Its Rise and Its Decline






Notes by the Author

THE third way in which extraterritorial rights are brought or tend to be brought to an end is by the separation from the parent State of a part of an Oriental country in which the system exists. Here the abolition of consular jurisdiction has not always followed immediately upon the separation, but the tendency has been in the direction of abolition whenever a portion of a Power whose jurisdiction is impaired by treaty is able to assert its independence.


The independence of Greece in 1830 ended the régime of extraterritoriality in that country, although there was no express provision to that effect in the main acts relating to the establishment of the independent government in Greece. The regime was discontinued, "for the reason, apparently, that the new kingdom was placed under the protection of Great Britain, France, and Russia" [1].


In Roumania, the foreign Powers began to enjoy the privileges accorded to them by the Turkish Capitulations in the eighteenth century. Russia was the first Power to secure the right to establish a consulate in Moldavia and Wallachia. The treaty of Kutschuk Kaïnardji, July 10/21, 1774, recognized the special interest of Russia in the Danubian Principalities by allowing her to address representations to the Porte on their behalf [2]. This treaty paved the way for the assumption by Russia of consular jurisdiction in Roumania, which dated from the unpublished treaty of 1781 [3]. The other Powers, including Austria, Prussia, France and England, established their consulates in the Danubian Principalities toward the end of the eighteenth century and at the beginning of the nineteenth [4].
In the nineteenth century, before the independence of Roumania was recognized, she made several endeavors to secure the abrogation of foreign jurisdiction within her confines. In September, 1857, the Divan of Moldavia discussed the question, and, in the projet which was drawn up, after demonstrating the illegality of applying the Turkish Capitulations in the Principalities, the Divan contended for the discontinuance of the foreign rights of extraterritoriality, inasmuch as they had been granted by Turkey under conditions peculiar to herself and as the laws and judicial system of Roumania gave sufficient security to the life and property of her foreign residents. Upon these considerations it was concluded that "the Christian States can have no interest in maintaining in the Principalities the Capitulations which are not applicable at all and which are the cause of confusion and of innumerable conflicts," and the wish (voeu) was expressed "that the foreigners who inhabit the Principalities submit to the jurisdiction of the country" [5]. No action was taken by the Powers.
After the Paris Conference, the treaty of March 30, 1856, provided for the meeting of a Special Commission at Bucharest "to inquire into the actual state of the Principalities and to propose the bases for their future organization" [6]. The Commission met at Bucharest the following year and rendered a report, which declared: "Consular jurisdiction having been established originally in the Orient only to protect the Christian foreigners against the Mussulman legislation, its application appears to be an anomaly in a Stale where there are no Mussulmans and where the legislation is Christian." The Russian Consul added, besides, that this jurisdiction had undergone such an extension that, on the one hand, it assimilated to the status of foreigners and extraterritorialized thousands of working families in the Principalities, and that, on the other, it arrogated to itself the right of deciding cases which, according to the treaties, were within the exclusive competence of the local courts [7]. It was, perhaps, in response to this report that the Russian Government entered into a treaty with the Principalities on November 22, 1869, giving up her extraterritorial rights there [8].
In 1869, B. Boéresco, then Minister of Justice, published his Mémoire on consular jurisdiction in Roumania. He advanced the theory, as had been done before, that the Capitulations did not apply to the Principalities and that the privileges guaranteed by them should not be maintained by the European Powers. The arguments on which this theory was based were, briefly, that the sole intention of the negotiators of the Capitulations was to apply them to Mussulman countries; that Roumania, being a Christian country, was not within their purview; that in spite of the suzerainty of Turkey over the Principalities, Roumania had always retained its sovereign rights; that the Sublime Porte having no judicial power in Roumania, could not confer it upon foreign Powers; that Roumania having retained its treaty-making power, the Ottoman Empire could not exercise it on Roumania's behalf; that the Capitulations had never been promulgated or published in Roumania, and therefore were not in force there; that the stipulations of the Capitulations were in conflict with the laws of the Principalities, which measured up to the standard of those of the other Christian Powers and which, therefore, excluded the operation of consular jurisdiction in Roumania; that there were in force in Roumania a Civil Code, a Penal Code, a Code of Criminal Procedure, a Code of Civil Procedure, and a Commercial Code, all of which were modeled on the best systems of European jurisprudence; and that although the judicial officers of Roumania were by no means perfect, measures were adopted to ensure a stable, independent and efficient judiciary [9].
At the end of the Congress of Berlin, in 1878, the privileges of extraterritoriality enjoyed by the Powers in Roumania were retained [10], although the independence of the latter was formally recognized [11]. As a matter of fact, however, the system of extraterritoriality in Roumania has long since fallen into desuetude. Thus, it is said by a German authority:

Ever since the beginning of their national regeneration, the Roumanian authorities have refused to enforce the judgments of the foreign consuls and to lend assistance to the execution of the judicial acts of the same [consuls], and since the declaration of independence of March 14/26, 1877, the jurisdiction of the foreign consuls has actually been put an end to, for the idea of national judicial sovereignty [Justzhoheit], which was guaranteed to the Roumanians by article 7 of the Treaty of Paris of March 18/30, 1856, does not permit a foreign jurisdiction in their own country [12].
To-day, a number of treaties are in existence, which pledge the Roumanian Government to accord "the most complete protection" to the person and property of their foreign residents, who, in turn, are held to the same "con-ditions and formalities" as are prescribed for the natives [13]. The British treaty of October 31, 1905, is even more explicit. It provides: "They [subjects of either country in the other] shall, on compliance with the laws of the country, have free access to the Courts of Justice, either for the prosecution or for the defence of their rights, and in this respect they shall enjoy all privileges and immunities of native subjects" [14]. No special privileges are given to the foreigners by these treaties, and during their sojourn in Roumania they are simply placed on the same footing as the natives.


Before Serbia attained her independence in 1878, attempts had been made by her to throw off the yoke of extraterritoriality. (*A)
In 1862, from January 25 to February 5, a conference was held in Belgrade by the foreign Consular Body to discuss the maintenance of consular jurisdiction in Serbia. At the conference the British, French, Italian, Russian, Prussian and Austrian consuls were present. Although some of the members referred to the improved system of law in Serbia, others stressed the insufficiency of a mere improvement of the letter of the law and the necessity of having an impartial judiciary, of whose existence in Serbia they were uncertain.
On the other hand, the Serbian Government contended that legislation in Serbia had reached a high stage of development, that a criminal procedure had long been in force, which afforded the necessary guarantees to the accused, and that the project of a formal code of criminal procedure had been drawn up and was being submitted to the deliberation of the Senate. In view of the development of the Serbian State, the hope was entertained that "the Powers would cease to assert in a Christian country, provided with a European legislation and organization, the privileges adapted to non-Christian countries, in order that in this manner the letter of the Capitulations may hereafter cease to be in opposition to their spirit" [l5].
The conference adjourned without doing anything in the interest of the Serbian aspirations. Even after the Berlin Congress of 1878, when the Powers recognized the independence of Serbia [16], their rights of extraterritoriality remained intact. "The immunities and privileges of the foreign subjects," article 37 of the treaty of July 13, 1878, provided, "as well as the rights of Consular jurisdiction and protection, such as they exist to-day, shall remain in full force so long as they are not modified by common accord between the Principality and the interested Powers" [17].
Soon after the conclusion of the Treaty of Berlin, however, the Powers vied with each other in giving up their extraterritorial rights in Serbia. On October 20/November 9, 1879, Italy entered into a convention with Serbia, which recognized the principle that subjects of either party should enjoy "the most constant and complete protection for their person and property" and that, in this regard, they should simply enjoy the same privileges as the natives [18]. In 1880, Great Britain consented "to surrender the privileges and immunities hitherto enjoyed by her subjects in Serbia, in virtue of the Capitulations between Great Britain and the Ottoman Empire." The surrender was made on the specific proviso, "that the said Capitulations shall, as regards all judicial matters, except those affecting real estate in Serbia, remain in full force as far as they concern the mutual relations between British subjects and the subjects of those other Powers, which, having a right to the privileges and immunities accorded by the aforesaid Capitulations, shall not have surrendered them" [19]. This condition was fulfilled when all the important Powers later made treaties with Serbia, abandoning their jurisdiction in that country. The list includes Austria-Hungary [20], the United States [21], Germany [22] and France [23].


Montenegro was the third of the Balkan triumvirate which gained complete independence after the Congress of Berlin [24]. No disposition was made of the status of the Capitulations in Montenegro, but the Powers had ceased to exercise their consular jurisdiction there long before Montenegro was merged in the newly established Serb-Croat-Slovene State [25]. (*B)


Up to 1878, Bulgaria had been a province of the Ottoman Empire, to which all the Capitulations applied. By the Treaty of Berlin, July 13, 1878, she was constituted into an autonomous tributary principality of the Sultan [26]. The change of the status of Bulgaria, however, did not affect the existence and operation of the Capitulations in that country [27].
Since the proclamation of her independence in 1908, Bulgaria has entered into consular treaties with Italy [28], Austria-Hungary [29] and Russia [30], and also extradition treaties with Austria-Hungary [31] and Russia [32], all of which omit mention of the status of the Capitulations. Whether it was intended thus to do away permanently with the right of extraterritoriality enjoyed by these powers in Bulgaria may be a moot question. At the Paris Peace Conference of 1919, when the Bulgarian delegation was apprised of the terms of the peace, it raised the point that the above-mentioned treaties actually had the effect of excluding the system of the Capitulations and lodged a strong protest against article 175 of the draft treaty [33], which, as signed at Neuilly on November 27, 1919, provided: "The immunities and privileges of foreigners as well as the rights of jurisdiction and of consular protection enjoyed by the Allied and Associated Powers in Bulgaria by virtue of the Capitulations, usages, and treaties, may form the subject of special conventions between the Powers concerned and Bulgaria." [34] At the time of writing, no conventions of this sort appear to have been made.
The latest published expression of American policy on the status of the Capitulations in Bulgaria is contained in a note of the Department of State to its representative at Sofia, dated February 12, 1913, which declared:

You are authorized to bring to the knowledge of the Foreign Office, in whatever manner you may deem expedient, the fact that this Government, recognizing that it has no intrinsic right to the benefit of the Capitulations as established by the Treaty of Berlin, stands ready to facilitate the negotiations in which the Bulgarian Government is engaged, by assenting in advance to the relinquishment of such rights as it now enjoys in this respect, at such time as the signatory Powers shall all have consented to the discontinuance of the Capitulatory régime [35].

The United States Government, however, did not ratify the Treaty of Neuilly of November 27, 1919, and, according to a letter from the Department of State, in answer to the author's inquiry, "no convention of the character contemplated in Article 175 of that treaty has been concluded between the United States and Bulgaria."

Notes by the Author (^)

[1] Hinckley, American Consular Jurisdiction in the Orient (Washington, 1906), p. 183.

[2] Art. 16, Noradounghian, Recueil, vol. i, p. 327.

[3] Schoell, Histoire abrégée des traités de paix (Paris, 1817-18), vol. xiv p. 444. Cf. Boéresco, "La Situation politique des anciennes Principautés du Danube avant 1878," R. G. D. I .P., vol. iv, pp. 349-350.

[4] Ibid., pp. 351, 352, 354, 356.

[5] Ibid., pp. 369-370.

[6] Art. 23, State Papers, vol. xlvi, p. 15.

[7] Boéresco, loc. cit., pp. 372-373.

[8] Art. 18, Archives diplomatiques, 1874, vol. iv, p. 105.

[9] B. Boéresco, Memoire sur la jurisdiction consulaire en Roumanie
(Bucharest, 1869).

[10] Art. 49, State Papers, vol. lxix, p. 764.

[11] Art. 43, ibid., p. 763.

[12] Leske und Loewenfeld, Die Rechtsverfolgung im internationalen Verkehr (Berlin, 1895-1904), vol. ii, p. 192.

[13] Art. 5, Italian treaty of Aug. 5/17, 1880, State Papers, vol. lxxi, p. 165.

[14] Art. 3, State Papers, vol. xcviii, p. 88. Cf. art. 2 of French treaty of March 6, 1907, ibid., vol. ci, p. 319.

[15] Archives diplomatiques, 1863, vol. ii, pp. 94-114.

[16] Art. 34, Treaty of Berlin, July 13, 1878, State Papers, vol. lxix, p. 761.

[17] Ibid., p. 762.

[18] Art. 2, State Papers, vol. lxx, p. 574.

[19] Art. 13, treaty of Jan. 26/Feb. 7, 1880, ibid., vol. lxxi, p. 19.

[20] April 24/May 6, 1881, art. 13, ibid., vol. lxxii, p. 940.

[21] Act. 14, 1881, art. 12, Malloy, vol. ii, p. 1621.

[22] Jan. 6, 1883, art. 25, State Papers, vol. lxxix, p. 541.

[23] Jan. 18, 1883, art. 66, ibid., vol. lxiv, p. 138.

[24] Art. 26, ibid., Treaty of Berlin, July 13, 1878, vol. lxix, p. 758.

[25] Leske und Loewenfeld, op. cit., p. 343.

[26] Art. 1, State Papers, vol. lxix, p. 751.

[27] Art. 8 of the Treaty of Berlin provides: "The immunities and privileges of the foreign subjects, as well as the rights of consular jurisdiction and protection, such as have been established by the Capitulations and usages, shall remain in full force as long as they are not modified by consent of the interested parties." Ibid., p. 754.

[28] March 10, 1910, ibid., vol. ciii, p. 389.

[29] May 18, 1911, ibid., vol. civ, p. 695.

[30] Oct. 29, 1911, ibid., vol. vii, p. 693.

[31] May 18, 1911, ibid., vol. civ, p. 720.

[32] Oct. 29, 1911, ibid., vol. cvii, p. 700.

[33] Observations of the Bulgarian Delegation on the Conditions of Peace with Bulgaria (Paris, 1919), pp. 123-124.

[34] Great Britain, Treaty Series, 1920, no. 5, p. [127].

[35] U.S. Foreign Relations, 1913, p. 77.