Order gave the High Commissioner power "to constitute and appoint" judges and other officials in the island [3]. Subsequently, the High Commissioner issued an Ordinance, establishing a High Court of Justice with "all jurisdiction, criminal and civil, over all persons and in all cases other than such as would have been under the sole jurisdiction and authority of the Ottoman Courts if the said Convention of June 4, 1878, had not been made" [4].
The British regime in Cyprus was recognized by Austria-Hungary by a declaration of the latter, dated September 14, 1880 [5]. The other Powers have taken no action on this matter, but have apparently tacitly acquiesced in it as a fait accompli [6].
In the same year that Cyprus was transferred to British occupation and administration, the provinces of Bosnia and Herzegovina were subjected to Austrian occupation and administration [7]. By an Ordinance of March 5, 1880, Austria-Hungary put an end to her consulates in both provinces and to the extraterritorial regime there [8]. England acquiesced in the Austro-Hungarian action on October 15, 1880, when she made a declaration to the following effect:

Whereas Her Majesty's Government recognize that the powers of the Government of His Imperial, Royal and Apostolic Majesty with regard to the administration of Bosnia and of the Herzegovina should not be restricted in matters of jurisdiction by the anterior engagements of the Sublime Porte known as the "Capitulations"; and whereas a judicial administration founded on the principles of European law has been introduced by the said Imperial and Royal Government in Bosnia and in the Herzegovina, it is hereby declared that from the 1st November next Her Majesty's Consuls in Bosnia and in the Herzegovina shall be bound to respect in its full extent, and without regard to the "Capitulations," the jurisdiction of the Tribunals established in Bosnia and in the Herzegovina by His Imperial and Royal Majesty's Government, and that they shall not exercise any rights and functions, nor claim any privileges, other than those which appertain to other Consuls of Her Britannic Majesty residing in the Austro-Hungarian Monarchy [9].

Russia, France, and Italy followed the example of England in 1881 [10].

The leaseholds possessed by the various Powers in China (illustrate further the effect of the temporary transfer of jurisdiction on the existence of extraterritoriality. With the leasing of Kiaochow to Germany, of Port Arthur to Russia, and of Weihaiwei to Great Britain in 1898, a question was raised as to the status of consular jurisdiction in these territories. With the exception of Japan, all the Powers recognized that the transfer of jurisdiction over them by China to the respective Powers, though coupled with the retention of sovereignty, meant the abolition of the extraterritorial rights formerly enjoyed by foreigners therein [11].
The question having been referred by the United States Secretary of State to the Solicitor of the Department of State, the latter rendered his opinion as follows:

As it is expressly stipulated in the leases that China retains sovereignty over the territory leased, it could doubtless be asserted that such territory is still Chinese territory and that the provisions of our treaties with China granting consular jurisdiction are still applicable. But in view of the express relinquishment of jurisdiction by China, I infer that the reservation of sovereignty is merely intended to cut off possible future claims of the lessees that the sovereignty of the territory is permanently vested in them. The intention and effect of these leases appear to me to have been the relinquishment by China, during the term of the leases, and the conferring upon the foreign power in each case of all jurisdiction over the territory. Such relinquishment would seem, also, to involve the loss by the United States of its right to exercise consular jurisdiction in the territories leased [12].

In a recent case, decided by United States Commissioner Lurton, it was 'held that the United States Court for China had jurisdiction over Americans in the leasehold of Port Arthur and Dairen. The facts of this case were briefly as follows: When the S. S. Patrick Henry, an American vessel, was docked at Dairen, two of the crew were assaulted by the captain of the ship in a Japanese saloon on shore. Upon complaint to the American Consul at Dairen, the plaintiffs were advised to take the matter up in the United Slates Court for China when their steamer reached Shanghai. This was done, and at the preliminary hearing the question, of jurisdiction was raised by defendant's counsel [13].
The opinion of the Commissioner was based on the theory that sovereign rights were expressly retained by China in the territory leased to Japan, and that as long as China exercised such rights in Port Arthur and Dairen, her treaties with the United States, including those granting extraterritorial jurisdiction, should have force there until the rights conferred were waived by the United States. At first sight, the premises of the Commissioner's reasoning seem scarcely to differ from those of the Solicitor of the State Department, and one is at a loss to see why a difference of opinion should have existed with regard to the exercise of jurisdiction in the leased territories. Upon closer examination, however, one discovers that whereas what the Solicitor calls sovereignty excludes the right of jurisdiction (which is held to have been ceded, for the term of the lease, to the lessee), what the Commissioner calls sovereignty includes the right of jurisdiction (which is held not to have ceded to the lessee, in this case, Japan). An analysis of the arguments of the Commissioner will clarify the whole situation.
The opinion of Commissioner Lurton begins with an examination of the provisions of treaties between China and the United States bearing on the exercise of extraterritorial jurisdiction in the former. Then it proceeds to describe and explain the origin of the Japanese leasehold in Port Arthur and Dairen. A provision of the treaty of May 25, 1915, which extended the term of the lease, and constructions placed on the same are cited to show the retention of sovereign rights by China in the territory leased. The American note of May 13, 1915, making reservations regarding American treaty rights, etc., in China, is produced to prove that "the United States has not been a party to or has in any way waived her extraterritorial rights given to her by the various treaties with China, and took occasion to so notify both China and Japan before this treaty [of May 25, 1915] was actually signed." Moreover, at the Washington Conference of 1921-22, it was argued, Japan expressly announced her intention to respect China's sovereign rights and the principle of equal opportunity in South Manchuria, and the United States reasserted its right to most-favored-nation treatment, "showing conclusively that it never has relinquished its extraterritorial rights in this particular territory in question." The precedent of 1900 embodied in the instructions of Mr. John Hay and in the Memorandum of the Solicitor of the State Department is alluded to, and the position held that "before the United States relinquished extraterritoriality in any portion of China as existed in 1844, there must be definite action taken by it." After citing the principles of international law bearing on the validity of treaties, the Commissioner comes to the following conclusion:

Having taken into consideration the various phases of this novel case, I fail to find that the United States Court for China has lost its jurisdiction over this defendant who is charged with committing a crime within the Leased Territory of China, and more particularly described as being in the City of Dairen. The defendant's demurrer is accordingly overruled, and as there appears to be sufficient evidence adduced to make out a prima facie case of assault against him, he is required to answer the information filed herein [14].

The theory that sovereignty is expressly retained by China in the leaseholds is indisputable, and it was so recognized by the Solicitor of the State Department in his opinion of 1900. So long as China retains her sovereign rights in the territory leased, the treaties between her and foreign States are in force there as they are everywhere else in China, and the rights conferred by these treaties can be waived only by the government to which they are granted. Such is the law, and the Commissioner adds nothing to it when he propounds the self-same principle. But the crucial point of the Commissioner's decision, as the author has suggested, seems to be in the inclusion of the right of jurisdiction in what he terms sovereignty. After dealing with the transfer of the Russian leasehold to Japan in 1905 and the extension of its term in 1915, Commissioner Lurton quotes the language of article 5 of the treaty of May 25, 1915, as follows:

Civil and criminal cases in which the defendants are Japanese shall be tried and adjudicated by the Japanese Consul; those in which the defendants are Chinese shall be tried and adjudicated by Chinese authorities. In either case, an officer may be deputed to the Court to attend the proceedings; but amongst [mixed] civil cause [cases] between Chinese and Japanese relating to land shall be tried and adjudicated by delegates of both nations conjointly in accordance with Chinese laws [law] and local usage [15].

Commenting on this provision, the Commissioner says:

In construing this part of the treaty, it shows conclusively that Japan recognized the Sovereignty of China, and reiterated in specific terms her extraterritorial rights for her subjects and does not claim supreme powers to herself to the exclusion of Chinese Sovereignty in this particular territory [16].
Here is in fact the crux of Commissioner Lurton’s argument and here it is that he differs from the Solicitor of the Stale Department. What he is trying to drive home is not that China retained her sovereignty in the leasehold of Port Arthur and Dairen, stripped of her right of jurisdiction, as she did in the treaties with Great Britain, Germany, France [17], and, in a qualified sense, also Russia [18], in 1898; but that she retained this sovereignty, together with the right of jurisdiction, as modified, of course, by her treaties of extraterritoriality. In 1898, China allowed the lessee Powers to exercise complete jurisdiction in the territories leased to them; in 1915, she failed to make the same concession to Japan in the case of Port Arthur and Dairen. The provision quoted by Commissioner Lurton from the treaty in question shows this; and that it admits of no question is further attested by what follows in the same article, a portion which the Commissioner omits to cite but which is of great importance in the present connection:

When, in future, the judicial system in the said region is completely reformed, all civil and criminal cases concerning Japanese subjects shall be tried and adjudicated entirely by Chinese law courts [19].
This is, of course, unequivocal language, and it is conclusive evidence that the leasing of the territory to Japan did not carry with it the transfer of jurisdiction, except in so far as it was conceded to her under the regime of extraterritoriality, applicable alike to this and to other portions of Chinese territory. As the cessation of extraterritoriality in a leasehold, according to the Memorandum of the Solicitor of the State Department, was ascribed to the transfer of jurisdiction from China to the lessee Powers, it could not take place unless such a transfer was made. Therefore, while the Solicitor decided in favor of the termination of American extraterritorial jurisdiction in the British, German and Russian leaseholds, Commissioner Lurton went counter to it in the case of the Japanese leasehold of Port Arthur and Dairen. In one case, a transfer of jurisdiction took place; in the other, it did not.
But although the two are widely different in effect, in fact diametrically opposed, the later opinion, it must be pointed out, does not necessarily overrule the earlier, because in principle either is strictly complementary to the other. Both of them recognize the explicit retention of China's sovereignty in the leaseholds, and both of them uphold the treaty rights of the United States. The only respect in which the Commissioner goes a step beyond the opinion of the Solicitor of the State Department is in declaring that where complete jurisdiction is not ceded to a lessee Power, extraterritoriality does not cease. This is clearly a logical deduction from the Solicitor's opinion, for if the cessation of extraterritoriality in a leasehold depends on the transfer of jurisdiction, there is hardly any room for doubt that no right need be waived by a third Power if no such transfer of jurisdiction is made.
Perhaps it may be added that due to the fact that the Solicitor and the Commissioner were concerned with the interpretation of two different groups of treaties, it is not necessary to reconcile their opinions. But in comparing the latter, it should not be overlooked that they were based on essentially identical reasoning and that neither was inconsistent with the other.


In this connection, the suspension of the capitulatory regime in the A Mandates, may be discussed. The legal status of these areas is still undecided [20], but without entering into the juristic niceties involved in the determination of the sovereignty of Palestine, Iraq, and Syria and the Lebanon, we may well consider them as instances at least of a temporal transfer of jurisdiction by the Principal Allied Powers [21] to the Mandatories concerned, after Turkey had lost control over the several areas [22].
In the case of Palestine, the intention of the Principal Allied Powers to transfer the administration of the mandated area to Great Britain was explicit. In the articles of the mandate it was expressly laid down that "the Mandatory shall have full powers of legislation and of administration save as they may be limited by the terms of this mandate" [23]. Moreover, in connection with the judicial system of Palestine, Great Britain was entrusted with the responsibility for its establishment in such a way as might assure complete security to foreigners and natives alike [24].
As to Syria and the Lebanon, the Mandatory, France, was charged with the framing of an organic law in agreement with the native authorities, but "pending the coming into effect of the organic law, the Government of Syria and the Lebanon shall be conducted in accordance with the spirit of this mandate," [25] one of whose provisions was that the Mandatory should establish in the mandated areas a judicial regime compatible with the guarantee of the rights of natives and foreigners [26]. Thus, like Palestine, Syria and the Lebanon were placed under the temporary administration of France, at least as far as the judicial department was concerned.
Finally, in regard to Iraq, although it was recognized as an independent country by Great Britain in virtue of the Treaty of Alliance dated October 10, 1922 [27], it was agreed in this same treaty that "His Majesty the King of Iraq undertakes that he will accept and give effect to such reasonable provisions as His Britannic Majesty may consider necessary in judicial matters to safeguard the interests of foreigners" [28]. This shows that Great Britain exercises in Iraq a considerable share of the judicial power of the so-called independent government.
All in all, we may say that the A Mandates constitute instances at least of a temporary transfer of jurisdiction to the Mandatories by the principal Allied Powers. The temporary nature of the mandatory system is indicated by the principle set forth in article 22 of the Covenant of the League of Nations with respect to the A Mandates, that "certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone."
The articles of the mandates for Palestine and Syria and the Lebanon were approved by the Council of the League of Nations on July 24, 1922 [29], and came into effect on September 29, 1923 [30]. The articles of the mandate for Iraq were not approved until September 27, 1924 [31]. By these articles, the capitulatory system was suspended, and foreigners were subjected, during the continuance of the mandates, to the judicial regimes established by the respective Mandatories [32].
In Palestine, after the articles of the mandate were approved, Great Britain issued an Order in Council, dated August 10, 1922, providing for the judicial regime to be established in the mandated territory. It gave the Civil Courts jurisdiction over foreigners, subject to the following provisos. In offenses punishable with imprisonment for a term exceeding fifteen days or a fine exceeding £E.5, foreigners might claim to be tried by a British magistrate; in offenses not triable by a magistrate, foreigners might claim that their interrogation during the preliminary investigation should be undertaken by a British magistrate; and foreigners committed for trial before the District Court or the Court of Criminal Assize might claim that the Court should contain a majority of British judges. In civil cases, they might claim that at least one member of the Court should be a British judge. In civil and criminal cases heard by the Supreme Court in its appellate capacity, a foreigner might claim that the Court should contain a majority of British judges. Matters of personal status affecting foreigners other than Moslems should be decided by the District Court according to the personal law of the parties concerned. The District Court, in trying matters of this nature, should be constituted by the British president sitting alone. Where persons other than British subjects were involved, the president might invite the consul or a representative of the consulate of the foreigner concerned to sit as an assessor for the purpose of advising upon the personal law in question. In case of appeals, the consul or his representative should sit in the same capacity in the Court of Appeal [33]. Up to 1923, all the Powers, except the United States, had ceased to exercise their consular jurisdiction in Palestine [34].
Following the conclusion of the Treaty of Alliance between Great Britain and Iraq, a number of subsidiary agreements were entered into, one of which, dated March 25, 1924, dealt with jurisdiction over foreigners. In this agreement, substantially the same provisions were made as in the Palestine Order in Council of 1922, with a view to the guarantee of the rights of foreigners in Iraq [35].
By way of summary, it may be said that in all these cases, according to the terms of the mandates, the Capitulations were merely suspended and that as a condition of this suspension, the Mandatories were charged with the duty of establishing in the respective areas a judicial system calculated to protect the rights of foreigners as well as of natives.

Notes by the Author (^)

[1] Art. 1, Treaty of Constantinople, June 4, 1878, State Papers, vol. lxix, p. 745.

[2] Agreement of Aug. 14, 1878, ibid., p. 769.

[3] State Papers, vol. lxix, p. 724.

[4] Ibid., vol. lxx, p. 661.

[5] Ibid., vol. xciv, p. 838.

[6] The measure taken by the British Government to assume jurisdiction over all foreigners in Cyprus was adversely criticized by some writers at the time. An article in The Law Magazine and Review, 4th ser., vol. iv, declared that "wheresoever throughout the Ottoman Empire the Capitulations have not been 'totidem verbis,' suspended or abrogated, there they are still in force. And for Great Britain to assume the opposite would be, apart from the grave questions of Law and Fact, a very ungracious return towards at least one of her nearest neighbors on the Continent" (p. 139). M. Esperson, in an article in the Révue de droit international, vol. x, pp. 587-593, also maintained that the island of Cyprus was still an integral part of the Ottoman Empire even after the British occupation and that as such the Capitulations continued to be in force there.

[7] Art. 25, Treaty of Berlin, July 13, 1878, State Papers, vol. lxix, p. 758.

[8] J. Trigant-Geneste, "Le Droit international privé en Bosnie et Herzégovine," Journal du droit international privé (hereafter referred to as J. D. I. P.), vol. xviii, p. 783.

[9] State Papers, vol. xciv, p. 838.

[10] Ibid., vol. lxxiii, pp. 643, 644.

[11] See United States Foreign Relations, 1900, pp. 382, 390.

[12] Ibid., p. 389.

[13] China Weekly Review, vol. xxvii, p. 384.

[14] China Weekly Review, vol. xxvii, pp. 384-385.

[15] The words in brackets are from the correct version of the provision cited. Cf. MacMurray, Treaties, vol. ii, 1915/8, p. 1220; also China, Maritime Treaties, vol. ii, p. 791.

[16] China Weekly Review, loc cit., p. 384.

[17] The case of France was not treated of by the Solicitor’s Memorandum. It may be pointed out that in the treaty of 1898, leasing Kwanchow Wan to France, it was likewise provided: "The territory shall be governed and administered during the 99 years of the lease by France alone." Art. 3, MacMurray, op. cit., vol. i, 1898/10, p. 129.

[18] The treaty of March 27, 1898, leasing Port Arthur and Dairen to Russia provided: "In the event of a Chinese subject committing any crime within the limits of the leased territory, the offender will be handed over to the nearest Chinese authorities for trial and punishment in accordance with Chinese laws, as laid down in Article VIII of the Treaty of Peking of 1860." Art. 4, MacMurray, op. cit., vol. i, p. 120 (1898/5). In his dispatch to Mr. Hay, dated Dec. 11, 1998, Mr. Conger, American Minister at Peking, reported: "The Russian legation informs me that that provision [cited above] is not correctly translated, and that construing it in connection with Article VIII of the treaty of 1860 they have the right and do try Chinese for crimes against Russians." U.S. Foreign Relations, 1900, p. 385. Reference to the Chinese version fails to reveal where the inaccuracy of translation occurs. See China, Maritime Treaties, vol. i, p. 220. The Russian claim to try crimes committed by Chinese against Russians, if it was made, rested on a questionable ground, since it is expressly provided by the article cited that Chinese criminals should be sent to the nearest Chinese authorities for trial and punishment. Even construing it with article 8 of the treaty of 1860, one can hardly reconcile the Russian claim to the actual grant. The reference to article 8 of the treaty of 1860 was directed apparently to that particular portion of the article which stipulated for the rendition of Russians guilty of grave crimes in China to Russia for trial and punishment. What was meant was that the procedure to be followed in the sending of Chinese criminals from the Russian leasehold to the nearest Chinese authorities should be the same as in the sending of Russian criminals to Russia, hence the phrase "as laid down in Article VIII of the Treaty of Peking of 1860." See China, Maritime Treaties, vol. i, p. 106. Leaving aside this point, we find further that this article 8 of the Treaty of Peking made express provision against the trial, punishment and imprisonment by either party of persons not its subjects in any criminal case whatever. "En cas de crime, quelle qu'en soit la gravité, le Consul et le chef local ne peuvent prendre les mesures nécessaires que relativement au coupable appartenant à leur pays, et ni l'un ni l'autre n'a le droit d'incarcérer ni de juger séparément, et encore moins de châtier un individu non-sujet de son Gouvernement." Ibid. It appears, therefore, to be difficult, if not impossible, to justify the assumption by Russia of jurisdiction over Chinese criminals in Port Arthur and Dairen on any legal ground. Outside of such jurisdiction over Chinese criminals, however, the Russian Government was given complete administrative authority in the leased territory. To quote from another part of the same article of the treaty of May 27, 1898, cited above: "During the above-specified period, on the territory leased by the Russian Government and its adjacent water area, the entire military command of the land and naval forces and equally the supreme civil administration will be entirely given over to the Russian authorities." MacMurray, vol. i. p. 120. From this, it is clear that complete jurisdiction was ceded to Russia in the leased territory, except over Chinese criminals. Even in their case, as the treaty provided, they should simply be withdrawn from the Russian jurisdiction there, and sent to the nearest Chinese authorities for trial and punishment, the Chinese Government asserting no jurisdiction in Port Arthur and Dairen.

[19] MacMurray, op. cit., vol. ii. 1915/8, p. 1220.

[20] See Wright, "Sovereignty of the Mandates," A.J.I.L., vol. xvii, pp. 601-703; Rougier, "La Premiére Assemblée de la Société des Nations," (ch. x, Les Mandats), Révue générale de droit international public (hereafter referred to as R. G. D. I. P.), vol. xxviii, p. 333; Pic, "Le Régime du Mandat d'après le Traité de Versailles," (ii. Charactères Juridiques du Mandat), ibid., vol. xxx, p. 330.

[21] See the preambles to the articles of the mandates, League of Nations, Official Journal, 1922, no. 8, pt. ii, pp. 1007, 1013; 1924, no. 10, p. 1346.

[22] Before the conclusion of the unratified Treaty of Sèvres, Aug. 10, 1920, these areas were conquered territories under the de facto control of Great Britain and France. The Treaty of Sèvres recognized the provisional independence of Syria and Mesopotamia, but entrusted the selection of the Mandatories over them as well as over Palestine to the Principal Allied Powers. Arts. 94 and 95, Great Britain, Treaty Series, no. 11 (1920). p. 26. By the Treaty of Lausanne, July 24, 1923, Turkey renounced "all rights and title whatsoever over or respecting the territories" situated outside her frontiers. Art. 16, ibid., no. 16 (1923), p. 21.

[23] Art. 1, League of Nations, Official Journal, 1922, no. 8, pt. ii, p. 1007.

[24] Art. 9, ibid., p. 1008.

[25] Art. 1, ibid., p. 1013.

[26] Art. 6, ibid., p. 1014.

[27] Great Britain, Parliamentary Papers, 1922 [Cmd. 1757], Iraq, Treaty with King Feisal.

[28] Art. 9, ibid., p. 4.

[29] League of Nations, Official Journal, 1922, no. 8, pt. ii, p. 825.

[30] Ibid., 1923, no. 10, p. 1217.

[31] Ibid., 1924, no. 10, pp. 1346-1347.

[32] Palestine, art. 8, "The privileges and immunities of foreigners, including the benefit of consular jurisdiction and protection as formerly enjoyed by Capitulation or usage in the Ottoman Empire, shall not be applicable in Palestine. Unless the Powers whose nationals enjoyed the aforementioned privileges and immunities on August first, 1914, shall have previously renounced the right to their re-establishment, or shall have agreed to their non-application for a specific period, these privileges and immunities shall, at the expiration of the mandate, be immediately reestablished in their entirety or with such modifications as may have been agreed upon between the Powers concerned." Ibid., 1922, no. 8, pt. ii, p. 1008. Art. 5 of the mandate for Syria and the Lebanon was to the same effect, ibid., p. 1014. The Council of the League, in approving the articles of the mandate for Iraq, decided upon the non-application of the Capitulations in that country "as long as the Treaty of Alliance [between Great Britain and Iraq] is in force." Ibid., 1924, no. 10, p. 1347.

[33] Great Britain, Statutory Rules and Orders, 1922, no. 1282, art. 58, 60-64.

[34] See Report on Palestine Administration, 1923, p. 19.

[35] Arts. 2 & 4, Great Britain, Parl. Pap., 1924 [Cmd. 2120], Iraq.