The Extraterritoriality of Law: History, Theory, Politics 9780815378587, 9781351231992

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The Extraterritoriality of Law

Questions of legal extraterritoriality figure prominently in scholarship on legal pluralism, transnational legal studies, international investment law, international human rights law, state responsibility under international law, and a large number of other areas. Yet many accounts of extraterritoriality make little effort to grapple with its thorny conceptual history, shifting theoretical valence, and complex political roots and ramifications. This book brings together thirteen scholars of law, history, and politics in order to reconsider the history, theory, and contemporary relevance of legal extraterritoriality. Situating questions of extraterritoriality in a set of broader investigations into state-building, imperialist rivalry, capitalist expansion, and human rights protection, it tracks the multiple meanings and functions of a distinct and far-reaching mode of legal authority. The fundamental aim of the volume is to examine the different geographical contexts in which extraterritorial regimes have developed, the political and economic pressures in response to which such regimes have grown, the highly uneven distributions of extraterritorial privilege that have resulted from these processes, and the complex theoretical quandaries to which this type of privilege has given rise. The book will be of considerable interest to scholars in law, history, political science, socio-legal studies, international relations, and legal geography. Daniel S. Margolies is Professor and Chair of the History Department at Virginia Wesleyan University, US. Umut Özsu is Assistant Professor of Law and Legal Studies at Carleton University, Canada. Maïa Pal is Senior Lecturer in International Relations at Oxford Brookes University, UK. Ntina Tzouvala is Laureate Postdoctoral Fellow in International Law at Melbourne Law School, Australia.

Politics of Transnational Law Series editors: Tanja Aalberts and Wouter Werner, VU Amsterdam, the Netherlands

This interdisciplinary series explores the changing dynamics between politics and law in a globalizing world. These dynamics illustrate the growing importance and vitality of cross disciplinary research that transcends traditional disciplinary divides, domains and categories. Focused on the ‘Politics of Transnational Law’, this series provides a platform for studies that critically reflect on the interplay between politics and law as international and transnational practices. It investigates the heterogeneous landscape of contemporary law-making, and the different kinds of politics this global ordering relates to. The Politics of Transnational Law series is unique in being endorsed and promoted by both the law and politics divisions of Routledge. EDITORIAL COMMITTEE: Jeffrey Dunoff (Temple University) • Fleur Johns (University of New South Wales) • Friedrich Kratochwil (Central European University) • Anna Leander (Copenhagen Business School) • Cecelia Lynch (University of California, Irvine) • Gregor Noll (Lund University) • Sarah Nouwen (University of Cambridge) • Nikolas Rajkovic (Tilburg University from 2016) Governmentality in EU External Trade and Environment Policy Between Rights and Market Jessica C Lawrence The Politics of Private Transnational Governance by Contract Edited by A. Claire Cutler, Thomas Dietz Regulatory Counter-Terrorism A Critical Appraisal of Proactive Global Governance Nathanael Tilahun Ali The Extraterritoriality of Law History, Theory, Politics Edited by Daniel S. Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala

The Extraterritoriality of Law History, Theory, Politics

Edited by Daniel S. Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 selection and editorial matter, Daniel S. Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala; individual chapters, the contributors The right of Daniel S. Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-8153-7858-7 (hbk) ISBN: 978-1-351-23199-2 (ebk) Typeset in Galliard by Apex CoVantage, LLC

Contents

List of contributors Introduction

vii 1

DANIEL S. MARGOLIES, UMUT ÖZSU, MAÏA PAL, AND NTINA TZOUVALA

PART I

What is extraterritoriality? 1 Ways of doing extraterritoriality in scholarship

11 13

JOHN D. HASKELL

2 In the middle of nowhere: the futile quest to distinguish territoriality from extraterritoriality

30

PÉTER D. SZIGETI

3 Moving beyond the e-word in the Anthropocene

49

SARA L. SECK

PART II

Constituting and contesting extraterritoriality 4 Early modern extraterritoriality, diplomacy, and the transition to capitalism

67

69

MAÏA PAL

5 ‘Uneven empires’: extraterritoriality and the early trading companies KATE MILES

87

vi

Contents

6 Protégé problems: Qing officials, extraterritoriality, and global integration in nineteenth-century China

104

RICHARD S. HOROWITZ

7 Drinking water by the sea: real and unreal property in the mixed courts of Egypt

119

MAI TAHA

8 ‘And the laws are rude . . . crude and uncertain’: extraterritoriality and the emergence of territorialised statehood in Siam

134

NTINA TZOUVALA

9 Imperial reorderings in US zones and regulatory regimes, 1934–50

151

DANIEL S. MARGOLIES

PART III

Extraterritoriality in the contemporary world-system

167

10 The interplay between extraterritoriality, sovereignty, and the foundations of international law

169

AUSTEN L. PARRISH

11 Extraterritoriality as an analytic lens: examining the global governance of transnational bribery and corruption

183

ELLEN GUTTERMAN

12 From extraterritorial jurisdiction to sovereignty: the annexation of Palestine

200

ALICE M. PANEPINTO

13 Extraterritoriality reconsidered: functional boundaries as repositories of jurisdiction

215

EZGI YILDIZ

Index

228

Contributors

Ellen Gutterman is Associate Professor of Political Science at Glendon College, York University. John D. Haskell is Senior Lecturer in Law at the University of Manchester. Richard S. Horowitz is Professor of History at California State University, Northridge. Daniel S. Margolies is Professor of History at Virginia Wesleyan University. Kate Miles is Fellow and Lecturer in Law at Gonville and Caius College, University of Cambridge. Umut Özsu is Assistant Professor of Law and Legal Studies at Carleton University. Maïa Pal is Senior Lecturer in International Relations at Oxford Brookes University. Alice M. Panepinto is Lecturer in Law at Queen’s University Belfast. Austen L. Parrish is Dean and James H. Rudy Professor of Law at Indiana University. Sara L. Seck is Associate Professor of Law at Dalhousie University. Péter D. Szigeti is Assistant Professor of Law at the University of Alberta. Mai Taha is Assistant Professor of Law at the American University in Cairo. Ntina Tzouvala is ARC Postdoctoral Fellow in International Law at the University of Melbourne. Ezgi Yildiz is Postdoctoral Researcher in Political Science and International Relations at the Graduate Institute of International and Development Studies, Geneva.

Introduction Daniel S. Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala

When this project was first conceived in early 2015, international law and politics seemed quite different than they do now. Although the liberal cosmopolitan certainties of the 1990s had been shattered sometime between the occupation of Baghdad and the collapse of Lehman Brothers, a certain confidence that the basic structures of global law and politics would remain unaltered still prevailed. Things could not be more different now, as we sit down to pen the introduction to this book. Indeed, the rapid growth and proliferation of nativist policies illustrates powerfully that the sovereign, though still ‘able to kill, starve, exploit, imprison and subordinate’ those within and beyond its territory, is a ‘smaller, more absurd and ridiculous figure’ than often imagined by lawyers and theorists.1 It is at this juncture, when prevailing notions of global law, order, and sovereignty are challenged in nearly every quarter, that this book revisits the question of extraterritoriality. Defined in its most familiar form, legal extraterritoriality is the assertion and exercise of jurisdictional powers beyond a specific territorial framework. Yet how are we to understand the distinction between regimes that are expressly designed to operate ‘outside’ a specific territory and regimes that are applied extraterritorially without necessarily being constructed for that purpose? Is there a difference, for instance, between the kind of extraterritoriality at work in those forms of international law that are directed toward the promotion of human rights and those forms of international law that are designed to formalise and legitimate the interests of foreign investors? If so, how exactly are we to conceptualise that difference? What are we to make of the fact that the very idea of extraterritoriality seems to presuppose the authority and legitimacy of territoriality – perhaps as an objective, even ‘natural’, framework of organisation and engagement? In prioritising that which exceeds or transgresses a given set of ‘territorial’ frontiers, are we not backhandedly – and for the most part surreptitiously – reinforcing the very state system that so many have struggled to destabilise, both practically and conceptually? Some have sought to broach such questions as matters of pure theory, unpacking the concept of extraterritoriality (however it may be construed) in the name 1 Orford 2006, p. 8.

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of an ostensibly ahistorical and apolitical philosophical analysis. Others have adopted more socio-historically contextualised approaches, training their lens on the complex processes through which extraterritorial regimes are instituted, developed, and transformed. These two bodies of literature often seem engaged in a series of monologues, talking past each other and concerned chiefly with sub- or intra-disciplinary disputes, each of comparatively little interest to those working or thinking with different frameworks. For every historically oriented scholar intrigued by the extraterritorial powers that were enshrined in the Ottoman capitulations or the Chinese ‘unequal treaties’, there is a theoretically minded scholar dedicated to disaggregating the concept of extraterritoriality into its constituent elements and clarifying our understanding of their content. Only rarely – and even then typically somewhat tangentially – are they put into conversation with each other. This book brings together thirteen scholars of law, history, and politics in order to reconsider extraterritoriality. It examines the different historical and geographical contexts in which extraterritorial regimes have developed, the myriad political and economic pressures in response to which such regimes have grown, the highly uneven distributions of extraterritorial privilege that have resulted from these processes, and the complex theoretical quandaries to which this type of privilege has given rise. Rethinking the spatial and temporal frameworks of past and present modes of extraterritoriality through a host of innovative studies that interrogate the place of law in global assemblages of power, the book demonstrates that assertions of legal authority ‘beyond’ territorial frontiers have always played a central role in the constitution and consolidation of sovereignty.2 Its objective is neither to develop a definitive, all-encompassing explanation of legal extraterritoriality nor to provide an exhaustive catalogue of its different forms and functions, but rather to historicise and theorise different modes of legal extraterritoriality with a view to furthering our understanding of the mutually constitutive relations between sovereignty, jurisdiction, and territoriality. Questions of extraterritoriality figure prominently in a large number of different debates, among others those pertaining to global legal pluralism,3 international economic law,4 international human rights law,5 and the history of international and transnational law.6 Yet the legal histories and theoretical architectures of extraterritoriality are rarely analysed as part of a coordinated effort. This book situates questions of legal extraterritoriality in a set of broader accounts of state-building, imperialist rivalry, and capitalist expansion, tracking its multiple uses and meanings – and the complex jurisdictional disputes with which it has always been affiliated – in different contexts. 2 For an earlier theoretical exposition that makes this point convincingly and that we have found to be helpful, see Malley, Manas, and Nix 1990. 3 See, e.g., Michaels 2009; Zumbansen 2010; Berman 2012. 4 See, e.g., Francioni 2009; Sornarajah 2010; Hofmann 2012. 5 See, e.g., Lubell 2010; Milanovic 2011; Langford et al. 2013; Bhuta 2016. 6 See, e.g., Sassen 2008; Raustiala 2009; Kayaoğlu 2010; Ruskola 2013; Benton and Ross 2013; Dorsett and McLaren 2014.

Introduction 3 The book is divided into three substantive sections. In the first section, we pose the question of extraterritoriality’s meaning. Our three contributors broach extraterritoriality as a mode of academic production, as an analytically unsustainable means of categorising juridical relations, and as a seductive but fundamentally inadequate concept in the Anthropocene. Despite their different preoccupations, all three aim to demystify extraterritoriality, encouraging more rigorous engagement with its content, scope of application, and the merits and drawbacks of its usage. John Haskell inaugurates this first section with a wide-reaching review of the epistemological landscape of contemporary academic work on extraterritorial jurisdiction. His concern is with extraterritoriality as a particular mode of academic scholarship – as a particular ‘style’ that legal scholars adopt.7 Haskell identifies three modes of engagement with the topic: technique, history, and theory. Technicians ignore or bracket theoretical or straightforwardly political questions, according themselves the task of bringing order to chaos and making law coherent and functional in response to concrete policy questions. By contrast, those prioritising historical context seek to situate concrete practices of extraterritoriality, retrieve appreciation for the agency of marginalised groups and the consequences of forgotten events, and demonstrate that legal history mobilises existing protocols of transmission in legal thought. Finally, for those who adopt a fundamentally theoretical stance, underscoring complexity is precisely the goal. In their hands, extraterritoriality emerges as one of the many ways of explaining and contextualising the de-territorialising effects of contemporary global governance. Scholars writing in this genre embrace interdisciplinarity and generally display sensitivity to the role of new technologies in reshaping social relations. All three approaches, Haskell laments, tend to lack ‘conscious attention to the managerial environment and institutional tactics of scholarship’. Péter Szigeti challenges attempts to conceptualise extraterritoriality as if we know with certainty what we are examining. Reviewing various domestic contexts in which extraterritoriality has recently been applied and focusing on how the ‘territorial/extraterritorial divide is constructed in different branches of the law’, Szigeti argues that it is impossible to produce a fully consistent and uncontroversial set of criteria for distinguishing territoriality from extraterritoriality. Four domains are explored: transnational criminal law, antitrust law, human rights law, and cases involving ‘intangible assets’ and ‘hypermobile entities’. As Szigeti shows, transnational criminal lawyers have long tackled questions of extraterritorial jurisdiction directly, but a close examination of different jurisdictions reveals stark differences in the conclusions that they have reached. Similarly, while the mobilisation of extraterritoriality by US antitrust lawyers in the first half of the twentieth century engendered bitter protests from their European counterparts, the European Community adopted a similar approach to antitrust enforcement a few decades later (while arguing that it was nevertheless exercising territorial jurisdiction). Importantly, though, Szigeti argues that accepting the reality of 7 For related work on the idea of jurisprudential style, see Desautels-Stein 2018.

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legal pluralism enables us to decentre territoriality as the supposed default rule of jurisdiction, while also necessitating a certain self-restraint in the usage of the language of extraterritoriality. He proposes the term ‘ascriptive jurisdiction’ for certain forms of jurisdiction that cannot be captured by the territoriality/extraterritoriality binary. Sara Seck’s chapter is similarly concerned with the limitations of thinking about legal obligations through the prism of extraterritoriality. Seck focuses on the idea of the Anthropocene and the urgent need to tackle contemporary environmental disasters. In her view, the Anthropocene highlights the profound interpenetration of human activity and non-human ecological processes. She observes that human influence over such processes depends upon patterns of inequality between North and South, and ultimately upon patterns of capital accumulation and unsustainable production and consumption. It is this attentiveness to the political and economic dimensions of the Anthropocene that leads Seck to examine different ‘soft law’ instruments and the way in which they conceive state obligations about harmful transnational corporate activity. In particular, Seck considers the UN Guiding Principles on Business and Human Rights, and the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social, and Cultural Rights, reports prepared by special rapporteurs for human rights issues arising from toxic substances, and other documents. Ultimately, Seck argues that extraterritoriality only reinforces the idea of territoriality by positioning the former as an exception to the latter. Instead of being trapped within the dyad of territoriality and extraterritoriality, we should embrace, she argues, the fundamental interconnectedness of human and non-human and develop legal obligations that address this interconnectedness. Moving from the present to the past, the book’s second section revisits the history of extraterritoriality. Our contributors demonstrate that the projection of legal authority has never been an innocent technical exercise, or a means of disseminating ‘universal values’ such as freedom of religion. Instead, it has been a core feature of capitalist expansion and imperialist domination. Ranging from the early modern period of European history to the mid-twentieth century, they highlight the multiple sites in which legal struggles over extraterritoriality have unfolded, as well as the diverse range of actors that have articulated their claims by reference to it. Maïa Pal begins this second section by challenging orthodox perceptions of extraterritoriality in the field of international relations. Adopting a Marxist framework of analysis, and drawing from the tradition of ‘political Marxism’ inaugurated by Robert Brenner and Ellen Meiksins Wood, she redevelops a substantive argument with strong methodological implications. First, Pal insists that our understanding of the emergence of extraterritorial ambassadorial privileges in early modern Europe ought to be enriched through consideration of the period’s social property relations. Second, she argues that this approach poses a challenge to Eurocentrism, even if Europe is placed at the centre of the inquiry, since it is by constructing a non-elitist history of European extraterritoriality that we may be able to dislodge the privileging of the European continent as a space of progress

Introduction 5 and enlightenment. Pal challenges the argument that embassy chapels became ‘ground zero’ for the transition from personal to territorial models of jurisdiction owing to religious conflicts in Europe and the gradual acceptance of religious freedom as a means of ordering cross-border elite interactions. Disturbing this image of linear progress toward religious tolerance and ambassadorial immunities, Pal argues that the diplomatic practices of England and the Dutch Republic differed significantly from those of France and Spain. In fact, it was the Dutch and English that led the way toward the legalisation of extraterritorial ambassadorial privileges – a development that Pal links to the non-aristocratic class composition of their ambassadors, which was, in turn, linked to profound transformations in their social property relations. Kate Miles shares with Pal a focus on the early modern period, as well as an emphasis on questions of political economy. Her contribution enriches legal histories of extraterritoriality in three important ways. First, Miles emphasises the role of trading companies as early practitioners and advocates of extraterritorial practices, thereby challenging state-centric accounts of extraterritoriality and accounting for the role of private actors as subjects of jurisdictional claims and agents of empire.8 She traces the legal experimentations of the Dutch East India Company, the British East India Company, and the Levant Company in a variety of extra-European territories, from the Ottoman Empire in the west to China, Siam, and Batavia in the east. The picture that emerges is one of ‘messy’ contestation and compromise. Indeed, here lies Miles’ second intervention: extra-European states were not passive sites for the deployment of extraterritorial jurisdiction, but active challengers and interpreters of the legal claims of chartered companies, generating an uneven legal and political landscape. Third, by extending her account into the nineteenth century, Miles captures a dual shift in regard to extraterritoriality. On the one hand, during the course of the nineteenth century, European imperial metropoles assumed for themselves the authority to manage extraterritoriality. On the other hand, a transition was effected from systems of legal pluralism to the ‘standard of civilisation’ as the primary method of organising inter-communal legal affairs, at least in the view of European actors. Within this new framework, the legal systems of different Asian polities were portrayed as cruel and primitive, or simply denied existence, thereby reinforcing the growing tendency to view extraterritoriality as a well-defined treaty right as opposed to a revocable privilege. Richard Horowitz is equally interested in transitions. His chapter offers a revisionist history of extraterritoriality in China that challenges the view that Chinese authorities were unconcerned with Western consular jurisdiction until the first decades of the twentieth century. While acknowledging that extraterritoriality did not assume during the nineteenth century the kind of political urgency and significance that it later did, Horowitz invites us to pay closer attention to the decades following the 1860s. During the 1860s and 1870s, one of the main 8 For the need to pay increased attention to private legal authority in the history of international law, see especially Koskenniemi 2016.

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points of contestation was the right of foreigners to travel, as well as their rights to reside and buy land, in the Chinese interior. This was naturally of concern to Western merchants and Christian missionaries alike. Interestingly, it was the question of conversion to Christianity that became a particularly pressing matter for Qing officials. Chinese subjects who had converted to Christianity along with Western missionaries and officials advanced claims that they enjoyed protégé status and were therefore exempt from Chinese jurisdiction. Qing officials were understandably determined to limit the expansion of foreign investment and missionary activity beyond specifically designated treaty ports. As Horowitz notes, ‘it was clear by the late 1860s that the treaty system as practised established no clear limits on extraterritoriality, and the jurisdiction of consular courts’ – a fact that troubled many Chinese officials. Mai Taha picks up the theme of uncertainty about the boundary between ‘domestic’ and ‘international’ in her account of the Mixed Courts of Egypt. Taha situates the jurisprudence of these courts within the broader framework of Egypt’s transition to capitalism and the class struggles in which it was anchored. She does so by underscoring the central role of these courts in facilitating the transformation of drinking water into a commodity to be bought and sold on the market, subject to the rules and rationalities of liberal contract law. Taha examines the legal theory of ‘mixed interest’ that enabled the courts to claim jurisdiction over an ever-wider range of cases, even those arising from disputes between Egyptian subjects alone. This theory turned out to be of crucial importance when a dispute arose between the Alexandria Water Company and the Alexandria municipality over the manner in which water was allocated and paid for. On the basis of a close reading of the complex case law engendered by this dispute, Taha demonstrates that the Mixed Courts were keen to position themselves as colonial regulators of Egypt’s transition to capitalism as part of a process that subordinated the basic needs of Egypt’s poorer classes to the sphere of private ownership and control. The transition to capitalism and the commodification of nature is also a central concern of Ntina Tzouvala’s intervention. This chapter focuses on legal struggles surrounding treaty-based extraterritoriality in nineteenth-century Siam and their relevance to processes of state transformation, territorialisation of relations of power, and Siam’s transition to capitalism. Tzouvala emphasises the centrality of the ‘standard of civilisation’ for the justification of Western practices, the close association between the concept of ‘civilisation’ and externally induced legal reform, and the ways in which Siamese ruling classes internalised these imperatives and mobilised extraterritoriality to promote their own interests. She argues that the incorporation of the former vassal state of Lanna into Siamese territory was enabled by treaties between Siam and Britain that extended both states’ authorities in the region. Crucially, these processes were overdetermined by the interests of British capital and the lucrative teak industry. The transformation of trees and forests into natural resources to be managed and exploited necessitated the existence of a powerful sovereign, and Siamese authorities positioned themselves as the guarantors of British capitalism through extraterritoriality treaties. In sum, Tzouvala argues that the history of extraterritoriality in Siam is useful for

Introduction 7 understanding how state sovereignty in the global South has often been conditional upon the protection of Western capital. Daniel Margolies concludes the book’s historical section by examining extraterritorial jurisdiction in the legal strategies and ‘state spaces’ of US empire, both before and after the Second World War. Foregrounding the importance of economic relations, Margolies pays attention to the expansive application of US antitrust laws, and also the tolerance of exporting cartels enshrined in the 1918 Export Trade Act. He analyses the blurring of the distinction between ‘foreign’ and ‘domestic’ through the establishment of Foreign Trade Zones that suspended the application of US custom laws in specific ports with a view to promoting foreign trade. Margolies explains that the 1950s witnessed the further expansion of this system with legislation for subzones and inverted tariffs that encouraged the assembling and processing of products within the United States. However, as Margolies notes, the coexistence of these subzones with US overseas territorial possessions, including major territorial possessions like Guam and Samoa and largely forgotten ones like the Swan Islands, created uncertainty about tariffs for imports, as US legal practices increasingly fused the state’s interior and exterior. In the post-1945 period of US hegemony, the US federal government applied the spatial logic and legal techniques of extraterritoriality in a judicial and political struggle to wrest control of the offshore continental shelf and its resources. The book’s third and final section addresses four contemporary cases of extraterritoriality. While the United States plays a prominent role, both as a globally dominant power and as a pioneer in the extraterritorial projection of legal authority, our contributors also discuss cases involving the occupied Palestinian territories and various military interventions by European states in the Middle East and beyond. Austen Parrish begins this final section with a compelling critique of those strands of US legal scholarship that advocate unilateral projection of US legal authority for the purpose of promoting liberal and cosmopolitan values. Parrish juxtaposes this tendency with the traditional view of international law as a force that constrains sovereigns by restricting most state legal authority to their territorial boundaries. However, Parrish radicalises this view, not by grounding it in some kind of abstract faith in state sovereignty, but by presenting it as a precondition for the exercise of self-determination and democratic self-government. He argues that during the course of the last two decades a new consensus has emerged among prominent US lawyers who view this system as ineffective, anachronistic, and morally dubious, choosing instead to throw their weight behind the unilateral institution and enforcement of norms. Parrish maintains that both the projection of US domestic law abroad and the unilateral use of force in Kosovo, Iraq, and elsewhere ought to be understood as part of this broad trend. Importantly, he contends that recent judicial restraint in regard to extraterritorial jurisdiction is best understood as a means of ensuring immunity for US citizens and corporations, not as an acknowledgment of the significance of multilateralism. Crucially, Parrish stresses that these cosmopolitan defences of

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US unilateralism have strengthened neo-realist and sovereigntist models of US power, a point that merits close attention in the age of President Trump. Ellen Gutterman is no less concerned with the expansive reach of domestic legislation. Emphasising the importance of the domestic politics of powerful states for the creation and operation of international law, Gutterman argues that contemporary extraterritoriality signals not the end of the state but rather the continuing efforts of global hegemons to retain territorially differentiated modes of authority. She examines the transnational enforcement of US bribery and corruption laws and the way that such enforcement diffuses US norms and practices. Gutterman pays particular attention to the enforcement of the 1977 Foreign Corrupt Practices Act, arguing that the judiciary’s retreat from extraterritoriality has not necessarily been followed by other branches of government. Gutterman stresses that US anti-corruption policies have led to the reform of criminal law and corporate governance protocols along US-specific lines throughout the world, highlighting the profound systemic effects of US extraterritorial power. Importantly, Gutterman is interested in the way that such assertions of jurisdiction internationalise specifically US conceptions of bribery and corruption. Noting the current revival and amplification of multipolar political rivalry, Gutterman concludes her chapter by inviting us to rethink extraterritoriality as a specific mode of analysing global governance and world order. Alice Panepinto’s chapter examines the jurisdictional landscape of the postOslo occupied Palestinian territories and the way it challenges the distinction between (unlawful) conquest and (prolonged) occupation. Panepinto is attentive to both the restrictive and permissive aspects of the international law of occupation, particularly the ways in which the Oslo Accords ratified the extension of Israel’s legal authority over ‘Area C’ (the West Bank). Focusing on the concept of settler colonialism as a specifically juridical phenomenon that involves the replacement of indigenous law by the law of settler populations, this chapter examines the expansion of the jurisdiction of the Israeli Supreme Court (sitting as the High Court of Justice) to review Israeli military actions in the occupied territories. Panepinto shows that the court occasionally rules favourably toward Palestinian parties. However, she argues, the price for individual justice is high. The court’s operation makes the occupation palatable to much of Israeli society, reinforcing the fact that it is Israeli – not Palestinian – institutions that are authorised to ‘speak the law’, and pushing the occupation ever closer toward outright conquest and annexation.9 Examining the tension between individual claims to justice and collective goals of self-determination, Panepinto underscores the importance of considering broader issues of annexation, conquest, and colonialism when rendering Israeli institutions the arbiters of legality in the occupied territories. 9 ‘At its broadest, the question of jurisdiction engages with the fact that there is law, and with the power and authority to speak in the name of the law. It encompasses the authorisation and ordering of law as such as well as determinations of authority within a legal regime’ (Dorsett and McVeigh 2007, p. 3).

Introduction 9 Ezgi Yildiz concludes this section, and the book as a whole, by exploring the question of the extraterritorial application of the European Convention of Human Rights, one of the most controversial issues faced by the Strasbourg court. Yildiz reminds us that during the drafting of the convention, France and Britain were colonial powers and therefore invested in restricting its application to European territories. Yildiz argues that the tension between European states’ extraterritorial projection of power and their attempts to restrict the territorial reach of their human rights obligations resurfaced in the context of their participation in military interventions after the conclusion of the Cold War. She explores the evolution of the European Court of Human Rights’ jurisprudence from the Bankovic case to later cases such as Al-Skeini and Jaloud. Ultimately, she proposes the concept of ‘functional boundaries’ in order to explain extraterritorial human rights obligations. For Yildiz, such boundaries do not coincide with the physical borders of the state but instead register the fact that authority is divisible and flexible, while ensuring that powerful states do not project power free of legal constraints. To conclude, this volume contributes to the growing interest in the phenomenon of legal extraterritoriality. It contributes to our understanding of the increased diversification of legal actors arguing for and against extraterritorial claims, and it does so from a range of different theoretical standpoints. Further, it reinforces our appreciation of the historical underpinnings of contemporary claims of extraterritorial jurisdiction with a rich set of case studies. Ultimately, its degree of resonance will be determined by the range of questions it raises among its readers about the past, present, and future of extraterritorial authority – a pivotal reference-point for broader debates about statehood, sovereignty, jurisdiction, and territoriality.

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Hofmann, Rainer (2012), ‘Modern International Investment Law as an Example of Extra-territorial Law-Making and Law-Enforcement’, in: Günther Handl, Joachim Zekoll, and Peer Zumbansen (eds), Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Leiden: Brill), pp. 437–61. Kayaoğlu, Turan (2010), Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge: Cambridge University Press). Koskenniemi, Martti (2016), ‘Expanding Histories of International Law’ 56 American Journal of Legal History 104. Langford, Malcolm, Wouter Vandenhole, Martin Scheinin, and Willem van Genugten (eds) (2013), Global Justice, State Duties: The Extraterritorial Scope of Economic, Social and Cultural in International Law (Cambridge: Cambridge University Press). Lubell, Noam (2010), Extraterritorial Use of Force Against Non-State Actors (Oxford: Oxford University Press). Malley, Robert, Jean Manas, and Crystal Nix (1990), ‘Constructing the State Extraterritorially: Jurisdictional Discourse, the National Interest, and Transnational Norms’ 103 Harvard Law Review 1273. Michaels, Ralf (2009), ‘Global Legal Pluralism’ 5 Annual Review of Law and Social Science 243. Milanovic, Marko (2011), Extraterritorial Application of Human Rights Treaties (Oxford: Oxford University Press). Orford, Anne (2006), ‘A Jurisprudence of the Limit’, in: Anne Orford (ed.), International Law and its Others (Cambridge: Cambridge University Press), pp. 1–31. Raustiala, Kal (2009), Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law (New York: Oxford University Press). Ruskola, Teemu (2013), Legal Orientalism: China, the United States, and Modern Law (Cambridge: Harvard University Press). Sassen, Saskia (2008), Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton: Princeton University Press). Sornarajah, Muthucumaraswamy (2010), The International Law on Foreign Investment, Third edition (New York: Cambridge University Press). Zumbansen, Peer (2010), ‘Transnational Legal Pluralism’ 1 Transnational Legal Theory 141.

Part I

What is extraterritoriality?

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Ways of doing extraterritoriality in scholarship John D. Haskell

Introduction The international legal concept of extraterritoriality reflects some of the most pressing questions within the profession: the scope and legitimacy of juridical authority, the designation of relevant actors and actions, and the distribution of power within networks of global governance. The concept is a response to ‘real things’ happening in the world, but it also prefigures how we understand what is being viewed. In fact, it might be most concretely understood as a conceptual device within academic legal literature that organises argument and prioritises certain actors, themes, and styles of analysis – what we might think of as enacting a disciplinary or sub-disciplinary ‘sensibility’.1 This is something altogether different from thinking about ‘ideology’ or ‘preferences’, and much closer to a grouping of interactional processes (e.g. conceptual, emotional, linguistic) that reinforce a specific way in which we think and speak about international law.2 In other words, it signals an orientation somehow detached from an author’s political ideology and broader professional agendas or approaches. Thinking of ‘extraterritoriality’ as a particular kind of scholarly frame encourages us to understand the concept not as a description of the world that can be shown to be objectively true or false, but as a set of criteria developed within scholarly literature and governed by the social rules of the discipline and its literary conventions. My sense is that we tend to conflate writing and politics, and mistake stylistic posture for polemical stance. By contrast, to think of international law doctrines (such as extraterritoriality) from an epistemic perspective means that we pay attention to the internal construction of disciplinary scholarly production. This immediate 1 Wickberg 2007. 2 The goal here is something close to early efforts in the critical legal studies movement to examine ‘the formal structure of . . . legal arguments’. Schlag 1997, p. 427. Or as Duncan Kennedy has put it, ‘[l]egal thought . . . is the conceptual apparatus, the reasoning techniques, the legal ideals and key images that the elite bar, including judges, treatise writers and important lawyers, deploy when they make legal arguments or give opinions or declarations about what the law “is” or “ought to be”’. Kennedy 2006, p. ix. Where I would differ from such scholars is that I believe we should adopt a narrower definition of ‘legal thought’. What we are talking about here is not ‘the profession’, but something more discrete: literary sensibilities coalescing around given legal tropes (e.g. extraterritoriality) and circulating within institutionalised professional communities.

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structural dimension of extraterritoriality – the actual speakers and the argumentative logic they inhabit – is the focus of this chapter.3

Technical approaches to extraterritoriality Two approaches are generally adopted by international law scholars with respect to the theme of extraterritoriality: technical analysis and (historical and theoretical) contextualisation. When adopting a technical legal approach to extraterritoriality, one often presents oneself as apolitical or operating in accordance with the law, with the focus being placed on strict interpretation of traditional sources in order to derive the most correct possible legal outcome. Contributors to this literature tend to view themselves as offering pragmatic and realisable solutions to real-world challenges facing courts and policymakers. Historical dynamics are usually kept to a minimum, sources are drawn primarily from international law materials (e.g. cases, legal scholarship, legislation), the importance of theory is downplayed, and a relatively shared set of rhetorical tendencies crops up. The role of the scholar here is that of the professional lawyer demonstrating agility while balancing complex legal arguments, policy concerns, and party interests. It is common for the author to select a particular legal regime (e.g. antitrust law, criminal law, human rights law) or discuss multiple legal contexts, the choice of which may indicate different arguments and preferences. Usually, the literature offers some normative suggestions, but these focus upon interpretative reform rather than implementation and organisational strategy. We might begin to unpack these characteristics by considering examples of this sensibility at work. ‘There is no grand revolutionary theory driving this essay’, begins Anthony Colangelo, ‘my principal aim instead is to roll up my sleeves and dig into the messy area of law with analytical rigour’.4 Legal reasoning is whitewashed of bias in what looks like an almost American Protestant work ethic (which often goes by ‘pragmatism’). Here there is no need for further contextualisation beyond the purity of an honest day’s work – the text is meant to speak directly to the believer and ideally with the politics of the world at a distance. Reasoning, not context, is paramount, providing an avenue for the legal scholar to ‘dive below the surface of a superficially fractured . . . jurisprudence and harmonise . . . doctrinal discord’.5 Scholars typically go about this through a series of rehearsed moves: defining extraterritoriality, identifying key cases and statutory backgrounds, and compartmentalising its application into discrete legal contexts (e.g. criminal law, competition law, environmental law).6 ‘Superficially, extraterritorial jurisdiction 3 In more heterodox academic camps in international law, structuralism is once again on the agenda, most often within a linguistic tradition introduced to legal theory through the US critical legal studies movement. See, e.g., Desautels-Stein 2018; Koskenniemi 2016. 4 Colangelo 2014, p. 309. 5 Ibid. p. 310. 6 Here again reason carries strong connotations to a distinctly nineteenth-century Protestant sensibility interested in dense classification and word studies, and a belief that through this analytical practice the scholar can deduce the meaning or ‘spirit’ of the text.

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is easy to define’, explains Jennifer Zerk, ‘[b]ut in applying it to different regulatory areas, problems often emerge, especially in relation to abstract entities’.7 To overcome these problems, Zerk suggests that we ‘imagine a matrix . . . as a way of helping to understand and categorise the diverse ways in which states can and do regulate . . . a matrix with two rows and three columns . . . [which in turn] yields six cells – six types of “extraterritorial” form, each offering a range of options. Not all are equally likely to trigger objections under all circumstances’.8 Different scholars, different classification strategies, but the pattern holds remarkably consistent. ‘It is crucial’, writes a senior partner from a large Washington DC-based law firm, ‘to understand the extraterritorial scope and application of the Sherman Act’, which he claims will require a ‘review [of] the relevant statutory background . . . [and] focus on how the DOJ, the FTC, and the judiciary have interpreted the . . . direct, substantial, and reasonably foreseeable effect test’.9 Two further characteristics come to light when reading such technically oriented scholarship. First, we can begin to see that the literature is constituted around a set of related contradictions, which are then quickly suppressed. The first contradiction: how can it be that international law is ‘splintered, inconsistent, and conceptually confused’ in regard to extraterritoriality while also providing precisely the set of tools necessary for coherent and consistent legal reasoning?10 This unresolved tension allows scholars to claim that their own interpretation is more reasoned than the various available counter-interpretations. But naturally they do not actually imagine that their statement is the final word on the matter. Reason is unproblematically viewed as somehow both settled and indeterminate, and cuts a curious and tragic figure. Who is this author, who toils for long hours to make the most convincing case, whose argumentative logic is premised on the closure implicit in correct reasoning, and yet who also knows that whatever their argument, it will not lead to closure or an end of debate over extraterritoriality? But there is a second contradiction: how can it be that there is a strong presumption against extraterritoriality in many spheres of law, and also, at the same time, that it might often be reasonable or necessary to apply extraterritorial jurisdiction? Put differently, scholars will often acknowledge the importance of recognising the sovereign’s power over territorial jurisdiction while juxtaposing it with an awareness that global governance is more complex and multifaceted, and that this condition therefore requires states to reach beyond their borders to address domestically felt effects.11 By which criterion might we determine how to balance competition between state interests? If there is no clear and predictable discretionary standard, then it begins to look like the law on extraterritoriality generally follows great-power politics.12 7 8 9 10 11 12

Zerk 2010, p. 14. Ibid. pp. 16–17. Beckler and Kirtland 2003, p. 12. Hakimi 2010, p. 341. See, e.g., Shenefield 1983. This is often represented as devoid of scandal and a matter of the courts simply not taking up political questions. See, e.g., Dodge 1998, p. 125.

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This seems like an obvious quandary. However, it is usually swept under the rug by recourse to dense mapping exercises that chart different applications of extraterritoriality depending upon the chosen legal context (e.g. bankruptcy law, competition law, criminal law, environmental law), or through deference to the ‘spirit’ of international law, an appeal to the values of the international community, or through reliance on some characterisation of comity.13 Because ‘Parliament did not intend to act inconsistently with the UK’s international law obligations in the light of this broader context’, writes Ralph Wilde, ‘it is necessary to interpret the Human Rights Act so as to apply extraterritorially in the same way as the equivalent areas of human rights law operate on the international level’.14 For Wilde, the ‘broader context’ provides a roadmap for the UK government to adopt a wider application of human rights jurisdiction – what he calls the ‘more appropriate’ interpretation.15 The goal is the most universal and fair reading of statutory interpretation; in other words, objectivity as ideal. However, this technical approach does not tell us much, as doctrines such as comity remain a black box that do not offer a solution but merely restate the original problem. They do not tell us how to achieve comity, or on what and whose terms, or through which processes we might identify the ‘more appropriate’ understanding of its contours. Harmony is not only the outcome of consensus; it is also the aftermath of illicit coercion. These suspicions suggest the importance of understanding the nature of this coercion – precisely what is not allowed in this orientation. For what ultimately unites scholars who adopt the technical approach is a shared commitment to adhering to the image of the practising lawyer as an apolitical advisor or mediator. The tone is measured and reasonable, reflective of the relatively modest contribution of international law to equitable governance and social justice struggles, full of cool passion. Thus, the technical scholar is perceived to be offering wise counsel, which allows for an observation about how firmly this literature confines itself to a traditional vision about the role of the lawyer in practice. As Pierre Schlag points out, the very form of technically oriented law publications resembles a legal brief submitted to a court. The ‘normative wrap’ at the end of a scholarly article, he argues, ‘is the academic equivalent of the legal brief’s prayer for relief’.16 It is perhaps not coincidental that legal academics – at least in the United States – tend to have past work experience as judicial clerks and legal counsel. It is this apprenticeship experience that Schlag feels is relived over and again: And as you come to recognize this, you have this deep sense of déjà vu. You’ve experienced this before. And then finally it hits you: Oh, my god, you are a junior associate again! . . . And then yet another realization breaks

13 See, e.g., ‘Developments in the Law: Extraterritoriality’ 2011; Zerk 2010. 14 Wilde 2005, p. 81. Unlike many of his counterparts, Wilde’s analysis is grounded in an attempt to view international law through a colonial administrative legacy. 15 Ibid. p. 80. 16 Schlag 2017, p. 1064.

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through: there is such a thing as rightness disputes. Rightness disputes are the trans-disciplinary or sur-disciplinary structure of academic knowledge production. It’s the lingua franca of academia! . . . From the grave, from the grave.17 While the scholar may conclude that ‘the court should[,] . . . the agency should[,] . . . somebody should’ take some direction in legal judgment, it is left ‘almost never clear, not clear at all, just what mechanism is supposed to bridge the yawning gap between the words on the page and the enactment of the recommended action’.18 In their very normative appeal, the actual dynamics of governance drop out, which is fitting given the background belief in the autonomy and integrity of the rule of law. To work through the nuts and bolts of implementation would veer into the dirty realm of the political and sully the austerity of right reason. Unlike counsel or activist, the technically minded legal academic resembles the ideal of the judge – versed in the law and objective in discernment, the rule of law universal in its promise of a fair trial. ‘[A]s I see it, the benefit – perhaps the sole benefit – of an academic examination is that it can be more honest than . . . a brief . . . [or] counsel in an actual case . . . [so that] universality can truly become unbound.’19 In this respect, the technical seems to intimate an apologetic or even romantic idea about the momentum of international law: its engine of change lies in skilful legal argument whereby reform is carried out through conceptual clarification. This is a common refrain in the literature. ‘Clarifying the conceptual and doctrinal confusion stemming mainly from the different meanings of the word “jurisdiction” is not only its own reward – it is a necessary first step in properly interpreting the relevant treaties’, writes Marko Milanovic.20 ‘Navigating between the different frameworks is . . . not a simple matter, and the relationships between them are anything but clear’, warns Noam Lubell. To ‘reach a coherent and consistent approach’, ‘[a] solution to clarity in regulation and scrutiny of extraterritorial use of force’, requires ‘first and foremost . . . the finding of acceptable interpretations’.21 The outcome is to allow scholars a range of legal means to accommodate diverse ideological preferences while still affording a commitment to traditional disciplinary practices concerning legal reasoning.22

17 18 19 20 21 22

Ibid. p. 1062. Ibid. p. 1064. Milanovic 2011, pp. 264–65. Milanovic 2011, p. 262. Lubell 2010, p. 261. And this range is itself quite modest, with only four positions available: one can privilege the state reaching beyond its territory because it feels the effects domestically; one can privilege the state’s exercise of extraterritoriality because it affirms shared values in international law; one can argue that the ‘international community’ should extend its reach into a particular state that is said to violate universally agreed values of international law (e.g. ‘responsibility to protect’); or one can argue against extraterritorial application because it violates another state’s sovereignty.

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If technical modes of legal analysis concerning extraterritoriality tend to minimise ideological and theoretical considerations, they also incorporate historical considerations in a highly stylised manner. As a general rule, historical context offers a narrative of the world moving from less to more complexity, from the local to the global, as well as a growing sense of connectivity and overlapping relations in governance. The expansion of extraterritoriality, therefore, appears as the natural (legal) extension of these trends. Depending upon how this extraterritorial drive is framed, the scholar in question will typically argue that restraints on extraterritoriality may need to be loosened or tightened. For instance, in Austen Parrish’s work, the growth of extraterritoriality disrupts a historical experience of comity and restraint, thereby constituting ‘a greater threat to democratic sovereignty than traditional sources of international law’.23 While ‘acknowledg[ing] changes in the international system’, he seeks to ‘shore up territorial sovereignty’ through ‘traditional lawmaking’.24 For Parrish, the past is a source of legal inspiration, one that provides a means of assessing contemporary practice. What is important to grasp here is that it is not the methodological rigour of historical investigation that matters. Instead, what matters is the usefulness of the historical materials to further analysis of a contemporary question of technical legal interpretation of import – in Parrish’s case, the narrowing of the scope of extraterritorial jurisdiction by certain courts and states. Through the roundabout of history, once again we are directed to techniques of legal reasoning. Regardless of the scholar’s substantive position, technical approaches to extraterritoriality seem to share certain costs and benefits. Thinking about the rule of law and adhering to traditional criteria of legal practice provides scholars with more lucrative publication options, which may result in professional advancement that imbues certain ideas with increased institutional capital within the discipline. At the end of the day, maybe there is something to this. Lawyers practise law, not history. More importantly, it was not publications in law reviews but challenges mounted by practising lawyers that (temporarily) obstructed the Trump administration’s plans to suspend the United States’ refugee admission system and prohibit entry of nationals of a number of predominantly Muslim countries. Whatever side one took on the issue, it was fought through legal arguments and procedures in traditional legal venues, particularly courts, with the explicit goal of securing a binding judgment. Technique, in many respects, is more political than any historical or theoretical analysis, involved to a greater degree in settling the outcomes of actual struggles in the real world. Maybe . . . ‘to go technical’ also means that important considerations are lost. Emphasising technique tends to mean reliance upon a putatively apolitical stance, appealing to the possibility of a quasi-objective argumentative logic in law that may be revealed through interpretative techniques specific to legal practice and 23 Parrish 2009, p. 820. 24 Ibid.

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classical doctrinal analysis.25 What undergirds these arguments is an insistence that legal reasoning is capable of being performed soundly, and here we see again the core belief that international law is a coherent system. What might otherwise be perceived as a contradiction simply becomes an ‘exception’ or ‘qualification’ to the general presumption against extraterritoriality: state sovereignty remains intact; it just needs to make certain concessions. Law is coherent and hermeneutically sealed, capable of producing reliable interpretative rules that serve as real engines of historical progress.

Historical and theoretical contextualisation A second approach to extraterritoriality is characterised by its focus on nontechnical modes of historical or theoretical contextualisation.26 Let us start with historical orientations to writing about extraterritoriality. Here the literature may be immersed in technical legal interpretation, legal archives, and intellectual developments within the discipline, but broader socio-historical dynamics are also incorporated into the narrative. The theme of extraterritoriality may be identified specifically, or work instead as a recurring theme within a broader historical narrative. While certain theoretical or ideological preferences may be evident, the narrative tone is usually ‘academic’ and tends to address the sensibility of the profession or a particular cultural context rather than speaking to any juridical body or group of institutional policymakers. The general goal is recontextualisation, and the role of the scholar is to act as a legal historian (rather than a legal technician). A recurring practice within this orientation is to draw upon historical archives with the aim of reading an underrepresented voice back into the disciplinary consciousness, which is thought to have some political import. In Formalizing Displacement, Umut Özsu provides a useful illustration of this narrative approach: [M]uch of the scholarship relating to the exchange has been dominated by misleading representations of the historical record, and . . . this continues to be the case despite efforts by critical historians. . . .27 The aim of this book is to demonstrate that the Greek-Turkish population exchange was . . . the first legally structured compulsory endeavour of its scale and sophistication . . . of legally formalised nation-building . . . [,] penetrating the Ottoman Empire’s politico-economic core . . . [where] such engagement with the West had come to be intimately bound up with relations of dependency and

25 This depoliticisation is not only directed against the purity of legal reasoning, but involves the bracketing of work spaces (e.g. universities) from uncomfortably ‘political’ reorganisation struggles. See, e.g., Kennedy 1985; Peller 2015. 26 By ‘non-technical’, I do not mean that their approaches are not sophisticated, but that the criteria for their approaches are no longer along the lines of the most ‘reasoned’ legal interpretation of traditional textual sources. 27 Özsu 2015, p. 127.

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We can unpack these passages to understand better the scope of the narration. First, historically oriented scholars claim that ‘much of the scholarship’ misses out on important contexts, most importantly the interaction with non-Western populations. Rather than aiming to provide interpretative doctrinal clarity for the more progressive and peaceful organisation of world order, historians seek to read marginalised events and groups back into the narrative, complicating the ideational purity of doctrinal argument with the grit and gristle of social struggle. The shift is from clarity to context, from discerning right reason in canonical sources to discovering previously unexplored material that might influence canonical thinking within the discipline. In Özsu’s own case, that material relates to the GreekTurkish population exchange. More broadly, such historically oriented scholars might focus on the legal histories of Japan, China, and the Ottoman Empire, particularly consular courts, state departments, and unequal treaty regimes.30 Second, the focus on engagement with non-Western peoples opens the door to speaking about the relationship between international law and broader power structures. For Özsu, the population exchange is part of a longer tradition of ‘engagement with the West’, the ambition of European social concentrations of capital to ‘penetrat[e] the Ottoman Empire’s politico-economic core’, partly through the practice of extraterritoriality. Similarly, Sundhya Pahuja highlights how extraterritoriality allowed the US to ‘formally commit . . . to the ending of colonial rule’, but conditioned this commitment on the enforcement of ‘an international capitalist economic order based on the rights of private property, open markets and free trade’, unduly privileging ‘transnational capital’.31 Or again, in Teemu Ruskola’s work, extraterritoriality expresses a ‘virtual empire in the Asia Pacific . . . a colonialism without colonies’.32 Or with Kal Raustiala, who sees in the United States’ exercise of extraterritoriality neither a ‘historical quirk nor a mere expression of power . . . [but] a way to control and manage the interests of Western powers in foreign lands . . . when Western powers could not (or chose not to) conquer an alien land’.33 It is this larger system that the focus on previously marginalised events and peoples is meant to help reveal, with the study of the international legal field taken to be a fruitful lens for understanding the bigger picture of world political history.34 Third, the act of historical revision, designed to demystify an entrenched convention with respect to extraterritoriality or international law more generally, is 28 29 30 31 32 33 34

Ibid. pp. 7, 15. Ibid. p. 129. See, e.g., Cassel 2012, pp. 10, 12, 182. Pahuja 2011, p. 130. Ruskola 2013, p. 238. Raustiala 2009, p. 20. For an attempt to read the larger context as capitalism through a focus on class struggle over a long expanse of Western governance, see Pal 2013.

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not only an act of academic clarification: it is pregnant with political meaning. As Markus Gunneflo puts it, the goal is to ‘make visible and thus . . . intensify the struggles that take place around power in this history’.35 A history of marginalised voices, explains Arnulf Becker Lorca, may reveal how to ‘struggle for independence’ through the ‘appropria[tion]’ of the ‘modern legal style’, a ‘professional style of resistance’.36 The aim is a conceptual revolution; change the disciplinary conscience and you change political behaviour. As such, style is an important site of political contestation, an avenue for the academic to write themselves into the political struggles of the world. Fourth, the attack on the mainstream canon proceeds by way of ‘the historical record’, which obliges recourse to traditional historical sources: diplomatic correspondence, minutes of meetings, and similar documents. In addition to the accuracy and rarity of the materials, this historical sensibility is marked by its own literary mannerisms. It is, for example, conventional for the historically oriented legal scholar to begin the text with a historical incident, usually one that includes a specific individual. ‘On 29th October 1877,’ begins Cassel, ‘Swedish businessman Nils Möller placed [a] . . . “Public Notice” on the pages of the North China Daily News’.37 The action is anecdotal, a discrete and otherwise forgettable historical incident, but in the hands of the historically minded legal scholar, it opens the door to a larger story in the annals of international law. In other words, the opening act is not included to advance a particular substantive argument, nor is it simply rhetorical flair. Rather, it is meant to signal to the reader that the scholar is measured as a historian, and ought to be assessed by the degree of context-specific sensitivity and sophistication they demonstrate while handling and interpreting historical material. At the same time, while the criteria are historical, the concerns and tactics of the historical gaze are assumed to be part of the legal tradition. ‘[T]he need to think about context’, explains Anne Orford in framing her history of the quasi-doctrine of ‘responsibility to protect’ at the United Nations, ‘is even more pressing for legal scholarship, given that law relies upon precedent, custom and patterns of argument stretching back, at least in the common law tradition, from as recently as yesterday to “time immemorial”’.38 To do history, on Orford’s account, is simply to follow the principle of looking beyond the ‘four corners’ and ‘plain meaning’ of the text, in order to examine the dealings that led up to the event in question. History here is an anti-formalist extension of domestic forms of legal interpretation projected into international law scholarship.39 The other strand of non-technical approaches to extraterritoriality – theoretical contextualisation – is primarily concerned with what we might describe as 35 36 37 38 39

Gunneflo 2014, pp. 27–29. Becker Lorca 2016, p. 227. Cassel 2012, p. 3. Orford 2013, p. 174. Anti-formalism with a specifically interdisciplinary flair and geared toward humanistic political reform can be closely associated with elite twentieth-century New England law school traditions. See Gordon 2004.

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‘spatiality’. Here extraterritoriality per se is rarely the central theme. Rather, it serves as a backdrop to a more general study of the transformation of governance from a territorially bound, hierarchical system of legal processes to a dense, tightly interwoven regulatory landscape in which the state is only one of many actors vying for authority. Extraterritoriality is the mark of this almost inescapable non-territorial reorganisation of governance. The approach is interdisciplinary, drawing from critical geography studies, history, political science, and sociology.40 The role of the scholar resembles an intellectual renaissance figure in an age plagued not so much by doctrinal confusion or under-contextualised historical sensibility, but ‘complexity’.41 To develop ‘reasonably clear guidance’42 requires that the scholar not forsake the state, but instead situate it within broader networks of administration and authority,43 themselves embedded in a world-system, a ‘spatial/temporal zone which cuts across many political and cultural units’.44 Here an almost Schumpeterian design is at play, one in which complex processes rooted in economic custom break down territorial governance. Peer Zumbansen, for instance, points to markets and international economic law, facilitated through globalisation and technology, as the principal forces de-territorialising global governance.45 Likewise, in his influential article on the rise of transnational governance, John Gerard Ruggie identifies two waves of change in Western history. First, the demise of feudal authority relations were triggered by the medieval trade fairs and a new ethos of commerce. Second, the fragmentation and fluidity of modern governance is due to the ‘logic of late capitalism’.46 ‘[T]he point today’, as Gunter Teubner puts it, is to rationalise the ‘nation-state tradition’ and constitutional theory with ‘three current major trends – digitisation, privatisation and globalisation’.47 The state, in other words, now operates as one of many administrative platforms within a global marketplace of economic, political, and social transactions in which extraterritoriality is the norm rather than the exception. The narrative of this new global order tends to be couched in historical terms. Many scholars prefer longer histories. Saskia Sassen, for instance, stretches her account back to the medieval period, seeking to identify ‘different assemblages

40 For some of the oft-referenced scholars outside the field, see, e.g., Adams 1995; Bartelson 2009; Elden 2013; Sloterdjik 2013; Smith 2008. 41 Although something close to ‘post-modernism’ might be working within these texts, they are fundamentally different in orientation. If anything, we might say they harken back most closely to the ‘modernist’ era, by which I mean an enthusiasm toward electronic-age technological innovation, a belief in interdisciplinary expertise, and a common project to reimagine the global architecture. In other words, there is none of the resignation that marks the ‘post-modern’ sensibility. 42 Gerber 1984, p. 208. 43 Krisch 2006. 44 Wallerstein 2004, pp. 15–17. 45 Zumbansen 2012. 46 Ruggie 1993. 47 Teubner 2004, p. 2.

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in discrete historical contexts’.48 Nikolas Rajkovic traces his story of the territorialisation and de-territorialisation of governance from pre- and early-modern political philosophy (e.g. Aristotle, Copernicus, Descartes) to contemporary international legal thought (e.g. Martti Koskenniemi).49 Still others take more recent starting points. Larry Backer, for instance, moves quickly from a preliminary discussion of the market’s evolution to focus on the rise of the transnational corporation in the twentieth century and new platform models of production organised around algorithmic logics during the last decade.50 What is immediately evident, though, is that there are no generally accepted methodologies or even loose standards for the use of history. ‘[T]hough historical details are crucial, this effort is theoretical.’51 The metric of success, in other words, is not based upon strict historiographic criteria, but on its usefulness for ‘theoretical methodological innovations’.52 In the view of many such theorists, global governance has been reoriented away from a Cartesian grid-like conception of the world to a new environment defined by collapsing time and space, with the human subject caught in dense, technologically enhanced webs of information. The controlling ideas here are now electronic and computer technology, as well as the language transformed to speak within this new register, which may be characterised as ‘hyper-modern’ or ‘managerial’.53 In Sassen’s work, for instance, the reader is offered descriptions of various conditions as ‘instantaneous’ and ‘only partially legible’, possessed of ‘highly specialised temporal dimensions’, and distinguished by ‘velocity’, ‘acceleration’, ‘(dis)orders’, ‘disjunctions’, and ‘hyper-mobility’.54 This story is different than the one provided by historians – the broader antagonism not imperialism but complexity bred of a supercharged capitalist logic. The goal here is to master contingency in relation to a rapidly expanding set of new social forces and non-state platforms that operate outside hierarchical frames of national or international rule-making, and are characterised by entropy, coercion, and contingency. While some such scholars discuss markets, corporations, or commodity chains, they differ from those of a preponderantly historical orientation in that they rarely link such discussions to a larger system, or at best do so only by hav48 49 50 51 52 53

Sassen 2008. Rajkovic 2013. Backer 2005. Sassen 2008, p. 7. Ibid. By ‘hyper-modern’ I mean to capture the spirit of a modernism that understands the world to be undergoing radical transformation through human design and accident, now accelerated in an electronic age that is also preoccupied with design and transformation and that is both creative and destructive. Many in this tradition lean upon some form of systems theory, and flirt with themes that Luhmann and others would characterise as ‘cybernetics’. For an account of how the cybernetic tradition interacts with a neoliberal global network, see Mirowski 2008. For one of the founding cybernetics texts, see Weiner 1948. For an example of how sociologists theorised law through cybernetics, see Luhmann 1985. 54 Sassen 2008, pp. 328–98.

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ing recourse to some vague moniker (e.g. ‘globalisation’) that simply points to emergent economic or political trends.55 In other words, such scholars appeal to analytic rigour, integrated disciplinary techniques, and the desire to map disorder, bringing rationality to complexity.56 Historical and theoretical accounts of extraterritoriality raise similar reservations, though these are usually circumvented within the literature. Unlike technical legal arguments, which are crafted specifically by and for courts and international law practitioners, historical and theoretical scholarship aims to influence the disciplinary sensibility through intellectually geared academic studies. Courts and practitioners are included in the target audience, but gone is an in-depth analysis of cases and stylised legal arguments by courts. In its stead are a broad range of legal and non-legal sources, with the literature often resembling historical or political science scholarship. Whichever conceptual artifice is dethroned (e.g. formal sovereignty, progress narratives, a particular interpretation or practice of extraterritoriality), the scholar does so by offering an alternative conceptual narrative. In other words, an idea is still offered as a mover of the discipline; the literature assumes, in some measure, that an ideational revolution can lead to an actual shift in the organisational dynamics of history. What exactly this new sensibility would need in order to be turned into concrete policy is most often left open, implicitly suggesting that (a) mindsets change through deliberate intellectual engagement, (b) changes to the discipline’s sensibility concretely lead to changes in the discipline’s doctrines and practices, and (c) since this transfer from sensibility to reform is left opaque, there is a certain naturalness to the process – it just happens if you do it right. Change ideas: change history. Scholars ‘writing history’ in extraterritorial literature can, of course, claim that their objective is completely unrelated to any normative contemporary agenda – that it intends simply to resurrect the past in its authenticity for its own sake. When writing about extraterritoriality, however, most such scholars are relatively explicit in drawing out ‘dark sides’ in international law’s history and questioning the formal equality of its doctrines. Rarely is the purpose of a study merely to give voice to the past. The choice of what to give voice to nearly always originates in a presentist concern of some sort. Even in spatial theorising, which is often more reserved about adopting a polemical stance, scholars tend to rely upon some argument about how policy should be modified or revamped. These efforts tend

55 The tendency to characterise the driver of history as ‘custom’ and to define it through recourse to seemingly infinite economic and political interests closely resembles the antiinstitutionalism of economic orthodoxy. For an explanation of why (state) institutions are central to any legal (or economic) analysis, see, e.g., Deakin et al. 2015. In recent years, a broad institutionalist orientation weaving together culture, law, and money (not to be confused with neo-institutionalism) has become increasingly prominent in academic circles, often associated with varieties of neo-chartalism. See, e.g., Desan 2014; Ferguson 2018; Kreitner 2009; Moudud 2018. 56 ‘The current interest of lawyers to push the idea of territoriality in search of re-asserting a reliable reference framework for legal norm creation offers us a welcome opportunity to open this search to interdisciplinary dialogue’ (Zumbansen 2012, p. 557).

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to fall back on a long tradition of Enlightenment thinking within the profession: international law can effect the consciousness of experts and peoples, and in doing so trigger progressive coordination. Even so, contextualisation rarely contemplates the function of scholarship itself within the institutional production of legal academia. To attempt the latter would mean to pay attention to the form – not only the substance – of legal arguments concerning extraterritoriality. Form operates in two ways. First, there are specific genre (or sub-genre) patterns in the literature, offering a certain degree of predictability and allowing scholarship to be differentiated into distinct approaches, perspectives, and even silos. Scholars interested in such genre patterns will generally ‘map’ literary styles, a technique associated most closely with the internationalisation of the critical legal studies movement in the aftermath of its decline at the domestic level.57 (The present chapter falls into this category.) Second, consideration of form can encourage us to investigate how the various stylistic forms on display in a given text are communicated through a commodity – scholarship takes the form of an article, a blog post, a monograph, a book chapter – that is situated within a particular professional environment that generates its demand, supply, and circuits of circulation.58 Style and production are at play in scholarly communication. The focus is typically on style: scholars debate the methodological tools, sources, and forms of theoretical reasoning most appropriate to understand extraterritoriality in a given context. The focus is rarely on the production form of these arguments and their institutional environments. This would require consideration of extraterritoriality as a creation of experts working within academic institutions and occasionally taking on other roles, and how that creation organises social capital within the industry. When we share with a family member or a friend outside of academia that we have published a book, they are rarely taken by the argument in the text, but rather by the text itself: that it is published, with a prestigious publisher, that it has a nice cover, and that it is selling or is being cited by other scholars. Deep down, most of us do not actually think our writing – for instance, writing about extraterritoriality – is going to change state practice; or if so, we rarely think about the promotion of the work towards these ends, as opposed to focusing on how to solicit citations and readership, how to leverage the text for promotional advancement, how to get big-name scholars to notice the work, and so on. But to the extent that the text is a political act, it is important to understand the dynamics of this production in the development of international legal argument, aside from whatever is happening more generally in the ‘real world’. The arguments that carry the day in debates about extraterritoriality are rarely based simply upon the merits of the argument. Nor do they derive simply from some kind of extra-legal power politics. Instead, they are fought out within the academic field of law. The commodity quality of scholarship encourages us to focus upon different strategies and agendas, which are currently under-analysed aspects of the sociology of 57 Kennedy 2000. 58 Rasulov 2017.

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international law. This formal aspect – the physical production of the argument and its institutional context – is in many ways the life of the law. Everything else, in some sense, is just style, which catches our attention but is ultimately the attraction rather than the thing itself.59

Conclusion It is not at all clear what extraterritoriality signals in the profession most of the time. And this almost because – rather than in spite of – the voluminous literature on the topic. Much seems to depend upon one’s mode of analysis. The choice between different approaches to extraterritoriality (and international law generally) means a different interpretation to one’s own scholarly imagination, the criteria of persuasion, and the identified goal. To ‘go technical’, for example, will usually mean taking on the role of the legal practitioner and attempting to determine the ‘soundest’ possible meaning of cases and legislative acts, whether the ultimate purpose is to defend the interests of a particular state, bolster an existing international legal norm, reinforce the authority of the ‘international community’, or whatever. History drops out in favour of textual interpretation, and theory is reduced to classifying legal regimes, harmonising doctrinal debates, and tempering possible contradictions. The majesty of legal reasoning flattens history and politics, while affecting both history and political change. Its skills, in other words, are that of the corporation, the law firm, and the government, where levers of power are often visible in shaping the political economy of governance. Extraterritorially is an empirical fact and a legal doctrine; the goal is to advance legal arguments in order to obtain specific outcomes. While this is clearly different from historical and theoretical contextualisation, scholarship across all three approaches shares a certain Enlightenment faith. This faith has two key features. First, the target is always ultimately the consciousness or sensibility of those involved in the discipline or relevant sub-discipline. Second, enacting a conceptual revolution among a given set of legal professionals is thought to lead to more effective, identifiable outcomes. What exactly that consciousness entails, and which goals are identified as significant, is where disagreement emerges, but all three approaches share the assumption that ideas

59 I am not arguing that we should strive to make the (commodity/production) ‘form’ a genre preoccupation in the ‘content’ of our scholarship. Such a collective effort might easily fall into a performative contradiction: we end up trying to change academic hearts and minds without any specific blueprint for how that turns into sustained and scalable political victories. And if we were to take a page from the playbook of those conservative economists and policy makers that moved from relative obscurity to intellectual and political orthodoxy (e.g. Mont Pèlerin Society), such studies might best be guarded within a relatively close circle of colleagues and carefully rolled out for community-building purposes. My concern is that we all too often simply forget these considerations when reading and writing, whether that is because of the temptation to fall for one’s own creation or the justification of the university as an ‘idea’/knowledge generator.

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move history. These ideas may be enmeshed in material processes, but the goal of reimagining historical narratives, intellectual frameworks, or conceptual vocabularies remains constant.60 While each of these three orientations is marked by significant strategic possibility, my sense is that what is currently lacking in the literature is more conscious attention to the managerial environment and institutional tactics of scholarship itself. If anything, this might explain why, with so little new to say about extraterritoriality, it remains such a popular sub-genre within international law scholarship. Such an attitude would, I think, yield a specific methodological direction, one that emphasises the means and relations of its own production, and urges us to rethink the terrain of the text.

Bibliography Adams, Barbara (1995), Timewatch: The Social Analysis of Time (Cambridge: Polity Press). Althusser, Louis (2005), For Marx (London: Verso). Backer, Larry Cata (2005), ‘Transnational Corporations, Transnational Law: The United Nations’ Norms on the Responsibilities of Transnational Corporations as Harbinger of Corporate Social Responsibility in International Law’ 20 Columbia Human Rights Law Review 101. Bartelson, Jens (2009), Visions of World Community (Cambridge: Cambridge University Press). Becker Lorca, Arnulf (2016), Mestizo International Law: A Global Intellectual History 1842–1933 (Cambridge: Cambridge University Press). Beckler, Richard and Matthew Kirtland (2003), ‘Extraterritorial Application of U.S. Antitrust Law: What is a “Direct, Substantial, and Reasonably Foreseeable Effect” Under the Foreign Trade Antitrust Improvements Act?’ 38 Texas International Law Journal 12. Cassel, Pär Kristoffer (2012), Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (Oxford: Oxford University Press). Colangelo, Anthony (2014), ‘What Is Extraterritorial Jurisdiction?’ 99 Cornell Law Review 303. Deakin, Simon et al. (2017), ‘Legal Institutionalisation: Capitalism and the Constitutive Role of Law’ 45 Journal of Comparative Economics 188. Desan, Christine (2014), Making Money: Coin, Currency, and the Coming of Capitalism (Oxford: Oxford University Press). Desautels-Stein, Justin (2018), The Jurisprudence of Style: A Structuralist History of American Pragmatism and Liberal Legal Thought (Cambridge: Cambridge University Press). ‘Developments in the Law: Extraterritoriality’ (2011), 124 Harvard Law Review 1126. Dodge, William (1998), ‘Understanding the Presumption against Extraterritoriality’ 16 Berkeley Journal of International Law 85. Elden, Stuart (2013), The Birth of Territory (Chicago: University of Chicago Press).

60 For a critique of this tendency, see Althusser 2005, pp. 51–91, 125–84.

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Ferguson, Scott (2018), Declarations of Dependence: Money, Aesthetics, and the Politics of Care (Lincoln: University of Nebraska Press). Gerber, David (1984), ‘Beyond Balancing: International Law Restraints on the Reach of National Laws’ 10 Yale Journal of International Law 185. Gordon, Robert W. (2004), ‘Professors and Policymakers: Yale Law School Faculty in the New Deal and After’, in: Anthony Kronman (ed.), History of the Yale Law School: The Tercentennial Lectures (New Haven: Yale University Press), pp. 75–137. Gunneflo, Markus (2014), ‘The Life and Times of Targeted Killings’ (PhD dissertation, Lund University). Hakimi, Monica (2010), ‘State Bystander Responsibility’ 21 European Journal of International Law 341. Kennedy, David (2000), ‘My Talk at the ASIL: What is New Thinking in International Law?’ 94 Proceedings of the Annual Meeting (American Society of International Law) 104. Kennedy, Duncan (1985), ‘Radicalism in Elite Institutions’ (talk at University of British Columbia), online: https://open.library.ubc.ca/cIRcle/collections/12708/ items?year=1988/. Kennedy, Duncan (2006), The Rise and Fall of Classical Legal Thought (Washington: Beard Books). Koskenniemi, Martti (2016), ‘What is Critical Research in International Law? Celebrating Structuralism’ 29 Leiden Journal of International Law 727. Kreitner, Roy (2009), ‘The Jurisprudence of Global Money’ 11 Theoretical Inquiries in Law 177. Krisch, Nico (2006), ‘The Pluralism of Global Administrative Law’ 17 European Journal of International Law 247. Lubell, Noam (2010), Extraterritorial Use of Force Against Non-State Actors (Oxford: Oxford University Press). Luhmann, Niklas (1985), A Sociological Theory of Law (Abingdon: Routledge). Milanovic, Marko (2011), Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford: Oxford University Press). Mirowski, Philip (2008), Machine Dreams: Economics Becomes a Cyborg Science (Cambridge: Cambridge University Press). Moudud, Jamee (2018), ‘Analyzing the Constitutional Theory of Money: Governance, Power and Instability’ 31 Leiden Journal of International Law 289. Orford, Anne (2013), ‘On International Legal Method’ 1 London Review of International Law 166. Özsu, Umut (2015), Formalizing Displacement: International Law and Population Transfers (Oxford: Oxford University Press). Pahuja, Sundhya (2011), Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press). Pal, Maïa (2013), ‘The Politics of Extraterritoriality: A Historical Sociology of Public International Law’ (PhD dissertation, University of Sussex). Parrish, Austen (2009), ‘Reclaiming International Law from Extraterritoriality’ 83 Minnesota Law Review 815. Peller, Gary (2015), ‘The True Left’ 10 Unbound: Harvard Journal of the Legal Left 101. Rajkovic, Nikolas (2013), ‘Fragments and Geometry: The International Legal Order as Metaphor and How It Matters’ 1 Erasmus Law Review 6.

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Rasulov, Akbar (2017), ‘What is Critique? Notes towards a Sociology of Disciplinary Heterodoxy’, in: Jean d’Aspremont et al. (eds), International Law as a Profession (Cambridge: Cambridge University Press), pp. 189–221. Raustiala, Kal (2009), Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law (Oxford: Oxford University Press). Ruggie, John Gerard (1993), ‘Territoriality and Beyond: Problematizing Modernity in International Relations’ 47 International Organization 139. Ruskola, Teemu (2013), Legal Orientalism: China, the United States, and Modern Law (Cambridge: Harvard University Press). Sassen, Saskia (2008), Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton: University of Princeton Press). Schlag, Pierre (1997), ‘Law as the Continuation of God by Other Means’ 85 California Law Review 427. Schlag, Pierre (2017), ‘The Law Review Article’ 88 University of Colorado Law Review 1041. Shenefield, John (1983), ‘Thoughts on Extraterritorial Application of the United States Antitrust Laws’ 52 Fordham Law Review 350. Sloterdijk, Peter (2013), In the World Interior of Capital: Towards a Philosophical Theory of Globalization (Cambridge: Polity Press). Smith, Neil (2008), Uneven Development: Nature, Capital, and the Production of Space (Athens: University of Georgia Press). Teubner, Gunter (2004), ‘Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory’ (Storrs Lectures Yale Law School), online: http:// publikationen.ub.uni-frankfurt.de/frontdoor/index/index/docId/4145/. Wallerstein, Immanuel (2004), World-Systems Analysis: An Introduction (Durham: Duke University Press). Weiner, Norbert (1948), Cybernetics: Or Control and Communication in the Animal and the Machine (Cambridge: The MIT Press). Wickberg, Daniel (2007), ‘What is the History of Sensibilities? On Cultural Histories, Old and New’ 3 American Historical Review 661. Wilde, Ralph (2005), ‘The Extraterritorial Application of the Human Rights Act’ 58 Current Legal Problems 47. Zerk, Jennifer A. (2010), ‘Extraterritorial Jurisdiction: Lessons for the Business and Human Rights Sphere from Six Regulatory Areas’, Working Paper No. 59 Corporate Social Responsibility Initiative 13, online: www.business-humanrights. org/en/special-representative/un-secretary-generals-special-representative-onbusiness-human-rights/materials-by-topic/extraterritorial-jurisdiction/. Zumbansen, Peer (2012), ‘The Regulatory Landscape of Global Governance and Transnational Legal Authority’, in: Gunther Handl, Joachim Zekoll, and Peer Zumbansen (eds), Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Leiden: Brill), pp. 551–58.

2

In the middle of nowhere The futile quest to distinguish territoriality from extraterritoriality Péter D. Szigeti

Introduction It seems straightforward enough: something is either on this side of the boundary, or on the other. The entire value of boundaries stems from the fact that there is no in-between, no middle ground – boundaries are the best tool for creating juridical certainty.1 In international law, boundaries exist as ‘pre-given political knowledge’,2 and much of international lawyers’ work is to make note of boundaries, and divide powers and issues between states in a similarly straightforward, either-or fashion.3 In fact, the debate over the proper scope of territorial and extraterritorial jurisdiction depends on this preliminary distinction between an act, person, or object that is on one side of the boundary, and an act, person, or object that is on the other side of the boundary. This chapter aims to show how maddeningly uncertain this preliminary distinction really is, and with it how the entire basis for evaluating extraterritoriality collapses. Why and how is determining the location of phenomena a frustrating exercise? In the case of natural persons and physical objects, location is a straightforward physical fact, making it a reliable basis for determining jurisdictional competence. People and (most) objects are small compared to the size of territorial jurisdictions. Since the development of a global grid of lines of longitude and latitude, the place of any person or object can be identified with two numbers – a global, uniform, ‘totalizing classification’ if there ever was one.4 With the exception of literally borderline cases, like those involving houses built on the border between two states,5 territorial jurisdiction is a simple, binary question. If only life were that simple. Judicial cases rarely concern only persons and objects: judges also need to consider their jurisdiction over immaterial and intangible phenomena such as actions, events, plans and conspiracies, intangible assets, 1 2 3 4 5

Cf. Ford 1999, pp. 852–854. Ryngaert 2016, p. 51. Kuijer and Werner 2016, pp. 4–5. Anderson 2006, p. 173. See also Sobel 1995. See, e.g., In re Air Crash Disaster at Washington D.C. 1983, regarding an airline’s responsibility for deicing an airplane before take-off, on an airport built partly within Washington DC and partly within Virginia.

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or digitised information. These phenomena are exceedingly complex and unfold over long spans of time and in different places. How can one assign a single place to such phenomena? In antitrust and securities law, for instance, even the subject matter of the law relies on other complex immaterial phenomena, such as corporations and contracts, which themselves may have several changing locations. To what extent does assigning a physical location to such immaterial entities even makes sense? Take, for example, digital data. Where is it? Certainly, on the hard drives of the computers or servers where it is stored; but arguably, it exists beyond those hard drives as well. Arguably, data is present in the computers that access it even if temporarily, and in cloud storage, a shifting network of servers in many places. What, then, about the minds of the people who have or had access to the data: isn’t the data present there as well? All these questionable extensions of the presence of data arise regarding digital information only,6 which may only be a small element of a larger antitrust case, involving also the actions of the people who saw the data, the people who were influenced by the people who knew the data, and so forth. Some of these people and actions may be categorised by the law as a corporation, which, in turn, will involve other people who are also agents of this corporation, but have no knowledge of or access to the data that triggered the entire investigation.7 Location thus cannot be the starting point of determining jurisdiction. Rather, it has to be the second step after answering the question: ‘the location of what?’ In criminal law, there is a tradition of considering these questions: elements of crimes are, as a rule, carefully defined, which gives courts a foothold for determining the relevant aspects of the crime in question. In other branches of the law, the matter has received less consideration. In either case, as soon as we move beyond the purely physical realm of the location of persons and objects, and try to determine the location of abstract concepts such as corporations, conspiracies or responsibilities, we will find ourselves making metaphysical speculations instead of geographical determinations. This problem of ambiguous territoriality has hardly been realised. It is emblematic of how taken-for-granted the distinction between ‘territorial’ and ‘extraterritorial’ is, that although ‘the presumption against extraterritoriality’ has existed in US constitutional law since at least 1909,8 the question of what exactly makes a case ‘territorial’ or ‘extraterritorial’ was openly discussed by the the US Supreme Court only in 2010. In the case of Morrison v. National Australia Bank Ltd.,9 the question was whether US federal courts had jurisdiction over a dispute featuring Australian investors who sued an Australian bank and its US subsidiary (named HomeSide) for securities fraud under the Securities Exchange Act.10 According to 6 In the context of US criminal law and national security law, see Daskal 2015. 7 Cf. Cohen 1935, pp. 809–12. 8 ‘All legislation is prima facie territorial.’ American Banana Co. v. United Fruit Co. 1909, p. 357 (quoting Ex parte Blain 1879, p. 528 (Brett L.J.)). 9 Morrison v. National Australia Bank 2010. 10 US Securities Exchange Act, 15 U.S.C. §78a et seq.

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the plaintiffs, ‘since Florida is where HomeSide and its senior executives engaged in the deceptive conduct of manipulating HomeSide’s financial models’,11 the relevant facts took place in the United States. The Supreme Court acknowledged the problem, only to brush it aside in the same breath. ‘[I]t is a rare case of prohibited extraterritorial application that lacks all contact with the territory of the United States’,12 but the ‘focus’ of the legislative text in question should be determinative. How ‘focus’ should be determined was left silent by the Supreme Court, a choice that was roundly criticised by scholars.13 In previous work, I have written about the sense in which territoriality is an unreliable guide to establishing jurisdiction.14 An act or event can take place over broad swaths of time and space, which makes ‘localising’ it close to impossible.15 Nevertheless, in order to do so, international and domestic lawyers have created a range of concepts and doctrines, such as the doctrine of continuing acts,16 the doctrine of passive territoriality,17 the closely related concept of effects-based jurisdiction,18 and the doctrines of ubiquity19 or focus.20 These doctrines can stretch the boundaries of actions and events to almost any desired outcome, completely eroding the distinction between territorial and extraterritorial jurisdiction. Furthermore, territory itself is open to manipulation by courts and legislatures: although lawyers like to think of territory as a geographical fact,21 it is just as much a creature of law, movable by fiat. It is quite common for a place to be both within and outside jurisdictional boundaries for different purposes. I have called these places ‘anomalous zones’, borrowing and reinterpreting a concept from Gerald Neuman.22 Examples include ‘special immigration zones’, which are outside the country for purposes of refugee law but inside for all

11 12 13 14 15 16

17

18

19 20 21 22

Morrison v. National Australia Bank 2010, p. 263. Ibid. Brilmayer 2011, pp. 657, 661–63, 668. Szigeti 2017. Cf. Lindahl 2013, pp. 13–18, on the interaction between spatial, personal, temporal, and subject-matter relevance of laws. A continuing offence ‘involves (1) an ongoing course of conduct that causes (2) a harm that lasts as long as that course of conduct persists’ (e.g. theft lasts as long as the stolen goods have not been returned, kidnapping lasts as long as the kidnapped person has not been set free). See United States v. Morales 1999, p. 921 (O’Scannlain, J., concurring in part and dissenting in part). ‘[A] state has jurisdiction to prescribe law with respect to . . . the status of persons, or interests in things, present within its territory . . . .’ Restatement (Third) of the Foreign Relations Law of the United States 1988, §402(1)(b). ‘Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if [the perpetrator] had been present at the effect . . . .’ Strassheim v. Daily 1911, p. 285. See the criminal jurisdictional doctrines of European states: n. 25–31 and accompanying text. See supra n. 11–13 and accompanying text. Cf. ‘Territory is, of course, itself a geographical conception relating to physical areas of the globe. . . .’ Shaw 1982, p. 61. Neuman 1996; Szigeti 2017, pp. 389–93.

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other purposes;23 or foreign trade zones which are outside for tax and customs purposes but inside for all other purposes. It is also possible for a place to be both within and outside the law as such (which others have called ‘legal black holes’) – the most famous example being Guantánamo Bay.24 Finally, hypermobile entities such as ships, aircrafts, and corporations are wholly taken out of the system of territorial jurisdiction and subjected to a parallel system of registration and domicile, precisely because of the difficulties in tracking and subjecting them to different laws in rapid succession. In this chapter, I shall expand upon my previous arguments about the unsustainable character of the distinction between territoriality and extraterritoriality. I will survey international case law to determine how, in practice, the territorial/extraterritorial divide is constructed in different branches of the law. Transnational criminal lawyers have given the most consideration to the question of determining location. Criminal laws tend to judge territoriality extensively: a crime has been committed within the territory of a state if any element has been committed there. This extensiveness is particularly pronounced in adjudicating conspiracies, attempts, and participation, where the intentions of the perpetrators are paramount. Antitrust lawyers have taken the doctrines developed by criminal lawyers, and applied them to assert jurisdiction over foreign anti-competitive agreements. The development of EU and US case law on antitrust jurisdiction has rendered effects-based jurisdiction acceptable in international law, but has also relabelled effects-based jurisdiction as ‘extraterritorial’ instead of ‘territorial’ (as it was in criminal law). Human rights lawyers and constitutional lawyers have also faced questions regarding the territorial reach of fundamental human rights and constitutional rights. In this field, fact patterns that are very similar to criminal law cases have resulted in judgments that are the opposite of the criminal cases: the application of basic rights is extraterritorial unless all the elements of the case take place within the state’s territory. A fourth area in which these questions of territoriality and extraterritoriality arise involves cases that deal with intangible assets and what I have called ‘hypermobile entities’: ships, aircraft, and corporations that are free to change their ‘nationality’ and ‘territorial’ presence extremely rapidly. Neither nationality nor territoriality captures the way in which these entities are connected to nation-states, and yet these are the categories we are left with.

National traditions of defining territoriality in transnational criminal law As already mentioned, transnational criminal law offers the most cohesive answer to the question of what counts as territoriality, but there are still strong national differences. According to the French criminal code, for instance, ‘[a]n infraction

23 See, e.g., Weisselberg 1995, pp. 951 et seq. 24 Steyn 2004; Johns 2005; Mann 2018; also Osofsky 2008.

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shall be taken as committed on the territory of the [French] Republic if one of its constituent elements has taken place on the territory’.25 As Ryngaert reports, French courts have exercised fictitious territorial jurisdiction over the concealment abroad of goods, obtained through fraud in France, over the murder of a girl abroad who had been kidnapped in French territory, over crimes committed abroad by a criminal organization formed in France, and over the abandonment on a deserted Melanesian island of pilgrims who had embarked in a French port.26 Belgian criminal law similarly holds that ‘it is sufficient to grant jurisdiction to the Belgian authorities if one of the constituent elements or aggravating circumstances is realized in Belgium’.27 The German definition of territoriality is somewhat broader, as it includes not only constituent elements but every action by the perpetrator: ‘An act is committed in every place where the perpetrator acted; or in the case of omission, should have acted; or where the outcome was achieved’.28 Dutch courts have crafted and adopted doctrines that identify the place of the criminal act, the place of physical instruments used to commit the crime, and the place of the outcome or consequence as relevant for establishing territorial jurisdiction.29 Perhaps the most intriguing Dutch territorial case is that of a German national who threw a lasso across the border, onto the neck of a horse in the Netherlands, and dragged the horse across the border into Germany.30 It was held that the German national was present in the Netherlands through the rope, and consequently guilty of an export violation.31 As is evident, under continental European approaches, a significant number of foreign elements can be involved in a crime without the criminal act qualifying as extraterritorial. English common law, by contrast, has historically started out from the opposite assumption, namely that all elements of the crime must occur within the borders of the country in question for it to be able to exercise jurisdiction.32 25 ‘L’infraction est réputée commise sur le territoire de la République dès lors qu’un de ses faits constitutifs a eu lieu sur ce territoire.’ Code pénal français, art. 113–2. 26 Ryngaert 2009, pp. 198–99. The cases cited by Ryngaert include Cass. fr. (Crim.) 1882; Cass. fr. (Crim.) 1920; Cass. fr. (Crim.) 1933; Cass. fr. (Crim.) 1981. 27 ‘[I]l suffit pour attribuer compétence aux juridictions belges qu’un des éléments constitutifs ou aggravants des faits poursuivis se soit réalisé en Belgique.’ Cass. b. 2001. See further Ryngaert 2009, p. 201. 28 ‘Eine Tat ist an jedem Ort begangen, an dem der Täter gehandelt hat oder im Falle des Unterlassens hätte handeln müssen oder an dem der zum Tatbestand gehörende Erfolg eingetreten ist. . . .’ Deutsche Strafgesetzbuch §9(1). 29 Ryngaert 2009, pp. 200–1. 30 Dutch Hoge Raad 1915, cited in Ryngaert 2009, p. 200, n. 60. 31 Ryngaert 2009, p. 200. 32 Ibid. p. 190. This is a rule that had disappeared by the mid-sixteenth century, although references to its previous existence were still made in late nineteenth-century judgments (e.g. R. v. Keyn (The Franconia) 1876).

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By the eighteenth century, the common law had evolved to ‘the completion of the offence’ test, also known as the ‘terminatory approach’, meaning that a criminal offence can be said to take place wherever the last element of the offence occurs.33 In the case of murder, the same can be said about wherever the body falls;34 in the case of manslaughter, where the last act that caused the death happened;35 in the case of false pretences, wherever the last misleading statement was made;36 in the case of conversion, wherever the converted funds were paid to the perpetrator.37 An alternate approach looked for the ‘gist’ or ‘gravamen’ of the offence, according to which ‘the offence is committed in England . . . if any part of the proscribed result takes place in England’.38 In such cases, the ‘result’ of the crime was interpreted to encompass the effects of the crime. This approach was codified for a limited number of fraud- and theftrelated offences in the Criminal Justice Act of 1993.39 The English approach is clearly more restrictive than the continental European approach. Even when looking for the ‘gist’ or ‘gravamen’ of the criminal act, English courts only look at what can be called the ‘result’ of the crime, not every ‘constitutive element’. At the same time, English authorities often substituted time for space, so to speak, by applying the doctrine of continuing offences, according to which an illegal act committed abroad persists for as long as the illegal effects or outcomes persist.40 US and Canadian authorities originally followed English authorities. However, they have moved progressively towards the European approach of including more and more elements of crimes that can ground territorial jurisdiction. In

33 34 35 36 37 38 39

Ibid. pp. 192–93. R. v. Coombes 1786. R. v. Keyn 1876, p. 235. R. v. Stoddart 1909; R. v. Jacobi and Hiller 1881; R. v. Nillins 1884. R. v. Lyle 1924. R. v. Ellis 1899 (emphasis added). UK Criminal Justice Act 1993, sec. 4: ‘[T]here is an obtaining of property in England and Wales if the property is either despatched from or received at a place in England and Wales; and . . . there is a communication in England and Wales of any information, instruction, request, demand or other matter if it is sent by any means (i) from a place in England and Wales to a place elsewhere; or (ii) from a place elsewhere to a place in England and Wales.’ The Criminal Justice Act applies, inter alia, to theft, different types of fraud (including tax and customs fraud), false accounting and false statements by company directors, blackmail, the handling of stolen goods, forgery, and using false instruments. See UK Criminal Justice Act 1993, sec. 1. 40 Libman v. The Queen 1985, para. 25: ‘Thus in R. v. Mackenzie and Higginson (1910), 6 Cr. App. R. 64, the accused Mackenzie was accused of procuring a girl to have sexual intercourse with Higginson. Everything in the nature of procuring occurred in Scotland but the intercourse took place in London. The court concluded that the offence of procuring is continuous and since a part of the procuration occurred in England, the court had jurisdiction. This approach has continued to be applied in more recent cases; see R. v. Robert Millar (Contractors) Ltd.; R. v. Millar, [1970] 2 Q.B. 54 (C.A.); Treacy v. Director of Public Prosecutions, [1971] A.C. 537; R. v. Baxter, [1972] 1 Q.B. 1 (C.A.).’

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the United States this had already happened in the mid-nineteenth century.41 In Canada it only began to occur with some consistency in the 1960s.42 Jurisdiction over participation and inchoate offences (i.e. conspiracy, incitement, attempt, and preparation) follows a similarly varied pattern. There is a general rule, according to which states have ‘territorial’ jurisdiction over participation if they have territorial jurisdiction over the principal act or offender (accessorium sequitur principale).43 All of western Europe and the United States follows this rule.44 States may also exercise jurisdiction over participation if the accessory participant is in their territory but the main perpetrator is abroad, at least according to German and French law.45 Inchoate offences display the broadest interpretations of territoriality, whereby states can prosecute conspiracy and attempt abroad if it aimed to create effects within the state’s territory – even if no criminal action took place and no effects were ultimately created. This is the case in English,46 German,47 and US law.48 In the context of international criminal law, the question of which and how many elements of a crime need to be committed on a member state’s territory for the International Criminal Court (ICC) to have territorial jurisdiction remains open. The Rome Statute grants the ICC jurisdiction over international crimes committed within ‘[t]he State on the territory of which the conduct in question occurred’ provided that state is a party to the Rome Statute.49 This passage does not mention whether the territorial jurisdiction is subjective (actor-based) or objective (effects-based). It is arguable that the ICC enjoys jurisdiction over crimes against humanity committed in non-party states if the crimes have effects upon party states, such as refugee flows.50 41 Cf. U.S. v. Davis 1837 (‘[T]he act was, in contemplation of law, done where the shot took effect’, following R. v. Coombes 1786) with People v. Adams 1846, p. 210 (‘True, the defendant was not personally within this state, but he was here in purpose and design, and acted by his authorized agents. . . . Here the crime was perpetrated within this state. . . . This in no sense affirms or implies an extension of our laws beyond the territorial limits of the state.’). 42 See R. v. Trudel, Ex parte Horbas and Myhaluk 1969; and R. v. W. McKenzie Securities Ltd. 1966. But see Libman v. The Queen 1985, para. 47: ‘generally speaking from about 1910, Canadian courts tended not to confine criminal offences as strictly to Canadian territory’, and also paras. 43–59. 43 Ryngaert 2009, p. 203. 44 Ibid. 45 Ibid. pp. 203–4. 46 ‘Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England.’ Liangsiriprasert v. US Government 1991, p. 250. 47 Deutsche Strafgesetzbuch §9(1). 48 See, e.g., United States v. Mann 1980, p. 671 (‘When a conspiracy statute does not require proof of overt acts, the requirement of territorial effect may be satisfied by evidence that the defendants intended their conspiracy to be consummated within the nation’s borders’). 49 Rome Statute of the International Criminal Court 1998, art. 12.2(a). 50 ‘In circumstances where [a deportation or forced transfer] takes the victim directly into the territory of another State, this legal element is completed in that second State. Such a scenario is similar to a “cross-border shooting”, in which a perpetrator on the territory of one State fires a weapon and a victim on the territory of a neighbouring State is struck and injured.’ Prosecution’s Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute 2018, p. 7, para. 13.

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In sum, we can see that the laws of Western states diverge when it comes to deciding whether a crime took place outside or inside its territory. A common element is the tendency to lean towards territoriality: even if only one or two elements are territorial, states regularly decide that the entire crime is territorial. A second commonality is the expansion of what counts as territorial over time. Until the end of the Second World War, this scattershot approach toward what counts as ‘territorial’ coexisted with a global consensus of sorts on the primacy of territoriality.51 This period is often described as the era of strict territoriality.52 The general concord on strict territoriality was illusory, not only because of the multifaceted approaches to territoriality in criminal law,53 but also because of two additional factors. First, the existence of large colonial empires meant that fewer states existed, and consequently there were fewer cross-border disagreements. Second, colonial states had a network of treaty-based extraterritorial courts, better known as consular courts, that handled cases between local subjects and Western citizens.54

The birth of ‘extraterritoriality’: transatlantic disagreement in antitrust/competition jurisdiction This illusory consensus was broken by the growing influence of US antitrust law. Before the Second World War, the United States was the only state with antitrust laws.55 It was nevertheless determined to stop cartels that originated abroad but had anti-competitive effects on the US market. The limits and the reasoning for transnational exercises of US antitrust jurisdiction were worked out in a progression of cases from the early twentieth century onwards. These cases all had similar facts: a group of corporations that imported a certain product, from tobacco to sisal fibres to aluminium ingots, agreed to set prices or limit sales within the United States. Under which grounds could US federal courts impose their jurisdiction upon the cartels thus formed? In American Tobacco56 and Sisal Sales,57 US corporations were also involved in the cartels, which allowed the Supreme Court to claim jurisdiction over all participants based on corporate control and (partial) territoriality.58 In the 1945 Alcoa case, by comparison, only foreign corporations were involved, which meant that corporate control and the nationality of the participating firms could not 51 Cf. Am. Banana Co. v. United Fruit Co. 1909; R. v. Keyn (The Franconia) 1876; MacLeod v. A-G (PC) 1891. 52 Raustiala 2009, pp. 8–12, 66. 53 See n. 25–48 and accompanying text, described contemporaneously in Dickinson et al. 1935, pp. 486–94. 54 Raustiala 2009, pp. 227–30; Cassel 2012; Kayaoğlu 2010. See also the chapters by Richard Horowitz, Kate Miles, Maïa Pal, Mai Taha, and Ntina Tzouvala in this volume. 55 Ryngaert 2008b, pp. 3–4. 56 United States v. American Tobacco Co. 1911. 57 United States v. Sisal Sales Corp. 1927. 58 United States v. American Tobacco Co. 1911, pp. 145–46; United States v. Sisal Sales Corp. 1927, p. 276.

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establish jurisdiction. Alcoa was the first case in which antitrust jurisdiction was asserted purely on the basis of effects.59 Given what we saw above, it is unsurprising that all three cases which the Supreme Court cited in support of effects-based jurisdiction within the Alcoa judgment were criminal cases.60 The Alcoa judgment, and the cases that followed it in the 1940s and 1950s,61 provoked strong reactions from foreign governments, culminating in statutes designed to block American courts’ access to local companies’ documents held abroad.62 British international lawyers in particular provided blistering critiques of the United States’ overreach.63 This is again unsurprising if we compare the traditional English interpretation of territorial jurisdiction with US and continental European approaches, as we did above.64 However, in the 1970s and 1980s, the European Community (EC) started facing similar anti-competitive agreements. It had to consider rationales for applying its competition laws to anti-competitive activities by foreign firms that were organised outside the EC but had effects on the Common Market. The European Court of Justice (ECJ) found itself in a bind: it could not easily copy ‘effects jurisdiction’ from the United States after decades of protest against the American practice (especially by the British).65 At the same time, it could not let such anti-competitive activities go on unchecked either. The solution adopted by the ECJ was to circumvent the question of the territorial reach of EC law by proclaiming other doctrines, which had the desired goal of establishing jurisdiction over foreign parties, without having to acknowledge effects-based jurisdiction. In the Dyestuffs case, the ECJ used the ‘doctrine of the economic entity’ to claim territorial jurisdiction. According to this doctrine, any corporation which had subsidiaries within the EC was considered to be territorially present in the EC, even if the defendant corporations themselves had no registered offices within the EC.66 In the subsequent Wood Pulp case, none of the cartel members had subsidiaries within the EC, and so the doctrine of the economic entity was not able to establish jurisdiction over the defendant corporations. Instead, the ECJ claimed territorial jurisdiction under the ‘doctrine of 59 United States v. Aluminum Co. of America (Alcoa) 1945. 60 Strassheim v. Daily 1911; Lamar v. United States 1916; Ford v. United States 1927. 61 In re Grand Jury Subpoenas Duces Tecum addressed to Canadian Int’l Paper Co. 1947; United States v. Imperial Chem. Indus. Ltd. 1952; British Nylon Spinners v. Imperial Chem. Indus. Ltd. 1953 and 1955; In re Investigation of World Arrangements with relation to the Production, Transportation, Refining and Distribution of Petroleum 1952; United States v. Watchmakers of Switz. Information Center 1955. 62 ‘U.S. efforts to obtain evidence from Canada . . . were later answered by the enactment of the first two blocking statutes, in the Canadian provinces of Ontario and Quebec’ (Meessen 1984, p. 791). 63 See, e.g., Jennings 1957, p. 159 (‘Once we move out of the sphere of direct physical consequences, however, to employ the formula of “effects” is to enter upon a very slippery slope. . . . [In such cases] there [would be] virtually no limit to a state’s territorial jurisdiction.’) See also Mann 1964, pp. 86–87. 64 See n. 25–48 and accompanying text. 65 See, e.g., Alford 1992, pp. 30–33. 66 Imperial Chemical Industries, Ltd. v. Commission (‘Dyestuffs’) 1972.

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implementation’. Under this doctrine, territorial presence was achieved through the implementation of the anti-competitive agreement itself.67 The ECJ has thus asserted ‘territorial’ jurisdiction over foreign cartels, which is basically equivalent to US courts’ ‘extraterritorial’ jurisdiction. Contrary to criminal jurisdiction, in which a superficial agreement on territoriality betrays deep differences, antitrust jurisdiction displays a transatlantic quarrel on the surface but almost complete agreement in essence. To complicate matters even further, the text of the Alcoa judgment did not claim either extraterritorial or territorial jurisdiction for the Second Circuit. It merely stated that ‘it is settled law . . . that any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders’.68 While later US cases have acknowledged that US antitrust law is being applied extraterritorially,69 the ECJ’s later case law shows that the same results could have been achieved by claiming only territorial jurisdiction, or indeed leaving the territorial scope unclear.

The curious lack of territorial jurisdiction claims in fundamental rights cases Criminal law and antitrust law are among the two most closely examined fields of law in the context of jurisdictional conflicts. But they are certainly not the only such fields. In both of these fields, we see a process of extending the conception of territoriality. An ever-larger number of situations are claimed as ‘territorial’, when they could just as reasonably be deemed ‘extraterritorial’. In fundamental rights cases, the inverse seems to occur: events that may reasonably be called ‘territorial’ are deemed ‘extraterritorial’. Fundamental rights cases concern events that violate constitutional or international human rights. They tend to occur outside the territory of the state in whose courts redress is sought, and are brought by non-nationals. In U.S. v. VerdugoUrquides,70 the apartment and belongings of a Mexican national were searched by US federal law enforcement agents in Mexico, without a warrant obtained from a US judge. In Sale v. Haitian Centers Council, Inc.,71 would-be Haitian refugees were turned back on the high seas by US Coast Guard vessels, without investigating whether they would be eligible for refugee protection. In Hirsi Jamaa v. Italy,72 the Italian coast guard did the same thing to African would-be refugees in the Mediterranean. In Hernandez v. U.S.73 and Rodriguez v. Swartz,74 US border patrol agents shot and killed Mexican teenagers across the US – Mexico border. 67 A. Ahlstrom Osakeyhtio v. Commission (‘Wood Pulp’) 1988. 68 Alcoa 1945, p. 443. 69 See, e.g., Timberlane Lumber Co. et al. v. Bank of America et al. 1984, p. 1381; Hartford Fire Insurance Co. v. California 1993, pp. 813–15. 70 United States v. Verdugo-Urquides 1990. 71 Sale v. Haitian Centers Council, Inc. 1993. 72 Hirsi Jamaa and Others v. Italy 2012. 73 Hernandez v. United States 2014. 74 Rodriguez v. Swartz 2015.

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There is a certain jurisdictional split between the United States and Europe in these cases as well. American courts tend not to grant rights to foreigners who are outside US territory without having a ‘previous significant voluntary connection’.75 The practice of the European Court of Human Rights (ECtHR), on the other hand, has been evolving rapidly in the last two decades. The ECtHR cases mostly concern European states’ troops committing human rights violations in states that are not parties to the European Convention on Human Rights. In Al-Skeini v. UK76 and Jaloud v. The Netherlands,77 British and Dutch occupying troops in Iraq shot Iraqi civilians under questionable circumstances. In Bankovic v. Belgium,78 Belgian (and sixteen other NATO member states’) military aircraft bombed Serbian civilians in Belgrade. In Bankovic, the ECtHR claimed that extraterritorial actions such as the aerial bombing of a television station in a foreign country do not bring the harmed individuals under the jurisdiction of the involved states, if none of the victims are nationals of states parties to the European Convention on Human Rights.79 An exception to this broad holding was if a member state occupied or otherwise effectively controlled territory outside its borders.80 In Al-Skeini, the Court held that ‘acts of [a state’s] authorities which produce effects outside its own territory’,81 or actions by state agents or authorities anywhere in the world, can nevertheless render the state responsible.82 In Jaloud, jurisdiction and responsibility was held to exist when a state had no territorial control over foreign territory, and no operational control over its military forces.83 All these cases are discussed as examples of extraterritorial jurisdiction, both by the courts in question and in scholarly commentary.84 However, if courts and scholars applied the same doctrinal and rhetorical tools as in criminal or antitrust cases, many of these fundamental rights cases could just as well be claimed under territorial jurisdiction. It is not inherently unreasonable to claim that the coastguard and air force operations in Bankovic, Hirsi Jamaa, or Sale took place partially within Belgium, Italy, and the United States respectively, as the military units and operations were planned, authorised, and commanded in the capitals of the countries involved. In Verdugo-Urquidez, the same was true of the searches done in Mr. Verdugo-Urquidez’ residences. Yet in Rodriguez, the court explicitly reasoned that the victim, ‘J.A.[,] was not seized when Swartz shot at him, but when the bullets entered J.A.’s body and impeded further

75 76 77 78 79 80 81 82 83 84

United States v. Verdugo-Urquides 1990, p. 260. But see Rodriguez v. Swartz 2015. Al-Skeini and Others v. The United Kingdom 2011. Jaloud v. The Netherlands 2014. Bankovic and Others v. Belgium and Others 2001. Ibid. para. 75. See also the chapter by Ezgi Yildiz in this volume. Bankovic and Others v. Belgium and Others 2001, para. 71; Loizidou v. Turkey (Preliminary Objections) 1995, para. 62. Al-Skeini and Others v. The United Kingdom 2011, para. 130. Ibid. paras. 133–39. Jaloud v. The Netherlands 2014, para. 143. See, e.g., Bomhoff 2008; Bhuta 2016.

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movement. As such, any constitutional violation that may have transpired materialised in Mexico.’85 The disconnect between the expansive reading given to territoriality in criminal law, and the restrictive one given to it in fundamental rights cases is strongest with regard to unmanned military drone attacks. Drone operations require an operator acting in real time somewhere in a military base. Yet instead of stating that a drone attack happens both at the military base and the place of the target, ‘virtually every legal and policy analysis of drone strikes’ states that the strikes happen only at the location of the target (just as the cross-border shootings happen only at the location of the bullet striking the victim).86 As a counterpoint, it is worth considering Lamont v. Woods, a US Second Circuit decision which held that the payment of development aid monies to Catholic schools in the Philippines happened within the United States, thereby granting the court territorial jurisdiction.87 It is therefore quite possible to envision cross-border activities that ground jurisdiction over state actions, not only over ordinary crimes.

The law of nowhere: intangibles and hypermobile entities The conceptual instability of the territorial/extraterritorial divide is further complicated by jurisdictional questions over intangible entities, such as companies and corporations, electronic data, or securities. In these cases, even the separation into placeable physical elements is problematic. Corporations have a place of incorporation, but this need be no more than the mailing address of an agent: possibly an attorney who can have dozens, or even hundreds of corporations ‘located’ at the same post office box. Securities exist either at the corporation’s place of incorporation, or in the jurisdiction of the stock exchange where they are listed.88 Corporations have assets, employees, shareholders, members, and officers, but having some sort of jurisdiction over these persons or objects does not necessarily mean having jurisdiction over the corporation. In most cases, including ordinary private law cases, any of these contacts suffices for establishing jurisdiction.89 Territorial jurisdiction over intangibles, on the other hand, essentially means the place of registration.90 In international tax law, territoriality means ‘a system under which the country in which the parent company of [a corporate] group

85 Rodriguez v. Swartz 2015, p. 8. 86 Daskal 2015, p. 370. 87 Lamont v. Woods 1991, p. 826 (‘we hold that any alleged Establishment Clause violations in this case, if established, would have occurred in the United States – i.e., at the time that appellants granted money to United States entities for the benefit of foreign sectarian institutions – and not abroad – i.e., at the time the money was received or expended’). 88 Additionally, the jurisdiction of the majority of shareholders may also be invoked, though it is questionable whether this can be called territorial jurisdiction even under the most flexible of interpretations. See Ryngaert 2007, pp. 435–37. 89 Cf. International Shoe Co. v. Washington 1945. 90 Simowitz 2015.

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is domiciled (the residence country) forgoes any claim to tax source country earnings – that is, the active foreign business earnings of foreign subsidiaries or branches of the parent company’.91 As a result, the ‘location’ of intangibles and tax obligations depends upon the act of registration, an act with minimal geographical content. Registration can happen anywhere, with the displacement of hardly anything more than sums of money. It is quickly reversible or otherwise changeable, and therefore dependent most powerfully upon strategic considerations (of business, tax, or legal interests). In this respect, registration is similar to a number of other phenomena which also question the basic logic of territoriality: electronic data, ships, and aircraft. Data is clearly non-territorial in many ways: it can be transferred, copied, and deleted at the speed of electronic communication. It can be split up, routed, and stored in many locations, often without the sender’s or the receiver’s knowledge or orders.92 It can be copied without any loss or disturbance to the original copy. This raises the question of where the copying takes place: the location where the data is stored, or where it is copied to, or the location of the person accessing the data, or perhaps all three?93 The analogy with ships and aircraft is perhaps less obvious, but I shall argue that it is just as pertinent. Ships and aircraft have a definite physical location, but this location changes continually and is largely outside of any state’s sovereign territory, as is the case when a given ship or aircraft happens to be on or above the high seas. States have some territorial jurisdiction over ships and aircraft,94 but jurisdiction rests principally with the ‘flag state’, the state whose flag the vessel carries and in accordance with the laws of which it must abide regardless of its location.95 Yet carrying the flag of a specific state is not dependent on any substantive tie to the state, save for the requirement that one adhere to the state’s maritime laws and pay the requisite registration fees.96 Just like incorporation under a certain state’s law, adopting a certain state’s flag is a strategic choice based on considerations of

91 92 93 94

Kleinbard 2011, p. 717. Daskal 2015, pp. 366–88. Ibid. pp. 371–75. See United Nations Convention on the Law of the Sea 1982 (hereinafter ‘UNCLOS’), arts. 21–22 (right of the coastal state to prescribe marine safety and navigational rules); art 25 (right of self-protection); arts. 27–28 (limited rights of criminal and civil jurisdiction over ships passing through the territorial sea); arts. 24 and 26 (obligations of nondiscrimination and prohibition of monetary charges on passing ships). 95 UNCLOS, art. 92(1) (‘Ships . . . shall be subject to [the] exclusive jurisdiction [of the flag state] on the high seas.’); art. 94(1) (‘Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.’). See also Convention on International Civil Aviation 1944 (hereinafter ‘ICAO Convention’), art. 17. But see also ICAO Convention, art. 12 (‘every aircraft flying over or maneuvering within [a State’s] territory and that every aircraft carrying its nationality mark . . . shall comply with the rules and regulations relating to the flight and maneuver of aircraft’ (emphasis added)). 96 UNCLOS, arts. 91 and 94; ICAO Convention, art. 17.

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cost, tax benefits, and jurisdictional immunities.97 The link between flag state and vessel need be nothing more than the fact of registration itself. Ships were originally conceived of as ‘a floating piece of the home country’.98 Today the relevant treaties speak of the ‘nationality’ of the vessel.99 The fact that territoriality and nationality are so interchangeable in the case of ships and aircraft should give us pause in using either of these schemas. Jurisdiction via registration, I argue, is neither territorial nor extraterritorial – nor even national or personal, for that matter. It is a sui generis jurisdictional link, the only way to regulate ‘hypermobile entities’ that are free enough to change their territorial subjecthood in any case. The result of the attempt to impose territoriality on hypermobile entities is a jurisdictional race to the bottom, or even ‘the law of nowhere’. The jurisdictional race to the bottom is clear and well known. If there are several jurisdictions offering services to entities for a price, and the entities are mobile enough to pick and choose among them, the one that offers the benefit for the lowest marginal price will win.100 The ‘law of nowhere’ is a newer and more baffling phenomenon, primarily known to us from tax law. By exploiting the differing definitions of what counts as territorial presence between different jurisdictions, multinational corporations can claim that their earnings are created ‘nowhere’: always in the jurisdiction of another sovereign, from each sovereign’s point of view. The most infamous example, active between 2003 and 2016, was the ‘Double Irish Dutch Sandwich’, employed by Google and Apple. This involved the creation of a set of subsidiaries in Ireland, the Netherlands, and a non-EU jurisdiction, which deferred tax obligations from one to another in a vicious circle. This allowed corporations adopting the scheme to have a net overall tax rate of about 1 percent, while operating in otherwise high-tax jurisdictions.101

Conclusion: in place of location . . .? To sum up, there are two ultimately false assumptions behind the current primacy of territorial jurisdiction: the assumption of totality and the assumption of empirical verifiability. It is assumed that everything has a physical location, and that location is an observable, verifiable fact. We see instead that jurisdiction is claimed over abstract objects that are utterly incapable of being localised, and

97 See, e.g., Griggs and Lugten 2007, pp. 160–62 (‘A typical IUU [Illegal, Unauthorized or Unreported] fishing operation will consist of the secret beneficial owners purchasing an outdated, barely seaworthy vessel, refitting the vessel with state-of-the-art technology, and then registering the vessel in a FOC [flag of convenience] State. . . . The beneficial owners will then usually incorporate a “front” company in the vessel’s new flag State, often with bearer shares.’) 98 Harvard Law Review Note 1914, p. 269 (citing Wilson v. McNamee 1880, p. 574). 99 UNCLOS, art. 91(1) (‘Ships have the nationality of the State whose flag they are entitled to fly.’); ICAO Convention, art. 17 (‘Aircraft have the nationality of the State in which they are registered.’). 100 Altschuler and Grubert 2005; Reich 2005; Rosen 2005. 101 Kleinbard 2011, pp. 707–12. See also Kleinbard 2013, pp. 1515–35.

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complex aggregates of actions and events that cannot be located without dubious metaphysical reasoning. The ambiguity of territoriality explains why commentators have argued that widespread extraterritorial jurisdiction results in over-regulation, but widespread territorial jurisdiction results in under-regulation.102 There is no just-right, in-themiddle regulation that results in an exact separation of affairs between states: as long as there are cross-border events, double citizens, and mobile entities, there will always be concurrent jurisdictional powers. No amount of precision in analysis, factual knowledge, or wording can alter this. I have been tempted to draw the conclusion that territorial jurisdiction is broken, and, at the very least, we must reformulate the traditional five-part list of jurisdictional nexus (territoriality, nationality, protective jurisdiction, universal jurisdiction, and treaty-based jurisdiction).103 In reformulating and clarifying acceptable and unacceptable jurisdictional practices, I would like to propose the following starting points. First, jurisdictional pluralism has already adopted the language of balancing and the weighing of competing interests, which only uses territoriality to acknowledge the possibility of extraterritorial jurisdiction.104 In fact, both Cedric Ryngaert and Paul Schiff Berman advise that we ought to resign ourselves to plural and overlapping authorities in most cases.105 They have also reminded us that universal jurisdiction already serves as a corrective to injustices arising from an overabundance of pluralism.106 The general lack of protest by states over extraterritorial exercises of jurisdiction also points towards discarding territoriality as a necessary component of jurisdiction.107 Second, the language of (extra)territoriality should be limited to cases in which the presence of physical objects and persons is decisive in and of itself. In those cases territorial jurisdiction is clear and straightforward, and does indeed help the bounded pluralism of independent, autonomous political communities. In other cases, it only leads to competing claims of ‘territorial jurisdiction’ with no resolution.108 Third, jurisdiction based on registration, or links to the legal system of a state as such – including nationality-based jurisdiction, flag state jurisdiction, jurisdiction by virtue of corporate seat or the listing of securities – should be taken as a separate type of jurisdiction, because of the issues of hypermobility discussed in this chapter. We may tentatively call this ‘ascriptive jurisdiction’. It should not be confused with either territorial jurisdiction or nationality-based jurisdiction: it has little to do with place, and is very different from the solemnity, importance, and 102 See, e.g., Guzman 2002, pp. 906–13. 103 Szigeti 2017, pp. 394–98. 104 See, e.g., Timberlane Lumber Co. v. Bank of America N.T. & S.A. 1976, pp. 613–15. But see Hartford Fire Insurance Co. v. California 1993. See also Ryngaert 2008a, pp. 145–87. 105 Berman 2007, pp. 1210–18; Ryngaert 2008a, p. 185. 106 Ryngaert 2016, pp. 59–65. 107 Ryngaert 2008b, pp. 12–13. 108 Cf. Higgins 2009, pp. 802–3.

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stability that make nationality meaningful and hard to change for human beings. Arguably, because of the vast opportunities that ascriptive jurisdiction affords for forum shopping, it should be a subsidiary grounds of jurisdiction if other competing grounds are present.

Bibliography Secondary literature Alford, Roger P. (1992), ‘The Extraterritorial Application of Antitrust Laws: The United States and European Community Approaches’ 33 Virginia Journal of International Law 1. Altschuler, Rosanne and Harry Grubert (2005), ‘The Three Parties in the Race to the Bottom: Host Governments, Home Governments and Multinational Companies’ 7 Florida Tax Review 154. Anderson, Benedict (2006), Imagined Communities: Reflections on the Origin and Spread of Nationalism, revised edition (London: Verso). Berman, Paul Schiff (2007), ‘Global Legal Pluralism’ 80 Southern California Law Review 1156. Bhuta, Nehal (2016), ‘The Frontiers of Extraterritoriality – Human Rights as Global Law’, in: Nehal Bhuta (ed.), The Frontiers of Human Rights: Extraterritoriality and Its Challenges (Oxford: Oxford University Press), pp. 1–19. Bomhoff, Jacco (2008), ‘The Reach of Rights: “The Foreign” and “The Private” in Conflict-of-Laws, State-Action and Fundamental-Rights Cases with Foreign Elements’ 71 Law and Contemporary Problems 39. Brilmayer, Lea (2011), ‘The New Extraterritoriality: Morrison v. National Australia Bank, Legislative Supremacy, and the Presumption Against Extraterritorial Application of American Law’ 40 Southwestern Law Review 655. Cassel, Pär Kristoffer (2012), Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (New York: Cambridge University Press). Cohen, Felix S. (1935), ‘Transcendental Nonsense and the Functional Approach’ 35 Columbia Law Review 809. Daskal, Jennifer (2015), ‘The Un-Territoriality of Data’ 125 Yale Law Journal 326. Dickinson, Edwin D. et al. (1935), ‘Jurisdiction with Respect to Crime’ 29 American Journal of International Law Supplement 435. Ford, Richard T. (1999), ‘Law’s Territory (A History of Jurisdiction)’ 97 Michigan Law Review 843. Griggs, Lynden and Gail Lugten (2007), ‘Veil Over the Nets (Unravelling Corporate Liability for IUU Fishing Offences)’ 31 Marine Policy 159. Guzman, Andrew T. (2002), ‘Choice of Law: New Foundations’ 90 Georgia Law Review 883. Harvard Law Review Note (1914), ‘Jurisdiction over Vessels’ 27 Harvard Law Review 268. Higgins, Rosalyn (2009), Themes and Theories: Selected Essays, Speeches and Writings in International Law (Oxford: Oxford University Press). Jennings, Robert Y. (1957), ‘Extraterritorial Jurisdiction in the United States Antitrust Laws’ 33 British Yearbook of International Law 146.

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Johns, Fleur (2005), ‘Guantánamo Bay and the Annihilation of the Exception’ 16 European Journal of International Law 613. Kayaoğlu, Turan (2010), Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (New York: Cambridge University Press). Kleinbard, Edward D. (2011), ‘Stateless Income’ 11 Florida Tax Review 699. Kleinbard, Edward D. (2013), ‘Through a Latte, Darkly: Starbucks’s Stateless Income Planning’, Tax Notes, 24 June 2013, 1515. Kuijer, Martin and Wouter Werner (2016), ‘The Paradoxical Place of Territory in International Law’ 47 Netherlands Yearbook of International Law 3. Lindahl, Hans (2013), Fault Lines of Globalization: Global Order and the Politics of A-Legality (Oxford: Oxford University Press). Mann, Friedrich A. (1964), ‘The Doctrine of Jurisdiction in International Law’ 111 Recueil des cours 1. Mann, Itamar (2018), ‘Maritime Legal Black Holes: Migration and Rightlessness in International Law’ 29 European Journal of International Law 347. Meessen, Karl M. (1984), ‘Antitrust Jurisdiction Under Customary International Law’ 78 American Journal of International Law 791. Neuman, Gerald L. (1996), ‘Anomalous Zones’ 48 Stanford Law Review 1197. Osofsky, Hari M. (2008), ‘The Geography of Justice Wormholes: Dilemmas from Property and Criminal Law’ 53 Villanova Law Review 117. Raustiala, Kal (2009), Does the Constitution Follow the Flag? The Evolution of Extraterritoriality in American Law (New York: Oxford University Press). Reich, Robert B. (2005), ‘Making Globalism a Race to the Top (Rather than to the Bottom)’ 12 Brown Journal of World Affairs 239. Restatement (Third) of the Foreign Relations Law of the United States (American Law Institute, 1988). Rosen, Ellen Israel (2005), ‘The Wal-Mart Effect: The World Trade Organization and the Race to the Bottom’ 8 Chapman Law Review 261. Ryngaert, Cedric (2007), ‘Cross-Border Takeover Regulation: A Transatlantic Perspective’ 4 European Company and Financial Law Review 434. Ryngaert, Cedric (2008a), Jurisdiction in International Law (Oxford: Oxford University Press). Ryngaert, Cedric (2008b), Jurisdiction over Antitrust Violations in International Law (Oxford: Oxford University Press). Ryngaert, Cedric (2009), ‘Territorial Jurisdiction Over Cross-Frontier Offenses: Revisiting a Classic Problem of International Criminal Law’ 9 International Criminal Law Review 187. Ryngaert, Cedric (2016), ‘Territory in the Law of Jurisdiction: Imagining Alternatives’ 47 Netherlands Yearbook of International Law 49. Shaw, Malcolm N. (1982), ‘Territory in International Law’ 13 Netherlands Yearbook of International Law 61. Simowitz, Aaron D. (2015), ‘Siting Intangibles’ 48 New York University Journal of International Law and Politics 259. Sobel, Dava (1995), Longitude: The True Story of a Lone Genius Who Solved the Greatest Scientific Problem of His Time (London: Walker). Steyn, John (2004), ‘Guantanamo: The Legal Black Hole’ 53 International and Comparative Law Quarterly 1. Szigeti, Péter D. (2017), ‘The Illusion of Territorial Jurisdiction’ 52 Texas International Law Journal 369.

Territoriality or extraterritoriality?

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Weisselberg, Charles D. (1995), ‘The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauss and Ignatz Mezei’ 143 University of Pennsylvania Law Review 933.

Legal instruments Code pénal français Convention on International Civil Aviation, signed 7 December 1944, 15 United Nations Treaty Series 295 Deutsche Strafgesetzbuch Rome Statute of the International Criminal Court, adopted 17 July 1998, 2187 United Nations Treaty Series 90 UK Criminal Justice Act 1993 United Nations Convention on the Law of the Sea, signed 10 December 1982, 1833 United Nations Treaty Series 3 US Securities Exchange Act, 15 U.S.C. §78a et seq.

Case law A. Ahlstrom Osakeyhtio v. Commission (‘Wood Pulp’), ECJ Joined Cases 89, 104, 114, 116, 117, 125, and 129/85, 1988 ECR 5983 Al-Skeini and Others v. The United Kingdom, ECtHR, Judgment of 7 July 2011 American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909) Bankovic and Others v. Belgium and Others, ECtHR, Appl. No. 52207/99, Admissibility decision of 12 December 2001, 11 BHRC 435 British Nylon Spinners v. Imperial Chem. Indus. Ltd., [1953] 1 Ch. 19 (C.A.), [1955] 1 Ch. 37 Cass. b., 24 January 2001, P. 00.1627.F Cass. fr. (Crim.), 11 August 1882, D.P. 1883.1.96, S. 1885.1.184 Cass. fr. (Crim.), 5 August 1920, B., n° 355 Cass. fr. (Crim.), 9 December 1933, B., n° 237, S., 1936, 1, 313, note légal Cass. fr. (Crim.), 23 April 1981, B., n° 116 Dutch Hoge Raad, 6 April 1915, NJ 1915, 427, W 9764 Ex parte Blain, (1879) 12 Ch.D. 522 (Brett L.J.) Ford v. United States, 273 U.S. 593 (1927) Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993) Hernandez v. United States, 757 F.3d 249 (5th Cir. 2014) Hirsi Jamaa and Others v. Italy, ECtHR, Judgment of 23 February 2012 Imperial Chemical Industries, Ltd. v. Commission (‘Dyestuffs’), ECJ Case 48/69, 1972 ECR 619 In re Air Crash Disaster at Washington D.C., 559 F.Supp. 333 (DDC 1983) In re Grand Jury Subpoenas Duces Tecum addressed to Canadian Int’l Paper Co., 72 F.Supp. 1013 (S.D.N.Y. 1947) In re Investigation of World Arrangements with Relation to the Production, Transportation, Refining and Distribution of Petroleum, 13 F.R.D. 280 (D.D.C. 1952) International Shoe Co. v. Washington, 326 U.S. 310 (1945) Jaloud v. The Netherlands, ECtHR, Judgment of 20 November 2014 Lamar v. United States, 240 U.S. 60 (1916)

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Lamont v. Woods, 948 F.2d 825 (2nd Cir. 1991) Liangsiriprasert v. US Government [1991] 1 AC 225 Libman v. The Queen, [1985] 2 SCR 178 Loizidou v. Turkey (Preliminary Objections), ECtHR Series A no. 310 (23 March 1995) MacLeod v. A-G (PC), [1891] A.C. 455 Morrison v. National Australia Bank, 561 U.S. 247 (2010) People v. Adams, 3 Den. (N.Y.) 190 (1846) R. v. Coombes, 1 Leach 388 (1786) R. v. Ellis, 1 Q.B. 230 (1899) R. v. Jacobi and Hiller, 46 L.T.R. 595 (1881) R. v. Keyn (The Franconia), 2 Ex. D. 63 (1876) R. v. Lyle, 18 Cr. App. R. 59 (1924) R. v. Nillins, 53 L.J.Q.B. (N.S.) M.C. 157 (1884) R. v. Stoddart, 2 Cr. App. R. 217 (1909) R. v. Trudel, Ex parte Horbas and Myhaluk, [1969] 3 C.C.C. 95 R. v. W. McKenzie Securities Ltd., [1966] 4 C.C.C. 29 Prosecution’s Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute, 9 April 2018, ICC-RoC46(3)-01/18–1, online: www.icc-cpi.int/CourtRecords/ CR2018_02057.PDF Rodriguez v. Swartz, No. 4:14-CV-02251 (D. Ariz., 9 July 2015) Sale v. Haitian Centers Council Inc., 509 U.S. 155 (1993) Strassheim v. Daily, 221 U.S. 280 (1911) Timberlane Lumber Co. v. Bank of America N.T. & S.A., 549 F.2d 597 (1976) Timberlane Lumber Co. et al. v. Bank of America et al., 749 F.2d 1378 (9th Cir. 1984) United States v. American Tobacco Co., 221 U.S. 106 (1911) United States v. Davis, 2 Sumn. 482 (1837) United States v. Imperial Chem. Indus. Ltd., 105 F.Supp. 215 (S.D.N.Y. 1952) United States v. Mann, 615 F.2d 668 (5th Cir. 1980) United States v. Morales, 11 F.3d 915 (9th Cir. 1999) United States v. Sisal Sales Corp., 274 U.S. 268 (1927) United States v. Verdugo-Urquides, 494 U.S. 259 (1990) United States v. Watchmakers of Switz. Information Center, 133 F.Supp. 40 (S.D.N.Y. 1955) Wilson v. McNamee, 102 U.S. 572 (1880)

3

Moving beyond the e-word in the Anthropocene Sara L. Seck

Introduction The concept of legal extraterritoriality is frequently invoked in the twenty-first century, either as commentary on the jurisdictional (over)reach of legislatures and courts or as a call to arms by those who claim that states are subject to human rights obligations that extend beyond borders. Whether invoked to highlight the illicitness of overreach or the necessity of obligation, the idea of extraterritoriality reinforces the territorial boundedness of the sovereign state, due to the inherent duality of ‘extraterritorial’ as the opposite of ‘territorial’. This chapter will pose the question whether, in the contemporary reality that is the ‘Anthropocene’, it is time to move beyond the duality of territorial and extraterritorial law, and instead focus our attention upon what might be required to construct relational laws that acknowledge the reality of state and non-state interdependence in response to ecological crisis. I will first discuss the Anthropocene, a proposed new geological epoch defined by profound human activity that has destabilised earth systems by disregarding the ecological limits of planetary boundaries. I will then describe the increasing invocation of extraterritoriality in international discourse over the appropriate scope of, first, state jurisdiction and, second, state obligations to prevent and remedy human rights harms arising from transnational corporate conduct. While the ‘international community’ has taken steps to negotiate and implement numerous global environmental treaties, these initiatives are premised on the idea of a bounded regulatory state that is able and willing to control corporate conduct effectively within its borders. As will be seen, a human rights approach to transnational corporate conduct, on the other hand, presumes that business enterprises operate across borders, and that state regulation must follow suit. However, I will argue that the invocation of extraterritoriality as part of this project risks undermining its objective, as it reinforces the myth of the bounded autonomous state while simultaneously endorsing the need to regulate across borders. A focus on corporate conduct is essential in the Anthropocene, as capitalism and the promotion of overconsumption drive earth-destructive human behaviour. At the same time, a human rights approach to the Anthropocene draws

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attention to the social justice dimensions of global ecological harm. Accordingly, I will turn to lessons that emerge from environmental and climate justice initiatives that draw upon the language of human rights to advance concerns in a time of ecological crisis, with particular attention to those most vulnerable. A relational approach to the state emerges from some of these materials, suggesting an acknowledgement of the reality of global interdependence and interconnectedness. In conclusion, I will explore whether it is possible to move beyond extraterritoriality (the ‘e-word’) in order to respond more effectively to contemporary problems of the Anthropocene, such as climate change, which do not respect the mythical boundedness of the sovereign state. In other words, I investigate how we might re-imagine sovereignty as relational, so that recourse to the ‘e-word’ becomes obsolete.

Introducing the ‘Anthropocene’ The idea that we are living in a new geological epoch known as the Anthropocene due to the profound impact that humanity has had on the natural world was popularised early this century by atmospheric chemist and Nobel Prize winner Paul Crutzen.1 Humans are now understood as a force ‘capable of dominating natural processes and functions at a global scale’, with the ‘rate and extent of the changes wrought by human activity’ being ‘so significant’ as to shake ‘the very foundations of Earth’s ecological functionality’.2 While different opinions abound as to when such an epoch might have started, it is frequently associated with the onset of the Industrial Revolution, or with an acceleration of ‘industrialisation, energy production, mineral extraction, and population growth’ beginning in the mid-twentieth century.3 Climate change, following the ‘planetary boundaries’ framework developed by Johan Rockström and his colleagues, is one of nine main areas of concern that also include biosphere integrity, ocean acidification, land-system change, biochemical flows, and freshwater use.4 The concept of the Anthropocene has been subject to critique, including by those who question its implicit assumption that all of humanity has played an equal role in global ecological degradation. For example, Andreas Malm and Alf Hornborg argue that the Anthropocene narrative ignores intra-species inequalities.5 According to Matthew Lepori, the idea of the Anthropocene is ‘seductive’, with its ‘true importance’ to be found ‘in its ability to transform how we envision and discuss history, society, and politics’.6 Proponents of the idea ‘build a discourse around [the] universal subject’ that is ‘humankind, our 1 2 3 4

Crutzen and Stoermer 2000; Crutzen 2002. Jefferies et al. 2018, pp. 2–3. Ibid. p. 2, n. 9 (citing Steffen et al. 2015, pp. 81–98). Ibid. p. 3 (citing Steffen et al. 2015, p. 736). The other three areas of concern are stratospheric ozone depletion, atmospheric aerosol loading, and novel entities. See further Rockström et al. 2009. 5 Malm and Hornborg 2014, pp. 62–69. 6 Lepori 2015, p. 104.

Beyond the e-word in the Anthropocene 51 own species’.7 The ‘universal We’ is then said to threaten the global ecosystem, yet in the process ‘elides any trace of power relations that may exist among communities, societies, and states, representing instead the struggle between monolithic humankind and the systems of nature’.8 The ‘drive to universalize history and responsibility’ overwhelms any ‘particular responsibility for climate change’, even as it is acknowledged that the problems have been caused largely by the wealthiest 25 percent of the world’s population.9 Lepori observes that this narrative is particularly problematic for postcolonial historians who share a ‘suspicion of the universal’ and express concern that a focus on humankind as a species introduces a ‘powerful degree of essentialism’ that ‘“serve[s] to hide the reality of capitalist production and the logic of imperial . . . domination”’.10 The problematic nature of capitalism and overconsumption feature prominently in numerous other critiques of the Anthropocene concept, including the work of Anna Grear who suggests that there is a need to do away with the dominance of the ‘corporate juridical subject’.11 Donna Haraway, among others, argues that ‘Capitalocene’ would be a more accurate terminology, although Haraway ultimately proposes ‘Chthulucene’ as the term that best acknowledges the agency of multi-species stories as well as multi-species practices.12 While I am conscious of these critiques, I have chosen to frame the analysis in this chapter in relation to the Anthropocene, adopting Noel Castree’s spirit of ‘engaged analysis’. Castree argues that environmental humanists should engage with geoscientists who are promoting the idea of the Anthropocene in order to ensure that it is ‘the best it can be’, rather than sidelining their concerns.13 Beyond the engagement rationale, I would argue that even if particular responsibility for global ecological degradation could be laid at the feet of the wealthiest 25 percent, this does not alter the descriptive claim that the ‘divide between people and the natural world’ has now been erased, although one might contest whether it ever existed in the first place. Nor does it erase the related concern that as a ‘force of nature’ humanity is now ‘capable of dominating natural processes and functions at a global scale and with a growing risk of future non-linear shocks that may shift environmental systems into a new and entirely different state’.14 Yet at the same time, the link between the Anthropocene and capitalism must be interrogated. Indeed, Anna Grear argues that ‘any ethically responsible future engagement with “anthropocentrism” and/or with the “Anthropocene” must explicitly engage with the oppressive hierarchical structure of the anthropos itself’ and the ‘apotheosis’ of the anthropos in the ‘corporate juridical subject 7 8 9 10 11 12 13 14

Ibid. p. 109. Ibid. p. 110. Ibid. pp. 110–11, n. 24, 26 (citing work by Crutzen, Steffen, and others). Ibid. pp. 110–11 (citing Chakrabarty 2009, pp. 214–16). Grear 2015, pp. 225–49. Haraway 2016. Castree 2014, pp. 233–60. Jefferies et al. 2018, pp. 2–3.

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that dominates the globalised order of the Anthropocene age’.15 According to Jessica Lawrence, the concept of the Anthropocene has emerged alongside and blossoms within the context of neoliberal governance. Crucially, the ‘Anthropocene’s breakdown of conceptual barriers between human and non-human coincides with neoliberalism’s breakdown of the barriers between public and private, between market and society, and between one jurisdiction and the next’.16 In the spirit of both interrogation and engagement, I will now consider different initiatives of the United Nations and other actors designed to prevent and remedy transnational corporate human rights violations, including those arising from environmental harms. I will, moreover, examine how these initiatives appear determined to reinforce the myth of the bounded autonomous regulatory state even as they acknowledge the imperative of regulating across borders.

Business, human rights, and extraterritoriality in the UN Guiding Principles The problem of transnational corporate accountability for human rights violations, including those with an environmental dimension, has been high on the international agenda for years.17 High-profile examples include the notorious and never-ending Chevron/Ecuador litigation arising out of oil pollution in Ecuador,18 and the equally if not more notorious Kiobel litigation.19 This litigation, however, ended prematurely with the narrowing of the scope of application of the US Alien Tort Statute by the US Supreme Court, so as to avoid interpretations that would violate the presumption against extraterritoriality.20 This and other examples have reinforced the sense that corporate violators of human rights can evade justice and leave victims without effective remedy. Indeed, what is perhaps most troubling about these cases is that after years of extensive legal wrangling over predominantly procedural issues, either the substantive claims remain unresolved or the resulting judgments are unenforced. Some might argue that adopting a human rights approach to environmental protection is problematic as it reinforces a perception that humans are separate and distinct from the environment. Simultaneously, this framework can be seen to disregard the intrinsic worth of nature, and the possibility that nature herself has rights, views common to many Indigenous cultures.21 Indeed, in a 2017 report, the Special Rapporteur on Human Rights and the Environment John Knox explicitly acknowledges that the intrinsic value of biodiversity ‘may not be captured by a human rights perspective’, although it is clear that ‘the full

15 16 17 18 19 20 21

Grear 2015, p. 226. Lawrence 2017, p. 81. Amnesty International 2014. Business and Human Rights Resource Centre, ‘Texaco/Chevron’. Business and Human Rights Resource Centre, ‘Shell’; Seck 2013. Kiobel v. Royal Dutch Petroleum Co. 2013. Grear 2011; Gianolla 2013.

Beyond the e-word in the Anthropocene 53 enjoyment of human rights . . . depends on biodiversity’.22 Nevertheless, others argue that the adoption of an environmental human rights approach reflects the way in which those who experience environmental harms often understand and articulate their claims.23 After all, recourse to and recognition of environmental human rights is more evident in constitutions and judicial decisions of the global South.24 The problem of transnational corporations and human rights was the focus of a 2005–11 UN Human Rights Council mandate held by John Ruggie. The outcome was the 2011 UN Guiding Principles on Business and Human Rights (UNGPs), a polycentric governance framework designed around three interdependent and complementary pillars: the state duty to protect, the corporate responsibility to respect, and access to remedy.25 A constructivist international relations scholar, Ruggie had previously played a leading role at the United Nations in the formation of the Global Compact, a learning network that provides a means for all businesses to align both local and global operations with core values in the areas of human rights, labour, environment, and anti-corruption, informed by international legal instruments.26 The promise of the UNGPs and the premise of the Global Compact rest upon the conviction that it is misguided to assume that states are and can be the only regulators of public goods. Instead, in an era of globalisation, it is critical to embrace a polycentric mode of governance that preserves a key role for the state in accordance with international law, yet also embraces the social responsibility of non-state private transnational business actors and the key watchdog contributions of non-state transnational civil society actors.27 While the UNGPs have been broadly endorsed and are increasingly embedded in core international standards that guide responsible business conduct on a global scale,28 they have nevertheless been met with resistance. For example, a movement to negotiate a ‘binding treaty’ on business and human rights is currently underway at the UN Human Rights Council.29 This movement, led by Ecuador and other states of the global South, together with a broad coalition of global civil society actors, has arisen as a response to concerns that the UNGPs do not go far enough to prevent harms and provide effective remedies for victims. Notably, among the key concerns raised by those who believe the UNGPs do not go far enough is their treatment of extraterritoriality.30 22 23 24 25 26

27 28 29 30

Knox 2017, p. 3. Bratspies 2017. Kotzé 2015, p. 189. Ruggie 2011. Ruggie 2004, p. 499; Ruggie 1998, p. 855; Kell and Ruggie 2001. See also UN Global Compact. See further Ellen Gutterman’s chapter in this volume for an analysis of Ruggie’s earlier arguments on transnational governance and extraterritoriality from an international relations perspective. Backer 2011, pp. 37–80; Seck 2011a, pp. 105–7. Seck 2011a, pp. 104–5. Černič and Carrillo-Santarelli 2018; De Schutter 2015. ESCR-Net 2013; De Schutter 2015, pp. 45–47; Cerqueira and Montgomery 2018.

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First, while the state duty to protect human rights in the UNGPs is said to reflect existing international human rights law, the permissive jurisdictional reach of the state duty as described in the UNGPs is limited to areas within the territory and jurisdiction of the state. The state duty to protect is outlined in two foundational principles. Principle 1 provides in part that ‘[s]tates must protect against human rights abuses within their territory and/or jurisdiction by third parties, including business enterprises’.31 This language is also echoed in principle 25 on the state duty and access to remedy.32 On the other hand, principle 2 provides that ‘[s]tates should clearly set out the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations’.33 Official commentary on principle 2 takes the position that ‘[s] tates are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognised jurisdictional basis.’34 The commentary then notes the strong policy reasons for home states to comply with principle 2, and identifies the range of measures that states may draw upon. Here, the commentary carefully distinguishes between ‘domestic measures with extraterritorial implications’ and other approaches that ‘amount to direct extraterritorial legislation and enforcement’.35 The distinction between domestic measures with extraterritorial implications and direct extraterritorial legislation and enforcement is not clearly articulated in the 2008 Protect, Respect, Remedy Framework upon which the UNGPs are based. Indeed, the word ‘extraterritorial’ appears only once in the introduction.36 The 2008 Framework does note that experts disagree on whether home states have regulatory obligations under international human rights law, although greater consensus exists that such regulation is not prohibited under international law provided it does not breach the public international law principle of non-intervention.37 The word ‘extraterritorial’ again appears only briefly in Ruggie’s 2009 report to the Human Rights Council, in which the extraterritorial dimension of the state duty to protect is described as ‘unsettled’.38 However, ‘extraterritoriality’ features prominently in the substance of a keynote address in Stockholm in November 2009, in which Ruggie memorably described 31 Ruggie 2011, Principle 1. 32 Ibid. Principle 25. This principle states as follows: ‘As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative, or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.’ 33 Ibid. Principle 2. 34 Ibid. Commentary to Principle 2. 35 Ibid. 36 Ruggie 2008, para. 14: ‘Home States of transnational firms may be reluctant to regulate against overseas harm by these firms because the permissible scope of national regulation with extraterritorial effect remains poorly understood, or out of concern that those firms might lose investment opportunities or relocate their headquarters.’ 37 Ibid. para. 17; see also Seck 2011b, pp. 25–26. 38 Ruggie 2009b, para. 15.

Beyond the e-word in the Anthropocene 55 extraterritorial jurisdiction as the ‘elephant in the room that polite people have preferred not to talk about’.39 He then went on to argue that in order to ‘achieve practical progress’ it is necessary to ‘pierce the mystique of extraterritorial jurisdiction and sort out what is truly problematic from what is entirely permissible under international law and would be in the best interests of all concerned’.40 The distinction between domestic measures with extraterritorial implications and direct extraterritorial legislation and enforcement was integrated into his 2010 report to the Human Rights Council and addressed at length in a section entitled ‘Extraterritorial Jurisdiction’ that mirrored many of the concerns raised in the Stockholm speech.41 Extraterritorial jurisdiction was then the subject of another legal consultation in 2010,42 and the subject of submissions on an online consultation with regard to the final wording of principle 2 of the UNGPs.43

Business, human rights, and extraterritorial obligations While the UN Guiding Principles make reference to the permissiveness of the exercise of jurisdiction with extraterritorial reach, they do not endorse the idea that home states of transnational corporations have extraterritorial obligations (ETOs), as suggested by civil society groups who support the binding treaty on business and human rights. The idea that beyond permissive exercise of jurisdiction, states are in fact obligated under international law to prevent and remedy human rights violations by transnational corporate actors, is rooted in the Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights, which were issued in September 2011 by a group of international law and human rights experts from around the world.44 Principles 23 through 27 address state obligations to protect rights from violations by non-state actors, including transnational corporations.45 For example, general principle 23 provides that ‘[a]ll States must take action, separately, and jointly through international cooperation, to protect economic, social and cultural rights of persons within their territories and extraterritorially, as set out in Principles 24 to 27’.46 Moreover, principle 24 then outlines the content of the obligation to regulate, while principle 25 clarifies the bases for protection and principle 26 outlines the obligations of states in a position to exercise influence over non-state actor conduct, absent an ability to regulate. Finally, principle 27 frames the obligation of states in terms of cooperation: ‘All States must cooperate to ensure that non-state actors do not impair the enjoyment of the economic, social and cultural rights of any persons. This obligation includes measures to prevent human rights 39 40 41 42 43 44 45 46

Ruggie 2009a. Ibid. p. 6. Ruggie 2010b, paras. 46–50. Ruggie 2010a. See analysis in Seck 2011a, pp. 107–8. ETOs for Human Rights Beyond Borders, ‘About Us’. Ibid. pp. 9–10. Ibid. p. 9.

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abuses by non-state actors, to hold them to account for any such abuses, and to ensure an effective remedy for those affected.’47 The Maastricht Principles serve as a reference point for the ETO Consortium, a network of over 140 civil society organisations and academics that was initially set up in 2007 with a mission to create awareness and advance implementation of the extraterritorial obligations of states.48 The language of ETOs has increasingly been picked up by various international human rights mechanisms, including the June 2017 General Comment on State Obligations under the International Covenant on Economic, Social, and Cultural Rights in the Context of Business Activities.49 Not surprisingly, the ETO Consortium was quick to provide a detailed and public assessment of the extent to which ETOs feature within the General Comment.50 For example, an entire section of the General Comment is dedicated to clarifying ETOs, including obligations to respect, to protect, and to fulfil.51 As we saw earlier in the chapter, the idea of the Anthropocene has been described as ‘seductive’. The idea of ETOs may also be seductive. At a minimum, it appears to be increasingly fashionable, even where it is not clear that it adds any persuasive value to a submission. Indeed, there are signs that human rights initiatives are beginning to apply the idea of ETOs in the environmental and climate change context, where reliance upon ETOs may not only be unpersuasive but may actually create confusion rather than clarity. For example, the petitioners in the Philippines climate change human rights petition curiously framed their claims against the investor-owned Carbon Majors with reference to both the UNGPs and the ETOs – despite the fact that harm to Filipinos in the Philippines clearly provides a solid territorial nexus from which to justify an investigation by a human rights commission.52 Irrespective of where the multiple defendants locate their head offices or operate their businesses, there is a clear territorial nexus – one might say a real and substantial connection – between those who have been harmed in the Philippines and the Philippine Human Rights Commission, one that both justifies and mandates an exercise of subject matter jurisdiction by the commission. Whether or not each defendant will individually contest the exercise of jurisdiction by the commission over them as a matter of personal jurisdiction is a separate issue, to be guided by rules of private international law. Most recently, the Committee on the Elimination of Discrimination Against Women observed in a periodic report that Norway should review its policies on energy and climate change so as to ensure its policy on oil and gas extraction ‘takes into account the disproportionate negative impacts of climate change’ on the rights of women, especially those in poverty who are ‘more reliant on natural resources for their livelihoods’.53 This issue was raised under the heading ‘Extraterritorial State 47 48 49 50 51 52 53

Ibid. p. 10. ETOs for Human Rights Beyond Borders, ‘About Us’. Committee on Economic, Social, and Cultural Rights 2017. ETO Consortium 2017. Committee on Economic, Social, and Cultural Rights 2017, paras. 25–37. Greenpeace Philippines 2015. See further analysis in Seck 2017. Committee on the Elimination of Discrimination Against Women 2017, paras. 14 and 15.

Beyond the e-word in the Anthropocene 57 obligations’.54 Perhaps what is most striking is that this categorisation appears to ignore the reality that the negative impacts of climate change are equally felt by women within Norway, perhaps most notably by members of the Indigenous Sami people. It is, therefore, unclear whether the description of state obligations as extraterritorial adds here anything except confusion. It can be said, then, that concern over the negative implications of transnational corporate conduct, including in relation to violations of environmentalrelated human rights, has led to a movement calling for the permissive exercise of extraterritorial jurisdiction to prevent and remedy transnational corporate harms. In addition, this movement has endorsed the idea that states, despite their territorially bounded nature, have obligations that extend extraterritorially, most certainly in the area of economic, social, and cultural rights. Effective legal governance in the Anthropocene, then, requires state laws to reach further, extending beyond territorial borders to capture transnational corporate conduct. Yet while the language of extraterritoriality has been embraced, this has not been without careful thought, at least on the part of some key participants in the movement. For example, Mark Gibney, in a contribution appropriately entitled ‘On Terminology: Extraterritorial Obligations’,55 has suggested that ‘this entire discussion of terminology should not be necessary. Rather, the term “human rights” should convey the understanding that all people have human rights and all states have the responsibility to protect those rights – for all people.’56 According to Gibney, while ‘extraterritorial’ appears to have ‘gained ascendancy’,57 even Sigrun Skogly, one of the scholars central to the Maastricht Principles and the ETO Consortium, has described the phrase ‘extraterritorial obligation’ as ‘still not an ideal term’ despite the careful consideration that went into choosing it.58 Gibney sees a more ‘serious problem’ in that ‘extraterritorial obligations will be relegated to the “extra-ordinary”’.59 If anything, I believe that there are deeper concerns heightened in the Anthropocene. It is certainly true that if an essential feature of state sovereignty is control over a defined territory, then speaking of an obligation to regulate or even the permissive exercise of jurisdiction beyond the territory of the state (‘extra’-territorial) immediately raises red flags of illicitness if not illegality, which will limit uptake.60 This is true even where a global framework such as the UN Guiding Principles provides evidence of a soft global consensus for state regulation to reach beyond the boundaries of the state. More concerning, the language of extraterritorial jurisdiction and extraterritorial obligations reinforces a vision of the territori54 55 56 57 58 59 60

Ibid. heading to paras. 14 and 15. Gibney 2013, p. 32. Ibid. p. 47. Ibid. pp. 38–39. Ibid. p. 36. Ibid. p. 40. See discussion of Lowenfeld and anecdotal experience in the Canadian context in Seck 2008, pp. 185–86 (citing Canadian policy documents concerning Canadian mining in developing countries and Lowenfeld 1996, pp. 15–16).

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ally bounded sovereign state as an independent, autonomous being, which, in a time of global ecological crisis, is not only unhelpful, but undermines the critical importance of building mutually supportive relationships that acknowledge the reality of our ecological interdependence. This vision of the unified, independent, and autonomous state is modelled on the independent autonomous individual of liberalism.61 Yet it is a fiction. States, like individuals, are relational beings, yet, unlike individuals, they are not unified creatures.62 To overcome the ecological trauma of the Anthropocene will require the fostering of nurturing and supportive relationships between states and non-state beings that enable states, peoples, and nature to flourish. Ultimately, a transformation of our understandings of state, sovereignty, and law will be required, as will the endorsement of pluralist and polycentric ways of governing within and beyond the limitations of the state.

Environmental and climate justice in the Anthropocene The UNGPs are said to apply to all human rights, and the relationship between human rights and the environment has been the subject of multiple initiatives by the Human Rights Council and other bodies. For example, since 1995 there has been a special rapporteur dedicated to examining the human rights implications of toxic substances and hazardous waste.63 While initially focused upon the dumping and movement of hazardous substances, the mandate was strengthened in 2011 to take a ‘whole life-cycle’ approach to hazardous products, while in 2017 the mandate was further extended to consider ‘the issue of the protection of the environmental human rights defenders’.64 Five different special rapporteurs have held this position, producing numerous reports clarifying the relationship between environmental harms associated with toxic substances and human rights. Recently, the current special rapporteur, Baskut Tuncak, released the Guidelines for Good Practices, which are designed to assist states and businesses, among other actors, to identify and address human right issues arising from toxics.65 The Guidelines outline the duties of states, the responsibilities of businesses, and the importance of access to justice and remedy. Attention is devoted to the need to protect the rights of the ‘most vulnerable’, including communities that are low-income, children, workers, women, older persons, Indigenous peoples, minorities, and post-conflict communities.66 While state duties are described as extending extraterritorially,67 the responsibility of businesses to respect human 61 Knop 1993, pp. 320–21. 62 Ibid. 63 OHCHR, ‘Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes’. 64 Ibid. 65 Tuncak 2017. 66 Ibid. paras. 24–44. 67 Ibid. para. 5: ‘States must recognize their obligations to respect, protect, and fulfil human rights extraterritorially. In fulfilling their obligations, States must refrain from discrimination and ensure substantive equality.’

Beyond the e-word in the Anthropocene 59 rights is characterised as extending to those ‘implicated’ by business ‘activities, supply chains, products, policies, procedures, and business relationships, including their investments’.68 Human rights due diligence is described as fundamental to business responsibility ‘in the area of toxic chemicals, pollution and waste’, and it is stated that businesses ‘need to conduct such due diligence on toxics produced, used, released, stored and disposed of in the course of their activities, the life cycle of their products and their business relationships’.69 Vulnerable groups are said to require special attention,70 and specific industry sectors are said to have particular responsibilities.71 The responsibility of businesses to communicate information about the use of hazardous substances is described as a ‘shared responsibility’.72 A new special procedures mandate holder was established by the Human Rights Council in 2012, with a specific focus on the relationship between human rights and the environment. John Knox held this position first as independent expert, and then as a special rapporteur, and has released numerous studies and reports. In January 2018 Knox released his final report in which he outlines Framework Principles on Human Rights and the Environment.73 However, unlike the special rapporteur on toxic substances, Knox confines his discussion of the business responsibility to respect rights to two paragraphs. Within principle 8, Knox provides that business enterprises ‘should conduct human rights impact assessments’ in keeping with the UNGPs so as to ‘identify and assess any actual or potential adverse human rights impacts with which they may be involved either through their own activities or as a result of their business relationships’.74 This should include ‘meaningful consultation with potentially affected groups and other relevant stakeholders’ and the results should be integrated ‘across relevant internal functions and processes’.75 In principle 12, he confirms that the responsibility under the UNGPs extends to adverse human rights impacts that arise through environmental harm, and that the conduct of human rights due diligence by businesses should ‘identify, prevent, mitigate and account for how they address their environmental impacts on human rights’, as well as ‘enable the remediation of any adverse environmental human rights impacts they cause or to which they contribute’.76 All the rest of the principles are devoted to state obligations, beginning with two framing principles. According to principle 1, ‘[s]tates should ensure a safe, clean, healthy, and sustainable environment in order to respect, protect and fulfil human rights’, while principle 2 provides that ‘[s]tates should respect protect 68 69 70 71 72 73 74 75 76

Ibid. para. 81. Ibid. para. 82. Ibid. para. 81. Ibid. paras. 89–95. Ibid. para. 88. Knox 2018. Ibid. Annex, Framework Principle 8, para. 22. Ibid. Ibid. Annex, Framework Principle 12, para. 35.

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and fulfil human rights in order to ensure a safe, clean, healthy and sustainable environment’.77 Notably, even before the enunciation of these principles, the Framework Principles begin with the recognition that ‘[h]uman beings are part of nature’ and that ‘our human rights are intertwined with the environment in which we live’.78 Even more notably for the purpose of this chapter is the fact that these principles make no reference to extraterritorial obligations. Instead, reference is made to obligations arising in cases of transboundary harms,79 while principle 13 is devoted to the obligation of states to ‘cooperate with each other to establish, maintain and enforce effective international legal frameworks in order to prevent, reduce and remedy transboundary and global environmental harm that interferes with the full enjoyment of human rights’.80 Furthermore, principle 14 highlights the need for states to ‘take additional measures to protect the rights of those who are most vulnerable to, or at particular risk from, environmental harm, taking into account their needs, risks and capacities’.81 The commentary then identifies many examples of potential vulnerability including those listed by Tuncak, while principle 15 goes on to outline additional considerations in relation to ‘Indigenous peoples and members of traditional communities’, including when free, prior, and informed consent is required.82 While there is as of yet no special rapporteur with a mandate directed to the study of the relationship between climate change and human rights, the Human Rights Council mandate holders and the Office of the High Commissioner for Human Rights (OHCHR) have not been silent on this topic.83 Indeed, Knox prepared a report on the subject in 2016 in which, among other observations, he notes that the approach of states to the climate problem has not been one of trying to ‘describe the extraterritorial human rights obligations of every state in relation to climate change’ but rather to treat ‘climate change as a global problem that requires a global response’, in accordance with the duty of international cooperation.84 Nevertheless, ‘[t]he failure of States to effectively address climate change through international cooperation would prevent individual States from meeting their duties under human rights law to protect and fulfil the human rights of those within their own jurisdiction’.85 Similarly, the OHCHR’s ‘Key Messages on Human Rights and Climate Change’ avoid the word extraterritoriality, whether in relation to extraterritorial jurisdiction or extraterritorial obligations, focusing instead in message 5 on the importance of international cooperation, and in message 8 on the need to 77 78 79 80 81 82 83 84 85

Ibid. Framework Principles 1 and 2. Ibid. para. 1. Ibid. paras. 8 and 20. Ibid. Framework Principle 13. Ibid. Framework Principle 14. Ibid. Framework Principle 15(b) and commentary at para. 51. See generally the discussion in Seck 2017. Knox 2016, paras. 41–42. Ibid. n. 27. However, while some human rights obligations relating to climate change must be implemented immediately, others, including the reduction of greenhouse gas emissions, ‘can be expected to vary based on differing capabilities and conditions’ in accordance with understandings of progressive realization of social, economic, and cultural rights. See Knox 2016, paras. 47–48.

Beyond the e-word in the Anthropocene 61 protect human rights from business harms, while simultaneously confirming that businesses ‘are also duty-bearers’ who ‘must be accountable for their climate impacts’.86 According to message 5, multiple sources of international law establish that states have a ‘duty to cooperate to ensure the realisation of all human rights’: Climate change is a human rights threat with causes and consequences that cross borders; thus, it requires a global response, underpinned by international solidarity. States should share resources, knowledge and technology in order to address climate change. International assistance for climate change mitigation and adaptation should be additional to existing ODA commitments. Pursuant to relevant human rights principles, climate assistance should be adequate, effective and transparent, it should be administered through participatory, accountable and non-discriminatory processes, and it should be targeted toward persons, groups, and peoples most in need. States should engage in cooperative efforts to respond to climate-related displacement and migration and to address climate-related conflicts and security risks. In sum, while the reports canvassed here adopt a human rights approach to environmental problem-solving at a time of ecological crisis, they largely avoid the language of extraterritoriality and so do not fall into the trap of reinforcing the image of the bounded autonomous state, modelled on the bounded individual of liberalism. Instead, they invoke a relational understanding of interconnectedness and interdependence, grounded in cooperation, assistance, and the sharing of knowledge, resources, and responsibility.

Conclusion: re-imagining state and sovereignty beyond the e-word? This chapter has illustrated how the language of extraterritoriality – whether in regard to jurisdiction or to obligations – has increasingly permeated advocacy and guidance on the scope of the state duty to protect human rights from adverse impacts of transnational corporate conduct. Yet guidance in the area of human rights and environment appears less inclined to invoke the ‘e-word’, preferring instead to frame the problem as one that can be solved by embracing the duty to cooperate. The failure to incorporate the language of extraterritorial jurisdiction or extraterritorial obligations in (many of) these environmental human rights reports in favour of language rooted in the duty to cooperate could be seen as endorsement of a relational understanding of the state in contrast to the image of the bounded autonomous liberal state, yet it is not necessarily so clear cut. While the bounded language of the ‘e-word’ is avoided in these guidance frameworks, so too is the sense that states have the freedom to act unilaterally to address global harms in spite of concerns that unilateral regulation may infringe 86 OHCHR, ‘Key Messages on Human Rights and Climate Change’. These messages were reflected in OHCHR’s submission to the 21st Conference of Parties to the UNFCCC. See OHCHR 2015, p. 4, para. 8.

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the sovereignty of a host state.87 Moreover, the sense that action is mandatory due to existing human rights obligations, absent a multilateral environmental treaty, appears lacking. Instead, state consent and endorsement of multilateralism predominates. Yet lurking in the background are ideas that move beyond the walls of the territorially bounded sovereign state. For example, business responsibilities, as articulated in the UNGPs, are not understood as subject to territorial boundedness that can only be overcome through invocation of the ‘e-word’. In addition, repeated reference to the needs and views of vulnerable communities and groups suggests that whatever image of the state predominates, it is not one of a unified state, but rather of a state made up of individuals and groups, many of whom share identities and solidarities with individuals and groups beyond state borders. This suggests that a rethinking of sovereignty is in order – one that contemplates the possibility of overlapping sovereignties and legal pluralisms, ideas that emerge when attention is paid to Indigenous legal orders,88 as well as to how women, for example, ‘might participate in international law-making’ as individuals as well as ‘through their membership in different, potentially overlapping groups’.89 These alternate performances of sovereignty could, in time, build the relationships necessary to overcome the self-destructive patterns of bounded state sovereignty that predominate in the Anthropocene.90 So too might grassroots climate justice action that pushes for a different understanding of ‘global common concern’ which embraces a ‘plurality of perspectives and laws’.91 Despite the opportunity presented by the Anthropocene to ‘reimagin[e] human social, economic, and political systems in order to build a more harmonious relationship with Earth systems’,92 the idea of the bounded, autonomous, and sovereign state will not be easy to overcome. To the extent that it is, an expanded form of neoliberal management may be more likely to succeed than alternative innovations derived from grassroots expressions of Indigenous sovereignty or gender equality. Nevertheless, transcending the human/nature divide in the Anthropocene surely opens the door to relational world views that not only acknowledge the reality of interconnectedness and interdependence between humanity and nature, but also remain unconvinced that such a conceptual divide has ever existed.93 This view aligns with social constructivists who recognise that nature itself is a social construct, with a ‘repository of meaning’.94 A key question, then, is how to ensure legal developments in the Anthropocene respect those who adopt relational understandings and whose feet tiptoe lightly on planet Earth.

87 88 89 90 91 92 93 94

See generally Seck 2008. Knop 1993, p. 342. See further analysis of Knop in Seck 2017. Knop 1993, p. 341. On property and performativity, including the idea of alternate performances, see Blomley 2013, p. 23. Dehm 2016, p. 160. Lawrence 2017, p. 81. Grear 2011. Wapner 2014, pp. 39–40, 45–46.

Beyond the e-word in the Anthropocene 63 Indeed, integrating a relational approach to law is essential for everyone, so as to ensure justice in a climate-changing world.

Bibliography Amnesty International (2014), Injustice Incorporated: Corporate Abuses and the Human Rights to Remedy (London: Amnesty International). Backer, Larry Catá (2011), ‘On the Evolution of the United Nations’ “ProtectRespect-Remedy” Project: The State, the Corporation and Human Rights in a Global Governance Context’ 9 Santa Clara Journal of International Law 37. Blomley, Nicholas (2013), ‘Performing Property: Making the World’ 26 Canadian Journal of Law and Jurisprudence 23. Bratspies, Rebecca (2017), ‘Claimed Not Granted: Finding a Human Right to a Healthy Environment’ 26 Transnational Law and Contemporary Problems 268. Business and Human Rights Resource Centre, ‘Shell Lawsuit (re Nigeria: Wiwa and Kiobel)’, online: https://business-humanrights.org/en/shell-lawsuit-re-nigeriakiobel-wiwa/. Business and Human Rights Resource Centre, ‘Texaco/Chevron Lawsuits (re Ecuador)’, online: https://business-humanrights.org/en/texacochevron-lawsuitsre-ecuador/. Castree, Noel (2014), ‘The Anthropocene and the Environmental Humanities: Extending the Conversation’ 5 Environmental Humanities 233. Černič, Jernej Letnar and Nicolás Carrillo-Santarelli (eds) (2018), The Future of Business and Human Rights: Theoretical and Practical Considerations for a UN Treaty (Cambridge: Intersentia). Cerqueira, Daniel and Alexandra Montgomery (13 February 2018), ‘International Community Must Deliberate on Binding Treaty to Fill ETO Gaps in UN Guiding Principles Framework’, online: www.escr-net.org/news/2018/blog-internationalcommunity-must-deliberate-binding-treaty-fill-eto-gaps-un-guiding/. Crutzen, Paul J. and Eugene F. Stoermer (2000), ‘The “Anthropocene”’ 41 IGBP Newsletter 17. Crutzen, Paul J. (2002), ‘Geology of Mankind’ 415 Nature 23. Dehm, Julia (2016), ‘Carbon Colonialism or Climate Justice? Interrogating the International Climate Regime from a TWAIL Perspective’ 33 Windsor Yearbook of Access to Justice 129. De Schutter, Olivier (2015), ‘Towards a New Treaty on Business and Human Rights’ 1 Business and Human Rights Journal 41. ESCR-Net (2013), ‘100+ Groups Publicly Call on United Nations to Develop New Binding Instrument to Address Corporate Human Rights Abuses’, 13 December, online: www.escr-net.org/news/2013/100-groups-publicly-call-united-nationsdevelop-new-binding-instrument-address-corporate/. ETO Consortium (2013), Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights (FIAN International), online: www.etoconsortium.org/nc/en/main-navigation/library/maastricht-principles/ ?tx_drblob_pi1%5BdownloadUid%5D=23. ETO Consortium (2017), ‘CESR Elaborates on States’ ETOs in the Context of Business Activities in New General Comment 24’, 30 May, online: www.etoconsortium. org/en/news/news/cescr-elaborates-on-states-etos-in-the-context-of-businessactivities-in-new-general-comment-24–145/.

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ETOs for Human Rights Beyond Borders, ‘About Us’, online: www.etoconsortium. org/en/main-navigation/about-us/eto-consortium/. Gianolla, Cristiano (2013), ‘Human Rights and Nature: Intercultural Perspectives and International Aspirations’ 1 Journal of Human Rights and the Environment 58. Gibney, Mark (2013), ‘On Terminology: Extraterritorial Obligations’, in: Malcolm Langford, Wouter Vandenhole, Martin Scheinin, and Willem van Genugten (eds), Global Justice, State Duties: The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law (Cambridge: Cambridge University Press), pp. 32–47. Grear, Anna (2011), ‘The Vulnerable Living Order: Human Rights and the Environment in a Critical and Philosophical Perspective’ 2 Journal of Human Rights and the Environment 23. Grear, Anna (2015), ‘Deconstructing Anthropos: A Critical Legal Reflection on “Anthropocentric” Law and Anthropocene “Humanity”’ 26 Law and Critique 225. Greenpeace Philippines (2015), Petition to the Commission on Human Rights of the Philippines Requesting for Investigation of the Responsibility of the Carbon Majors for Human Rights Violations or Threats of Violations Resulting from the Impacts of Climate Change, 22 September. Haraway, Donna J. (2016), ‘Staying with the Trouble: Anthropocene, Capitalocene, Chthulucene’, in: Jason W. Moore (ed.), Anthropocene or Capitalocene? Nature, History, and the Crisis of Capitalism (Oakland: PM Press), pp. 34–76. Jefferies, Cameron, Sara L. Seck, and Tim Stephens (2018), ‘International Law, Innovation, and Environmental Change in the Anthropocene’, in: Neil Craik, Cameron Jefferies, Sara L. Seck, and Tim Stephens (eds), Global Environmental Change and Innovation in International Law (Cambridge: Cambridge University Press), pp. 1–18. Kell, George and John Ruggie (2001), ‘Global Markets and Social Legitimacy: The Case of the Global Compact’, in: Daniel Drach (ed.), The Market or the Public Domain? Global Governance and Asymmetry of Power (London: Routledge), pp. 321–34. Knop, Karen (1993), ‘Re/Statements: Feminism and State Sovereignty in International Law’ 3 Transnational Law and Contemporary Problems 293. Kotzé, Louis J. (2015), ‘Human Rights, the Environment, and the Global South’, in: Shawkat Alam, Sumudu Atapattu, Carmen G Gonzalez, and Jona Razzaque (eds), International Environmental Law and the Global South (Cambridge: Cambridge University Press), pp. 171–91. Lawrence, Jessica C. (2017), ‘Managing the Environment: Neoliberal Governmentality in the Anthropocene’, in: Pasi Heikkurinen (ed.), Sustainability and Peaceful Coexistence for the Anthropocene (London: Routledge), pp. 68–81. Lepori, Matthew (2015), ‘There Is No Anthropocene: Climate Change, Species-Talk, and Political Economy’ 172 Telos 103. Lowenfeld, Andreas R. (1996), International Litigation and the Quest for Reasonableness: Essays in Private International Law (Oxford: Oxford University Press). Malm, Andreas and Alf Hornborg (2014), ‘The Geology of Mankind? A Critique of the Anthropocene Narrative’ 1 Anthropocene Review 62. Rockström, Johan et al. (2009), ‘Planetary Boundaries: Exploring the Safe Operating Space for Humanity’ 14 Ecology and Society 32.

Beyond the e-word in the Anthropocene 65 Ruggie, John Gerard (1998), ‘What Makes the World Hang Together? NeoUtilitarianism and the Social Constructivist Challenge’ 52 International Organizations 855. Ruggie, John Gerard (2004), ‘Reconstituting the Global Public Domain: Issues, Actors and Practices’ 10 European Journal of International Relations 499. Ruggie, John Gerard (2009a), UN Special Representative for Business and Human Rights, Keynote Presentation at EU Presidency Conference on the ‘Protect, Respect and Remedy’ Framework, Stockholm, 10–11 November 2009, online: www.reportsand-materials.org/Ruggie-presentation-Stockholm-10-Nov-2009.pdf. Ruggie, John Gerard (2010a), Exploring Extraterritoriality in Business and Human Rights: Summary Note of Expert Meeting, 14 September 2010, online: http:// business- humanrights.org/sites/default/files/media/documents/ruggieextraterritoriality-14-sep-2010.pdf. Seck, Sara L. (2008), ‘Unilateral Home State Regulation: Imperialism or Tool for Subaltern Resistance?’ 46 Osgoode Hall Law Journal 565. Seck, Sara L. (2011a), ‘Canadian Mining Internationally and the UN Guiding Principles for Business and Human Rights’ 49 Canadian Yearbook of International Law 51. Seck, Sara L. (2011b), ‘Conceptualizing the Home State Duty to Protect Human Rights’, in: Karin Buhman, Mette Morsing, and Lynn Roseberry (eds), Corporate Social and Human Rights Responsibilities: Global Legal and Management Perspectives (Houndmills: Palgrave Macmillan), pp. 25–51. Seck, Sara L. (2013), ‘Kiobel and the E-word: Reflections on Transnational Environmental Responsibility in an Interconnected World’, post on Law at the End of the Day, online: http://lcbackerblog.blogspot.ca/2013/07/sara-seck-on-kiobel-ande-word.html. Seck, Sara L. (2017), ‘Revisiting Transnational Corporations and Extractive Industries: Climate Justice, Feminism, and State Sovereignty’ 26 Transnational Law and Contemporary Problems 383. Steffen, Will et al. (2015), ‘The Trajectory of the Anthropocene: The Great Acceleration’ 2 Anthropocene Review 81. Wapner, Paul (2014), ‘The Changing Nature of Nature: Environmental Politics in the Anthropocene’ 14 Global Environmental Politics 35.

United Nations documents Committee on Economic, Social, and Cultural Rights (2017), General Comment No. 24 on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities, 10 August, UN Doc. E/C.12/ GC/24. Committee on the Elimination of Discrimination Against Women (2017), Concluding Observations on the Ninth Periodic Report of Norway, 22 November, UN Doc. CEDAW/C/NOR/CO/9. Knox, John (2016), Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: Climate Change, 1 February, UN Doc. A/HRC/31/52. Knox, John (2017), Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: Biodiversity, 19 January, UN Doc. A/HRC/34/49.

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Knox, John (2018), Report of the Special Rapporteur on the issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: Framework Principles, 24 January, UN Doc. A/HRC/37/59. OHCHR, ‘Key Messages on Human Rights and Climate Change’, online: www. ohchr.org/Documents/Issues/ClimateChange/KeyMessages_on_HR_CC.pdf/. OHCHR, ‘Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes’, online: www.ohchr.org/EN/Issues/Environment/ToxicWastes/Pages/SRToxicWastesIndex.aspx/. Ruggie, John Gerard (2008), Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Protect, Respect and Remedy: A Framework for Business and Human Rights, 7 April, UN Doc. A/HRC/8/5. Ruggie, John Gerard (2009b), Business and Human Rights: Towards Operationalizing the ‘Protect, Respect and Remedy’ Framework, 22 April, UN Doc. A/HRC/11/13. Ruggie, John Gerard (2010b), Business and Human Rights: Further Steps Toward the Operationalization of the ‘Protect, Respect and Remedy’ Framework, 9 April, UN Doc. A/HRC/14/27. Ruggie, John Gerard (2011), Report of the Special Representative of the SecretaryGeneral on the Issues of Human Rights and Transnational Corporations and Other Business Enterprises: Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, 21 March, UN Doc. A/HRC/17/31. Tuncak, Baskut (2017), Report of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes: Good Practice Guidelines, 20 July 2017, UN Doc. A/ HRC/36/41.

Case law Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013)

Part II

Constituting and contesting extraterritoriality

4

Early modern extraterritoriality, diplomacy, and the transition to capitalism Maïa Pal

Introduction Scholarly approaches in the related fields of diplomacy and the history of international relations (IR) associate extraterritoriality with the emergence of both permanent embassies in the fifteenth and sixteenth centuries and ambassadorial immunity in the sixteenth century.1 More broadly, this literature is focused on intellectual history, the origins and development of state institutions, and links between leading diplomats and the classical canon of legal theory. An ongoing problem with this literature is that it tends to ignore the socio-economic causes and implications of shifts in diplomatic practice and personnel in the context of broader shifts in international legal orders and modes of production.2 However, diplomatic history has recently experienced a certain renewal by expanding its use of sources, exploring broader aspects of the function and consequences of diplomacy, and considering a larger variety of actors qualifying as diplomats.3 This has led to studies of the individual lives of diplomats – and of the wider social and geographical implications of their functions – that emphasise the cultural, religious, aesthetic, and linguistic aspects of early modern politics.4 1 For classic early modern diplomatic histories, see Numelin 1950; van der Essen 1953; Mattingly 1955; Carter 1966; Anderson 1993; Davis Cross 2007. For histories of ambassadorial immunity, see Adair 1929; Frey and Frey 1999. For classic IR texts that build on these sources for an English School history of international law, see Bull 1977; Watson 1982; Bull and Watson 1984; Keene 2002; Buzan and Lawson 2015. 2 Roosen’s (1976, p. 66) complaint about the lack of work on the social bases of diplomats remains valid, in spite of some exceptions in Bély 1990 and Scott 2007. See Teschke 2003 for a Marxist critique of IR’s standard narrative of the emergence of the system of sovereign states after Westphalia. 3 Although the term ‘diplomat’, as we understand it today, only appears in the late eighteenth century, the occupation of diplomacy refers here more broadly to the early modern use of envoys, messengers, representatives, consuls, nuncios, and legates, i.e. ambassadors of various statuses and designations placed on missions by the sovereign, prince, or other jurisdictional entity (e.g. a pope, lord, city, or company) they represented. 4 For new approaches to the history of diplomacy see Bély 1990; Frigo 2000; Bély 2007; Scott 2007; Watkins 2008; Hampton 2009; Adams and Cox 2011; Jacobsen 2011; Sowerby and Hennings 2017; Fedele 2017. For a short general overview of recent developments in early modern diplomatic history, see Dover and Scott 2015.

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This new literature is a welcome addition to the narrower repertoire of the classic studies, even if it continues to lack direct engagement with the socio-economic context of diplomacy. One would expect the study of extraterritoriality in the early modern period to benefit from this new wave of diplomatic history. However, in contrast to recent developments in international legal history, some exemplified by this volume, few historians of diplomacy or international relations engage with the issue of extraterritoriality. And when they do so, they are invariably based to a significant degree upon Adair’s 1929 work on early modern ambassadorial immunities entitled The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries.5 This chapter does not seek to explain early modern extraterritoriality fully or to revisit its history as ambassadorial privileges. Instead, it seeks to inaugurate discussion of a broader research project by rethinking early modern extraterritoriality in relation to a fundamental concurring event: the transition to capitalism. This broader project, developed in further detail elsewhere, aims to enrich diplomatic history’s institutional and cultural perspective through a more productive engagement with legal histories of extraterritoriality and historical materialist approaches.6 Specifically, Political Marxism is used as an approach that can reveal some of the underlying socio-economic causes of shifts in diplomatic practice and personnel.7 It is important to enter some caveats here. With its focus on Europe, this chapter perpetuates the geographical or empirical Eurocentrism found in many studies of diplomatic history. The most significant part of the ‘decentring Europe’ agenda undoubtedly consists in studying the development of international law and international relations outside Europe. However, Eurocentrism does not

5 An exception is Napolitano 2012. Kaplan 2002 discusses extraterritoriality but does not add much to work by Adair and Mattingly. More generally, for Mattingly (1955, p. 257), Adair is ‘not only a thorough treatment of its subject, making conscientious use of concrete historical instances to illuminate the writings of the jurists, but a good general introduction to the later Renaissance literature about the international law of diplomacy’. For Anderson, (1993, p. 295), Adair ‘remains the standard work on an important topic’. For Dover and Scott (2015, p. 693), ‘the standard work remains E. R. Adair’. 6 Pal, forthcoming. 7 ‘Political Marxism’ was a label attributed in the 1980s to the work of social and political historians Robert Brenner and Ellen Meiksins Wood. The Brenner debate on the transition to capitalism has known various iterations since the original collection in Aston and Philpin 1985. It has most recently generated rich debates between different approaches to Political Marxism, some more structural and Brennerite (e.g. Post 2013) and others more radically historicist (e.g. Knafo and Teschke 2017). Such debates have also produced rich interpretations of Trotsky’s theory of Uneven and Combined Development (UCD) following its renewal in IR by Rosenberg 2013 and most recently Anievas and Matin 2016. For a critique of the UCD approach to international historical sociology that chimes with the present research, see Teschke 2014, who laments the focus on agency and historical specificity and is critical of a theoretical framework that purports to explain a priori large-scale historical change. See Pal 2018 for a critique of UCD in Anievas and Nişancıoğlu 2014 in relation to the history of international law.

Extraterritoriality, diplomacy, capitalism 71 consist solely of a certain geographical focus.8 Rather, challenging the myth of a supposedly linear, homogeneous, and normatively progressive development of European institutions is essential to the writing of non-Eurocentric history. In other words, it is also necessary to study the evolution of legal, political, and economic institutions in Europe so as to contribute to a critical non-Eurocentric historiography. Revisiting the early modern history of extraterritoriality through the angle of the transition to capitalism in England is, I argue, one such contribution. It breaks down the elitist and institutionally narrow history of diplomacy by focusing on class and other socio-economic factors, and provides a more ‘entangled’ and contested – rather than linear and homogeneous – history of the early modern period.9 Section one of this chapter presents the classic narrative according to which extraterritoriality shaped modern territoriality through the rise of permanent embassies and ambassadorial immunity, marking the shift from personal to territorial concepts of sovereignty. It focuses on the issue of embassy chapels as a catalyst for this shift. New diplomatic histories offer opportunities to go beyond this linear and homogeneous story of European diplomatic practices. Specifically, for example, Napolitano’s work explores the way in which the reign of Louis XIV (1643–1715) developed specific practices of extraterritoriality and territorialisation through a range of architectural, artistic, and cultural means. Nevertheless, significant parts of the story are not explored. Section two pushes the story beyond Napolitano’s account by considering the socio-economic context within which these developments unfolded, examining the social property relations that underlay shifts in diplomatic practices. Leading diplomatic regimes, in particular France and Spain, became more aristocratic from the late seventeenth century onward. This led to significant changes in prevailing diplomatic practices. Such practices differed in many ways from diplomatic practices in England, where members of parliament (MP) diplomats were used during the same period. The chapter concludes by rejecting the narrative that ties early modern extraterritoriality strictly to embassy chapels, and, more generally, to religious conflicts. It points instead to the importance of agrarian capitalist social property relations and class dynamics for the shaping of different doctrines of extraterritoriality in the early modern period, one led by France and Spain and another led by England and the Dutch Republic. This argument highlights the need for further in-depth studies exploring the social property relations underlying early modern practices of diplomacy and extraterritoriality.

8 For a discussion of this type of empirical Eurocentrism (in which studies reaching beyond Europe fail to dislodge the methodological and normative implications of Eurocentrism), see Bhambra 2007 and Go and Lawson 2017, p. 8. 9 For an argument for a global historical sociology of ‘entanglements’, see Go and Lawson 2017, p. 4. For studies of relations between European and non-European early modern forms of extraterritoriality, see Benton 2010; Benton and Ross 2013; Belmessous 2012.

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Diplomatic history and early modern extraterritoriality Legal histories of extraterritoriality have focused largely upon its various manifestations in the ‘semi-sovereign’ states and colonies of the nineteenth century, when it was used by the great powers – France, Britain, Germany, the United States, Russia – as a powerful tool of imperial domination.10 Indeed, it was during the nineteenth century that the world witnessed the emergence and widespread usage of the term ‘extraterritoriality’. In effect, legal scholarship tends to be concerned chiefly with the global and structuring juridical manifestations and effects of this practice. Hence the focus on the establishment of extraterritorial courts and unequal treaties constituting the international legal order and legal subjects of the late nineteenth century. When considering the early modern context, legal scholarship remains concerned with the wider history of jurisdictional privileges and exemptions attributed to individuals other than diplomats and envoys, such as chartered companies, consuls, merchants, and religious officials not necessarily directly representing or on business for their sovereign.11 Nevertheless, in spite of the recent revival of scholarship in international legal history, early modern extraterritoriality has tended to be a neglected area of study.12 In contrast, IR historiography has shown more concern for early modern extraterritoriality. However, this concern has remained in the context of the European shaping of the profession of modern diplomacy and mostly in relation to the development of the modern state encapsulated by the slow establishment of ambassadorial privileges over more or less three hundred years, from the Venetians’ first permanent embassies in the early fifteenth century to their generalization across Europe by the mid-eighteenth century. For Bull, the ‘legal recognition of the extraterritoriality of ambassadors by foreign services in the period of Louis XIV’ is the most important stage of the mid- to late seventeenth century in the institutionalisation of modern diplomatic relations.13 More specifically, Hugo Grotius is credited by Adair with coining the term ‘quasi extra territorium’:14

10 Horowitz 2004; Kayaoğlu 2010; Ruskola 2013; Cassel 2012; Özsu 2015. See the chapters by Kate Miles, Richard S. Horowitz, Mai Taha, and Ntina Tzouvala in this volume. 11 Scholars such as Kassan 1935 and Tait Slys 2014 go further historically by exploring the history of extraterritoriality in ancient times. Similarly, from the diplomatic history tradition, Numelin (1950, p. 297) discusses the presence of ‘extraterritorial rights and other diplomatic privileges’ in the Amphictyonic Councils of the Hellenic world of the fourth and fifth centuries BC. He uses the expression ‘exterritorial or diplomatic privileges’ (1950, p. 310). 12 For an exception that considers early modern extraterritoriality in the cases of sixteenthcentury chartered companies, see the chapter by Kate Miles in this volume. 13 Bull 1977, p. 160. Other stages are ‘the emergence of resident embassies in Italy in the fifteenth century, spreading throughout Europe as a whole in the sixteenth’, and the ‘emergence of the diplomatic corps in the eighteenth century’. 14 Adair 1929, pp. 5–6 (citing Grotius, De Jure Belli ac Pacis (1646 edition): ‘fictione simile constituerentur quasi extra territorium’).

Extraterritoriality, diplomacy, capitalism 73 an Exception should be made in Favour of Embassadors, who, as they are, by a Sort of Fiction, taken for the very Persons whom they represent . . . so may they by the same kind of Fiction be imagined to be out of the Territories of the Potentate, to whom they are sent. Hence it is, that they are not subject to the Laws of the Country, where they reside.15 Yet Adair emphasises that extraterritoriality emerged as a practice based on personal law, and was only later discussed by legal theorists and regulated by law in the seventeenth century.16 Thus, if the English form appears much later, the idea is far older. Various early modern extraterritorial practices have been compared or considered to be identifiable under the banner of the idea of extraterritoriality, such as capitulations, franchises de quartier, privileges, immunities, and disputatio. For example, as Napolitano argues, ‘[w]hile he does not use the term “extraterritorial” Ayrault’s concept is fundamentally the same insofar as the ambassador carries with him the laws of his homeland’.17 Fundamentally, for Adair, the idea can be traced back to the recognition of the ‘personal immunity of an ambassador and the sacredness of his functions’, based on contractual Roman law, and medieval legal texts including the rights of ambassadors such as Castille’s Siete Partidas.18 Scholars following Adair have largely adopted this view. Mattingly writes that the ‘modern formulation’, ‘doctrine’, or ‘theory’ of extraterritoriality is said to emerge over the eighteenth century, marking the shift from a personal to a territorial conception of sovereignty. Similarly, for Napolitano, ‘the most fundamental transformation of sixteenth-century diplomacy was the establishment of the residential embassy in capital cities throughout Europe’, where ‘the immunities previously associated with the diplomat himself took on built form, representing a shift from a personal to a territorial model of embassy’.19 Adair’s argument implies a linear view of the transport of authority between key political and legal actors. This linearity is expressed in the shift from an idea of a transport of authority attached to the person of the diplomat – who represents the sovereign – to a doctrine of transport of authority attached to the territory of the embassy – which represents the kingdom or state. In other words, the modern doctrine of extraterritoriality, according to diplomatic history, is the result of the shift from the diplomat (the personal) to the embassy (the territorial).

15 Grotius 2005, p. 912 (emphasis added). 16 This point is emphasised in three reviews by Grafton Wilson 1930, Stowell 1930, Ronalds 1930. 17 Napolitano 2012, p. 59. Pierre Ayrault was a sixteenth-century French jurist and humanist (1516–1601). For an in-depth study of his contribution to the relation between early modern diplomatic practice and the construction of international legal orders, see Fedele 2016. 18 Adair 1929, p. 6. 19 Napolitano 2012, pp. 60–61. For other formulations linking the shift from the personal to the territorial through the fiction of extraterritoriality, see Buckley 1966, pp. 350–51.

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In particular, embassy chapels are considered to have played a significant role, not only as spaces of religious dissent, but also as ‘probably the largest single factor in preparing men’s minds to accept [the] extraordinary fiction’ of extraterritoriality.20 They are said to have followed the emerging practice of semi-permanent representatives to foreign courts initiated by the Renaissance Italian city-states in the 1520s.21 In the seventeenth century, capital cities in England and the Dutch Republic were at the forefront of tolerating the largest number of embassy chapels. Moreover, they were also the first to legislate extraterritoriality in terms of ambassadorial immunity – the Dutch in 1651 and the English in 1709.22 Before embassy chapels became accepted and regulated in the late seventeenth and eighteenth centuries, diplomatic immunities ‘did not extend to violations of the host country’s fundamental laws’ such as heresy.23 Providing ambassadors with the possibility of practising an outwardly ‘heretical’ faith in their chapels was therefore highly controversial, and constituted an opportunity for rulers to foment conflict with their rivals, forge alliances, and stir up religious strife. Embassy chapels thus represent one of the crucial means through which territorialisation occurred in western Europe. They illustrate the social conflicts at the origins of the modern doctrine of extraterritoriality. They disturb the idea of the personal transport of authority that once prevailed as a principle of ambassadorial immunity. Yet the story might not be as neat and tidy as classic diplomatic history tells it. For one, Dover and Scott acknowledge the problematic ‘tidiness and linearity’ of the trajectories in Mattingly’s work and in the studies that it has influenced regarding embassy chapels.24 Crucially, Napolitano’s work – more in tune with the new diplomatic history turn – provides an account of jurisdictional complexity and the variety of political representations of sovereignty and privilege among a myriad of early modern actors. Her primary research focuses on the late seventeenth century ‘at the palace and in the urban environs of Palazzo Farnese in the first decades of Louis XIV’s personal reign’.25 She argues that ‘a variety of media including architectural projects, urban claims, ceremonial displays, and city views’ shaped by France’s envoys in Rome ‘were visible and material manifestations of France’s extraterritorial presence in the city’.26 Moreover, she develops a 20 Mattingly 1955, p. 242. 21 In the 1550s embassy chapels operated in London and other cities. They grew in number from 1600, and increased further following the negotiations of the Thirty Years’ War. By the 1680s, most ‘national’ capitals tolerated them, as well as Vienna (an imperial capital) and self-governing states like Venice. London counted eight or nine, The Hague counted seven, Paris four, and the Dutch sponsored twelve in various capitals. They were also found in various capitals of the Holy Roman Empire. See Kaplan 2002, p. 343. 22 Kaplan 2002, p. 344. However, embassy chapels were initially only tolerated in France and England, even though their presence augmented in the Dutch Republic during the seventeenth century. See Mattingly 1955, p. 243. 23 Kaplan 2002, p. 343. 24 Dover and Scott 2015, p. 665. 25 Napolitano 2012, p. 28. 26 Ibid. p. ii.

Extraterritoriality, diplomacy, capitalism 75 concept of ‘spatial fiction of immunity’ which applies ‘Grotius’s characterization of ambassadorial immunity as a “double fiction” to the built environment’. By being linked, these conceptions serve ‘both to represent sovereignty but also to embody it’.27 Based on accounts of the struggles within the French court and its Roman embassy over absolutist conceptions of sovereignty and territory, Napolitano shows that extraterritoriality was becoming an ‘exercise of political leverage’ and a means to assert the monarchy’s ‘territorializing ambitions’.28 Furthermore, the development of extraterritoriality as permanent ambassadorial diplomacy is due, in her view, to the pragmatic ideas and desire for power of Louis XIV and his predecessors (e.g. Richelieu, Mazarin) who pushed for the assertion of their sovereign rights abroad. In other words, extraterritoriality is considered in this case to be the outcome of a French elitist and royalist discourse and practice, rather than the outcome of pan-European religious conflicts and their gradual toleration as illustrated by the rise of embassy chapels.29 Napolitano’s work thus enriches the classic diplomatic history’s linear narrative of the shift from personal to territorial, or from the idea to the doctrine of extraterritoriality. It does so by focusing on Louis XIV’s reign and its dominance over European diplomacy, and by pointing to the mutual imbrication of the personal and territorial during this period through a closer reading of Grotius. Her work chimes with more recent studies on the ancien régime dynamics of seventeenthand eighteenth-century European diplomacy and the role of Louis XIV in maintaining this order through increased use of the aristocracy in diplomatic positions.30 Moreover, to take this analysis further and consider the socio-economic context of these shifts, the following section adopts an approach grounded in Marxist historical sociology to discuss the social origins of diplomats and the evolution of the occupation as it faced the structural changes of agrarian capitalism. This involves a more critical examination of the ambassadorial basis of the so-called ‘modern’ doctrine of extraterritoriality and the class dynamics inherent in this practice.

27 Ibid. p. 197. 28 Ibid. p. 36. 29 ‘The decisions around the rental, including its location, size, urban situation, and the rights associated with proprietorship, all had lasting effects on the exercise of French extraterritoriality in Rome . . . the demarcation of the French quarter during this period predated any formal discourse on the rights of extraterritoriality. In this sense, the early years of French embassy in Rome may be considered a seedbed for developing thought on the architectural and urban rights associated with embassy.’ Napolitano 2012, p. 97 (emphasis added). ‘My primary focus has been on the development of a discourse associated with the jurisdictional rights of French embassy, which emerged, in part, from the larger effort by Louis XIV to exercise personal control over every aspect of his foreign policy and diplomatic engagement. This discourse manifested as a unique form of urban authorship.’ Ibid. p. 147. 30 Bély 1990; Scott 2007.

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Extraterritoriality and the transition to capitalism in England Diplomatic history’s focus on personal law in the early modern period is crucial and largely uncontroversial. It serves to characterise ambassadorial immunity and the idea preceding the doctrine of extraterritoriality. The discussion here does not intend to fully explore or critically analyse the early modern predominance of personal law, its more imbricated relation to territoriality during the early modern period, or the gradual shift to a territorial conception of sovereignty characterising nineteenth-century modernity. However, it does question why studies of early modern diplomacy ignore the socio-economic causes of the relation between personal and territorial forms of sovereignty. If changes in the socio-economic functions and contributions of individual diplomats have become a more important object of study, their social origins and class dynamics still remain neglected.31 The doctrine of extraterritoriality, celebrated by IR and diplomatic scholarship, is crucial because it allows sovereignty to be divided, extended, and imposed over and above existing jurisdictional rights. The shift to territoriality is of paramount historiographical importance because it is supposed to signal that the division, extension, and imposition of sovereign rights is part of a progressive cause for the development of professional diplomacy, the balance of power, and a system of formally equal sovereign states. It thus serves to justify in classic narratives the practices of early modern European empires as progressive, which are eventually cast in nineteenth-century extraterritorial practices as pillars of colonial policy. Returning to the social origins of these practices in the early modern context is therefore crucial to understanding their role in the nineteenth century. To recap, in the early modern European context, sovereignty was mostly determined by personal, dynastic, and religious rules and actors far beyond the supposedly watershed moment attributed to the Westphalia treaties.32 For Political Marxists, this means that the shift to capitalist modernity characterised by the spread of territorial sovereignty occurred in the nineteenth century, once European nation-states emerge and co-exist politically and formally as equals able to

31 The English/British and French diplomatic services have been the most studied in terms of individual diplomats. For general accounts with an analysis of social origins, see Roosen 1976; Bély 1990; Scott 2007. For accounts of English and British diplomatic services, see Horn 1961; Lachs 1965; Carter 1966; Bell 1990; Black 2001; Dyson 2003; Jettot 2010. 32 What has been called the ‘Westphalian imaginary’ implies harking back to 1648 as the gateway date to modernity or assuming the Westphalian system as a widely accepted marker, however imprecise that may be. Both are used to mark the significant shift to modern conceptions of territoriality. See Windler 2017, pp. 261–62 for a recent critique of Westphalia as a ‘relevant epochal boundary’ in diplomatic history. For a critique of enduring state-centrism and the Westphalian fetish in international law, even in postcolonial histories, see Koskenniemi 2016. Although IR has since the 1990s produced many analyses deeply critical of the Westphalian myth (e.g. Osiander 2001; Teschke 2003), it remains a heavily encased benchmark in the non-historically inclined areas of the discipline and in most of its pedagogical material, as well as in other disciplines in the social sciences which uncritically reproduce this myth.

Extraterritoriality, diplomacy, capitalism 77 compete more or less freely in a world economy and share between themselves the spoils of imperialism.33 For critical international law scholarship, the late nineteenth century also marks the establishment of international law as a profession and an institutional regime of conferences and decision-making bodies, ideal for justifying and administering imperial conquests as a ‘civilising mission’.34 Unequal international relations and processes of accumulation no less determined the early modern period, but these were not necessarily capitalist. This period witnessed various modes of accumulation (e.g. geopolitical, jurisdictional, primitive), and various processes of transition from feudalism to capitalism. However, some local transitions to capitalism occurred in the early modern period. The rich and ongoing debate about where and how the transitions from feudalism in Europe occurred and how they incorporated, extended, and relied on non-European labour and resources cannot be rehearsed fully here.35 This chapter thus limits itself to the impact on diplomacy of the transition to agrarian capitalism in the English early modern countryside. Although it cannot do full justice to this question, it reveals some important divergences between France and England in regard to their strategies of territorialisation, as well as their selection and use of diplomats. On the one hand, as discussed in section one, the French regime experimented with new diplomatic strategies in its Roman embassy, thus signalling a mix of personal and territorial conceptions of sovereignty. On the other hand, large-scale structural changes had been occurring for some time in the relations between lords, farmers (yeomen), and peasants in the English countryside. These changes occurred most notably through processes of wage-dependency, leasing, enclosures, dispossession, and depopulation, marking the establishment of capitalist social property relations in a context of shifting class strategies and related socialstructural reconfigurations.36 Social and economic historians agree that the 1600s saw the most significant changes in England’s transformation from an open field to an enclosed country, that is, the classic transition phase. By 1700, 70 per cent of cultivable land in England is said to have been enclosed, and three-fifths of the English population had primarily become wage-workers (though statistics for this period ought to be treated with caution).37 Moreover, in 1688, 40 per cent of England’s population relied on non-agricultural occupations, marking its divergence from other European societies such as France. Based on primary research on enclosure acts in Kent and work by Whittle and Mate on other regions in England, Dimmock 33 Rosenberg 1994; Teschke 1998; Wood 2003. For a non-Marxist perspective, see Buzan and Lawson 2015 (arguing for a revised research programme looking at the nineteenth century as defining the shift to modern international relations). 34 Koskenniemi 2001. For a more nuanced and Marxist analysis of the standard of civilization, see Tzouvala 2019. 35 For a recent review and argument of this debate, see Anievas and Nişancıoğlu 2014 and a symposium on their work in Historical Materialism (2018, 26.3). 36 Brenner 1977. 37 Dimmock 2014, p. 139.

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argues that the long fifteenth century (the 1370s to the 1530s) produced the most important social changes for the shift to agrarian capitalism. Specifically, this earlier period produced the structural changes and the logic necessary for the more visible changes that occurred after the 1520s, that is, in the classic transition phase of the seventeenth century. In sum, the fifteenth and sixteenth centuries saw a restructuring of England’s social property relations, involving cases of forced depopulation on a scale not seen since the Norman conquests of the eleventh century.38 If, as Dimmock argues, the long fifteenth century is important in its structural changes to the property relations between lords, farmers, and peasants, did the latter have an effect on diplomatic practice? Before considering this in detail, it is necessary to provide a general sense of the class dynamics of diplomacy. Diplomacy across Europe, particularly in England, remained personal, in the sense of being dependent upon the person of the sovereign and the person of the diplomat.39 In England, merchants as well as members of the clergy were often mobilised to represent the interests of the sovereign or communicate messages.40 If the role of the clergy gradually diminished, that of merchants increased later in the seventeenth century.41 Across Europe, diplomats and other representatives acted not only at the behest of sovereigns, but also of cities and companies.42 However, this changed at the end of the seventeenth century as permanent embassies became more widespread after the 1648 Westphalian treaties.43 England and other northern and eastern kingdoms lagged behind Spain and France, which were the first to copy the Italian city-states’ practice of establishing and maintaining permanent embassies. These permanent embassies were established between the Italian citystates by the 1450s, and Venetians are said to have had training in diplomacy from their contacts in the eastern Mediterranean.44 Regular and permanent embassies gradually came to be occupied by a more socially homogeneous (i.e. aristocratic) and self-conscious diplomatic corps. This replaced the temporary nature of the socially complex patchwork of diplomatic actors active up to the late seventeenth and early eighteenth centuries.45 Thus, from the late seventeenth century, diplomats were more likely to be chosen from the higher social elite and based upon family connections, except in England and the Dutch Republic.46 Moreover, the English and Dutch were at the forefront of tolerating embassy chapels in the seventeenth century, shaping the 38 39 40 41 42 43 44

Ibid. pp. 143–44. Dover and Scott 2015, p. 670. Ibid. pp. 674–76. Jettot 2012. Anderson 1993, p. 42. Ibid; Frey and Frey 1999. Mattingly 1955, p. 87; Numelin 1950, p. 306. See Fusaro 2015 for an analysis of the important diplomatic and commercial links between England and Venice. 45 Scott 2007. 46 Dover and Scott 2015, p. 685; Anderson 1993, p. 80.

Extraterritoriality, diplomacy, capitalism 79 so-called ‘modern’ doctrine of extraterritoriality, but they lagged behind Spain and France with respect to permanent embassies. This raises the question of how we ought to explain the English and Dutch exceptions in regard to the social origins of diplomats. A significant part of the answer to our question lies in specific social structures and social property relations. The English and Dutch cases are somewhat exceptional in that they do not follow the pattern of an emergent aristocratic diplomacy, are distinguished by a different process of capitalist and proto-capitalist development, and are at the forefront of legislation for ambassadorial immunity. Different reviewers of Adair noted his point that in ‘England and the United Provinces “the peculiar immunities of an ambassador were protected by law”; elsewhere in Europe the royal prerogative alone could protect foreign ministers’.47 This bolsters the view that French diplomats could count on the authority of their sovereign, whereas English diplomats had to operate in a much more unstable institutional climate.48 Their case therefore merits closer attention, though it will only be possible to discuss England here, and in particular whether agrarian capitalism can explain the lack of aristocratisation of England’s diplomatic missions. Jettot has explored in detail the rise of MPs in the foreign service of England in the period between 1660 and 1702.49 Previously, an emerging gentry had been accessing political posts since the late fifteenth century, and constituted a large number of diplomatic agents at least since the sixteenth century.50 The English peerage was traditionally used for the most prestigious posts.51 However, they did so reluctantly. Diplomatic missions were costly, dangerous, tiresome, and mostly used to assert oneself and gain favour with the sovereign for securing a post at home. In this sense, the transition to agrarian capitalism and the successive waves of enclosures in England helped to provide sovereigns with a rising gentry willing to serve as diplomatic agents and make up for the nobility’s lack of diplomatic engagement.52

47 48 49 50

Ronalds 1930, p. 117. See also Stowell 1930, p. 413. Jettot 2012, p. 16. Jettot 2012. For the role of the gentry in political posts, see Dimmock 2019. For its role in diplomatic posts, see Giry-Deloison 1987, p. 214; Carter 1966, pp. 284–85; Dyson 2003, pp. 26–30; Lachs 1965, p. 54. 51 English aristocratic presence in diplomatic missions was higher than in other European contexts before the 1660s. But in both cases, the percentage of aristocrats was very low. See Giry-Deloison 1987 for a comparative study of French and English diplomatic posts from 1485 to 1520. In England the aristocracy constituted 17 per cent of diplomats. The numbers are even lower in France, where the aristocracy accounted for 9 per cent of diplomats during this period. In both cases, the presence of roturiers very largely dominated diplomatic missions. But England remained nevertheless more adept at selecting lords to represent their sovereign. 52 It is also important to note that the English higher nobility in the early modern period was already significantly lower in numbers and authority than its French equivalent class. See Comninel 2000.

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MPs chosen as diplomats53 in the late seventeenth century came not only from the propertied elite such as the younger sons of lords, but also from the higher gentry, professionals such as lawyers, doctors, and teachers, and in some cases from rich merchants.54 A diplomatic mission ensured their higher social position, and could be a remarkable social ascension. It can be ventured that the structural changes of the long fifteenth century in the advent of agrarian capitalism offered financial opportunities and social standing to a part of the male population and made them more amenable to fulfil diplomatic missions. These men constituted a different foreign service than those developing on the European continent, and this was confirmed by their role in parliamentary offices come the later seventeenth century. MP missions were generally situated between lords, who were charged with extraordinary embassies, and other envoys such as merchants and lawyers charged with lower-order tasks as residents or consuls. MP diplomats were loyal to the king and to the commons, and were to defend a harmonious and peaceful vision of the kingdom to outsiders, so as to quiet the rumours of a latent civil war.55 They were seen as the living symbols of the king-in-parliament, or crown-in-parliament, a cornerstone of the specific development of the English state, enabling the class alliances that favoured the development of agrarian capitalism.56 The use of these diplomats had other important implications. They were often accused of corruption, francophilia,57 ‘crypto-catholicism’, and of neglecting their constituencies. Yet they remained closely tied to their local and personal interests.58 Crucially, they returned from the continent with new practices and forms of knowledge that they could diffuse to wider social contexts, and they represented the interests of various groups (merchants, electors, Huguenots), which the king had to take into account when formulating diplomatic strategies.59 For Jettot this parliamentary legacy played a role in expectations that later British imperial policies would be influenced to a greater degree by ‘popular’ interests

53 Between 1558 and 1603, forty-three ‘MP-diplomats’ were in operation, signalling a precocious presence of parliamentarians in the external affairs of their sovereign. Between 1660 and 1702, there were fifty-three MP-diplomats, a third of England’s diplomatic personnel, though from 1685 their external role was reduced significantly. In the early eighteenth century, biographical data is only available for thirty-eight MP-diplomats, of which sixteen belonged to the House of Lords and fifteen to the House of Commons. Finally, between 1715 and 1754, Jettot finds fifty-six MP-diplomats. See Jettot 2012, p. 21. 54 Ibid. pp. 26–28. 55 Ibid. p. 30. 56 Ibid. p. 537; Wood 1992. 57 Charles II developed a pro-French diplomacy strategy, linked to a military French-Catholic alliance, which then backfired because of financial losses following the defeat against the Dutch Republic. See Jettot 2012, p. 536. 58 Ibid. pp. 31, 536, 537. 59 Ibid. p. 540.

Extraterritoriality, diplomacy, capitalism 81 and by the legitimacy of the commons, however much these expectations were to be disappointed.60 In the meantime, the reign of Louis XIV led the way for the shift to an aristocratic corps diplomatique, focused on etiquette, protocol, and ceremonial practices that maintained the order of the ancien régime in the European political sphere until at least the end of the eighteenth century.61 Dover and Scott qualify this new ‘European network of resident diplomats’ as the ‘aggregate of its court societies’.62 Louis XIV was also instrumental in shifting the lingua franca of diplomacy from Latin to French, though Latin remained in use.63 How the social property relations of France’s various regions and parlements put pressure on Louis XIV’s regime to collaborate with the aristocracy, and deploy a more aristocratic diplomatic corps to sustain an old regime Europe, remains to be explored.64 But ignoring these specificities and socio-economic conditions undoubtedly obscures the history of ambassadorial privileges and the emergence of extraterritorial principles in the early modern period. In particular, it obscures the ways in which agrarian capitalism explains the lack of aristocratisation of England’s diplomatic missions, and thus its different approach and strategy to the transport of its authority.

Conclusion There are three significant implications of this initial foray into the relations between early modern extraterritoriality, diplomacy, and the transition to capitalism. First, classic diplomatic history tends to adopt a linear and homogeneous view of the shift from personal to territorial sovereignty that is overly focused on state institutions and the classical legal theory canon. This contributes to IR scholarship’s tendency to ignore the role of capitalism as a mode of production with political dimensions and consequences, and more generally the role of social property relations in shaping international legal actors and orders. Second, diplomatic history assumes that extraterritoriality is a strictly political or legal process, driven by religious conflicts and eventually morphing into a discourse of rights adopted by the elite and developed as a theoretical fiction by leading legal theorists. Following Adair, it is said to have emerged ‘gradually’ and ‘unconsciously’ from a notion of personal transport of authority.65 This account remains limited in terms of new studies in diplomatic history focused on cultural

60 61 62 63

Ibid. Bély 1990. Dover and Scott 2015, p. 686. Numelin 1950, p. 308. Before Latin, Babylonian was the diplomatic language across the ancient Near East. 64 On the maintenance of ancien régime Europe and the necessary collaboration between Louis XIV and France’s nobilities in order to sustain a semblance of ‘absolutism’, see Parker 1996 and Beik 1985. 65 Adair 1929, pp. 9–12.

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and aesthetic dimensions, as well as being divorced from socio-economic contexts and social property relations. Third, the context discussed in this chapter’s second section illuminates the role of such social property relations, helping us to distinguish between different types of shifts and overlapping personal and territorial sovereignties based upon different strategies of territorialisation and social origins of diplomats, specifically in the cases of France and England. In sum, my argument disturbs the claim that embassy chapels – and the rise of ambassadorial immunities more generally – were ‘the largest single factor in preparing men’s minds to accept [the] extraordinary fiction’ of extraterritoriality. In effect, embassy chapels and the supposed push for religious freedom and toleration by ambassadors are not the most important manifestation of early modern extraterritoriality. Instead, the practices of England and the Dutch Republic diverge from those of France and Spain in their socio-economic structures and political strategies, creating different processes of territorialisation – and thus of extraterritoriality. If England and the Dutch Republic led the way in terms of embassy chapels, they contrasted with old regime Europe, which instead was characterised by the development of permanent embassies and the aristocratic basis of the diplomatic corps. The different patterns of early modern extraterritoriality therefore reflect the different patterns of social property relations in western Europe’s competing empires. Needless to say, this historical argument remains preliminary and points to the need for broader research projects on the historical sociology of early modern extraterritoriality and jurisdictional practices.

Acknowledgements I would like to thank Claire Vergerio, Richard Drayton, and Hamish Scott for their comments on earlier drafts and useful conversations.

Bibliography Adair, E. R. (1929), The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (New York: Longmans, Green and Co.). Adams, Robyn and Rosanna Cox (eds) (2011), Diplomacy and Early Modern Culture (Basingstoke: Palgrave). Anderson, M. S. (1993), The Rise of Modern Diplomacy 1450–1919 (New York: Longman). Anievas, Alexander and Kerem Nişancıoğlu (2014), How the West Came to Rule: The Geopolitical Origins of Capitalism (London: Pluto). Anievas, A. and Kamran Matin (eds) (2016), Historical Sociology and World History: Uneven and Combined Development over the Longue Durée (Lanham: Rowman and Littlefield). Aston, T. H. and C. H. E. Philpin (eds) (1985), The Brenner Debate: Agrarian Class Structure and Economic Development in Pre-industrial Europe (Cambridge: Cambridge University Press).

Extraterritoriality, diplomacy, capitalism 83 Beik, William (1985), Absolutism and Society in Seventeenth-Century France: State Power and Provincial Aristocracy in Languedoc (Cambridge: Cambridge University Press). Bell, Gary M. (1990), A Handlist of British Diplomatic Representatives 1509–1688 (London: Royal Historical Society). Belmessous, Saliha (ed.) (2012), Native Claims: Indigenous Law against Empire 1500–1920 (Oxford: Oxford University Press). Bély, Lucien (1990), Espions et ambassadeurs au temps de Louis XIV (Paris: Fayard). Bély, Lucien (2007), L’art de la paix en Europe: Naissance de la diplomatie moderne, XVIe-XVIIIe siècle (Paris: Presses Universitaires de France). Benton, Lauren (2010), A Search for Sovereignty: Law and Geography in European Empires 1400–1900 (Cambridge: Cambridge University Press). Benton, Lauren and R. J. Ross (eds) (2013), Legal Pluralism and Empires, 1500–1850 (New York: New York University Press). Bhambra, Gurminder K. (2007), Rethinking Modernity: Postcolonialism and the Sociological Imagination (Houndmills: Palgrave Macmillan). Black, Jeremy (2001), British Diplomats and Diplomacy, 1688–1800 (Liverpool: Liverpool University Press). Brenner, Robert (1977), ‘The Origins of Capitalist Development: A Critique of NeoSmithian Marxism’ 104 New Left Review 25. Buckley, Margaret (1966), ‘Origins of Diplomatic Immunity in England’ 21 University of Miami Law Review 349. Bull, Hedley (1977), The Anarchical Society: A Study of Order in World Politics (New York: Columbia University Press). Bull, Hedley and Adam Watson (eds) (1984), The Expansion of International Society (Oxford: Oxford University Press). Buzan, Barry and George Lawson (2015), The Global Transformation: History, Modernity and the Making of International Relations (Cambridge: Cambridge University Press). Carter, Charles Howard (1966), ‘The Ambassadors of Early Modern Europe: Patterns of Diplomatic Representation in the Early 17th Century’, in: Charles Howard Carter (ed.), From the Renaissance to the Counter Reformation: Essays in Honour of Garrett Mattingly (New York: Random House), pp. 269–95. Cassel, Pär Kristoffer (2012), Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (Oxford: Oxford University Press). Comninel, George C. (2000), ‘English Feudalism and the Origins of Capitalism’ 27 Journal of Peasant Studies 1. Davis Cross, Mai’a K. (2007), The European Diplomatic Corps: Diplomats and International Cooperation from Westphalia to Maastricht (Basingstoke: Palgrave Macmillan). Dimmock, Spencer (2014), The Origin of Capitalism in England 1400–1600 (Leiden: Brill). Dimmock, Spencer (2019), ‘Expropriation and the Political Origins of Agrarian Capitalism in England’, in: Xavier Lafrance and Charles Post (eds), Case Studies in the Origins of Capitalism (London: Palgrave Macmillan), pp. 39–62. Dover, Paul and Hamish Scott (2015), ‘The Growth of Diplomacy, c. 1450–1815’, in: Hamish Scott (ed.), The Oxford Handbook of Early Modern European History, 1350–1750, Volume II: Cultures and Power (Oxford: Oxford University Press), pp. 663–95.

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Dyson, Tomas (2003), ‘English Diplomatic Agents 1603–1688’, unpublished D.Phil dissertation, University of Oxford. Fedele, Dante (2016), ‘The Renewal of Early-Modern Scholarship on the Ambassador: Pierre Ayrault on Diplomatic Immunity’ 18 Journal of the History of International Law 449. Fedele, Dante (2017), Naissance de la diplomatie moderne (XIIIe – XVIIe siècles). L’ambassadeur au croisement du droit, de l’éthique et de la politique (Baden-Baden: Nomos Verlagsgesellschaft). Frey, Linda S. and Marsha L. Frey (1999), The History of Diplomatic Immunity (Columbus: Ohio State University Press). Frigo, Daniela (ed) (2000), Politics and Diplomacy in Early Modern Italy: Structure of Diplomatic Practice 1450–1800 (Cambridge: Cambridge University Press). Fusaro, Maria (2015), Political Economies of Empire in the Early Modern Mediterranean: The Decline of Venice and the Rise of England 1450–1700 (Cambridge: Cambridge University Press). Giry-Deloison, Charles (1987), ‘Le personnel diplomatique au début du XVIe siècle. L’exemple des relations franco-anglaises de l’avènement d’Henry VII au camp du Drap d’Or (1485–1520)’ 3 Journal des Savants 205. Go, Julian and George Lawson (2017), ‘For a Global Historical Sociology’, in: Julian Go and George Lawson (eds), Global Historical Sociology (Cambridge: Cambridge University Press), pp. 1–34. Grafton Wilson, George (1930), Review of E. R. Adair, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries, 35 American Historical Review 592. Grotius, Hugo (2005), The Rights of War and Peace, ed. Richard Tuck, vol. 2 (Indianapolis: Liberty Fund). Hampton, Timothy (2009), Fictions of Embassy: Literature and Diplomacy in Early Modern Europe (Ithaca: Cornell University Press). Horn, David Bayne (1961), The British Diplomatic Service 1689–1789 (Oxford: Oxford University Press). Horowitz, Richard S. (2004), ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’ 15 Journal of World History 445. Jacobsen, Helen (2011), Luxury and Power: The Material World of the Stuart Diplomat, 1660–1714 (Oxford: Oxford University Press). Jettot, Stéphane (2012), Représenter le Roi ou la Nation? Les parlementaires dans la diplonatie anglaise 1660–1702 (Paris: Presses Universitaires de France). Kaplan, Benjamin J. (2002), ‘Diplomacy and Domestic Devotion: Embassy Chapels and the Toleration of Religious Dissent in Early Modern Europe’ 6 Journal of Early Modern History 341. Kassan, Shalom (1935), ‘Extraterritorial Jurisdiction in the Ancient World’ 29 American Journal of International Law 237. Kayaoğlu, Turan (2010), Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge: Cambridge University Press). Keene, Edward (2002), Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press). Knafo, Samuel and Benno Teschke (2017), ‘The Rules of Reproduction of Capitalism: A Historicist Critique’, Working Paper No. 12, University of Sussex Centre for Global Political Economy, online: www.sussex.ac.uk/cgpe/research/ workingpapers.

Extraterritoriality, diplomacy, capitalism 85 Koskenniemi, Martti (2001), The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press). Koskenniemi, Martti (2016), ‘Expanding Histories of International Law’ 56 American Journal of Legal History 104. Lachs, Phyllis S. (1965), The Diplomatic Corps under Charles II and James II (New Brunswick, New Jersey: Rutgers University Press). Mattingly, Garrett (1955), Renaissance Diplomacy (Harmondsworth: Penguin). Napolitano, Elena Cristina (2012), ‘Prospects of Statecraft: Diplomacy, Territoriality, and the Vision of French Nationhood in Rome, 1660–1700’. Ph.D. dissertation, University of Toronto. Numelin, Ragnar (1950), The Beginnings of Diplomacy: A Sociological Study of Intertribal and international Relations (Oxford: Oxford University Press). Osiander, Andreas (2001), ‘Sovereignty, International Relations, and the Westphalian Myth’ 55 International Organization 251. Özsu, Umut (2015), Formalizing Displacement: International Law and Population Transfers (Oxford: Oxford University Press). Pal, Maïa (forthcoming), Jurisdictional Accumulation: An Early Modern History of Law, Empires and Capital (Cambridge: Cambridge University Press). Pal, Maïa (2018), ‘“My Capitalism is Bigger than Yours!”: Against Combining “How the West Came to Rule” with “The Origins of Capitalism”’ 26 Historical Materialism 99. Parker, David (1996), Class and State in Ancien Régime France: The Road to Modernity? (London: Routledge). Post, Charles (2013), ‘Capitalism, Laws of Motion and Social Relations of Production’ 21 Historical Materialism 71. Ronalds, Francis R. (1930), Review of E. R. Adair, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries, 2 Journal of Modern History 116. Rosenberg, Justin (1994), The Empire of Civil Society (London: Verso). Rosenberg, Justin (2013), ‘The “Philosophical Premises” of Uneven and Combined Development’ 39 Review of International Studies 569. Ruskola, Teemu (2013), Legal Orientalism: China, the United States and Modern Law (Cambridge: Harvard University Press). Scott, Hamish (2007), ‘Diplomatic Culture in Old Regime Europe’, in: Hamish Scott and Brendan Simms (eds), Cultures of Power in Europe during the Long Eighteenth Century (Cambridge: Cambridge University Press), pp. 58–85. Sowerby, Tracey A. and Jan Hennings (eds) (2017), Practices of Diplomacy in the Early Modern World c. 1410–1800 (Abingdon: Routledge). Stowell, Ellery C. (1930), Review of E. R. Adair, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries, 24 American Journal of International Law 413. Tait Slys, Mariya (2014), Exporting Legality: The Rise and Fall of Extraterritorial Jurisdiction in the Ottoman Empire and China (Geneva: Graduate Institute Publications), online: http://books.openedition.org/iheid/788. Teschke, Benno (1998), ‘Geopolitical Relations in the European Middle Ages: History and Theory’ 52 International Organization 325. Teschke, Benno (2003), The Myth of 1648: Class, Geopolitics, and the Making of Modern International Relations (London: Verso). Teschke, Benno (2014), ‘IR Theory, Historical Materialism, and the False Promise of International Historical Sociology’ 6 Spectrum: Journal of Global Studies 1.

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Tzouvala, Ntina (2019), ‘Civilisation’, in: Jean d’Aspremont and Sahib Singh (eds), Concepts for International Law: Contributions to Disciplinary Thought (Cheltenham: Edward Elgar), pp. 83–104. van der Essen, Léon (1953), La Diplomatie. Ses origines et son organisation jusqu’à la fin de l’Ancien Régime (Brussels: Editions P. D. L.). Watkins, John (2008), ‘Toward a New Diplomatic History of Medieval and Early Modern Europe’ 38 Journal of Medieval and Early Modern Studies 1. Watson, Adam (1982), Diplomacy: The Dialogue between States (London: Methuen). Windler, Christian (2017), ‘Afterword. From Social Status to Sovereignty – Practices of Foreign Relations from the Renaissance to the Sattelzeit’, in: Tracey A. Sowerby and Jan Hennings (eds), Practices of Diplomacy in the Early Modern World c.1410– 1800 (Abingdon: Routledge), pp. 254–65. Wood, Ellen Meiksins (1992), The Pristine Culture of Capitalism: A Historical Essay on Old Regimes and Modern States (London: Verso). Wood, Ellen Meiksins (2003), The Empire of Capital (London: Verso).

5

‘Uneven empires’ Extraterritoriality and the early trading companies Kate Miles

Introduction Extraterritoriality was experienced in a number of varied forms during the sixteenth to nineteenth centuries. As with other legal aspects of empire, it was an unevenly drawn practice on the ground, although core concepts and objectives were recurring. In essence, systems of extraterritoriality sought to apply different legal approaches to different sectors of a community, permitting exemptions from the application of territorial jurisdiction of the host state. As a theory, extraterritoriality entailed the rationalisation of the inclusion and exclusion of designated individuals, groups, and territories from particular legal spaces. In operation, such systems also tended to be the setting for microcosms of interplay between rival European communities co-existing within host states, and intricate power shifts between sovereigns and those benefiting from extraterritorial privileges, as well as more absolute impositions of extraterritoriality as exercises of imperial authority.1 Against this backdrop of ‘uneven empire’,2 this chapter considers the way in which regimes of extraterritoriality were experienced and enacted by early trading companies, such as the Dutch East India Company (VOC), the English East India Company, and the Levant Company.3 In exploring the nature and use of 1 Lewis 2008, p. 792. Lewis points to the competing interests of European powers operating within Tunisia and the mirroring of those rivalries within locally based disputes. 2 Benton 2010, pp. 30–32. Benton uses the term ‘uneven’ to describe the reality of empire and the structuring of sovereignty in imperial territories. 3 In Dutch the Company’s name was the Verenigde Oostindishe Compagnie, hence it came to be known as the VOC; see Charter of the VOC, Granted by the States-General of the United Netherlands, 20 March 1602. With respect to the East India Company, see Charter Granted by Queen Elizabeth to the Governor and Company of Merchants of London, Trading into the East-Indies, 31 December 1600; Letters Patent Granted to the Governor and Company of Merchants of London, Trading into the East-Indies, 3 April 1661. The Levant Company was formed in 1592, as a result of the merger of the Venice Company and the Turkey Company: Articles of the Merchants Trading Turkey and Venice to be Incorporated Into One Body by the Name of Merchants of Levant, 1589. The initial charter for exclusive trading was awarded on 11 September 1581. A new charter naming the Levant Company was issued on 7 January 1592: Patent Granting for Twelve Years to the Levant Company, the Sole Privilege of Trading to the Levant Seas, Turkey and Venice.

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extraterritoriality, this chapter reflects upon its dual role as both privilege and punishment, and the shifting connotations with which it was imbued – initially bestowed as a privilege by a dominant host ruler on foreign traders, extraterritoriality also served as a symbol of shame when imposed upon host nations.4 In this sense, it was a control mechanism mirroring power shifts amongst various actors. In other settings, attempts by trading companies to extend extraterritorial jurisdiction to local populations proved ineffective and required company administrators to work with indigenous legal systems.5 The selection of company operations examined in this chapter occurred in different centuries and in different regions. Hence, in certain respects, this chapter explores isolated cases. However, while isolated, these examples are not fundamentally disconnected. Indeed, this chapter considers recurrent conditions of rupture within host state legal systems when engaging with extraterritoriality. It is also primarily about the continuities, connections, and similarities of practice that emerge out of such isolated stories. With these diverse experiences in mind, the core argument running through this chapter is that the exercise of extraterritoriality in the varied contexts of the major trading companies occupied specific spaces and was reflective of the inconsistent, ‘messy’, uneven, and often improvised nature of informal empire, as well as the complex power relations that echoed in the layers of law that sat alongside each other within these patchwork-like legal and political zones.6

The Levant Company and the Ottoman Empire The system of extraterritoriality for European merchants established within the Ottoman Empire from the fifteenth century onwards was based upon treaties and grants – ‘capitulations’ – made as acts of generosity and pragmatism by the sovereign.7 It suited the Ottoman rulers to grant a limited degree of immunity from local jurisdiction to the merchant community residing in designated trading areas. It encouraged the expansion of trading relationships on terms acceptable to the Ottomans; control was retained of the territories into which foreigners could extend; there was no need for the Ottomans to concern themselves with disputes amongst foreigners; and it followed established commercial practices under which traders carried their laws with them to their host nations.8

4 Benton 2002, pp. 211, 244, 252. 5 Andrade 2005, p. 298. 6 See the discussion of the improvised nature of imperial authority in McHugh 2013, pp. 234–36; see also Benton 2010, pp. 30–32. 7 Lewis 2008, p. 793; Özsu 2016, p. 129; Tait Slys 2014, ch. 3; Talbot 2017, p. 28. The term ‘capitulation’ in this context was not used to indicate imposed treaties at the surrender of a ruler following military hostilities, but commercial agreements granting extraterritoriality. 8 Keeton 1948, pp. 295–96, 298; Lewis 2008, p. 793; Bulut 2002, p. 203. See the discussion of early intra-European extraterritoriality for merchants in Sousa 1933, pp. 24–26, 33.

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Such an approach was constructed through a series of agreements. One such agreement, and a key one, was concluded with France in 1536, and was largely uncontroversial from the Ottoman perspective.9 There was no suggestion that bestowing the privilege of extraterritoriality on the French would have had any bearing on Ottoman sovereignty and there was an understanding that the foreign merchants were present at the invitation and good will of their hosts. It was offered by the Ottomans, and operational through consular jurisdiction, meaning French merchants living in Ottoman ports were governed by French law administered through their consul.10 Trade with the English emerged over the course of the sixteenth century. Its increasing value led the English to pursue more formalised arrangements.11 A trade agreement, which saw the extension of all the privileges enjoyed by the French to the English, was originally negotiated with the English in 1580 and reestablished in 1583.12 The central provisions of these early agreements were reiterated in subsequent renewals culminating in the 1675 capitulation, which included guarantees to British merchants of freedom of movement, the capacity to trade unhindered in Ottoman territories, the specifics of customs and duties to be paid on goods traded, exemptions from taxes paid by other groupings of non-Muslims, and the granting of authority to the ambassador and consuls to determine legal disputes.13 This jurisdictional privilege was set out in article 16: If there happen any Controversie amongst themselves, the decision thereof shall be wholly left to their own Embassador or Consul, according to their own Right and Laws, and with no such Causes our Ministers shall intermeddle.14 The grants of extraterritoriality within these sixteenth- and seventeenth-century capitulations were not only regarded by the Ottoman rulers as convenient. They were also consistent with forms of legal pluralism operating throughout the Ottoman Empire, particularly the millet system, which consisted of structures of self-governance for different religious communities.15 Pragmatism was again behind the granting of self-rule privileges, although multiple authorities coexisting in parallel also meant that contested legal spaces were inevitable, creating opportunities for the everyday expression of jostling imperial spheres of influence

9 The treaty text can be found in Charrière 1848, pp. 283–94. See the discussion in Talbot 2017, p. 28. 10 Keeton 1948, p. 298; Sousa 1933, pp. 69–70. 11 Talbot 2017, p. 19. 12 The Charter of the Privileges Granted to the English 1580. See also the discussion in White 2017, pp. 232–33; and also Talbot 2017, pp. 28–30. 13 Capitulations and Articles of Peace 1679. See the discussion in Talbot 2017, pp. 27–40. 14 Capitulations and Articles of Peace, art. 16. 15 Barkey 2013, pp. 92–94; Kayaoğlu 2010, p. 117.

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and boundary construction, and could, at times, lead to individuals engaging in activities akin to ‘forum-shopping’.16 This pluralistic legal setting into which the Levant Company would ultimately enter was, of course, an imperial one. The Ottoman Empire operated a deliberately constructed legal framework of layers throughout the regions it occupied, one that was designed to bring non-Muslims within the imperial court’s centralised control while at the same time creating a system for managing multiple communities.17 In this sense, the Ottomans experienced extraterritoriality in a variety of capacities – as an imperial power extending its reach into the territories of others, as an exporter of its own legal system, as a manager of co-existing jurisdictions, and as a sovereign permitting the legal systems of others to enter its legal spaces. So, it was an already established system of parallel judicial authorities within the Ottoman Empire that rendered the introduction of European consular courts an uncontroversial addition at that time.18 The relationship between the Levant Company, the Crown, and the English ambassadors and consuls was deeply enmeshed. This was due not only to the monopoly granted by Elizabeth I, but also to the ongoing arrangements that stretched to the company managing the embassy and paying the salaries of the Crown’s representatives to the Ottoman Empire.19 It also included jurisdictional matters. Having appointed William Harborne as her agent to the Ottoman court, Elizabeth I also provided him with the means to establish a system of extraterritoriality. Charged with negotiating trade agreements, Harborne was also granted authority to enact laws governing English traders operating within Ottoman territories and to appoint consuls.20 The Levant Company would also later enjoy an extensive grant of sovereign legal authority over English merchants present within the Ottoman territory. As provided by the renewed 1605 charter from James I, the company shall have authoritie and power to governe all singuler marchants being subjects of us our heires and successors as well of the said company as others which be not of the said companie . . . And to administer to them and everie of them full speedie and expedite justice in all theire plaintes causes and contencions amongst them begune and to be begune in the said Domynions of the Signiorie of Venice and the graunde Signior and other places aforesaid and to pacific decide and determine all and all manner of questions discordes and strifes amongst them.21 16 Lewis 2008, pp. 796–98. See also Goffman 1986 for a discussion of the inconsistent implementation of the capitulations and the rivalries between European representatives at the Ottoman court. 17 Barkey 2013, pp. 84–85. 18 Kayaoğlu 2010, pp. 41–42; Barkey 2013, p. 103. 19 White 2017, pp. 232–33; Talbot 2017, pp. 13, 212. 20 Commission to William Harborne 1582. See also Horniker 1942, p. 303; Wood 1935, p. 15. 21 See Epstein 1908, appendix I, pp. 179–80. See also Kayaoğlu 2010, p. 42.

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These jurisdictional powers were extended still further through a charter of 2 April 1661 granted by Charles II, which imbued the company with authority over all English nationals present in the territories in which it operated.22 This was, however, still very much within the pluralistic structures of Ottoman practice. It was not a signal of intended encroachment into the political authority of the sultan. Rather, it was an adoption of an approach that met with Ottoman expectations that also coincided with the commercial objectives of the English.23 Despite the practical reasons for the Ottoman structures of extraterritoriality, such arrangements would come to perpetuate notions of ‘lawlessness’ amongst the resident European communities.24 Emerging in the nineteenth century, this form of ‘exoticisation’ of the Ottoman legal system created spaces of legal contestation and useful hooks on which to frame what had been a privilege as a necessity, arguing that local judicial systems were arbitrary, corrupt, and ‘barbaric’. For example, Talbot discusses the way in which in 1825 Walsh painted the British – Ottoman relationship as one characterised by the ‘respectable’ Levant Company operating in the face of the ‘despotic’ tendencies of the Ottoman rulers.25 This type of imperialist projection was also reflected in Lorimer’s 1883 division of nations into legal categories of ‘civilised’, ‘semi-civilised’, and ‘savage’, particularly significant characterisations, not only in the differential application of international law by Western states but also in the construction of justifications for the imposition of extraterritoriality.26 Such depictions of political, cultural, and legal systems as unfit for Europeans were repeatedly invoked during the nineteenth century to advocate for extraterritoriality. Embedded in this narrative of extra-European ‘barbarism’, such invocations were indicative of the attempts to shift the conceptual context for the provision of extraterritoriality from a privilege to a right and ultimately to a kind of imposition and punishment. The reframing of the unilateral grants of extraterritorial privileges contained in the commercially based capitulations as binding treaties containing enforceable rights from which the Ottoman rulers could not resile without the consent of the European recipient of those privileges was a part of that deliberate change in approach.27 In this way, marking the transition from the commercial entry of the British in the sixteenth century to the violence and imperialist connotations of their operations in the nineteenth, the experience and use of extraterritoriality serves as a barometer of that shift.28 By the mid-nineteenth century, the Ottoman stance was that the extraterritorial system was both increasingly subject to abuse and not in line with notions 22 See the discussion in Epstein 1908, pp. 64–65. 23 Talbot 2017, p. 3. 24 See the discussion of European perceptions of indigenous systems of law more broadly in Gould 2003, pp. 497–500. 25 Talbot 2017, p. 8. See also Walsh 1825, pp. 5–8, 12–16. 26 Lorimer 1883, p. 101. See the discussion in Özsu 2016, pp. 133–35. 27 Özsu 2016, p. 129; Lewis 2008, p. 793. 28 See the discussion on the ‘shift from commercial interest to imperial aggression’ in Talbot 2017, pp. 2, 12–13, 40–41.

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of modern statehood.29 The response, however, was to assert that unilateral withdrawal was not possible and European states refused to abolish their access to extraterritorial jurisdiction.30 In addition, it was asserted that the Ottoman legal system was not sufficiently developed to meet the ‘standard of civilisation’ required under international law, and, in particular, that it lacked the legal structures to protect foreign-owned property.31 In this fashion, the nature of the extraterritoriality originally granted as a privilege was unilaterally reshaped in a fundamental way without the appearance of having been altered. In fact, the extraterritoriality enjoyed by the Levant Company as a grant from the sultan would ultimately be used as the vehicle through which British extraterritoriality of an imperial nature was exercised.32 Upon the dissolution of the Levant Company in 1825, the British government assumed its authority over their consuls based in Ottoman territory, and through the Foreign Jurisdiction Act of 1843 explicitly extended its jurisdictional reach into the Ottoman Empire.33 With relative ease, then, the lens through which the instruments were viewed was changed, and, with that shift, the tenor of language moved to the prevailing discourse of ‘barbarism’ and ‘civilisation’. Despite the continued objections from the Ottomans, it was not until the Treaty of Lausanne in 1923 that the system of extraterritoriality was finally abolished.34

The VOC in Asia Creating empire-like structures through a series of repetitive practices and networks across hemispheres,35 the VOC engaged in governance processes that often reflected an ‘interactive emergence of European dominance’ rather than a capacity to control outright.36 It was a model that favoured structures of legal plurality and depended on already existing indigenous networks, customs, and spaces of authority.37 For the VOC, law was one such network to be employed as a tool to control territories and populations and to support its trading activities.38 At its most basic level, the VOC consistently sought to remove company servants from the jurisdiction of local authorities.39 In numerous contexts, however, the VOC was not able 29 30 31 32 33

34 35 36 37 38 39

Özsu 2016, p. 129; Kayaoğlu 2010, pp. 104–5; Tait Slys 2014, ch. 3. Kayaoğlu 2010, pp. 104–6; Özsu 2016, p. 129. Özsu 2016, pp. 132–33; Kayaoğlu 2010, pp. 106, 113–14. Kayaoğlu 2010, pp. 42–45. Foreign Jurisdiction Act, 1843. Amendments were made, culminating in the Foreign Jurisdiction Act, 1890, which reiterated British claims to extraterritorial jurisdiction. The text can be found online at www.legislation.gov.uk. See further Kayaoğlu 2010, p. 44. Treaty of Lausanne (signed 24 July 1923), 28 League of Nations Treaty Series 11, art. 28. Ward 2008, pp. 5–6, 55–56; Clulow 2013, pp. 13–15; Schnurmann 2003, pp. 484–85; Arasaratnam 1973, pp. 3–5. Wills 1993, pp. 86–87, 96–99. Ward 2008, pp. 17–18; Andrade 2005, p. 298; Wills 1993, pp. 98–99. Benton and Jacob 2011, pp. 120–21; Ward 2008, pp. 17–18; Clulow 2013, pp. 236–37. Clulow 2013, pp. 234–37.

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to govern all the inhabitants of its settlements and failed to extend Dutch law comprehensively across company territories. For this reason, the particular legal spaces that emerged from its extraterritoriality arrangements can be seen as a gauge of the core power dynamics in its relationship with host states.

A. Varied practices The form of extraterritoriality adopted was dependent on the circumstances the VOC encountered. This meant that the Company engaged in varied practices.40 For example, in Siam, the occasionally fraught relationship between the VOC and the kingdom, and its changing power dynamics, were reflected in shifting approaches to jurisdiction. In 1636 King Prasatthong issued a declaration expressly stating that the Dutch were subject to the Siamese laws and customs. However, in the Siam – Dutch Treaty of 1664 that followed the VOC’s blockade of the entrance to ports, extraterritoriality was expressly granted to the company.41 By the eighteenth century, the company trading outpost at Ayutthaya had developed into a settlement in which VOC territory was largely self-governed, but its authority did not extend beyond that.42 The forms of sovereignty practised by the VOC still operated within an overarching framework of Siamese control, expressions of which could be seen during disputes in which the local authorities would lay siege to the VOC hub to exert pressure on the company and did not always honour the extraterritoriality granted by the treaty.43 Where only a trading post was permitted by the host state, as in Japan, the VOC was able to exert very little influence outside its designated area. The power dynamic between the company and the Japanese authorities was demonstrated by the forced delivery of Pieter Nuyts, the governor of Formosa and former VOC ambassador to Japan, to the Tokugawa regime for judgment under local law.44 The acquiescence of the company reflected both the VOC’s relative weakness of position and the symbolic role played by extraterritoriality. It is clear that the grant or withdrawal of extraterritorial privileges, the willingness or refusal to subject VOC servants to local law, was an indication of power and dominance in the relationship the company had with host states. In Taiwan, trading systems among indigenous populations, the Chinese, and the Japanese were already well established when the VOC arrived and sought to overlay its trading aspirations onto those pre-existing structures.45 Colluding with the Chinese against the indigenous population to seize territory and establish a Sino-Dutch colony in 1624, the company founded a trading base and licensing system for the profitable business of deer-hunting. Using legal mechanisms, 40 41 42 43 44 45

See the discussion in ibid. pp. 6–7. Ibid. pp. 235–36; Ruangslip 2007, pp. 39–40. Ruangslip 2007, pp. 42, 45–49. See the discussion in ibid. pp. 50–51. See also Ntina Tzouvala’s chapter in this volume. Clulow 2013, pp. 233–34, 241–43. Andrade 2005, pp. 298–99; Clulow 2013, pp. 210–11.

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including claims to sovereignty and control of regulatory structures such as those relating to the operation of ports, the VOC asserted jurisdiction, not only for its own servants but for the colony and all those resident on the island.46

B. Batavia The attempts by the VOC to reshape sovereignty through its construction of extraterritoriality were only partially successful in its settlement at Batavia. The company sought to occupy and control an array of legal spaces through multilayered forms of jurisdiction. However, it was not able to extend its reach throughout the island of Java to include the indigenous inhabitants in the wider areas beyond Batavia.47 Demolishing the city of Jayakarta and replacing it with Batavia, the VOC asserted itself as more than a commercial entity, assuming comprehensive governance actions in its East Indian headquarters, including governing, policing, and establishing a formal system of extraterritoriality under which Dutch law and, more specifically, ‘VOC law’ prevailed through the Statutes of Batavia.48 The administration established a series of courts that were empowered to hear both civil and criminal matters, the jurisdiction of which was determined by the identity of the parties.49 The Council of Justice heard disputes between Company servants as well as mixed claims involving a VOC servant and a non-VOC resident of Batavia or a foreigner, as well as cases the council deemed were in the company’s interests for it to determine.50 The Court of Aldermen dealt with matters involving non-VOC servants.51 Its jurisdiction included foreigners and indigenous peoples, although in practice overlapping jurisdictions remained and indigenous communities were often left to resolve minor disputes according to local custom and indigenous law. In fact, such was the difficulty for the VOC in maintaining consistent levels of authority across their wider territories that legal disputes per se involving indigenous peoples in the outer-lying regions were typically addressed through indigenous legal structures.52 In this vein, Raben observes that [t]he plural structure offered a practical solution to the Dutch authorities, who refrained from interference with the indigenous population. The Company was neither able nor willing to impose its legal system on the Asian population and left complicated issues such as civil jurisdiction to indigenous political leaders.53 46 47 48 49 50 51 52

Clulow 2013, pp. 205–7, 212–17; Andrade 2005, pp. 308–17. Ball 1982, pp. 11–12, 50–53. Ward 2008, pp. 67–77. Ball 1982, pp. 9–10; Ward 2008, pp. 102–3. Gall 1996, p. 117; Ball 1982, pp. 17–19; Ward 2008, pp. 69, 103. Ball 1982, p. 22. Ward 2008, pp. 66–77, 102–103; Raben 1996, pp. 197–200, 215–16; Ball 1982, pp. 11–12, 50–52, 54–76; Lev 1985, pp. 58–59, 65; Lukito 2013, pp. 26–29. 53 Raben 1996, p. 197.

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The parallel legal spaces existing in the wider Java region and the VOC’s need to work with the indigenous communities are illustrations of what Benton describes as ‘layered sovereignties’ and the uneven experience of imperial authority.54 The system in operation at Batavia falls within this framework, according to which the company’s institutions and activities formed a ‘web’ in which some legal practices of empire were stronger and others less so.55 VOC policies on law reflected the need to adapt to local conditions, but were utilised throughout its operations as another mode of empire. And the legal structures developed in Batavia were no exception, incorporating both Dutch and indigenous laws and customs, resulting in its own hybrid form of legal authority.56 Not solely in Batavia but across its settlements, the VOC used extraterritoriality as a control mechanism to assert its authority. It also served as a gauge of that authority in any given set of circumstances. Extraterritoriality was a symbol of the relationship the company had with the rulers and communities of the territories in which it operated – the stronger the company’s position, the more extensive were its governance realities and extraterritoriality entitlements. For this reason, the company’s experience of extraterritoriality was an inconsistent one, strengthening and weakening in relation to the actuality of its site-specific authority.

The East India Company and China China has had a complex historical relationship with different versions of what can be conceptualised as extraterritoriality. It experimented with various forms of legal pluralism in order to manage multiple ethnic groups and what were conceived of as diaspora communities of foreigners present in China.57 This, of course, does not mean that China was comfortable with the imposed form of extraterritoriality visited upon it through the unequal treaties of the nineteenth century. It does, however, indicate a legal culture that could encompass sophisticated notions of parallel variance.58 The East India Company benefited from that capacity to embrace pluralism, but also chipped away at those structures, working within them and yet looking to undermine and destabilise the system in its attempt to secure ever more extensive extraterritorial rights in China. That company position certainly contributed to the shift in 1842 from extraterritoriality as a privilege to a right, and ultimately to a punishment in Qing China.

A. China and legal pluralism For some time prior to the First Opium War of 1839–1842, China had known internal jurisdictional divisions. Although ostensibly uniting all regions under the 54 Benton 2010, pp. 30–31. 55 Ward 2008, pp. 55–56. See generally the discussion of the ‘web’ of empires in Games 2009. 56 Benton and Jacob 2011, pp. 119–122; Ward 2008, pp. 15–19. 57 Benton 2002, p. 249; Cassel 2012. 58 See Richard Horowitz’s chapter in this volume.

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one legal framework,59 the prevailing administrative system had at various stages also allowed for distinctions between the Manchu and Han Chinese, distinct professionally determined social strata, and legal privileges enjoyed by different royals and officials.60 For example, the Yuan dynasty (1271–1368) applied different laws to Mongols, central Asians, northern Chinese, and southern Chinese.61 Regulations under the Qing dynasty (1644–1912) were underpinned by a uniform system, but again with differing legal treatment of the Manchu, the Miao and Yao peoples, Muslims, Tibetans, and Mongols.62 China’s approach to permitting concurrent legal spaces for foreigners had historically been linked to trade and its tribute system as far back as the Tang dynasty (618–907), in which Iranian and Arab traders, who were granted space to live as residents and conduct business within designated trading areas along the south-east coast, were also free to establish their own governance structures and applicable laws for relations among themselves.63 From the sixteenth century onward, European engagement with China intensified through increasing levels of trade and the concomitant desire to settle within China.64 As with the Tang dynasty, limited extraterritoriality was established with respect to foreigner-only interaction. In principle, disputes involving Chinese subjects remained within Qing jurisdiction. In reality, though, practice in the resolution of mixed cases other than homicide varied.65 Conceptually, this system left the jurisdictional status of foreigners lying within one legal structure (home state law) that was embedded in another (Chinese law) to which access was excluded unless the crime in question was homicide and was committed against a Chinese subject, the triggering of that system being contingent upon the status of the victim (Chinese). Determining inclusion in or exclusion from a legal system on the basis of ‘nationality’ and membership in a particular group or state spoke to the way in which Chinese officials sought to determine the boundaries of identity. The Portuguese had been operating according to this system since their settlement in Macau in 1557, though there were attempts to assert jurisdiction where a Portuguese subject was accused of murder and the victim was Chinese.66 The Treaty of Nerchinsk that China concluded with Russia in 1689, as well as the later Treaty of Kiakhta in 1727 and its supplementary agreement in 1768, provided that each state was responsible for its own subjects when in the other’s territory, governed by the laws of their own home states other than for cases of violent crime.67 In other words, China was not averse to forms of extraterritoriality per se. 59 60 61 62 63 64 65 66 67

Wong 1997, pp. 193, 199–201; Cassel 2012, p. 16. Cassel 2012, pp. 15–16; Cassel 2003, p. 157. See the detailed account in Took 2005. See also Cassel 2012, p. 17. Cassel 2012, pp. 18–20, 37. Schottenhammer 2016, pp. 135–138, 157; Keeton 1948, p. 296. Abramson 2008 discusses the vibrant multi-ethnic sites of engagement under the Tang dynasty. Cassel 2012, p. 40. Benton 2002, pp. 247–248; Cassel 2012, p. 40. Cassel 2012, pp. 40–42. See the discussion in Benton 2002, pp. 247–48; Cassel 2012, pp. 42–44.

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Certainly, those who wished to trade with China were required to adhere to the stipulations set by the emperor. But there was considerable scope for foreigners to resolve disputes among themselves according to their own laws, and, in practice, even where mixed Chinese – foreigner disputes arose.68 Reflecting the modes of legal inclusion and exclusion within the Qing system for governance of foreigners, such co-existing spaces of legal authority did not challenge the sovereignty of the emperor. The system existed as it did because of his decision to allow the construction of those particular frameworks. The imposition of extraterritoriality, however, was a very different scenario from choosing to grant foreigners such privileges. The act of conferring a privilege and the receipt of that grant is an acknowledgement of the grantor’s sovereignty; it occurs within a framework of structured beneficence of the sovereign ruler. By contrast, the forced imposition of extraterritoriality violates sovereignty. It was the increasingly strident demands from the East India Company in the 1830s that its servants not be subject to Chinese criminal law that was a significant factor in the heightened tensions in Sino-Anglo relations of that period. A number of factors led to the Opium War, including but not limited to objections to taxes, tight controls on the location of overseas trade, and the prohibition on the sale of opium. Concerns about Chinese punishment of foreign nationals for homicide were also thrown into that mix. As a result, calls for wider immunity from local jurisdiction intensified.69

B. The East India Company and extraterritoriality The East India Company had deployed extraterritoriality in different contexts as part of its operations from the seventeenth century onwards. Varied sovereignties were constructed through layers of arrangements, treaties, and grants. As Stern argues, the company’s authority was created through the practice of sovereignty, and was not necessarily limited to the territorial associations of traditional notions of sovereign authority.70 It was a standard company approach to seek extraterritorial rights to some extent in its negotiations with Asian rulers.71 But it was also the company’s approach to operate as a sovereign entity itself, not only immune from local jurisdiction wherever possible but even granting immunity to others. For example, in the late seventeenth century, the company issued ‘passes’ to private traders and other European and Asian ships using sailing routes between Europe and the East Indies, claiming that its jurisdiction overrode local jurisdictional authorities.72 In Penang, the company established a settlement in 1786, followed by a powerful commercial court in the early 1800s; through the latter it extended its jurisdictional reach across the Strait of Malacca, not just to company

68 69 70 71 72

Keeton 1948, pp. 302–3; Benton 2002, pp. 247–48. Benton 2002, pp. 246–49. Stern 2011, pp. 3–6, 9–13, 42–44, 50. Keeton 1948, pp. 300–1. Stern 2011, pp. 43–45; Benton 2010, pp. 141–45.

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servants but also to local inhabitants, subjecting even Malay rulers to English mercantile law.73 In India, the company ultimately pursued more formal imperial arrangements of colonial governance, establishing not just trading centres but settlements, administrations, courts, and standing armies.74 In a sense, the East India Company filled spaces more usually occupied by sovereigns, and the construction of extraterritoriality was no exception. In Guangzhou, the East India Company was by the 1700s the dominant British actor in Sino-Anglo trade. Although it appeared to respect the jurisdictional diktats of the Qing regime, it exploited the ambiguities of law and authority that existed within the pluralistic system, particularly as the company operated on the margins of legality with its tea and opium trade arrangements.75 Asserting from the very outset its sovereign – commercial hybrid status, the company claimed jurisdiction over British nationals in China upon the establishment of its first representatives in China in 1676.76 At the same time, China claimed an umbrellalike jurisdiction over all those present in its territory. The reality of this practice of authority was, however, more complex, since Chinese officials tended not to assert jurisdiction over disputes between foreigners and even occasionally mixed Chinese – British disputes, insisting only that British subjects suspected of committing serious crimes against Chinese individuals be delivered.77 The high-profile case of the strangulation of the gunner of the British ship Lady Hughes in 1784 as punishment for accidental homicide was significant in providing an incident around which a narrative of ‘barbaric’ practices could be created.78 From this point onwards, what Chen describes as a ‘sentimental discourse’ of imperialism grew with respect to Chinese law and punishment.79 More extensive forms of extraterritoriality were demanded, not only by the East India Company but also by other foreign merchant communities, and a concerted campaign was adopted to characterise China’s system of justice as unsuitable for British nationals.80 However, it was not until the conclusion of the First Opium War in 1842 that the British secured the version of extraterritoriality they had been seeking.

C. Extraterritoriality and unequal treaties The Treaty of Nanjing transformed the jurisdictional framework, if not necessarily at the outset then subsequently through the extension of the treaty port system. The treaty recorded the cessation of hostilities, but did not itself expressly 73 Yahaya 2015, pp. 946–48. 74 Chaudhuri 1978, p. 20; Keeton 1948, p. 301. 75 Ong 2010, pp. 164–65. See also the discussion in Gould 2003 on the exploitation of legal ambiguities in jurisdictional conflict and violence in the legal spaces occupied by the trading companies. 76 Kayaoğlu 2010, p. 42, n. 7. 77 Keeton 1948, pp. 302–3; Benton 2002, pp. 247–48. 78 Cassel 2012, pp. 42–43; Benton 2002, pp. 247–49. 79 Chen 2016, pp. 156–57, 186–88. 80 Benton 2002, pp. 248–49.

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address extraterritoriality. That would come later, and this process represented a tussling for sovereign authority.81 The type of extraterritoriality instituted following the conclusion of the unequal treaties was a function of competing claims to sovereignty – and in this case, it was without question a diminution in Qing sovereignty.82 Ultimately, the erosion of domestic political authority was such that foreign citizens would come to claim absolute immunity from Qing jurisdiction.83 Cassel points to the fact that the initial effect of the law that was brought in following the Treaty of Nanjing was not significantly different from that which had been in place prior to it, though he does acknowledge that the conclusion of the treaty marked a shift in Qing approaches to extraterritoriality.84 The terms may not have altered the detail of the extraterritoriality arrangements at that stage; in fact, although compromises were made, even the initial trading conditions under the treaty did not change dramatically, with what amounted to an expansion of an already existing system of open ports.85 The context of the granting of extraterritoriality had, however, changed radically. And this signalled what I suggest is a key moment of shifting meaning in the understanding and practice of extraterritoriality in the context of China – a shift from a privilege to confer to a shame to endure. Subsequent concessions and grants of extraterritoriality, the way in which the treaty ports operated, and the conclusion of further unequal treaties all followed from the Treaty of Nanjing. Most significantly, the military loss to the British and the terms of the treaty changed the environment in which negotiations on all aspects of trading and extraterritoriality took place, resulting in the later concessions that amounted to substantial impositions and humiliation. In particular, it was the 1843 Supplementary Treaty of the Bogue that explicitly recorded the extraterritorial rights of the British: the British consul was to adjudicate over British nationals in China according to British law, including with respect to criminal matters.86 The immediate effect of this supplementary treaty was to embolden other states to pursue similar and more extensive trading concessions.87 Its longterm impact, however, was perhaps most visible in the potent symbolism of these treaties and of extraterritoriality itself. Being the first of what would come to be known as China’s unequal treaties, the Nanjing and Bogue treaties initiated the imposition of an extraterritoriality of a different quality and meaning from that previously enjoyed in China. Again, reflecting the power shifts of the actors involved, what had previously been a grant from a sovereign became a forcibly extracted right. And with that shift in context, extraterritoriality itself came to be imbued with connotations of imposition, colonialism, and humiliation. 81 Treaty of Nanjing (signed 29 August 1842), 93 Consolidated Treaty Series 465. See also Cassel 2012, pp. 50–51. 82 Benton 2002, pp. 250–51. 83 Cassel 2012, p. 42. 84 Ibid. p. 47. 85 Kawashima 2012, p. 457; Cassel 2012, pp. 50–51. 86 Supplementary Treaty between China and Great Britain (signed 8 October 1843), 95 Consolidated Treaty Series 323. See Cassel 2012, pp. 52–53. 87 Cassel 2012, pp. 51–53.

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Conclusion The way in which extraterritoriality was experienced and enacted by the VOC, the Levant Company, and the English East India Company varied according to the relationship each company had with local rulers and the circumstances specific to the territories in which they were based. The objectives were similar: each of the companies sought to remove their servants from the legal sphere of host nations. But the conditions under which each company operated were not uniform nor cohesive. Rather, the manifestations of extraterritoriality in each context reflected the irregular and authority-dependent character of informal empire. Much as these early trading companies may have wished to extend their jurisdictional reach beyond their own employees and subjects to encompass local subjects, the form of sovereignty constructed in each case was contingent upon changing power relations. And the shifting nature of the extraterritoriality that was exercised was an indicator of those changing power relations. The relationship between host rulers and chartered companies was one of legal contestation, and the lines that were drawn around inclusion and exclusion reflected the role of extraterritoriality as an instrument of power. Initially conferred by a confident and secure local ruler as a privilege on foreign merchants, extraterritoriality subsequently came to structure a pluralistic legal space marked by the fluidity of cultural communities, still later being transformed into an imperialist mechanism of imposed control. As with the authority of imperial actors, the experiences of law following the imposition of extraterritoriality were also varied in each setting. But there was a consistency in their recurring effects, particularly in the curtailment and reconstruction of sovereignty through assertions of extraterritorial authority. By the mid-nineteenth century, the lens and language had shifted fundamentally to one dominated and legitimised by perspectives that drew on the discourse of ‘barbarism’. And in that process, the meaning and understanding of extraterritoriality was transformed from an exercise of sovereignty by the local ruler to a symbol of their subjugation.

Bibliography Secondary literature Abramson, Marc S. (2008), Ethnic Identity in Tang China (Philadelphia: University of Pennsylvania Press). Andrade, Tonio (2005), ‘Pirates, Pelts, and Promises: The Sino – Dutch Colony of Seventeenth Century Taiwan and the Aboriginal Village of Favorolong’ 64 Journal of Asian Studies 295. Arasaratnam, S. (1973), ‘Monopoly and Free Trade in Dutch – Asian Commercial Policy: Debate and Controversy within the VOC’ 4 Journal of Southeast Asian Studies 1. Ball, John (1982), Indonesian Legal History: 1602–1848 (Sydney: Oughtershaw Press). Barkey, Karen (2013), ‘Aspects of Legal Pluralism in the Ottoman Empire’, in: Lauren Benton and Richard J. Ross (eds), Legal Pluralism and Empires, 1500–1850 (New York: New York University Press), pp. 83–107.

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Benton, Lauren (2002), Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press). Benton, Lauren (2010), A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (New York: Cambridge University Press). Benton, Lauren and Devin Jacob (2011), ‘Imperial Circuits of Law: Dutch East India Company Sovereignty’ 2 Transnational Legal Theory 119. Bulut, Mehmet (2002), ‘The Role of the Ottomans and Dutch in the Commercial Integration between the Levant and Atlantic in the Seventeenth Century’ 45 Journal of the Economic and Social History of the Orient 197. Cassel, Pär (2003), ‘Excavating Extraterritoriality: The “Judicial Sub-Prefect” as a Prototype for the Mixed Court in Shanghai’ 24 Late Imperial China 156. Cassel, Pär Kristoffer (2012), Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (Oxford: Oxford University Press). Charrière, Ernest (1848), Négotiations de la France dans le Levant ou correspondances, mémoires et actes diplomatiques, vol. 1 (Paris: Imprimerie Impériale). Chaudhuri, K. N. (1978), The Trading World of Asia and the English East India Company 1660–1760 (Cambridge: Cambridge University Press). Chen, Li (2016), Chinese Law in Imperial Eyes: Sovereignty, Justice, and Transcultural Politics (New York: Columbia University Press). Clulow, Adam (2013), The Company and the Shogun: The Dutch Encounter with Tokugawa Japan (New York: Columbia University Press). Epstein, M. (1908), The Early History of the Levant Company (London: George Routledge & Sons Ltd.; New York: E. P. Dutton & Co.). Gall, Heleen (1996), ‘An Introduction to Indonesian Legal History’ 1 Journal of South African Law 116. Games, Alison (2009), The Web of Empire: English Cosmopolitans in an Age of Expansion, 1560–1660 (New York: Oxford University Press). Goffman, Daniel (1986), ‘The Capitulations and the Question of Authority in Levantine Commerce 1600–1650’ 10 Journal of Turkish Studies 155. Gould, Eliga (2003), ‘Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, circa 1772’ 60 William and Mary Quarterly 471. Horniker, Arthur Leon (1942), ‘William Harborne and the Beginning of the AngloTurkish Diplomatic and Commercial Relations’ 14 Journal of Modern History 289. Kawashima, Shin (2012), ‘China’, in: Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press), pp. 451–74. Kayaoğlu, Turan (2010), Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire and China (New York: Cambridge University Press). Keeton, George W. (1948), ‘Extraterritoriality in International and Comparative Law’ 72 Recueil des Cours 283. Lev, D. S. (1985), ‘Colonial Law and the Genesis of the Indonesian State’ 40 Indonesia 57. Lewis, Mary Dewhurst (2008), ‘Geographies of Power: The Tunisian Civic Order, Jurisdictional Politics, and Imperial Rivalry in the Mediterranean, 1881–1935’ 80 Journal of Modern History 791. Lorimer, James (1883), The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities, vol. 1 (Edinburgh; London: W. Blackwood & Sons). Lukito, Ratno (2013), Legal Pluralism in Indonesia: Bridging the Unbridgeable (Abingdon: Routledge).

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McHugh, P. G. (2013), ‘“A Pretty Gov[ernment]!”: The “Confederation of United Tribes” and Britain’s Quest for Imperial Order in the New Zealand Islands during the 1830s’, in: Lauren Benton and Richard J. Ross (eds), Legal Pluralism and Empires, 1500–1850 (New York: New York University Press), pp. 233–58. Ong, S. P. (2010), ‘Jurisdictional Politics in Canton and the First English Translation of the Qing Penal Code (1810)’ 20 Journal of the Royal Asiatic Society 141. Özsu, Umut (2016), ‘The Ottoman Empire, the Origins of Extraterritoriality, and International Legal Theory’, in: Anne Orford and Florian Hoffman (eds), The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press), pp. 123–37. Raben, Remco (1996), ‘Batavia and Colombo: The Ethnic and Spatial Order of Two Colonial Cities’, unpublished Ph.D. dissertation, University of Leiden. Ruangslip, Bhawan (2007), Dutch East India Merchants at the Court of Ayutthaya: Dutch Perceptions of the Thai Kingdom, 1604–1765 (Boston: Leiden). Schnurmann, Claudia (2003), ‘“Wherever Profit Leads Us, to Every Sea and Shore . . .”: the VOC, the WIC, and Dutch Methods of Globalization in the Seventeenth Century’ 17 Renaissance Studies 474. Schottenhammer, Angela (2016), ‘China’s Gate to the Indian Ocean: Iranian and Arab Long-Distance Traders’ 76 Harvard Journal of Asiatic Studies 135. Sousa, Nasim (1933), The Capitulatory Régime of Turkey: Its History, Origin and Nature (Baltimore: Johns Hopkins Press). Stern, Philip J. (2011), The Company-State: Corporate Sovereignty and The Early Modern Origins of the British Empire in India (New York: Oxford University Press). Tait Slys, Mariya (2014), Exporting Legality: The Rise and Fall of Extraterritorial Jurisdiction in the Ottoman Empire and China (Geneva: Graduate Institute Publications), online: http://books.openedition.org/iheid/788. Talbot, Michael (2017), British-Ottoman Relations 1661–1807: Commerce and Diplomatic Practice in Eighteenth-Century Istanbul (Rochester: Boydell & Brewer). Took, Jennifer (2005), A Native Chieftaincy in Southwest China: Franchising a Tai Chieftaincy under the Tusi System of Late Imperial China (Leiden: Brill). Walsh, Robert (1825), Account of the Levant Company: With Some Notices of the Benefits Conferred upon Society by its Officers, in Promoting the Cause of Humanity, Literature, and the Fine Arts (London: J. and A. Arch, Cornhill; and Hatchard and Son, Piccadilly). Ward, Kerry (2008), Networks of Empire: Forced Migration in the Dutch East India Company (New York: Cambridge University Press). White, James Cameron (2017), ‘Royal Authority versus Corporate Sovereignty: the Levant Company and the Ambiguities of Early Stuart Statecraft’ 32 The Seventeenth Century 231. Wills, John E. Jr. (1993), ‘Maritime Asia, 1500–1800: The Interactive Emergence of European Domination’ 98 American Historical Review 83. Wong, Roy Bin (1997), China Transformed: Historical Change and the Limits of European Experience (Ithaca: Cornell University Press). Wood, Alfred C. (1935), A History of the Levant Company (Oxford: Oxford University Press). Yahaya, Nurfadzilah (2015), ‘Pluralism and the English East India Company in the Straits of Malacca during the Early Nineteenth Century’ 33 Law and History Review 945.

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Legal instruments Articles of the Merchants Trading Turkey and Venice to be Incorporated Into One Body by the Name of Merchants of Levant, 1589 (the act of incorporation is recorded in S.P.D. Eliz., vol. 151, no. 34; only the articles in draft form have been located and reproduced in Epstein, M. (1908), The Early History of the Levant Company (London: George Routledge & Sons Ltd.; New York: E. P. Dutton & Co.) appendix 8, no. 3, pp. 252–58) Charter of the VOC, Granted by the States-General of the United Netherlands, 20 March 1602 (the original charter is in the National Archives of the VOC, The Hague (inv.nr.1); an English translation is available in Peter Reynders and Rupert Gerritsen, ‘Translation of the Charter of the Dutch East India Company (Verenigde Oostindishe Compagnie or VOC): Granted by the States-General of the United Netherlands, 20 March 1602’, online: http://rupertgerritsen.tripod.com/pdf/ published/VOC_Charter_1602.pdf) Charter Granted by Queen Elizabeth to the Governor and Company of Merchants of London, Trading into the East-Indies, 31 December 1600 (the original is lost; a contemporary transcript is archived at the National Archives, held at the British Library, Charters of the East India Company with related documents, IOR/A/1/2) Commission to William Harborne, 20 November 1582, reproduced in Hakluyt, Richard (1904), The Principal Navigations, Voyages, Traffiques and Discoveries of the English Nation (Glasgow: James Maclehose & Sons, publishers to the University of Glasgow) vol. 5, pp. 221–24 Foreign Jurisdiction Act, 1843 Foreign Jurisdiction Act, 1890 Letters Patent Granted to the Governor and Company of Merchants of London, Trading into the East-Indies, 3 April 1661, National Archives, held at the British Library, IOR/A/1/22 Patent Granting for Twelve Years to the Levant Company, the Sole Privilege of Trading to the Levant Seas, Turkey and Venice, 7 January 1592, S.P.D. Eliz., vol. 241, no. 11 Supplementary Treaty between China and Great Britain, signed 8 October 1843, 95 Consolidated Treaty Series 323 The Capitulations and Articles of Peace between the Majesty of the King of Great Britain, France, and Ireland &c. and the Sultan of the Ottoman Empire (London: J. S., 1679) The Charter of the Privileges Granted to the English, & the League of the Great Turke with the Queenes Majestie in Respect of Traffique, June 1580, reproduced in Hakluyt, Richard (1904), The Principal Navigations, Voyages, Traffiques and Discoveries of the English Nation (Glasgow: James Maclehose & Sons, publishers to the University of Glasgow) vol. 5, p. 178 Treaty of Lausanne, signed 24 July 1923, 28 League of Nations Treaty Series 11 Treaty of Nanjing, signed 29 August 1842, 93 Consolidated Treaty Series 465

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Protégé problems Qing officials, extraterritoriality, and global integration in nineteenth-century China Richard S. Horowitz

Introduction In the stories historians tell about late Qing China, extraterritoriality scarcely matters. In textbooks, it gets a paragraph or two. Consular jurisdiction of foreign nationals was, to be sure, humiliating for the Chinese, part of the broader psychological trauma imposed by the unequal treaties. But in contrast to the large issues of foreign aggression, the need to adopt new industrial technology, and internal struggles over the waning dynasty’s political direction, it does not get even a supporting role in the grand narrative of China’s nineteenth-century history. It is not until the twentieth century, when popular nationalism of the May Fourth and May Thirtieth movements crystallised opposition to foreign privilege, that it comes to the fore.1 Even Pär Cassel, in his important recent work on extraterritoriality in east Asia, describes Qing official objections to extraterritoriality as ‘tentative’, focusing on ‘unjust outcomes and specific abuses of consular jurisdiction’. He asserts that ‘[m]ost objections to extraterritoriality in the midnineteenth century did not come from official circles in the capital but from the private writings of Chinese literati and officials’.2 While there was not the public outcry that would attract attention in the 1910s and 1920s, a closer examination reveals that extraterritoriality haunted Qing officials in the 1860s and 1870s. A rash of ‘missionary incidents’ centring on foreign missionaries’ interventions on behalf of Chinese Christian converts quickly exposed the problems that extraterritorial justice created. These cases raised concerns about the consequences of expanding foreign penetration in other areas. Foreigners tended to view Qing opposition to expanded mercantile access to the interior and to the introduction of railways and telegraphs as an expression of ingrained xenophobia and conservative, even luddite attitudes towards new technology. But the writings of Qing officials express a logical concern about the legal and political implications of expanding foreign investment and social contact 1 For example, Rowe 2009 gives only two brief mentions of extraterritoriality. 2 Cassel 2012, pp. 160–61. In a recent article Cassel offers a slightly different view that Qing officials ‘did not question extraterritoriality as such only the notion that extraterritoriality gave foreigners the right to break Chinese laws with impunity’. Cassel 2016, p. 31.

Global integration in late Qing China 105 outside of the treaty ports. Extraterritorial privileges, backed by aggressive consuls and the threat of coercion from imperial powers like Britain and France, easily metastasised to include individuals whose claims to it were weak or non-existent. In the eyes of Qing officials, individuals with extraterritoriality were effectively ungovernable. Well aware that foreign diplomats would reject any rollback to extraterritoriality, they focused on limiting the damage. Allowing any further foreign activity outside of the treaty ports would almost certainly lead to further weakening of Qing sovereignty.

Establishing extraterritoriality Extraterritoriality was established in the treaties that ended the Opium War (1839–42) and the Arrow War (also known as the Second Opium War, 1856– 60). Long before these conflicts, foreign merchants had objected to Chinese legal practices which seemed to them arbitrary at best and barbaric at worst. During the period of the Canton system of trade from the 1750s to the Opium War – when contacts between foreign merchants and Chinese were carefully controlled – incidents involving the death of Chinese at the hands of foreigners, accidental or otherwise, produced intense conflicts. Qing authorities would cut off trade to force foreigners to turn over the accused. Foreigners used a variety of tactics to avoid the prosecution of their nationals in Chinese courts, where they believed there would be little attention to determining the actual guilt or innocence of the accused.3 The two sets of treaty arrangements resolved this issue in ways amenable to foreign merchants. In the treaties signed at the end of Opium War, it was established that foreign nationals would be tried by their own governments in accordance with their own laws. At the same time, however, the activities of foreign merchants and missionaries were to be restricted to the treaty ports, and access to other parts of China was distinctly limited. The second set of treaty arrangements signed in 1858/1860 complicated the picture considerably: the treaty ports were increased in number, and foreigners were now allowed to travel inland with a passport from their consul, but they were not to reside or do business outside of the treaty ports. There was an important exception, however: the French government, with a very limited commercial interest in China, focused its attention on the concerns of the burgeoning French Catholic missionary movement. In 1844 and 1858 they convinced the Qing government to commit to legal toleration of Christianity. The Sino-French treaty of 1860 established the legality of missionary activity outside of the treaty ports by French Catholic missionaries, and the restoration of properties to the Catholic Church confiscated by the Qing government decades earlier. Furthermore, there was a difference between the French and Chinese language version of the treaties (slipped in by a French translator). An additional clause in the Chinese version allowed Catholic missionaries to reside inland and rent or purchase land and construct buildings. This diplomatic sleight 3 Edwards 1980, pp. 245–55; Chen 2016, ch. 1; Cassel 2016, pp. 24–28.

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of hand, while infuriating to Qing officials, was accepted. By the most-favourednation clauses in all of the foreign treaties, these privileges were extended to Protestant missionaries from major European countries and the United States. In practice both Catholic and Protestant missionaries were now given a largely free hand inland, while foreign business establishments remained anchored in the treaty ports on the China coast.4 Extraterritoriality in China in the nineteenth century was influenced by two threads. First, the unequal treaties that were imposed on China were modelled on western European relations with the Ottoman Empire, and particularly the agreements known as the capitulations, which provided for extraterritoriality of European nationals. Second, the Qing Empire itself had a long history of legal pluralism, and distinctive legal treatment of Manchus and other non-Han Chinese ethnicities. For Qing officials, then, there were domestic models for the way they saw extraterritorial institutions. But they quickly found important differences. Legal decisions in non-Chinese areas of the empire were subject to review by the Qing throne, and the laws themselves could be revised or rewritten with the emperor’s approval. In line with the treaty system, Qing officials could do little or nothing to reverse what they considered to be unjust decisions. Foreign consular courts often took expansive views of their jurisdiction and changes required diplomatic negotiations with foreign powers.5 In one respect the Ottoman comparison is especially illuminating for understanding the problems faced by Qing officials. Beginning in the late eighteenth century foreign powers forced the Sublime Porte to accept that foreign legal protection would extend to certain Ottoman subjects – their so-called protégés – generally members of Christian minority communities. By the mid-nineteenth century the number of protégés in the Ottoman realm, who obtained legal protection from foreign governments by purchase or family connection, numbered in the millions. They provided the chief business of foreign consular courts. By the second half of the nineteenth century protégés were one of the major concerns of Ottoman statesmen as they confronted the extraterritorial regime.6 The idea of the protégé has been largely missing from discussions of Qing extraterritoriality, but it is helpful in unravelling Qing official attitudes toward foreign missionaries, businessmen, and proposals for foreign investment in the 1860s and 1870s. In China, negotiators on both sides of the early treaties gave little thought to the definition of foreign nationals and who might claim protection. The gulf between Chinese and foreigners – physical, linguistic, cultural – no doubt made this seem unnecessary. But in practice, problems became apparent almost immediately. The unmarked limits of extraterritorial privilege became the basis of a range of important disputes involving foreign missionaries and Chinese 4 On the role of the French government, see Young 2013, pp. 24–34. And on the implications of the French treaty, see Cohen 1963, pp. 68–69. For an overview of the implementation of the treaties, see Scully 2001, esp. chs. 2–3, and Cassel 2012, ch. 2. 5 On Qing legal pluralism, see Cassel, ch. 1. On the relationship to Ottoman capitulations, see Horowitz 2004. 6 Sousa 1933, pp. 89–102; Ahmad 2000, pp. 7–8.

Global integration in late Qing China 107 Christians, foreign merchants, and ethnic Chinese who claimed extraterritorial protection. While the term ‘protégé’ was rarely used in the Chinese case, problems with protégés in missionary and mercantile situations were fundamental to the early practice of extraterritoriality in China, and profoundly influenced the thinking of Qing officials.

Missionary incidents and legal jurisdiction From the moment missionaries began to move inland after the 1860 treaties, conflicts erupted. Missionaries complained of persecutions, usually at the hands of the Chinese elite; Chinese complained of abuses as missionaries and converts evaded legal control and ignored longstanding social custom. By the end of the 1860s, scores of reports of missionary-related incidents were filling volume after volume of the neatly copied and bound files of the Zongli Yamen, the newly created Office of Foreign Affairs in Beijing.7 One of those cases, involving a riot in Luoyuan in Fujian Province, gives a sense of the way in which missionaries tried to limit Qing jurisdiction over Chinese converts to Christianity – making them protégés. In late June 1869, Yinggui, the governor-general of Fujian and Zhejiang Provinces, began to receive disturbing reports of an incident in Luoyuan, a county seat in the northern part of Fuzhou prefecture. A letter from the British consul in Fuzhou, Charles Sinclair, forwarded several messages from J. R. Wolfe, of the British-based Church Missionary Society (CMS), an evangelical arm of the Church of England. According to Wolfe, on 20 June a ‘group of gentry and soldiers’ had suddenly appeared in the Nanmennei area of Luoyuan city, destroyed the church constructed by the CMS, then proceeded to break into the house of an associate pastor and wreck much of what was in it. Later the same evening, they broke into the house of Xue Xinqing, a prominent local convert, and stole some of his belongings. Wolfe had demanded the arrest and punishment of the perpetrators, and a list of items damaged and stolen, claiming that the mission and the converts should receive $6,184 (Mexican silver dollars) in restitution. Finding the magistrate unreceptive to his demands, he appealed to Sinclair to intervene. Sinclair supported Wolfe’s claims, insisting that the matter must be reported to the Zongli Yamen in Beijing. ‘If it is not investigated properly’, he warned, ‘it will bring a change to the peaceful relationship between our two countries’. In Wolfe’s version of events, backed by the British authorities, the Luoyuan Christians were innocent victims of anti-Christian persecution.8 Governor-General Yinggui initiated an investigation. A report from the acting magistrate of Luoyuan, Lu Rukun, told quite a different story: ‘the people of

7 The Zongli Yamen’s files on these cases have been published as Zhang et al. 1974. 8 Yinggui-Zongli Yamen, TZ 7.8.9, in Zhang et al. 1974, vol. 2, pt. 3, pp. 1536–37. See also the brief account (presumably provided by Wolfe) in the Chinese Recorder and Missionary Journal July 1869, p. 56. For a scholarly account of the Luoyuan affair see Carlson 1974, pp. 108–15.

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Luoyuan have been well known for being law abiding. But from the time of the foreigners establishing their religion here, the converts have depended upon [the foreigners] as a screen to mask wrongdoing, and generally sowing division with the general populace.’ According to Magistrate Lu, the trouble had begun a few weeks before the 20 June incident, when according to the sworn statements of six constables, a Christian named Xue Shengtang (the son of Xue Xinqing) was seen strolling to a local temple in the county seat with two other converts, and afterwards ‘the heads of the statues of the gods had suddenly disappeared’. Gossip raged among the common people, and on 9 June a group went to the church to discuss the matter with the Christians, with no resolution. The magistrate claimed to have issued a proclamation banning such behaviour and sent an able secretary to try to negotiate a resolution, but to no avail. On 20 June a local constable Huang Zhangchun had rushed to Magistrate Lu. Earlier that day, he reported, a large crowd had gathered around the church. Hearing the murmurs and wondering why the converts had not come for services, Xue Shengtang had come out, and seized a commoner named Wang and humiliated him, forcing him to kneel. Subsequently, a group of converts had disrupted a drama performance at the local temple. An angry crowd then headed towards the church. Constable Huang urged the magistrate to assemble the garrison and put a stop to it. By the time Magistrate Lu reached the scene, the church had already been destroyed. The Xue residence had been damaged, and the perpetrators had scattered.9 The two accounts agreed that the church had been destroyed and the Xue residence had been damaged. Wolfe omitted any mention of causes and focused on arresting and punishing the unnamed ‘gentry and soldiers’ who they believed were responsible for the outrage. Lu’s account pointed to a range of provocations, but tried to minimise any responsibility on his own part. Yinggui and the Zongli Yamen were unwilling to accept Wolfe’s story. While no one disputed that the riot that destroyed the church was against the law, they were also sensitive to Chinese complaints about the behaviour of missionaries and converts, and pursued questions raised in Magistrate Lu’s report. In their assessment, the investigation of the affair needed to examine the alleged provocations of the Christian Xue Shengtang. But Xue, under Wolfe’s protection, was not speaking to the investigating officials. Wolfe refused to turn him over, insisting that there was no evidence linking Xue to the beheading of the temple statues. Sinclair backed Wolfe’s position. Here the investigation reached an impasse: Yinggui and the Zongli Yamen adamantly insisted that Xue, while a Christian, was still Chinese and subject to Qing law and the administration of justice. To prosecute the alleged perpetrators without interrogating Xue Shengtang was impossible. The British insisted that the incident was a reaction by gentry and soldiers (by which they probably meant low-level government functionaries called Yamen runners) to the growing 9 The magistrate’s report is quoted in Yinggui-Zongli Yamen TZ 7.8.9, in Zhang et al. 1974, vol. 2, pt. 3, p. 1537.

Global integration in late Qing China 109 number of converts – and the commoners by and large had no problem with the Christians. Proposals floated by British diplomats for a joint investigation were rejected by the Qing side on the grounds that the Christians were subject to Chinese law.10 While neither the Qing nor the British sides ever backed away from the accounts that Magistrate Lu and John Wolfe had presented at the outset, a third story later emerged about what happened on 20 June. A.W. Cribb, another CMS missionary in Fuzhou, visited Luoyuan while Wolfe was on leave in 1870, and sent reports about the case to the CMS in London based on his interviews with Luoyuan converts.11 Clearly friction between the Christians and the general population had been ongoing for some time. Cribb’s interviews suggested that Wolfe had frequently intervened with the Luoyuan magistrate on behalf of his flock, and the magistrate had been so intimidated by the English missionary that he had given special treatment to the converts. Indeed, a year earlier, Wolfe had reported of ‘persecutions’ of Luoyuan Christians, and had found Qing officials including Magistrate Lu responsive to his concerns.12 The converts admitted that Xue had been responsible for vandalising the temple statues – information Wolfe had deliberately suppressed. According to Cribb, the 20 June incident began with another legal dispute. Apparently, a Christian had been charged with adultery, and a catechist wearing official garb tried to intervene with the magistrate. Yamen runners had ridiculed the catechist for his attire, a scuffle ensued, the catechist protested to the magistrate that he had been abused, and the Yamen runners retaliated by inciting a mob to attack the church and the homes of leading Christians. Cribb believed that many of the Luoyuan Christians were motivated by profit and legal advantage in disputes with neighbours, rather than by religious fervour. Cribb’s suggestion that the riot was the consequence of a pattern of interference in legal cases seems the most likely explanation for events. Magistrate Lu would have known that reports that he had favoured missionaries and converts in previous legal matters would not go well with his superiors, and omitted them. Wolfe by the same token, in constructing a version that placed the CMS converts as innocent victims of anti-Christian persecution, needed to suppress information about the vandalism of the temple, and his involvement in legal matters. The Luoyuan case dragged on in a stalemate for several years. While compensation was paid for the physical damage, neither those who attacked the church nor the Christian provocateurs were ever brought before the court. And the payment Qing authorities made, over a thousand dollars, while probably well in excess of actual costs incurred to the mission, was a fraction of 10 See diplomatic note from Zongli Yamen to British legation, TZ 7.7.14, and Zongli Yamen to Yinggui, TZ 7.714, both in Zhang et al. 1974, vol. 2, pt. 3, pp. 1539–41; British diplomatic note to Zongli Yamen, TZ 8.8.15, in Zhang et al. 1974, vol. 2, pt. 3, pp. 1549–50. A further statement from Wolfe is enclosed in Alcock to Zongli Yamen, TZ 8.8.20, in Zhang et al. 1974, vol. 2, pt. 3, pp. 1550–51. 11 Cribb’s account is cited in Carlson 1974, pp. 111–13. 12 This is corroborated in Wolfe 1868.

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what had originally been demanded.13 There was another context which helps explain the willingness of the Qing side to agree at least to a monetary settlement, even while Wolfe and British authorities prevented them from properly investigating the case. In January 1869, five months before the riot in Luoyuan, Consul Sinclair had dispatched a gunboat to Sharp Peak Island at the mouth of the Min River, to settle another dispute in which Wolfe was embroiled. In this case Wolfe was attempting to rent land to build a sanatorium for missionaries, only to find his efforts to acquire land stymied by local elites trying to keep the missionaries off the island. When a British gunboat landed marines on the island to try to enforce a solution, fighting broke out. British forces killed one man, and a few days later, forced their way into the house of a local gentryman who they accused of leading the resistance, and forced him to sign a document acknowledging the right of missionaries to rent land. While Sinclair was later censured by the Foreign Office for overstepping his authority, Qing officials and local elites were left in no doubt that British authorities were willing and able to enforce their own interpretation of treaty rights.14 The Luoyuan riot gives us a good sense of what concerned Qing officials about missionaries and their use of extraterritoriality. First, the missionary John Wolfe had interfered in legal issues for his flock on several occasions, and this was at least one of the reasons that led to the riot. Once the riot did occur, Wolfe not only rejected legitimate accusations against Xue Shengtang and some of his relatives for vandalising a local temple: with the support of Consul Sinclair, he effectively prevented Qing officials from undertaking a full investigation of events, even as the British side demanded justice and compensation for the damage done. In his account of the Fuzhou Protestant missionaries, Ellsworth Carlson has suggested the Luoyuan incident was atypical: John Wolfe was unusually aggressive and the case he pushed was exceptionally weak. I would argue to the contrary: at least from the perspective of high Qing officials, Wolfe’s willingness to interfere in legal cases, and the British government’s unwillingness to abide by the treaties and force the missionaries to stop protecting Xue Shengtang from the Qing legal system, was par for the course. The ink had barely dried on the 1860 Beijing conventions before this type of incident arose.15 In 1864, Robert Hart, who was quite sympathetic to the missionaries’ evangelical goals, described in his diary a conversation with Wenxiang, a leading figure in the Zongli Yamen: He [Wenxiang] is very wroth with the Roman Catholic missionaries throughout the interior, and I believe, justly so. They do not give themselves up to their work wholly, but interfere in various ways with the local officials. Shd. 13 Zongli Yamen to Wade, TZ 11.2.20, in Zhang et al. 1974, vol. 3, pt. 3, pp. 1392–93. 14 On the Sharp Peak Affair, see Yinggui’s memorial in Chouban yiwu shimo, tongzhi chao 1965 (hereinafter YWSM-TZ), 65: 3–5b. For British accounts, see Wolfe to Sinclair, 4 February 1869, enclosed in Sinclair to Alcock, 15 February 1869, in FO 228; and Parliamentary Papers China No. 9 (1869). 15 Cohen 1963, pp. 127–48.

Global integration in late Qing China 111 a convert commit a crime, to attempt to arrest him is at once styled ‘persecution, on account of his faith’; such interference irritates the officials and causes bad characters to style themselves Christians in order to secure interference on their behalf when they get into trouble.16 Wenxiang would later suggest, perhaps only half in jest, that when the Qing did send an embassy to France (something foreigners were endlessly badgering him about) he would be sure to send a Buddhist missionary with them.

Resistance to inland residence of foreign merchants The perception among Qing officials that the missionary problem was above all an issue of governance and of the administration of the law has important consequences for understanding Qing policy in other areas. Under the agreements that ended the Second Opium War, while foreign merchants with a passport from their consul could travel widely in the interior, they were still forbidden from taking up residence or establishing commercial ventures outside of the treaty ports, a position they found frustrating. British diplomats thus pressed the Qing authorities for a modification of the treaties to allow it. But the fact that the proliferation of missionaries had led – certainly in the eyes of Qing officials – to widespread abuse of the law through the protection of protégé Christians affected the way that Qing officials looked at foreign requests to expand commercial activity and invest in railways and telegraphs. This was apparent in discussions among Qing officials in 1867–68 in anticipation of the treaty negotiations that led to the Alcock Convention.17 In late 1867, the Zongli Yamen, aware that the British wanted to negotiate revisions in the treaties the following year, circulated a memorandum on several key issues to 17 prominent provincial officials with experience dealing with foreigners. An imperial edict required that these officials respond within a few weeks in memorials to the throne. These documents, published in the 1930s, offer a useful sampling of Qing officials’ views on what was loosely referred to as ‘foreign matters’ (yangwu). Interestingly, the Zongli Yamen in its initial memorandum essentially regarded the missionary problem as insoluble. They acknowledged that missionaries engaged in inappropriately protecting converts, and made life difficult for local magistrates. Foreign diplomats were unwilling – and perhaps unable – to stop this behaviour. But missionaries were there in accordance with the treaties, and ‘we may wish that we could ban them, but this would be virtually impossible’.18 But what seems striking about both the Zongli Yamen’s memorandum, and the bulk of the responses, is how much concerns about the problems of enforcing the law appear in their responses to other issues. 16 Hart et al. 1991, p. 136. 17 Biggerstaff 1950. 18 YWSM-TZ 50: 34b-35.

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One of the issues the Zongli Yamen raised was foreigners’ requests to allow merchants to establish warehouses and transact business outside of the treaty ports, and to allow foreign steamships to carry freight on domestic waterways. The memorandum points out that this could do great damage to Chinese merchants and boatmen and throw many out of work. Foreign claims for exemption from the internal transit tax (lijin) would also give them advantages over their Chinese counterparts. But the core of the Yamen’s concerns was that ‘if foreigners are allowed to carry on business ventures everywhere in the interior, there will be great difficulty in restraining them’. In other words, foreigners with extraterritorial rights were essentially ungovernable. The Yamen pointed out that they had proposed to foreign representatives that if the establishment of business ventures were allowed outside of the treaty ports: [T]hey must at the same time be levied the same commercial transit taxes as Chinese merchants. And if it should occur that the foreigners do something against the law, they must be subject to the same legal administration [as their Chinese counterparts]. But foreigners stubbornly refuse to accept this. These arguments go on for day after day without a resolution.19 The Zongli Yamen, therefore, was against allowing foreign merchants to extend their business activities outside of the treaty ports. Responses from across the political spectrum mirrored the Zongli Yamen’s concerns. Guanwen, acting Zhili governor-general, a rather conservative official, pointed out that the reason for creating treaty ports was to ‘clearly delimit interaction and prevent strife’. Allowing foreigners to trade in the interior would bring about unemployment among the Chinese population, and engender conflict between Chinese commoners and the foreigners. Zuo Zongtang, a reformist official who had created the Fuzhou Navy Yard, China’s premier modern military industrial facility, was blunt: if foreigners carried the same advantages in terms of tax and extraterritorial legal jurisdiction inland, Chinese merchants would be terribly disadvantaged, and they would almost perforce begin to plot to use foreigners as screens to get similar advantages, broadly undermining the administration of law.20 In fact, as many of these Qing officials were aware, merchant protégés were already a problem on the coast. In Fujian through the 1860s there were numerous disputes between Qing officials and British consuls over the status of ethnic Chinese men who claimed protection from British consuls by asserting that they were from either Singapore or Hong Kong. These ‘Anglo-Chinese’, as they were referred to in British documents, generally continued to wear Chinese dress and the queue, and travelled and did business outside of the treaty ports that other Britons could not. To the consternation of both British and Chinese officials, the Anglo-Chinese were having it both ways. This was exacerbated by the fact that 19 Ibid: 33b-34. 20 YWSM-TZ 56:13; YWSM-TZ 51:22.

Global integration in late Qing China 113 the passports did not provide information that consuls could use to identify the bearer, and as a result, there had emerged, some thought, a black market for British papers among locals.21 Qing officials asserted, quite reasonably, that if ethnic Chinese lived as Chinese in Chinese territory and wore the queue as a symbol of submission to the Qing throne, they should be treated as Chinese, and could not claim legal protection. In the 1860s, British Minister Rutherford Alcock made several efforts to resolve these issues, suggesting at one point that only Chinese who were born as British subjects, and not naturalised British subjects could claim consular protection in China. When this approach did not pass legal muster, in October 1868 Alcock issued the ‘Costume Regulation’ requiring that ‘all British subjects of Chinese descent shall, while residing or being in Chinese territory, discard the Chinese costume and adopt some other dress or costume whereby they may readily be distinguished from the native population’. Those who failed to do so would not be subject to British legal protection.22 The Costume Regulation was a spectacular failure. Anglo-Chinese evaded its strictures and British consuls were unwilling to enforce it. Meanwhile, the problems that the Zongli Yamen and Zuo Zongtang had spoken of were playing out in a number of cases in Fuzhou. Chinese merchants claiming to be British subjects, sought consular protection to avoid paying transit taxes on goods. In other cases, Chinese merchants employed Britons to act as fronts in schemes aimed at evading taxes or sanction by Chinese officials. For Qing officials in the late 1860s, extraterritoriality was an issue of preeminent importance in shaping their view of relations with the Western powers. The willingness of foreign diplomats to tolerate and protect misbehaviour by missionaries in shielding their protégé converts pointed to even larger problems that would arise out of loosening existing treaty restrictions on merchants: they would be able to flout the law with impunity, and take advantage of tax privileges. Chinese merchants would then have incentives either to obtain foreign legal protection, or to find foreigners to shield similar activities. Far from bringing prosperity as foreigners insisted, this would either throw Chinese out of work, or result in the creation of an ungovernable class of merchant protégés.

Foreign investment in railways and telegraphs Perhaps no issue frustrated even sympathetic foreigners in the 1860s and 1870s quite as much as the refusal of Qing officials to allow the introduction of railways and telegraphs. There was no shortage of businessmen and diplomats angling to build them in China. These were the signature inventions of the Victorian age, the rejection of which, according the W. A. P. Martin, the former 21 See, for example, Robertson to Wade, 15 September 1865, FO 17/1258 (the pagination in this source is inconsistent). See also covering letter Wade to Russell, 18 October 1865, and Sinclair to Alcock 18 March 1867, FO 228/430. 22 Enclosure in Alcock to Stanley, 13 October 1868, FO 17/1258, p. 186ff.

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missionary turned president of the Zongli Yamen’s Interpreters’ College, ‘show the animus of the Chinese in regard to all the appliances of Western civilization. To their eyes it is synonymous with steamer, telegraph and railway.’23 But Martin – who was largely responsible for the early translations of international law texts into Chinese – was projecting his own vision of Western civilisation on his Chinese bosses, and ignoring their concerns about control. Historians have been no more sympathetic to Qing officials: to Knight Biggerstaff reading the responses to the Zongli Yamen’s memorandum in 1867–68 ‘one is struck by their general ignorance and blindness’, pointing particularly to their failure to support railway and telegraph development. Economic historian Shannon Brown asserts that ‘[t]he transfer of technology to China in the nineteenth century by means of direct foreign investment was significantly impaired by the strength of the old regime and traditional system of political economy’.24 There is no question that the Qing government moved slowly in this area, but there has been a reluctance to consider how the construction of law in the treaty system may have contributed to this. The most famous early effort at railway development in China is the Wusong (Woosung) railroad, and it is also often taken as an example of Qing literati animus against modern technology. Through the 1860s a number of plans had been suggested for building a railroad from Shanghai to the nearby city of Wusong, about ten miles away. In 1872 an American vice-consul and real estate speculator named O. B. Bradford gathered a group of American and British investors to form the Woosung Road Company, which purchased the necessary land, with the knowledge of Chinese officials, ostensibly to establish a regular road. But foreigners made no secret of their plans to build a railroad. The bulk of the Americans involved, under pressure from Consul George Seward (who pointed out that this contravened the Burlingame treaty), sold their interest to the British trading house Jardine Matheson. Construction of the railroad began in January 1876, and in February a small locomotive began trials on a short stretch of completed track. It was at this point the Shanghai Daotai, a key local official in the Qing government, registered a complaint, and demanded that work be stopped. British Consul Walter Medhurst agreed to stop the operation of the locomotive for a month, but refused to stop construction. Irrespective of continuing objections from local and provincial officials, on 30 June the still incomplete line began to operate, and drew large crowds. But in August a Chinese soldier was hit and killed by the train, and British Minister Thomas Wade finally agreed to suspend operations. Eventually, after extended negotiations between Wade and Li Hongzhang, the Chinese government bought the line for 285,000 taels, to be paid over twelve months, while the railway operated under foreign management. The following year it was turned over to Chinese authorities, and on the orders of Liangguang Governor-General Shen

23 Martin 1900, p. 233. 24 Biggerstaff 1950, p. 136; Brown 1979, p. 197.

Global integration in late Qing China 115 Baozhen, a noted progressive, the railway lines were torn up, and the rails and rolling stock sent to Taiwan.25 The destruction of the Wusong railroad has been interpreted in various ways. Some have focused on rivalries among Qing politicians and others on Confucian ideology. But I would agree with Saundra Sturdivant who asserted that a key issue was sovereignty.26 A letter from the Shanghai Daotai Feng Junguang to British authorities dated 29 March 1876 emphasised that ‘in every country all public works, including the making of roads, is done by the authority of the government. Examine the globe, country by country, and there is no nation that would allow people of any other nation to come in and of their own accord build a railroad on their territory.’ Feng pointed out that while the Japanese government had borrowed money for railways, they had been built under the authority of government. Accepting the railway would make China a laughingstock, and, Feng feared, would establish a precedent that would lead other nations to ignore Qing government authority. Moreover, Feng pointed out that ‘[w]hen people from one country become the real possessors of real estate in another, such real estate is subject to the laws of that country’, that is, it could not be extraterritorialised without special agreement. Feng’s message indicates both outrage and a quite sophisticated sense of sovereignty in the principles of international law.27 Hard experience with missionaries had taught Qing officials that foreigners outside of treaty ports felt free to disregard the Qing authorities, and that foreign consuls, their claims for concern for justice notwithstanding, simply would not rein them in, let alone prosecute them. The unwillingness of British officials to agree to stop railway construction when the Chinese government protested was a clear indication that the same rules would surely apply. It is not hard to imagine the nightmare that foreign-owned railways must have posed in the minds of Qing officials around this time: railroad employees both foreign and Chinese protégés behaving lawlessly and ignoring the orders of local officials; endless friction between the railway and local communities over land use; accidents and claims for compensation; local officials under constant pressure from foreign diplomats to protect their nationals and their Chinese employees. Foreign businessmen and diplomats could wax poetic on the transformative impact of rail and telegraph and of the great wealth that it would bring, but in the eyes of Qing officials concerned about their political authority, it was a zero-sum game. Because of extraterritoriality, expanding foreign business involvement necessarily weakened the Qing state.

Conclusion Qing officials in 1860s and 1870s did not often directly call for the abolition of extraterritoriality but this does not mean they did not see it as a problem. The abolition of extraterritoriality was not discussed in the 1867 correspondence 25 I have based this account on Currie 1966 and Wang 2015. 26 See, for example, Currie 1966; Pong 1973; Sturdevant 1976, pp. 63–70. 27 House Miscellaneous Documents Second Session 45th Congress vol. 2 no. 1, pp. 370–71.

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over treaty revisions because it was completely unrealistic in the diplomatic context of the times. The Zongli Yamen leaders, who had seen the destructiveness of unrealistic anti-foreign rhetoric during the Arrow War, did not want to discuss proposals that had no possibility of succeeding. Furthermore, Qing officials were already familiar with legal pluralism, and were comfortable with the idea that within limits, foreigners could be dealt with by their own courts. But it was clear by the late 1860s that the treaty system as practised established no clear limits on extraterritoriality, and the jurisdiction of consular courts. As cases like the Luoyuan riot show, foreign consuls were unwilling to insist that Chinese Christians were fully subject to Chinese law, or to establish limits on aggressive missionaries like J. R. Wolfe. Similarly, even though British diplomats were not enthusiastic about protecting ethnic Chinese who claimed to be British subjects and were engaged in commerce, the most prominent effort to establish limits, the Costume Regulation issued in 1868, had no practical effect. The Wusong railway affair of the 1870s – for all of its ambiguities – showed the willingness of British authorities to back up their nationals in extremely questionable circumstances. In 1900, mere months after being freed by foreign troops from the siege of the Beijing Legation Quarter, Sir Robert Hart, in trying to explain to a foreign audience the causes of the Boxer Crisis, recalled exchanges with Prince Gong and Wenxiang, the key leaders of the Zongli Yamen in the 1860s and 1870s: ‘Take away your missionaries and your opium and you will be welcome!’ said Prince Kung [Prince Gong]. ‘Do away with your extra-territoriality clause’, said the still greater Wên Hsiang [Wenxiang], ‘and your missionaries and merchants may go where they please and settle where they please; if your missionaries can make our people better, that will be our gain; if your merchants can make money, ours will share in the advantage!’ What both objected to was neither Christianity nor commerce, but the imperium in imperio which makes such difficulties for a State, and the class exemption which has in it so much that humiliates and disintegrates. Hart’s recollection – which at another point he ascribed to the negotiations for treaty revision that produced the 1868 Alcock convention – is similar to Hart’s diary entries for the 1860s. In the eyes of leading Qing officials, however benevolent the intentions of merchants or missionaries may have been, the fact of extraterritoriality meant that their presence fundamentally challenged the authority of the Qing state.28

Bibliography Ahmad, Feroz (2000), ‘Ottoman Perceptions of the Capitulations 1800–1914’ 11 Journal of Islamic Studies 1. 28 Hart et al. 1901, p. 124. On the rising importance of territoriality in political organization, see Maier 2000.

Global integration in late Qing China 117 Biggerstaff, Knight (1950), ‘The Secret Correspondence of 1867–1868: Views of Chinese Statesmen Regarding the Further Opening of China to Western Influence’ 22 Journal of Modern History 122. Brown, Shannon R. (1979), ‘The Transfer of Technology to China in the Nineteenth Century: The Role of Direct Foreign Investment’ 39 Journal of Economic History 181. Carlson, Ellsworth C. (1974), The Foochow Missionaries, 1847–1880. Harvard East Asian Monographs 51 (Cambridge: Harvard University Press). Cassel, Pär Kristoffer (2012), Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth Century China and Japan (Oxford: Oxford University Press). Cassel, Pär Kristoffer (2016), ‘Extraterritoriality in China: What We Know and What We Don’t Know’, in: Robert Bickers and Isabella Jackson (eds), Treaty Ports in Modern China: Law, Land and Power (London: Routledge), pp. 23–42. Chen, Li (2016), Chinese Law in Imperial Eyes: Sovereignty, Justice and Transcultural Politics (New York: Columbia University Press). Cohen, Paul A. (1963), China and Christianity: The Missionary Movement and the Growth of Chinese Antiforeignism, 1860–1870 (Cambridge: Harvard University Press). Currie, Blair C. (1966), ‘The Woosung Railroad (1872–1877)’ 20 Papers on China 49. Edwards, R. Randle (1980), ‘Ch’ing Legal Jurisdiction over Foreigners’, in: Jerome Alan Cohen, R. Randle Edwards, and Fu-mei Cheng Chen (eds), Essays on China’s Legal Tradition (Princeton: Princeton University Press), pp. 245–55. FO 17: Foreign Office: Political and Other Departments: General Correspondence before 1906, China. National Archives of the United Kingdom, Kew. FO 228: Foreign Office: Consulates and Legation, China: General Correspondence, Series I. National Archives of the United Kingdom, Kew. Hart, Robert, Richard J. Smith, John King Fairbank, and Katherine Frost Bruner (1991), Robert Hart and China’s Early Modernization: His Journals, 1863–1866 (Cambridge: Harvard University Press). Horowitz, Richard S. (2004), ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’ 15 Journal of World History 445. House Miscellaneous Documents Second Session 45th Congress vol. 2 no. 1 (1878), (Washington: Government Printing Office). Maier, Charles (2000), ‘Consigning the Twentieth Century to History: Alternative Narratives for the Modern Era’ 105 American Historical Review 807. Parliamentary Papers China No. 9 (1869): Papers Respecting the Proceedings of Her Majesty’s Ship Janus at Sharp Peak Island near Foo-Chow-Foo (1869) (London: Harrison & Sons). Pong, David (1973), ‘Confucian Patriotism and the Destruction of the Wusong Railroad’ 7 Modern Asian Studies 647. Rowe, William T. (2009), China’s Last Empire: The Great Qing (Cambridge: Belknap Press of Harvard University Press). Scully, Eileen P. (2001), Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1844–1942 (New York: Columbia University Press). Sousa, Nasīm (1933), The Capitulatory Régime of Turkey: Its History, Origin, and Nature (Baltimore: The Johns Hopkins Press). Sturdevant, Saundra (1976), ‘Imperialism, Sovereignty and Self-Strengthening: A Reassessment’, in: Paul A. Cohen and John E. Schrecker (eds), Reform in Nineteenth Century China (Cambridge: East Asian Research Center), pp. 63–70.

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Wang, Hsien-Chun (2015), ‘Merchants, Mandarins, and the Railway: Institutional Failure and the Wusong Railway, 1874–1877’ 12 International Journal of Asian Studies 31. Wolfe, John R. (1868), ‘Persecution in Lo-yuen’ Chinese Recorder and Missionary Journal, July 1868, 48–49. Chouban yiwu shimo, tongzhi chao (Comprehensive Documentary Account of the Management of Foreign Affairs) (1965) (Taipei: Guofeng Chubanshe). Zhang, Guiyong and Zhongyang yanjiu yuan (eds) (1974–), Jiaowu jiao’ an dang (Zongli Yamen Files on Missionary Cases) (Taipei: Zhong ya ng yan jiu yuan jin dai shi yan jiu suo).

7

Drinking water by the sea Real and unreal property in the mixed courts of Egypt Mai Taha

Introduction Because the barbarians will arrive today. Why should the Senators still be making laws? The barbarians, when they come, will legislate. Constantine Cavafy1 Since Pharaonic times Egypt has had in her midst large foreign colonies, to which she has had, in the mutual interest of Egyptian and foreigner, to accord privileges not usually accorded to foreigners by the territorial authority. She has the choice between maintaining within reasonable limits such privileges or driving out the better foreign elements and ruining herself . . . . it is our business to see that she sticks to the first alternative. Sir Percy Loraine2

Sir Percy Loraine, the British High Commissioner to Egypt from 1929 to 1933, adopted a policy of minimal interference. He left the power in the hands of conservative Prime Minister Ismail Sidqi Pasha, who embarked upon a number of constitutional reforms that strengthened the powers of the king and the executive at the expense of the legislature.3 A threat to the privileges accorded to foreigners in Egypt, however, roamed outside this general policy of non-intervention. As Loraine suggested in the passage quoted above, ‘she’ had the ‘choice’ of continuing to secure these privileges for the ‘mutual interest’ of Egyptians and foreigners alike or else ‘ruining herself’.4 The rights and privileges of foreigners residing in Egypt had long been secured through the capitulations regime, which extended considerable jurisdictional authority to different consulates. From the sixteenth to the nineteenth centuries, the capitulations were a set of privileges to foreigners residing or trading in the Ottoman Empire, falling broadly within the legal-pluralist logic of the 1 2 3 4

Cafavy 1992, p. 192. Loraine 1933. Innes 1986, pp. 318, 335. Loraine 1933.

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millet system. By the nineteenth century, the capitulations established the legal basis for European extraterritoriality.5 In Egypt alone, there were seventeen consular tribunals, each applying its domestic legal system to its own citizens in civil, commercial, and criminal cases.6 In 1867 Nubar Pasha, the Egyptian foreign minister, presented his proposals for the creation of the Mixed Courts of Egypt as part of an effort to reform the antiquated capitulations regime. After a series of diplomatic battles between the capitulatory powers, the Mixed Courts were formally inaugurated by the Khedive7 on 28 June 1875.8 The Mixed Courts largely applied European laws, effectively creating a two-tiered legal system that exempted foreigners from local jurisdiction. As the US consular clerk in Cairo put it, this was an extraterritoriality that extended the provisions of the capitulations so as to make them ‘far wider and more radical than anything ever claimed by the most pretentious of Levant consuls’.9 The development of the Mixed Courts’ jurisprudence took place as socioeconomic and political conditions were also changing between the end of the nineteenth century and the interwar years. Their formation coincided with the Egyptian debt crisis of 1876, which was followed by the British occupation of Egypt in 1882. In 1914 the British government unilaterally declared Egypt a British protectorate, which gave Britain the power to postpone the annulment of the capitulations regime.10 At the turn of the century, the conclusion of massive deals for industrial developmental projects such the Aswan Dam project, the English Electric Company (EEC), and the British Imperial Chemical Industries (ICI) coincided with the rise of anti-colonial movements that culminated in the 1919 revolution.11 In this chapter, I focus on the legal presence of these companies through a specifically colonial yet distinctly modern legal system. Relying on materials gathered from the British National Archives, I read the jurisprudence of the Mixed Courts in cases involving large foreign public utilities companies as part of Egypt’s transition to capitalism. I study the contradictions, incoherencies, and ‘successes’ of this colonial legal system in adjudicating public utilities cases. I focus on the question of drinking water in the legal disputes of the Alexandria Water Company. While the Mixed Courts did not always favour Western interests blindly, they were unquestionably part of an imperial legal infrastructure that consolidated unequal relations, especially regarding questions of property and ownership. Through the jurisprudence of the Mixed Courts, drinking water in Alexandria came to be regulated legally. More importantly, it became commodified. The Alexandria Water Company embarked upon a filtration process that made water more valuable, and thereby more expensive. Access to water essentially became 5 6 7 8 9 10 11

Hanley 2017. Renton 1933, p. 214. Khedive was a title used to denote the viceroy of Egypt under Ottoman rule. Renton 1933, pp. 215–16. Van Dyck 1881, p. 34. McIlwraith 1917, p. 238. Vitalis 1995, p. 91.

The mixed courts of Egypt 121 a question of contract law. It was regulated through a perpetual concessionary contract between the Egyptian government and the Alexandria Water Company over the sale and distribution of water in the city. As water was commodified, the jurisdiction of the Mixed Courts expanded to redefine conceptions of ownership, thereby exposing the gradual process of dispossession that unfolded as property was redistributed through their jurisprudence. In what follows, I first discuss the structure and functions of the Mixed Courts, paying particular attention to the way in which they were conceived in the European international legal imagination as marking a new phase of Near East sovereignty. I then demonstrate that the theory of ‘mixed interest’ helped to develop novel interpretations of ownership by expanding the Mixed Court’s jurisdictional powers. Finally, I show how water was commodified through these new interpretations by examining two cases concerning the Alexandria Water Company.

‘The most successful international institution in history’: structure and functions The Mixed Courts consisted of a court of appeal in Alexandria, and three district courts sitting in Cairo, Alexandria, and Mansourah. The seat of the Court of Appeal was in Alexandria, three hours from Cairo, in order to avoid the political protests that might have subverted its operations if it were to be seated in Cairo.12 The Court of Appeal had eleven judges: four Egyptians and seven foreigners, a ratio that enforced a foreign majority on the bench. They also adopted the Code Napoléon.13 In general, the Mixed Courts represented a specifically modern and liberal legal experiment that would redefine the relationship between Egypt and the capitulatory powers. They were framed as ‘multicultural’ and ‘inter-religious’ spaces for the legal resolution of conflicts of a ‘mixed’ nature – a so-called progressive anomaly that placed Egypt in the new modern community of (trading) nations. The observations of Sir Malcolm McIlwraith, the British judicial adviser to Egypt, are indicative here: [T]he Alexandria Court is to be congratulated on having risen superior to all considerations of racial or political bias and on having not only maintained the high reputation of the protecting Power for impartiality, even towards such ruthless foes as those with whom we have to deal . . . but worthily upheld the best traditions of a Court which, though technically and officially a purely Egyptian forum, is, in reality, an international judicature of a highly distinguished character, and which has constituted . . . for all foreigners . . . the principal bulwark against injustice and oppression of every kind and has represented abroad the chief guarantee to foreign traders of evenhanded justice for all nations.14 12 Brinton 1930, pp. 71–72. 13 Ibid. pp. 71–72. See also Brown 1993, p. 34. 14 McIlwraith 1917, pp. 82–83.

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This celebrated ‘mosaic of races’, both on the bench and in the courtroom, made it possible for the Mixed Courts to rise above race and politics, at least according to those like McIlwraith. More importantly, the Mixed Courts, inspired by the principles of the rule of law and liberal legality, stood against injustice and oppression at home while reassuring foreign traders abroad. Foreigners could invest and trade in Egypt, knowing that there was a reliable justice system in the colonies rooted in liberal economic principles. Situated at the heart of Place Mohamed Ali Pasha, the impressive building of the Alexandria Courts – still standing today in what is now known as Midan elMansheyya – represented a space where narratives of tolerance, rights, and capital were woven together smoothly, evoking images of Egypt’s liberal awakening. The creation of the Mixed Courts also coincided with the professionalisation of lawyers, the secularisation of the legal system, and the calibration of a new programme for the first law degree in the country.15 These courts were not simply part of the modernisation process that had already started years before.16 They were also understood as a model for international adjudication that could serve ‘global’ justice. Amazed by ‘the spectacle of a mosaic of independent jurisdictions’, Mr Percy Maurice Amos, the succeeding judicial adviser, noted in his farewell address from Alexandria that ‘next to the Church, the Mixed Courts are the most successful international institution in history’.17 Such hyperbolic language reveals how these entrepreneurs of modern law in the colonies located the Mixed Courts in the ‘civilised’ legal imagination. In his 1928 address before the Academy of International Law, Theodore Heyligers, a judge of the District Court of Alexandria, waxed lyrical: The Mixed Courts have opened more than one perspective in the law of nations. By the exercise of their legislative functions in the interests of many nationalities, they were the forerunners of the Assemblies of Geneva. By the collectivity of their judicial work they foretold the success of the World Court at The Hague.18 The Mixed Courts were even depicted as the precursors of the Permanent Court of International Justice, notwithstanding their radically different functions. For some, the Mixed Courts could place Egypt in the ‘civilised’ community of nations, despite the fact that it joined the League of Nations in 1937, eighteen years after its creation. The establishment of the Mixed Courts was also interesting given the fact that it came after years of questioning the applicability of international law to the Orient. In 1875 the Institut de droit international initiated a study chaired by Travers Twiss on whether customary international law could be applied to the Orient. The study involved a questionnaire that was to determine 15 16 17 18

See generally Shalakany 2013. Fahmy and Peters 1999, p. 131. Amos 1930, pp. 169–70. Brinton 1930, p. x.

The mixed courts of Egypt 123 whether ‘Oriental’ peoples understood the binding force of international law, and, more importantly, whether the beliefs of the West and the ‘Orient’ were consistent with respect to obligations towards foreigners.19 The protection of foreigners residing or trading in the Orient was a question of fundamental importance to international law and its applicability outside of Europe. One of the Institut’s questions therefore read as follows: ‘Did experience admit the possibility of common rules on the status and capacity of persons in mixed Christian – Oriental communities?’ To answer such questions, Twiss initiated the gradation of the ‘Orient’, working his way from ‘pirates and . . . cannibals’ to Turkey, Siam, China, and Japan, which had long enjoyed strong relations with the West and were therefore deemed to be ‘semi-civilised’ or at the very least ‘civilisable’.20 The privileged status of the Ottomans in this civilisational hierarchy also meant that consular jurisdictions could at some point be reassessed or reformed, if not abolished altogether. In the same year as this Institut endeavour, the Mixed Courts were established as part of reform efforts in Egypt. They were perhaps also informed by this realisation of European international lawyers that the strategies of the past were no longer applicable to this region, and that a new international legal relationship between European and ‘Eastern’ states was needed.21 The Courts symbolised international law’s progress towards new conceptualisations of sovereignty in the Near East. The Mixed Courts were not ‘the most successful international institution in history’, as Amos had claimed. They were, however, imperial courts that provided a legal basis of racial and class-based inequality before the law. The standard critical account of the Mixed Courts is also a familiar one: they were simply a continuation of empire by other means.22 While this certainly rings true with respect to their composition, decisions, and jurisdiction, not to mention the two-tiered legal system they sustained, the story is more complex. Under certain circumstances, ease of access to these courts appeared to prove advantageous for Egyptians embroiled in legal disputes with foreigners, especially in comparison to the more hostile consular courts and even to Native Courts.23 Large British companies often sought the jurisdiction of the British consular courts to ensure a more favourable outcome, as will be illustrated below in the case of the Khedivial Mail Company v. the Alexandria Water Company.

What is ‘Egyptian’ is not what is ‘native’ Ceci n’est pas une pipe. René Magritte

19 20 21 22 23

Twiss 1879–80, p. 301; Koskenniemi 2001, p. 132. Twiss 1879–80, p. 301; Koskenniemi 2001, p. 133. Van Dyck 1881, p. 9. For a longer discussion of this account, see generally Brown 1995. See for example, Credit Agricole d’Egypte v. Wadih Hermes, Credit Agricole d’Egypte v. Ahmed Saad 1936, p. 222 (cited in Hoyle 1987, p. 380).

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The overlapping jurisdictions of Native, Consular, and Sharī‘a courts meant that the Mixed Courts would have to establish their own parameters on questions pertaining to the nationality of parties and the nature of the legal dispute. The Règlement d’organisation judiciaire limited the competence of the Mixed Courts to cases between foreigners of different nationalities, or between foreigners and Egyptians. But in many cases, more than two parties were involved. And in some cases, there was a third party that was indirectly affected by the legal dispute.24 Other parties, including those indirectly affected, could make a claim for a ‘mixed interest’ in a given case. This theory of ‘mixed interest’ slowly developed as a central concept in the jurisprudence of the Mixed Courts, and accordingly expanded their competence and jurisdiction. If ‘mixed interest’ could be established, the Mixed Courts would have jurisdiction even if the parties were of the same nationality, foreign or native, and both the Native Courts and Consular Courts would cease to have competence over such cases.25 Notably, even if both parties were Egyptian nationals, the Mixed Courts would have jurisdiction if a ‘mixed interest’ was detected. In fact, it has been ‘the uniform practice of the Mixed Courts to claim competence whenever there was the slightest excuse for so doing’.26 ‘Mixed interest’ was established in two distinct scenarios. The first was the appearance of a third party who had an indirect interest in the case at hand, such as in cases of bankruptcy or the registration of title. The second scenario resulted from one of the parties being a legal person, where one or more of its individual members was a foreigner. This characterisation applied to certain Egyptian administrative bodies and some limited liability companies.27 The novelty of the system lied in the classification of those administrative bodies in Egypt that evoked a ‘mixed interest’ in case of a legal dispute. Interestingly, the Mixed Courts drew a distinction between what they called ‘native’ entities and ‘Egyptian’ entities. The logic behind this legal innovation was that not everything that was ‘Egyptian’ could be considered ‘native’. Some Egyptian entities were in fact as foreign as Westminster. It is true that the vast majority of those administrations were considered ‘native’, and thus disputes between those entities and Egyptian nationals were adjudicated before the native courts. Yet other government administrations were not considered ‘native’ but ‘Egyptian’.28 This admittedly creative distinction entrenched a legal system based upon a particular idea of political and legal representation, one in which foreigners participated in the legal and political life through ‘mixed’ regimes. According to this approach, Egypt had many foreign residents and it was only logical that they would be represented in the political and legal systems. Internationalising the function of some administrative bodies’ 24 25 26 27 28

Scott 1908, p. 219. Ibid. p. 220. Ibid. Scott 1908, p. 220. ‘Egyptian’ administrations were established by international conventions to secure the servicing of the Egyptian debt to the creditors. These administrations were managed by a proportion of foreign members who would manage some state properties. See Scott 1908, p. 224.

The mixed courts of Egypt 125 law was not simply one among a variety of colonial technologies of governmentality: it was constitutive of colonial administration itself. This unequal, liberal, and ‘multiracial’ legal system was not just a tool used to control and govern the colony: it constituted, governed, and inhabited the very essence of the colonial presence by anchoring the internal life of colonial departments in the country. To return to the idea of representation, this notion of ‘mixed’ institutions was partly supported by the idea that Egypt hosted thousands of foreign residents, who needed to practise political life in a multi-religious and multiracial, yet distinctly colonial, environment. One stark example of this line of thinking outside the judicial system – which, as I explain later, became of interest to the Mixed Courts – was the creation of mixed municipal commissions (majalis mahalliyya mukhtalita) across the country, the most powerful of which was the Alexandria municipality.29 Created in 1890 the Alexandria municipality was Egypt’s first ‘locally elected, legally responsible, and fiscally autonomous’ municipality (baladiyya).30 It was comprised largely of merchants and property-owners who provided the main source of municipal revenue, and accordingly constituted a privileged electorate. The export merchants elected three members, the propertyowners elected two, and the property qualification for voting determined the remaining seats. This meant that less than 1 per cent of the population, mostly Levantine and European businessmen, had access to this electoral process of local urban governance.31 The legal consequence of this political arrangement was that the Alexandria municipality – an institution of local governance in one of the country’s largest cities – was ‘Egyptian’, but it was certainly not ‘native’. Although the 1890 decree establishing the municipality noted specifically that it had a ‘native nationality’, the Mixed Courts consistently maintained that ‘they, and they only’ had jurisdiction over cases brought by or against the Alexandria municipality, whether the other party was ‘foreign’ or ‘native’.32

What is ‘British’ is not what is ‘foreign’ Ceci continue de ne pas être une pipe. René Magritte

By the late nineteenth century, cholera had returned to Egypt, following several previous experiences with it and the plague. In response, the Alexandria municipality gradually widened its role from city beautification to questions of sanitation and infectious diseases.33 This meant that the regulation of water and the sewage system became one of its central concerns.34 At the same time, this 29 30 31 32

Ismail 2017, ch. 5. Reimer 1999, p. 292. Ibid. p. 295. This was later amended so that native courts would have jurisdiction over disputes between natives and the municipality. Scott 1908, p. 228. 33 Reimer 1999, p. 297. 34 Ismail 2017, ch. 5.

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opened the door for legal disputes, which came to be understood as ‘Egyptian’, yet not ‘native’. The Mixed Courts were to adjudicate cases that affected the fundamentals of life in the city, such as drinking water, the sanitary system, and public transport. This was concretised in a claim brought by the Khedivial Mail Company in 1911 against the Alexandria Water Company before the Mixed Courts.35 The Mixed Courts initially rejected the case by claiming lack of competence, since the two parties were British companies and the British consular court should have therefore adjudicated the case.36 ‘I had never for a moment considered that the Government were even moral owners of the water concession, the moment that they renounced, as they did, their right to repurchase the company,’ wrote H. R. C. Blagden, manager of the Alexandria Water Company, in a letter to D. A. Cameron, consulate general in Alexandria.37 Blagden, appalled by what he saw as an attempt ‘to undermine the powers of the British Consular Court’, demanded an intervention by the judicial advisor to restitute the mishap.38 The question at hand was whether the Mixed Courts could deal with a company such as the Alexandria Water Company solely as a foreign entity. In response to this question, the Mixed Court of Appeal ultimately held that the Water Company was British, but not completely foreign. The municipality was the ‘moral owner’, not of the company but of the water itself, a complexity that manifested itself vividly in cases involving public utilities companies. The government or the municipality had a moral right of ownership to drinking water. Regardless of how private or how British the company might be, the legal dispute involved a ‘mixed interest’. The British consulate general took the position of the Mixed Courts and rejected Blagden’s complaint, noting that the very existence of the city of Alexandria was dependent upon the municipality being the ‘real owners of the water’. This water can never belong to your Company as the money in a British banking Company limited, or as the cotton in a British cotton firm, belongs to such British firms. Your Company is the agent and concessionaire of the Egyptian Government which always must remain an interested party, or partner, and the Person ultimately responsible to our international public for the supply of Egyptian water. . . . Thus, in my opinion, in your dealings with the public, your Company is a branch of the Municipality from a legal point of view[.]39 For the British consulate, the fact that the Alexandria Water Company provided such an essential public service effectively made it part of the government. A privately 35 The Mixed Court of Appeal held a session on its jurisdiction over the case since it involved two British companies and could potentially have been heard by the British consular court. After deciding on the jurisdictional issues, the Court of Appeal set a separate date to hear the merits. Here I am only interested in the decision on jurisdiction. British National Archives (BNA), Khedivial Mail Co. v. Alexandria Water Co. 1912, p. 7. 36 Blagden 1912. 37 Ibid. (emphasis added). 38 Ibid. 39 Blagden 1912.

The mixed courts of Egypt 127 owned British company was placed under the auspices of the municipality – an Egyptian municipality. In some sense, if the municipality was the real owner of the water, then the company was the counterfeit, or unreal, owner. The Mixed Court of Appeal’s 1912 decision noted that while the Alexandria Water Company was ‘born abroad’, its existence was conditional upon the contract it concluded with the Egyptian government, which granted it concessions to the distribution and sale of water in the City of Alexandria to the general public without any distinction of nationality.40 Further, these rights were themselves conditional upon the adjudication of any legal disputes involving the Water Company by the Mixed Courts, as well as the government’s retaining a share in the administration of the company. After a payment of a 10 per cent dividend to the shareholders, the surplus profits would be divided equally between the government and the company.41 According to the Court of Appeal and the consulate, this arrangement certainly entailed a ‘mixed interest’. While the Alexandria municipality was comprised chiefly of foreign landed gentry and businessmen, the Mixed Courts’ interrogation of the meaning of property and ownership is still significant. Through this hybrid form of extraterritoriality, the Mixed Courts reconfigured the basics of survival in the city, in the process introducing a new category of real or moral ownership. At the same time, what could be construed as a ‘social’ interpretation of ownership rights may be gleaned from the fact that only five years after the establishment of the Mixed Courts, fifty thousand acres of land were legally lost to foreign lenders.42 The Mixed Courts wielded jurisdiction over all actions involving immovable property between foreigners or natives, or between foreigners of the same or different nationalities.43 This meant that all legal disputes concerning property, even between Egyptians, were adjudicated before the Mixed Courts, with the exception of cases pertaining to waqf lands held in perpetuity for charitable purposes.44 It was, therefore, predictable that a British parliamentary inquiry would find that Egyptians viewed the Mixed Courts as a ‘machine’ for the transfer of land from local cultivators to foreign creditors.45 The municipality was no less exploitative, yet the Mixed Courts chose to redefine property in relation to drinking water in a way that seemed favourable to the local people of Alexandria.

Drinking water, contracts, and the poor In 1880, only one year after the creation of the Water Company, the tariff for water rates was calculated according to the number of persons living in a given household, but the quantity of water provided was unlimited. The lowest

40 41 42 43 44

Khedivial Mail Co. v. Alexandria Water Co. 1912, p. 3. Ibid. Mitchell 2002, p. 67. Scott 1908, p. 222. Waqf lands were lands held in perpetuity for the service of a charity or the family of the person who had constituted the waqf. The Sharī‘a courts enjoyed jurisdiction over those cases. See Ziadeh 1978, pp. 240, 245. 45 Mitchell 2002, p. 67.

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subscription rate was PT46, which was not a small amount for a household of four. However, the poorer classes were excluded from this arrangement. Their access to water was obtained from the public taps, or sakkas, at a lower rate.46 By 1894 the Water Company, deploying a familiar line of argument, had begun to claim that ‘the system of an unrestricted allowance of water to apartments gives rise to a wastage that is detrimental to the interests of both the Company and the town’.47 It also argued that the conditions set in 1880 needed to change, not only for wastage but also for the poor; the rates in place were prohibitively expensive for the poorer classes of the city.48 Thus, the Alexandria municipality and the Alexandria Water Company, both headed by foreign businessmen, were in competition over the urban poor. The municipality was interested in the survival of the city, which was expanding economically and in constant need of labour, which in turn required affordable access to water. For its part, the Water Company was interested in maintaining a minimum monthly amount to be paid, whether or not it was consumed, as part of its broader effort to transition from an unrestricted allowance of water at a fixed rate to a meter system, along with a filtration process that would render the water more valuable and thus more expensive.49 In other words, the company was pushing for a new stage in the process of commodifying the city’s water. After years of negotiations between the municipality and the company over the former’s grievances, the final proposals by the company were rejected at the Municipal Commission. In 1926 a lawsuit was launched. The municipality contested the applicability of what it considered to be a unilateral contract concluded in 1895, instituting a flat rate tariff. It demanded the end of the flat rate subscriptions instituted in 1894–95 because the imposed tariff was arbitrary and had never been approved by the municipality or government. Additionally, it argued that the tariff constituted a form of ‘income tax’ on the basis of the value of rent, which had risen abnormally since 1894. The tariff also imposed a minimum amount, when it should have imposed a monthly maximum. Finally, the municipality argued that the subscriber should give free access to their non-subscribing tenants, or at least at the net price of the public water taps.50 The Mixed Court observed that the solution to the question posed by this case would be determined by its own function and jurisdictional competence. It held that it did not have the authority to replace the contracting parties and modify their agreement in order to restore economic equilibrium whenever one of them ended up with a bad deal.51 As a result, it adhered to a strict interpretation of its role in examining a contract, specifically its role in clarifying ambiguous provisions and determining the scope of terms that might contradict the nature 46 47 48 49 50

Wood-Smith 1934, p. 2. Ibid. p. 4. Ibid. Ibid. pp. 4, 5. Municipalité d’Alexandrie contre The Alexandria Water Co., Ltd. 1926. See also WoodSmith 1934, p. 16. 51 Municipalité d’Alexandrie contre The Alexandria Water Co., Ltd. 1926.

The mixed courts of Egypt 129 of the contract or the fundamental object and purpose of the contracting parties. Accordingly, the Mixed Court claimed that it enjoyed ‘simple interpretive powers in respect of contracts’, and that it would be ‘idle to dwell on it longer’ since it was an established principle in the history of mixed jurisprudence.52 The Mixed Court went further to explain that even the principle of rebus sic stantibus, which allowed contracts to become inapplicable if there had been a fundamental change of circumstances,53 was not applicable to cases involving mixed laws in the execution of synallagmatic (bilateral) contracts save under conditions of force majeure, which rendered the performance of a contract impossible. To that end, the Mixed Court concluded that the municipality’s desire to abolish the flat rate was unfounded, especially given the tardiness of the complaint, since it decided to protest ‘after thirty years of constant execution’. Indeed, according to the bench, the municipality’s arguments were not only inaccurate in fact and law, but also reckless. It was even ‘absurd’ to expect a price increase in all other commodities over the years, including the wages of the working classes, except for an increase in the price of water.54 The municipality also requested that when an owner subscribed to the meter, their un-subscribing tenants should have the right to use their tap for free, especially in the case of workhouses that housed the poor. The Mixed Court ruled that the plaintiff’s request to consider the well-being of the poorer classes and the residents of workhouses was unfounded for two reasons. First, the resolution of contractual conflicts could not be undertaken in light of political and social considerations. The municipality could exercise its administrative functions for the well-being of the poor, but not at the expense of its concessionary contract with the Water Company. Second, the question of the transferability of water to a subscriber did not exclusively concern the poorer classes, and if it was not a right, then no subscriber could invoke it regardless of their social class or economic condition.55 Consequently, the Mixed Court bracketed class status as simply irrelevant to water accessibility in the city, a position that entrenched the idea that water had in fact become a commodity. Drinking water was only regulated by the concessionary contract with the Water Company. All other considerations, with the single exception of force majeure, were beside the point or plainly unfounded. This was not simply the decision of a hostile bench. The Mixed Courts were in the process of recalibrating their undeclared redistributive function in this context from one class to another, and also from Egyptians to the British-owned Alexandria Water Company. The gradual commodification of drinking water and the racialised colonial legal system emerged together as part of a process of capital accumulation in which several public utilities companies played a significant

52 Ibid. 53 For a discussion of how the Turkish state used this principle to help abolish extraterritorial jurisdiction, see Özsu 2016, p. 136. 54 Municipalité d’Alexandrie contre The Alexandria Water Co., Ltd. 1926. 55 Ibid.

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role.56 This race – class nexus assembled the material and ideological bases for the commodification of water, as legal forms of dispossession were developed in the Mixed Courts’ jurisprudence. As the Mixed Courts expanded their jurisdiction through the ‘public ownership’ argument, they stripped it of any substantive meaning, excluding social class, from the examination of water accessibility and basic survival in the city. In an act that could be interpreted as a form of ‘accumulation by dispossession’, the Mixed Courts effectively excluded local Alexandrians from ‘owning’ their water.57 Crucially, this also manifested what Brenna Bhandar and Alberto Toscano call the ‘less visible life-worlds and ideologies of ownership and dispossession that subtend the everyday life of the settler colony’.58 Drinking water was transformed, having been moved from the anarchy of the sakkas to the order of the meter system that calculated and regulated consumption. The 1912 decision entailed a redefinition of the concept of ownership of public goods such as drinking water, which resulted in the expansion of its jurisdiction over two British companies. But in 1926 the Mixed Courts adopted a conservative position by limiting their role to contract interpretation and explicitly excluding any social or political considerations in what they claimed to be an exclusively legal process. Poverty became irrelevant once again; access to water was strictly a matter of contract law, regardless of social class. This paradoxical position was not a ‘trivial hiccup in the imperial project’.59 It was part of the numerous contradictions of colonialism that did not simply produce a neat division between coloniser and colonised, but rather sparked struggles among the colonisers,60 as well as between the judiciary, the municipality, the company, and other departments. In 1926 the logic of unrestricted profit clashed with the logic of sanitation and stable labour supply, and the former emerged victorious in the jurisprudence of the Mixed Courts. After all, the Mixed Courts did not operate in a political vacuum. From March to late April 1919, Egypt witnessed the largest peasant revolt in its twentiethcentury history. This later spread to other sectors as the nationalist leader Saad Zaghloul was exiled and prevented from leading a delegation to the Paris Peace Conference, eventually culminating in what is now called the 1919 Revolution.61 The anti-colonial struggle continued throughout the 1920s, and the British National Archives document various ‘riots’ across the country. In 1921, due to a split in the anti-colonial Wafd Party, riots erupted in Alexandria and Cairo. In Alexandria five people were killed and thirty were wounded.62 The

56 For a fascinating account of the relationship between law, property, and commodification under colonialism, see Bhandar 2015, p. 257. 57 See generally, Harvey 2003; Mitchell 2002, p. 67. 58 Bhandar and Toscano 2016, p. 1. 59 Comaroff 2000, p. 197. 60 Ibid. 61 Goldberg 1992, pp. 261, 274. 62 The Argus 1921.

The mixed courts of Egypt 131 British Chamber of Commerce wrote to Allenby, the British high commissioner, demanding an immediate cessation of negotiations around the independence of Egypt: The disgraceful disturbances which have been taking place in Alexandria . . . did not come as a surprise . . . At the present juncture, when an Egyptian delegation is about to leave for London to discuss terms for the Independence of Egypt, the Chamber wishes to express to your Lordship the deliberate opinion that the time is not yet ripe for this country to be endowed with Independence, or even with self-government without control . . . we are of opinion that British commercial and financial interests in this country which, as your Lordship is aware, are very large, would be seriously jeopardized by any such far-reaching concession . . . a strong force of British troops permanently in this country is also a necessity[.]63 As a result of the riots, the Mixed Court of Appeal and the Mixed Court of First Instance of Alexandria were suspended for several days pursuant to a proclamation of martial law.64 Since the revolution, anti-colonial resistance had been growing and gaining strength slowly. The municipality had been embroiled in negotiations with the Water Company from the beginning of the twentieth century, and this was its context.

Conclusion Extraterritorial jurisdiction, from the Consular Courts to the Mixed Courts, entailed a reimagining of the legal culture in and of Egypt. With some reluctance, the capitulatory powers needed to create a space that would accommodate all nationalities, and in the process started imagining this legal experiment as a means of effecting true emancipation from the outdated and sometimes unjust system that had preceded it. The Mixed Court was not simply one technology among many that might be used to control the local population. It inhabited and institutionalised the very logic of colonialism. The Mixed Courts were engaged in a colossal process of redistribution that consolidated class inequalities and furthered large-scale dispossession in a way that intersected with conceptions of localness and foreignness as Egypt transitioned to capitalism.

Bibliography Archival sources British Consulate General Alexandria, 1912, File No. 11/12, Legal Matters: Competence of the Mixed Court of Appeal in Khedivial Mail Company versus Alexandria 63 Naggiar 1921. 64 Allenby 1921.

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Water Company, Alexandria, 29 May 1912, Letter from D. A. Cameron to H. R. C. Blagden Esqre, Manager, Alexandria Water Company [Consulate General, Alexandria], BNA, London, Kew, FO 891/3 10773530 British Consulate General Alexandria, 1912, File No. 11/12, Legal Matters: Competence of the Mixed Court of Appeal in Khedivial Mail Company versus Alexandria Water Company, Alexandria, 5 June 1912, Letter from H. R. C. Blagden Esqre to D. A. Cameron [Consulate General, Alexandria], BNA, London, Kew, FO 891/3 10773530 Credit Agricole d’Egypte v. Wadih Hermes, Credit Agricole d’Egypte v. Ahmed Saad, Mixed Court of Appeal, 27 May 1936, Pres. Brinton, GTM XXVI Khedivial Mail Co. v. Alexandria Water Co. (28 May 1912), The Mixed Courts of Egypt, BNA, London, Kew, FO 891/3 10773530 Legal Matters: Competence of the Mixed Court of Appeal in Khedivial Mail Company versus Alexandria Water Company, Alexandria, 5 June 1912, British Consulate General Alexandria, 1912, File No. 11/12, Letter from Chancery to D. A. Cameron [Consulate General, Alexandria], BNA, London, Kew, FO 891/3 10773530 Letter from V. F. Naggiar, President of the British Chamber of Commerce, Alexandria, to Field Marshall the Viscount Allenby, His Britannic Majesty’s High Commissioner, Cairo, 31 May 1921, British Chamber of Commerce of Egypt, BNA, London, Kew, FO 141/816 10772709 Municipalité d’Alexandrie contre The Alexandria Water Co., Ltd., 6 mai 1926, Tribunal mixte de première instance d’Alexandrie, BNA, London, Kew, FO 141/499 10771514 Sir Percy Loraine (Acting High Commissioner), 13 March 1933, ‘New Municipal Draft Law’, BNA, London, Kew, FO 141/690 Wood-Smith, K. B., ‘The Alexandria Water Company Limited and its relations with the Municipality of Alexandria’, Alexandria Water Co. Ltd., British Consulate General, Alexandria, 29 January 1934 (9/Com.I. 1/49/3–33), BNA, London, Kew, FO 141/499 10771514

Secondary literature Amos, Mauris S. (1930), ‘Legal Administration in Egypt’ 12 Journal of Comparative Legislation and International Law 168. The Argus (1921), ‘Egypt Riots: Anti-Government Outbursts’ 24 May. Bhandar, Brenna (2015), ‘Title by Registration: Instituting Modern Property Law and Creating Racial Value in the Settler Colony’ 42 Journal of Law and Society 253. Bhandar, Brenna and Alberto Toscano (2016), ‘Representing Palestinian Dispossession: Land, Property, and Photography in the Settler Colony’ 7 Settler Colonial Studies 1. Brinton, Jasper Yeates (1930), Mixed Courts of Egypt (New Haven: Yale University Press). Brown, Nathan (1993), ‘The Precarious Life and Slow Death of the Mixed Courts of Egypt’ 25 International Journal of Middle East Studies 33. Brown, Nathan (1995), ‘Law and Imperialism: Egypt in Comparative Perspective’ 29 Law and Society Review 103. Cavafy, C. P. (2009), Collected Poems, trans. Daniel Mendelsohn (New York: Alfred A. Knopf).

The mixed courts of Egypt 133 Comaroff, John (2000), ‘The Discourse of Rights in Colonial South Africa: Subjectivity, Sovereignty, Modernity’, in: Austin Sarat and Thomas R. Kearns (eds), Identity, Politics and Rights (Ann Arbor: University of Michigan Press) pp. 193–236. Fahmy, Khaled and Rudolf Peters (1999), ‘A Legal History of Ottoman Egypt’ 6 Islamic Law and Society 129. Goldberg, Ellis (1992), ‘Peasants in Revolt’ 24 International Journal of Middle East Studies 261. Hanley, Will (2017), Identifying with Nationality: Europeans, Ottomans, and Egyptians in Alexandria (New York: Columbia University Press). Harvey, David (2003), The New Imperialism (Oxford: Oxford University Press). Hoyle, Mark S. W. (1987), ‘The Mixed Courts of Egypt: 1926–1937’ 2 Arab Law Quarterly 357. Innes, Mary (1986), ‘In Egyptian Service: The Role of British Officials in Egypt, 1911–1936’, DPhil dissertation, St Antony’s College, University of Oxford. Ismail, Shehab (2017), ‘Engineering Metropolis: Contagion, Capital, and the Making of British Colonial Cairo, 1882–1922’, DPhil dissertation, Columbia University. Koskenniemi, Martti (2001), The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press). McIlwraith, Malcolm (1917), ‘The Declaration of a Protectorate in Egypt and Its Legal Effects’ 17 Journal of Society and Comparative Legislation 238. Mitchell, Timothy (2002), Rule of Experts: Egypt, Techno-Politics, Modernity (Berkeley: University of California Press). Özsu, Umut (2016), ‘The Ottoman Empire, the Origins of Extraterritoriality, and International Legal Theory’, in: Florian Hoffman and Anne Orford (eds), The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press), pp. 124–137. Reimer, Michael (1999), ‘Urban Government and Administration in Egypt, 1805– 1914’ 39 Die Welt des Islams 289. Renton, Alexander Wood (1933), ‘The Revolt against the Capitulatory System’ 15 Journal of Comparative Legislation and International Law 212. Scott, James Harry (1908), The Law Affecting Foreigners in Egypt: As the Result of the Capitulations, With an Account of Their Origin and Development (Edinburgh: William Green and Sons). Shalakany, Amr (2013), Izdihar wa Inhiyar Al-Nukhba Al-Qanuneya Al-Misriyya, 1805–2005 (Cairo: Dar Al-Shurouq). Twiss, Travers (1879–80), ‘Rapport’ 3–4 Annuaire de l’Institut de droit international 301. Van Dyck, Edward A. (1881), Capitulations of the Ottoman Empire Since the Year 1150: Part 1 (Washington: Government Printing Office). Vitalis, Robert (1995), When Capitalists Collide: Business Conflict and the End of Empire in Egypt (Berkeley: University of California Press). Ziadeh, Farhat H. (1978), ‘Law of Property in Egypt: Real Rights’ 26 American Journal of Comparative Law 239.

8

‘And the laws are rude . . . crude and uncertain’ Extraterritoriality and the emergence of territorialised statehood in Siam Ntina Tzouvala

Introduction Although extraterritoriality today finds expression in a variety of legal practices and constitutes a relatively under-theorised field of inquiry, it dominated international legal theory and practice during the nineteenth century. Through the prolific conclusion of ‘unequal treaties’, major imperial powers and even smaller states excluded their subjects from the jurisdiction of countries that remained nominally independent but had their autonomy limited significantly.1,2 The practice involved states as diverse as the Ottoman Empire, Japan, China, Persia, Ethiopia, and Siam, and it emerged as perhaps the principal method of dealing with so-called ‘semi-civilised’ states.3 In this chapter I will examine the origins, functions, and consequences of extraterritoriality in Siam, and its important role in the creation of the modern Thai state. More specifically, I will trace the role of extraterritoriality in the creation of a territorially bound polity governed through bureaucratic mechanisms displaying a high degree of legalisation of social relations and integrated into a global capitalist system. In the first part of this chapter, I will examine the establishment, operation, and abolition of extraterritoriality in Siam, having as my main reference-point the 1855 Bowring Treaty and the subsequent legal, institutional, and economic reforms enacted by the Siamese monarchy in its attempt to have extraterritoriality 1 The quotation in the title was King Chulalongkorn’s description of the legal system of Lanna, the vassal state in the north of what is now Thailand, when writing to the British viceroy of India. For those studying nineteenth-century extraterritoriality, this language must sound strikingly familiar. 2 I use the term ‘state’ to signify the modern bureaucratic state, and ‘country’ or other related terms to refer to pre-modern structures of political power. Well-established terms such as ‘semi-civilised’ states will, however, be maintained. Concomitantly, I will refer to ‘Siam’ for events occurring before the 1932 coup that abolished the absolute monarchy, and to ‘Thailand’ when discussing later developments. 3 For the origins of the threefold distinction between ‘civilised’, ‘semi-civilised’, and ‘uncivilised’ states, and for its importance in nineteenth-century international law, see Lorimer 1884, p. 335. For an account of the concept of ‘semi-civilised’ states and their status in international law, see Özsu 2015. For the history of extraterritoriality in different imperial locations, see Horowitz 2004; Kayaoğlu 2010; Feyissa 2016; Özsu 2016.

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abolished. In the second part, I will discuss the process of creating a territorialised, centralised state and the assumption of control over former vassal states by Bangkok. Here I revisit imperial struggle and co-operation between Britain and Siam regarding the resource-rich Northern Siam (Lanna). I will argue that extraterritoriality treaties in 1874 and 1883 crystallised the alliance between foreign capital and the Siamese ruling classes, an alliance that drove the process of state-building in Siam. The core of my argument is that extraterritorial jurisdiction was a legal technique through which British capitalists, the Foreign Office, the Siamese monarchy, and the nascent bourgeoisie formed a precarious and contradictory, yet operationally effective, alliance that enabled Siam’s transition to capitalism, the emergence of fixed borders, and the subjugation of northern vassal states and concomitant consolidation of state control over these territories, as well as the mastery over and commodification of nature.

Extraterritoriality in Siam and the manufacturing of capitalist modernity in the semi-periphery Before the nineteenth century, the treatment of ‘aliens’ in Siam followed patterns of exception from ‘local’ jurisdiction and subjection to the jurisdiction of their own state, usually mediated by trading companies. Notably, this was neither an exceptional nor a politically problematic situation, since the idea of territorialised power was not of paramount importance in south-east Asia and personal jurisdiction formed the backbone of the political and legal system. In 1664 a treaty was concluded between the Dutch United East India Company and the Siamese monarch granting the company the privilege of trying Dutch merchants in accordance with Dutch law in the case of grave crimes.4 In 1685 France also negotiated and concluded two treaties granting them extraterritorial jurisdiction on religious matters (concerning Chinese converts to Christianity) and commercial disputes. What was quite exceptional, though, was that during the first decades of the nineteenth century, Britain (1826) and the United States (1833) concluded treaties conceding that their citizens resident in Siam ‘shall respect and follow the laws and customs of the country in all respects’.5 The situation began to change when Britain won the First Anglo-Burmese War (1824–26) and annexed parts of the Burmese Empire, initiating a century of open colonial expansion in the region. For the next twenty years, Britain sought to draw precise borders between Siam and Burma, an effort that was initially met with bafflement or indifference by the Siamese royal court. The idea of clear, fixed, and narrow lines sharply separating neighbouring communities, especially if they enjoyed friendly relations, was generally foreign to the region. And in any case, the delimitation of extensive borderlands was considered an issue of local concern.6 Seeing that the two parties were talking past each other, Britain

4 Liu 1925, pp. 36–77. See also Frey 2011. See also Kate Miles’ chapter in this volume. 5 Malloy 1910, p. 1628. 6 Winichakul 1997, p. 64.

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did not raise the issue again until the 1840s. During that decade the expansion of tin mining in the north of Siam raised questions of jurisdiction and borderdelimitation. The mining of tin was dominated by the Chinese at the time. However, they began to seek British protection in light of the autonomy of northern rulers, as well as the unwillingness and inability of Bangkok to secure and enforce the sorts of order and legality necessary for the conduct of business in the region. Meanwhile, the absence of clear borders combined with the intensification of commercial activities gave rise to protestations over double taxation.7 The continuing encroachment of colonial powers over the broader region further weakened its negotiating position, and it proved impossible for Siam to impress its own perceptions of territory and flexible borders on the Western colonial powers. It was in this context that the Bowring Treaty was concluded between Britain and Siam in 1855, and other states followed suit shortly after.8 Article 2 of this treaty granted Britain extensive consular jurisdiction: Any disputes arising between Siamese and British subjects shall be heard and determined by the Consul, in conjunction with the proper Siamese officers; and criminal offences will be punished, in the case of English offenders, by the Consul, according to English laws, and in the case of Siamese offenders, by their own laws, through the Siamese authorities. But the Consul shall not interfere in any matters referring solely to Siamese, neither will the Siamese authorities interfere in questions which only concern the subjects of Her Britannic Majesty.9 Besides consular jurisdiction, the treaty contained provisions regarding the broader status of the British in Siam, including trade, residence rights, and rights to own land.10 Notably, the treaty exposed Siam to international trade and competition, and also facilitated British exports to Siam by fixing import duties at 3 percent and export duties at 5 percent.11 After all, John Bowring, who negotiated and signed the treaty on behalf of Britain, was a staunch and early advocate of laissez-faire liberalism and also a co-founder of the Anti-Corn Law League in Manchester.12

7 Ibid. p. 65. 8 The US and France concluded similar treaties with Siam in 1856. Denmark followed suit in 1858, as did the Netherlands in 1860. 9 Treaty of Friendship and Commerce between Siam and Great Britain 1855, art. 2. 10 British subjects could trade in all Siamese seaports, but only reside permanently in Bangkok, a rule in sharp contrast to similar arrangements with China or Japan. See Treaty of Friendship and Commerce between Siam and Great Britain 1855, art. 4. 11 Treaty of Friendship and Commerce between Siam and Great Britain 1855, art. 8. 12 For a sympathetic account, see Bowring 2014. For a far less sympathetic account, penned by another descendant of Bowring, the contemporary Marxist international lawyer Bill Bowring, see Bowring, 2016, pp. 36–38. For the significance of anti-Corn Law advocacy for contemporary debates about food security and international law, see Orford 2015, pp. 39–42.

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Western legal scholars and state officials justified this imposition of extraterritoriality by invoking the (actual or perceived) distance between European and Siamese laws. For example, the British minister in Siam wrote in 1909 as follows: By the Anglo-Siamese Treaty of 1855 full extra-territorial privileges were guaranteed to British subjects in Siam. Comparatively little being then known concerning Siamese laws and customs, it was considered necessary by the British negotiators that British subjects for their security should be placed under the sole jurisdiction and control of their consular authorities.13 In this respect, extraterritoriality was a direct product of the ‘standard of civilisation’ and its predominance in the international legal theory and practice of the nineteenth century.14 The standard of civilisation emphasised perceived differences between political communities while organising them in a strict hierarchy (‘civilised’, ‘semi-civilised’, ‘uncivilised’) and conferring upon them diverging degrees of international legal personality.15 Such was the hegemonic pull of the concept that the Siamese ruling classes began mobilising it both in their interactions with Western imperialists and in their efforts to subordinate domestic competitors. In an 1864 letter to Queen Victoria, King Mongkut spoke of the supposed inferiority of his realm, and also linked ‘civilisation’ to the legal system of each polity: ‘The Siamese Government is aware that it is distant from Europe and that it is unacquainted with the good laws and custom[s] of civilized Europe.’16 Indeed, a country’s legal system was considered to be the best benchmark of its civilisation. Bowring summarised this approach, as well as the strictly hierarchical understanding of difference under the prism of ‘civilisation’ as follows: ‘The laws of a country are among the most practical and prominent evidences of its civilization and advancement; and, as a whole, the Siamese must be deemed superior to the Chinese.’17 Nonetheless, Siam did not fare all that well in the eyes of the professionals of imperialism. In an 1881 report to the Foreign Office, William Gifford Palgrave, stationed in Siam at the time, wrote that ‘no judicial or legal institution, in the proper sense of the word, can find a place’ in Siam, and he attributed this perceived lawlessness to the ‘autocratic’ character of the country that makes judges ‘simple clerks for putting in form the registering the President’s autocratic decision’.18 Palgrave went on to conclude that it was ‘an abuse of European words and phrases’ to say that Siam was a kingdom or to argue that it had a government or ministers. For him it was nothing more than ‘an extensive slave

13 Quoted in Liu 1925, p. 41. 14 For an overview of the concept, see Tzouvala 2019. 15 On the question of graded international legal personality and its imperial functions, see Parfitt 2011; Wheatley 2017. 16 Coedès 1928, p. 16. 17 Bowring 1857, p. 173. 18 Palgrave 1995, p. 25.

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estate’.19 In a similar vein, Bowring boasted that when negotiating the treaty he declined the offer to examine the details of the Siamese legal system and insisted on the imposition of extraterritoriality.20 Nonetheless, he went on to provide extensive commentary on the legal system of the country. He painted a bleak picture in which torture, arbitrariness, and ancient customs were prevalent in line with the common understanding of Siam in the West as an example of ‘Oriental despotism’. ‘All rights in a country whose government is absolutely despotic are, of course, held in sufferance’,21 he observed. Even Westerners who defended Siam’s efforts to have extraterritoriality abolished did so by arguing that thanks to systemic reform, its legal system had been thoroughly Westernised and did not resemble its ‘Oriental’ past. Francis Bowes Sayre, the renowned international lawyer who served as a foreign affairs advisor to King Chulalongkorn, wrote in 1928: With the changed conditions, abuses began to make themselves felt. Extraterritoriality fitted well enough an Oriental kingdom innocent of Western law or Western institutions; it did not fit a country with modem courts administering Western law and with a well-developed sense of international responsibility.22 This pathologisation of Siamese law and political organisation in Western legal circles meant that the abolition of extraterritoriality was linked to comprehensive reform. In 1892 a ministry of justice was established following the general European trend toward the functional specialisation of ministries and the nobility’s transformation into a salaried bureaucracy. The first professional law school was established in 1897. Moreover, during the last quarter of the nineteenth century, King Chulalongkorn attempted to centralise the financial administration of the country with the establishment of a finance office, which was meant to assume control over the seventeen treasuries administered by the nobility. Although a coup in late 1874 slowed this process of centralisation, the king took advantage of the deaths and retirements of patriarchs controlling tax farms, and within thirty years the revenue flows under royal command rose rapidly.23 A centralised and hierarchically structured court system was established, and the judiciary was separated from the executive. Further, extensive legal reform was promoted. The state subsequently attempted to regulate and supervise the exploitation of natural resources (laws governing mining and local administration were issued in 1897), and legislative attempts to commercialise land were also made (the Land Title Deed Act was promulgated in 1901 and a law as well as multiple administrative acts on land taxes came into force in 1905). While such reforms were implemented unevenly, and were often unsuccessful, they signified broader 19 20 21 22 23

Ibid. p. 32. Bowring 1857, p. 173. Ibid. p. 187. Sayre 1928, p. 73. Baker and Phongpachit 2009, p. 53 (‘Revenue flow under royal command rose from 1.6 million baht to 57 million baht in 1906–7. This was the seed capital of absolutism.’).

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commitment to the marketisation of everyday life. Legal reform was rapid and comprehensive. A royal code commission was established in order to promulgate a wide range of law. Indeed, in 1908 a penal code as well as the code on civil procedure came into force. By the time of King Chulalongkorn’s death in 1910, codes relating to criminal procedure, civil law, and commercial matters were also close to completion. Siam also promulgated a law for the protection of trademarks and trade names in 1914. Ironically, the effective application of many of these new laws was hindered by extraterritoriality. For example, it was mainly foreigners who engaged in the trade of illicit goods, and their exception from local legislation and law enforcement made the enforcement of intellectual property legislation difficult.24 This was a sign of broader pathologies. Even though extraterritoriality-linked reforms in theory favoured the geographic expansion and substantive augmentation of state power,25 the application of unequal treaties created zones of conflicting jurisdictions and arbitrary law enforcement that hindered this process of state-building. Consular jurisdiction meant, for example, that participants in the same criminal act faced wildly different treatment depending upon their nationality (and also upon their race and class),26 and the perception of the Siamese authorities was that Western authorities were overly lenient towards their subjects.27 The large number of foreign subjects residing in Bangkok and the predominance of foreign capital, combined with this patchwork of jurisdictions created by the operation of multiple unequal treaties, also led to surreal situations for Westerners. On one occasion, British subjects were ordered by their German employers to commit acts that were unlawful under British law.28 Admittedly, the number (and consequent economic and political influence) of foreigners in Bangkok was not comparable to other imperial locations such as Shanghai, where Chinese authorities had effectively lost legal and factual control. Still, the everyday operation of extrater24 Sayre 1928, p. 74. 25 Vandergeest and Peluso 1995, p. 396 (‘In a move that was repeated in many other situations, the British chose not to acknowledge the Lanna lords’ local power, instead recognizing Bangkok’s sovereignty in the northern territory.’). 26 The racialised aspects of extraterritoriality in Siam and elsewhere in Asia is a rich subject that cannot be addressed adequately here. Many Western commentators were uncomfortable with the fact that non-white imperial subjects were afforded the privileges of extraterritoriality, and the exception of non-whites from domestic jurisdiction was considered particularly scandalous and problematic by defenders of the Siamese case for abolition: ‘In addition to these thousands of Asiatic subjects, the treaty provisions were made to include foreign proteges as well; and foreign protection thus came to be claimed not only for subjects born in Asiatic colonies but for such Chinese or other Asiatics as any European Power chose to enrol at its consulate. It was only natural that out of such a system abuses should grow.’ Sayre 1928, p. 73. 27 ‘[T]hose desirous of avoiding police interference or arrest – smugglers, gamblers, disreputable characters – often resorted to foreign papers as a wise measure of protection. If, in spite of their precautions, they should be unlucky enough to be caught, they felt confident of more lenient treatment before many of the foreign consuls.’ Sayre 1928, p. 73. 28 For an interesting compilation of such incidents and their corrosive effects on law enforcement in Siam, see Lysa 2003.

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ritoriality meant that a multitude of jurisdictions and legal systems co-existed, giving rise to legal uncertainty, arbitrariness, and at times lawlessness. This was ironic, not only because extraterritoriality was justified precisely with arguments to the effect that the Siamese legal system was uncertain, arbitrary, and lawless, but also because the terms of unequal treaties increasingly stood in opposition to the emerging modern state and its claim of exclusive and complete control over its territory and those who reside in it. After the First World War, Siam utilised its membership in the League of Nations to mobilise international law in its push to abolish extraterritoriality. Siamese authorities argued that extraterritoriality and the lenient treatment of offenders by foreign consuls hindered its efforts to control the opium trade and combat the trafficking of women and children.29 While these arguments did not have immediate effect, they highlighted the increasingly visible contradictions between the patchwork of jurisdictions created by the co-existence of multiple unequal treaties with Siamese jurisdiction and Siamese demands for recognition as a ‘normal’ state capable of undertaking international legal obligations and performing functions such as the control of prostitution and drugs or the provision of hygiene. The Siamese state also tried to secure recognition for its formal legal equality vis-à-vis other states by gradually abolishing slavery. In 1874 a decree freed those born into slavery at the age of 21. And in 1905 the king issued a law that abolished slavery altogether.30 Finally, adherence to international law was an integral part of this reform and legalisation process. As early as 1864 the king had realised as much and sought the advice of the British consul on matters of international law, a fact that further solidified the influence of the British Empire over Siam: If the new consul be a person familiar with the international and other laws, he would render great assistance to the Siamese Government, who are in governing of a powerless nation, by advising and conferring with it in matters of importance, and thereby word off any calamities which might otherwise befall us through misunderstanding with the neighbouring great powers.31 Notably, Gustave Rolin-Jaequemyns, one of the founders of the Institut de droit international and its honorary president after 1892,32 played a crucial role in this process of comprehensive legal reform, acting as general adviser to King Chulalongkorn.33 Rolin-Jaequemyns was hired due to his international law expertise, as were many of his successors.34 The role and impact of these 29 Hell 2010, pp. 94–95. 30 Wyatt 1960, pp. 51–52. For the importance of the abolition of slavery as a marker of ‘civilisation’ and, therefore, of complete international legal personality, see Parfitt (forthcoming), pp. 72–75. 31 Coedès 1928, p. 15. 32 Koskenniemi 2001, pp. 40–1. 33 Tips 1996. 34 Loos 2006, p. 55.

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advisers was not limited to facilitating domestic reform: they also advocated on Siam’s behalf by mobilising their international legal expertise and reputation. In 1919, as Siamese officials made their way to Paris to push for the abolition of the unequal treaties, Wolcott H. Pitkin, a Harvard-educated lawyer who had succeeded Rolin-Jeaquemyns, published a lengthy pamphlet entitled Siam’s Case for Revision of Obsolete Treaty Obligations, Admittedly Inapplicable to Present Conditions, which relied heavily on the language of international law to make the case for abolition.35 Siam was invited to the Hague Peace Conference along with a handful of other non-Occidental states (Japan, China, Persia, and the Ottoman Empire), and it signed the Hague Conventions. In September 1917 Siam entered the war on the side of the Entente. Not only did Siam seize German ships and intern enemy subjects in its territory, but it also sent 125 volunteers to the Western front.36 Importantly, it made sure to do so in accordance with proper protocol and the new Hague rules on warfare.37 Siamese authorities made every effort to ensure their participation in the Paris Peace Conference, and Siam became one of the founding members of the League of Nations. Subsequently, its representatives consistently used this membership to advocate for the abolition of the unequal treaties and the ‘restoration’ of full sovereignty, as we saw above. After all, adherence to international law and the familiarisation of certain factions of Siam’s governing elites with its grammar and vocabulary was an overarching pattern in countries struggling to have extraterritoriality abolished. A few decades earlier, Japan had made a point of enlisting two esteemed international lawyers, John Westlake and T. E. Holland, in order to argue that the country waged the 1894 Sino-Japanese War in accordance with international law.38 For its part, China attempted to use the Permanent Court of International Justice to push for the abolition of extraterritoriality.39 While arguing for the abolition of extraterritoriality, Pitkin, Siam’s American advisor, took care to stress that the country identified herself with and shown her eagerness to cooperate in every international movement of a progressive character, the International Hague Conferences, the International Red Cross, the Postal Union, the Parcel-Post Convention, the International Commission for the Protection of Industrial Property, the International Maritime Conferences, the International Prisons Congress, the International Navigation Conference, the Telegraphic Conferences, and others.40

35 36 37 38 39

Pitkin 1919, p. 17. Pitkin 1919, pp. 2–3. Gong 1984, p. 224. Anand 2003, p. 28. See Denunciation of the Treaty of November 2nd, 1865, between China and Belgium 1928. 40 Pitkin 1919, p. 4.

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The adoption of international law as the appropriate language for conducting foreign affairs was a precondition for acquiring ‘civilised’ status, and therefore freedom from consular jurisdiction.

Strange legal bedfellows: extraterritoriality and the colonisation of Lanna Extraterritoriality was prominent in Siam’s external relations for another reason: under the pressure of extraterritoriality and Western colonial expansion more generally, relations of power in Siam became territorialised, the modern concept of borders was introduced and operationalised, and the country’s interior came to be demarcated from its exterior. In order to appreciate these developments, it is essential to understand the ways in which Siam related to its neighbouring polities until the first half of the nineteenth century. First, the distribution of power and legal competence was structured around a tributary system of relations between political communities throughout south-east Asia. The case of Cambodia – a tributary of both Vietnam and Siam for centuries – is illustrative. Cambodia’s weaker position necessitated this double submission, which was also combined with strong elements of political independence. Winichakul summarises this contradictory arrangement as follows: ‘The protection was unwelcome oppression and yet it was an alternative to oppression at the same time.’41 Further, the tributary system was inherently and intentionally ambiguous. Ambiguity and flexibility created a complex network of overlapping, interconnected powers in which political authority ‘was multiple and capable of being shared – one for its ruler, another for its overlord – not in terms of a divided sovereignty but rather a sovereignty of hierarchical levels’.42 A similar structure was applicable to the north of Thailand (Lanna), which after being conquered by the Burmese for two centuries became a Siamese tributary state, or prathetsarat, in 1802. The prince of Lanna retained a significant degree of independent rule and ‘always openly denied the right of the Siamese to make any treaty of the kind that binding him’.43 The Bowring Treaty thus made no specific reference to dependencies, and there is evidence that Siamese authorities recognised and respected the legal autonomy of Lanna,44 making no attempt to enforce their jurisdiction there. Further, within this framework it was entirely conceivable that ‘a subject of a local authority could be at the same time a subject of another authority’,45 with no fixed relation of priority established between them. Those residing in the hills seemed to be beyond the reach of any outside authority.46 41 42 43 44

Winichakul 1997, p. 87. Ibid. p. 88. Iijima 2008, p. 43. A petition of the American consul against the execution of two Christian converts in Chiang Mai in 1869 did not bear fruit, with the Siamese foreign minister stating that ‘[t]hey have their own laws and customs which they enforce as they see fit. They do not use the say laws as in Bangkok’. Ratanaporn, 1989, p. 161. 45 Winichakul 1997, p. 73. 46 See generally Scott 2014.

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The advancement of British and French imperialism in the region after the First Anglo-Burmese War (1824–26) and the mounting interference of France in (what came to be known as) Indochina, which resulted in the violent seizure of Saigon in 1859, shook the foundations of this flexible and ambiguous system to its core. First, Western states colonising Siamese neighbours insisted on drawing clear, linear borders between their spheres of control and Siamese territories. Despite the fact that Siamese authorities were initially sceptical of or even hostile to such requests, as we saw earlier, they eventually consented to this kind of inflexible and definite spatial delimitation.47 Second, extraterritoriality played an important role in the process whereby Siam came to define its territory by separating the interior from the exterior and unifying the legal system applicable throughout the country. These processes of territorialisation were over-determined by the expansion of British capital’s activities in Siam, as well as by the centralising tendencies of the Siamese monarchy. Creating the political structures that would enable the smooth commercial exploitation of natural resources, particularly the avoidance of conflicts, dual leasing, and dual taxation, was of paramount importance to British capital. The depletion of European oak stocks, which reached their limits during the first decades of the nineteenth century, meant that teak forests in Burma and Lanna became increasingly important for European shipbuilding and railway construction during the second half of the nineteenth century. Indeed, British capital soon dominated the teak industry in the region.48 However, conflicts arose due to jurisdictional disputes, precarious security conditions, and the common practice of local princes (known as chaos) to lease forests to more than one forester at the same time.49 In 1874 the intransigence of the British consul in Bangkok, Sir Thomas Knox, led Siam to approach the British authorities in India, and the first Chiang Mai Treaty was concluded in order to settle issues of jurisdiction in Lanna.50 Article 5 of that treaty read as follows: [T]he King of Siam shall appoint proper persons to be Judges in Chiang Mai with the jurisdiction (1) to investigate and decide the claims of British subjects against Siamese subjects and (2) to investigate and determine claims of

47 Winichakul 1997, pp. 62–80. 48 For the most comprehensive study to date, see Banasopit 1977. 49 It is worth bearing in mind that dual leasing only became a significant problem when teak exploitation was transformed into a large-scale, capital-intensive, and profitable business. 50 After the 1850s a number of leasing and jurisdictional disputes in Lanna turned violent and the situation was exacerbated further due to the rebellion of a minor local ruler in the Karen area in 1871. In 1873 an ad hoc tribunal was established in Bangkok to adjudicate the claims of British subjects. Eventually, a decree was issued to the effect that the chao of Chiang Mai was liable to pay 500 000 rupees as compensation and the Siamese government was responsible for the payment. The event meant that the rulers of Lanna became increasingly dependent on Bangkok through debt. At the same time, the Siamese government and Knox, the consul, disagreed bitterly about whether interest was payable, and as a result the relationship between the Siamese authorities and Knox deteriorated further.

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In the absence of such consent, the British consul had jurisdiction over the case.52 Although this assumption of jurisdiction by Siamese authorities over a part of (what came to be) its territory was conditional upon the consent of British subjects and the 1874 treaty was short-lived, it signalled the expansionary intentions of the monarchy over its vassal states as well as the imperial ambitions of Britain in the region. It also underscored the importance of extraterritoriality as a means of realising these ends. Notably, those Siamese subjects who were appointed judges pursuant to article 5 were also responsible for notarising the forest lease agreements of British subjects in the region and for preventing double leasing.53 In order to enforce the terms of the treaty, a Siamese commissioner – one of the king’s half-brothers – was sent to Chiang Mai, accompanied by a column of troops.54 Given the growing importance of the region for British capital, the Foreign Office stepped in. In 1883 a treaty was concluded between Britain and Siam stipulating that in certain northern provinces British subjects would be subject to Siamese law and would be tried for any case, civil or criminal, by a special Siamese court.55 Three main caveats differentiated this system from territorially based jurisdiction. First, the British consul in northern Siam – a post created by article 7 of the treaty56 – had the right to be present at any trial he saw fit, and to make suggestions. Second, the consul had the right to withdraw from the court a case at any point and to submit it to the British consular court in Chiang Mai. Third, when an appeal was filed by a party to either a civil and criminal law case, the British consul-general had the final word in deciding the case.57 The court established for this purpose was known as the ‘International Court’, though its composition was exclusively Siamese, and its success resulted in the adoption of similar arrangements between Siam and other Western powers (a similar Franco-Siamese treaty was, for instance, concluded in 1904). As a result, Siamese laws and judicial authority were gradually extended to the northern provinces. As Iijima points out, ‘the International Court, in hindsight, functioned as a bridgehead set up within prathetsarat. Using the International 51 52 53 54 55 56

Treaty between the Governments of Siam and India 1874, art. 5(a). Ibid. art. 5(b). Ibid. art. 11. Baker and Phongpaichit 2009, p. 54. Treaty between Great Britain and Siam 1883, art. 8. ‘The interests of all British subjects coming to Chiengmai, Lakon, and Lampoonchi shall be placed under the regulations and control of a British Consul or Vice-Consul, who will be appointed to reside at Chiengmai, with power to exercise civil and criminal jurisdiction.’ Treaty between Great Britain and Siam 1883, art. 7. 57 Treaty between Great Britain and Siam 1883, art. 9.

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Court staffed by the Siamese officials as a foothold, the Siamese government proceeded further to establish a more solid system of control.’58 This legal arrangement was part of a broader effort initiated by the Siamese government in the 1870s. For example, a law was enacted stipulating that in the case of public contracts relating to forestry and mining in the north, the incumbent minister had to ratify the agreement in order for it to be valid.59 Hence, the management of natural resources was gradually brought under the control of Siam. This trend was further solidified in 1896 with the establishment of a royal forest department, which assumed exclusive responsibility over the management of forests, the granting of attendant leases, and the collection of royalties on behalf of the king. This move also reflected British hegemony in the region, since Herbert Slade, a British subject who was the former deputy conservator of forests in Burma, served as the first director of the department.60 After all, the management of forests, or rather of natural configurations that came to be known as ‘forests’, was an important strategy of expanding and territorialising political authority in Siam and in south-east Asia generally.61 Accordingly, the smooth function of the International Court required royal judges and a royal commissioner to be sent to the north. This commissioner claimed supreme authority over the region and a monopoly over foreign affairs, which was at the heart of his attempts to integrate the north into Siam.62 Following the pattern of competition and collaboration we have already seen unfolding, the Siamese government collaborated closely with Western powers, particularly Britain, in order to accomplish this task. The British consul exercised his prerogative to draw cases out of the International Court with caution, and Siamese judges were ‘happy to receive and be guided by reasonable suggestions by the British Consul’.63 Although Siamese legal elites presented this trend as a restoration of their country’s jurisdiction,64 the process is better understood as one of colonisation of the north by Bangkok: The resulting structure looked uncannily like the colonial government of a British Indian district. It became the model. Commissioners were sent to other frontier states – Luang Prabang, Long Khai, Khorat, Upon, and Phuket-backed up with troop columns that remained to serve as garrisons. Local rulers were left as figureheads, but on death they were replaced by a Bangkok appointee.65 58 59 60 61 62 63 64

Iijima 2008, p. 59. Ibid. p. 50. Barton and Bennett 2010, p. 74. Peluso and Vandergeest 2001. Iijima 2008, p. 52. Ibid. p. 57. ‘This Treaty marked the beginning of the change of status of foreigners in Siam in favour of the local jurisdiction. . . . How much Great Britain returned to Siam by this Treaty we shall find in the following provisions.’ Nathabanja 1924, p. 251 (emphasis added). 65 Baker and Phongpaichit 2009, p. 54.

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Unsurprisingly, this process was accompanied by racialised tropes common to modern colonising enterprises. Siam mobilised a language closely resembling the Western scheme of ‘civilisation’/ ‘barbarity’ in order to justify the incorporation of the northern provinces, the residents of which were disparagingly referred to as ‘jungle people’. Indeed, toward the end of the nineteenth century, Siamese elites began to produce an ethnologically charged discourse about ‘the Others within’, emphasising culturally unfamiliar practices ‘as signs of primitiveness and hence un-civilizability in the view of the gazing subjects’, as well as ‘colour of skin, curliness of hair, length and quantity of body hair, thickness of lips’.66 Relatively recent domestic controversies that blame ethnic minorities of northern Thailand and their ‘primitive’ agricultural methods for the extensive deforestation of the region can be situated within this lineage of colonial state-building through international law.67 The International Court is a good example of how legal extraterritoriality directly contributed to the social, political, and economic transformation of the societies upon which it was imposed. In the case of Siam, it was not only the reforms undertaken for the institution’s abolition that brought about social reform. In this context, the existence of the International Court was the outcome and condition of this process of social transformation. Legal pluralism was abolished, dependencies were either incorporated into Siam’s political structure or understood as wholly external to it, and fixed, linear, and (supposedly) unambiguous borders were drawn. Simultaneously, the structures of the subsistence economy were gradually dissolved through the abolition of slavery, which deprived the old nobility of a crucial source of income, and the commercialisation of land and mining. Unsurprisingly, this process was not smooth and uninterrupted, since peasant revolts in the north (notably in 1889) were common. Further, the case of Siam is illustrative of the fact that extraterritoriality did not constitute a violation of any self-evident territorial integrity of the political community that existed prior to Western interference. To recall Vasuki Nesiah, ‘[t]erritorial integrity is a cornerstone of modern statehood that was itself forged thorough the colonial encounter’.68

Conclusion The abolition of extraterritoriality was not the end of the story when it comes to international law and Siamese/Thai territory. Indeed, the question resurfaced when the International Court of Justice was called upon to decide whether the Temple of Preah Vihear (Phra Viharn in Thai) lay within the territory of Thailand or the territory of Cambodia. The dispute had its roots in the process whereby the border between Siam and French Indochina came to be demarcated in the beginning of the twentieth century.69 Both then and later, the International Court of 66 67 68 69

Winichakul 2000, p. 47. For an overview, see Delang 2005. Nesiah 2003, p. 19. Case concerning the Temple of Preah Vihear 1962.

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Justice was rightly criticised for favouring colonial documents to the detriment of other sources, for refusing to acknowledge the imperial power-dynamics between France and Siam, and for assuming the existence of good faith only on the part of the French (when there was evidently no such good faith to be had).70 However, its ruling performed the much more fundamental function of legitimising and naturalising fixed borders, territorially bound polities, and sovereign authority as the only imaginable ways of creating and sustaining political communities. By projecting these features of political organisation and their desirability far into the region’s past, and by ignoring the colonial and imperial origins, not only of this specific border but also of the notion of a fixed, impenetrable border in the first place, the International Court of Justice rendered invisible the ordering functions of imperial legal techniques such as extraterritoriality, thereby dehistoricising and legitimising their outcomes. The persistence of inter-state tension and occasional outbreaks of violence between Thailand and Cambodia over the temple point to the ongoing incapacity of international law to solve a problem that it helped create in the first place. With this in mind, the case of extraterritoriality in Siam enables us to reflect on a number of important points about international law, capitalism, and Third World sovereignty. The first point is the fundamental conditioning of Third World sovereignty on imperial calculations and the needs of foreign capital. After all, the expansion of Siamese jurisdiction to its vassal states was at least partly dependent upon imperial legal documents like the two Chiang Mai treaties, and other imperial practices like concessions or the staffing of key offices by British subjects. The second point is that this story elucidates domestic divisions and mobilisations of international law by powerful domestic actors – bureaucracies, the monarchy, and the emergent bourgeoisie – for the promotion of their own interests. In this trajectory, international law becomes a method of domestic oppression and reconfiguration as much as a means of external imperial imposition. The third and final point concerns extraterritoriality’s entanglement with processes of control, exploitation, and commodification of nature, and with the production and legitimisation of forms of state sovereignty that are historically, conceptually, and materially inseparable from these processes.71

Bibliography Secondary literature Anand, R. P. (2003), ‘Family of “Civilized” States and Japan: A Story of Humiliation, Assimilation, Defiance and Confrontation’ 5 Journal of the History of International Law 1.

70 For such criticisms, see Koo 1962; Kattan 2015. 71 On the question of the environment, international law, and the global South, see Natarajan and Khoday 2014; Storr 2016; Dehm 2017.

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Baker, Chris and Pasuk Phongpachit (2009), A History of Thailand, Second edition, (Cambridge: Cambridge University Press). Banasopit, Mekvichai (1977), ‘The Teak Industry in North Thailand: The Role of a Natural-Resource-Based Export Economy in Regional Development’, PhD dissertation, Cornell University. Barton, Gregory A. and Brett M. Bennett (2010), ‘Forestry as Foreign Policy: AngloSiamese Relations and the Origins of Britain’s Informal Empire in the Teak Forests of Northern Siam, 1883–1925’ 34 Itinerario 65. Bowring, Bill (2016), ‘Did the States Which Founded the UN Have Liberal or Illiberal Governments?’ 15 Baltic Yearbook of International Law 31. Bowring, John (1857), The Kingdom and People of Siam, vol. 1 (London: John W. Parker & Son). Bowring, Philip (2014), Free Trade’s First Missionary: Sir John Bowring in Europe and Asia (Hong Kong: Hong Kong University Press). Coedès, Georges (1928), ‘English Correspondence of King Mongkut (Continued)’ 22 Journal of the Siam Society 1. Dehm, Julia (2017), ‘Carbon Colonialism or Climate Justice? Interrogating the International Climate Regime from a TWAIL Perspective’ 33 Windsor Yearbook on Access to Justice 129. Delang, Claudio O. (2005), ‘The Political Ecology of Deforestation in Thailand’ 90 Geography 225. Feyissa, Hailegabriel (2016), ‘European Extraterritoriality in Semicolonial Ethiopia’ 17 Melbourne Journal of International Law 1. Frey, Mark (2011), ‘Eurasian Interaction: Siam and the Dutch East India Company during the Seventeenth Century’, in: Volker Grabowsky (ed.), Southeastern Asian Historiography: Unravelling the Myths (Bangkok: River Books, 2011), pp. 162–75. Gong, Gerrit W. (1984), The Standard of ‘Civilization’ in International Society (Oxford: Clarendon Press). Hell, Stefan (2010), Siam and the League of Nations: Modernisation, Sovereignty, and Multilateral Diplomacy, 1920–1940 (Bangkok: River Books). Hong, Lysa (2003), ‘Extraterritoriality in Bangkok in the Reign of King Chulalongkorn, 1868–1910: The Cacophonies of Semi-Colonial Cosmopolitanism’ 27 Itinerario 12. Horowitz, Richard S. (2004), ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’ 15 Journal of World History 445. Iijima, Akiko (2008), ‘The “International Court” System in the Colonial History of Siam’ 5 Taiwan Journal of Southeast Asian Studies 3. Kattan, Victor (2015), ‘The Ghosts of the Temple of Preah Vihear/Phra Viharn in the 2013 Judgment’ 5 Asian Journal of International Law 16. Kayaoğlu, Turan (2010), Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge: Cambridge University Press). Koskenniemi, Martti (2001), The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press). Liu, Shih Shun (1925), Extraterritoriality: Its Rise and Decline (New York: Columbia University Press). Loos, Tamara L. (2006), Subject Siam: Family, Law and Colonial Modernity in Thailand (Ithaca: Cornell University Press).

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Lorimer, James (1884), ‘La doctrine de la reconnaissance, fondement du droit international’ 14 Revue de droit international et de législation comparée 333. Malloy, William M. (1910), Treaties, Conventions, International Acts, Protocols, and Agreements between the United States of America and Other Powers, vol. 2 (Washington: US Government Printing Office). Natarajan, Usha and Kishan Khoday (2014), ‘Locating Nature: Making and Unmaking International Law’ 27 Leiden Journal of International Law 573. Nathabanja, Luang (1924), Extra-territoriality in Siam (Bangkok: Bangkok Daily Mail). Nesiah, Vasuki (2003), ‘Placing International Law: White Spaces on a Map’ 16 Leiden Journal of International Law 1. Orford, Anne (2015), ‘Food Security, Free Trade and the Battle for the State’ 11 Journal of International Law and International Relations 1. Özsu, Umut (2015), ‘From the “Semi-Civilized State” to the “Emerging Market”: Remarks on the International Legal History of the Semi-Periphery’, in: Ugo Mattei and John D. Haskell (eds), Research Handbook on Political Economy and Law (Cheltenham: Edward Elgar), pp. 246–59. Özsu, Umut (2016), ‘The Ottoman Empire, the Origins of Extraterritoriality, and International Legal Theory’, in: Anne Orford and Florian Hoffman (eds), Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press), pp. 123–37. Palgrave, William G. (1995), ‘Report on the Present Administration of the Kingdom of Siam’, in: British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print Series E, vol. 27 (Frederick, MD: University Publications of America), pp. 25–33. Parfitt, Rose (2011), ‘Empire des Nègres Blancs: The Hybridity of International Personality and the Abyssinia Crisis of 1935–36’ 24 Leiden Journal of International Law 849. Parfitt, Rose (forthcoming), The Process of International Legal Reproduction: Inequality, Historiography, Resistance (Cambridge: Cambridge University Press). Peluso, Nancy Lee and Peter Vandergeest (2001), ‘Genealogies of the Political Forest and Customary Rights in Indonesia, Malaysia, and Thailand’ 60 Journal of Asian Studies 761. Pitkin, Wolcott H. (1919), Siam’s Case for Revision of Obsolete Treaty Obligations, Admittedly Inapplicable to Present Conditions (New York: Despatch Printery and Bindery). Ratanaporn, Sethakul (1989), ‘Political, Social, and Economic Changes in the Northern States of Thailand Resulting from the Chiang Mai Treaties of 1874 and 1883’, PhD dissertation, Northern Illinois University. Sayre, Francis B. (1928), ‘The Passing of Extraterritoriality in Siam’ 22 American Journal of International Law 70. Scott, James C. (2014), The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia (New Haven: Yale University Press). Storr, Cait (2016), ‘Islands and the South: Framing the Relationship between International Law and Environmental Crisis’ 27 European Journal of International Law 519. Thongchai, Winichakul (1997), Siam Mapped: A History of the Geo-Body of a Nation (Honolulu: University of Hawaii Press).

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Thongchai, Winichakul (2000), ‘The Others Within: Travel and Ethno-Spatial Differentiation of Siamese Subjects 1885–1910’, in: Andrew Turton (ed.), Civility and Savagery: Social Identity in Tai States (Richmond: Curzon Press), pp. 38–62. Tips, Walter E. (1996), Gustave Rolin-Jaequemyns and the Making of Modern Siam: The Diaries and Letters of King Chulalongkorn’s General Adviser (Bangkok: White Lotus). Tzouvala, Ntina (2019), ‘Civilisation’, in: Jean d’Aspremont and Sahib Singh (eds), Fundamental Concepts for International Law: The Construction of a Discipline (Cheltenham: Edward Elgar), pp. 83–104. Vandergeest, Peter and Nancy Lee Peluso (1995), ‘Territorialization and State Power in Thailand’ 24 Theory and Society 385. Wheatley, Natasha (2017), ‘Spectral Legal Personality in Interwar International Law: On New Ways of Not Being a State’ 35 Law and History Review 753. Wyatt, David K. (1960), The Politics of Reform in Thailand: Education in the Reign of King Chulalongkorn (New Haven: Yale University Press).

Legal instruments Treaty of Friendship and Commerce between Siam and Great Britain, signed 18 April 1855, 113 Consolidated Treaty Series 83 Treaty between the Governments of Siam and India for promoting Commercial Intercourse between British Burmah and the adjoining Territories of Chiangmai, Lakon, and Lampoonchi, belonging to Siam, signed 14 January 1874, 66 British and Foreign State Papers 537 Treaty between Great Britain and Siam, for the Prevention of Crime in the Territories of Chiengmai, Lakon, and Lampoonchi, and for the Promotion of Commerce between British Burmah and the Territories Aforesaid, signed 3 September 1883, 15 Herslet’s Commercial Treaties 811

Case law Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment, ICJ Reports 1962 (15 June 1962) Denunciation of the Treaty of November 2nd, 1865, between China and Belgium (Belgium v. China), Order, PCIJ Ser. A No. 14 (21 February 1928) Dissenting Opinion of Judge Wellington Koo in Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment, ICJ Reports 1962 (15 June 1962) 75–100

9

Imperial reorderings in US zones and regulatory regimes, 1934–50 Daniel S. Margolies

Introduction Mid-twentieth century US foreign policymaking was imperial in scale, implementation, and ambition. It turned on innovative jurisdictional approaches to the definition and governance of territorial and extraterritorial spaces of the state. US jurisdictional assertions in newly conceived extraterritorial spaces were not uncommonly alloyed with sovereign exceptions (the ability of the sovereign to elide legal constraints at will) and commitments to unilateralism and strategic resource domination. This approach disrupted established spatial configurations in the international system. Jurisdictionally defined ‘state spaces’ established a sustainable scaffolding for US hegemonic ambitions.1 Novel assertions of extraterritorial jurisdiction underlay a fairly consistent American way of imperial governance in an increasingly interconnected world of competing jurisdictions and transnational challenges. In order to understand US approaches to sovereign jurisdiction in territorial and extraterritorial spaces, it is necessary to examine both the tenor of its conception in theoretical terms and its articulation in foreign relations. This chapter focuses on the ways that US jurisdictional efforts invited innovations in governance essential to global imperial power. Emphasis on the articulation of jurisdiction clarifies core US interest in the unilateral reorganization of territorial and extraterritorial space as a means of governance. The governance patterns and innovations established through jurisdictional fiat were later available for application in other arenas of US foreign policy. Jurisdictional assertions provided a key means for policy implementation in state spaces, as defined below, and proved especially useful for the purposes of empire. This chapter considers a range of extraterritorial foreign-policy efforts that cut across traditional jurisdictional categories in the formative era of 1930–50, including experimentation with extraterritorial trade zones, networks, and relationships within the US imperial system of territories in the Pacific, and jurisdiction over strategic but static resource regimes in carefully delineated extraterritorial zones in oceanic spaces. The intent here is to provide not a single narrative but an 1 Christopher Layne emphasises extraregional hegemony in Layne 2006.

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episodic exploration of the varied means that the US adopted to exercise jurisdiction in new state spaces. Each example highlights unilateralist and sovereigntist continuities of US power which are often overlooked, and each emphasises the contingencies of the legal and the spatial in American foreign policymaking.

Considering jurisdiction as a technology of spatial governance Articulations of jurisdiction are central to the construction of space by the state.2 And so too is state sovereignty itself contingent upon jurisdictional assertions, exceptions, and elisions. US sovereignty and governance strategies have been constructed in a variety of constitutionally defined and historically contingent spaces.3 Despite an enduring interest in sovereignty, spatiality, and empire, foreign relations historians have largely ignored jurisdiction in terms of governance.4 It is useful to see jurisdiction the way a crop of legal scholars and legal geographers see it, as a ‘technology’ of governance, creating order through both technique and ‘devices and organizational strategies’ wherein law is put in service to state ends.5 It is critical for historians of foreign relations to consider the ways in which jurisdiction has operated in, through, and outside of different spaces. US federalism provides for jurisdictional spaces divided between domestic sovereign territorial space and abstract, as yet unformed spaces of extraterritorial jurisdiction where sovereign power (imperium) has been understood as malleable and expansive, freed as it is from constitutional constraints on the foreign-policy power.6 Each of these spaces has had critical but overlooked effects on policy formation, yet most 2 Delaney, Ford, and Blomley 2001, p. xv. 3 See Lawson and Seidman 2004. Allen Erbsen has a valuable account of ‘fourteen spatial categories that the Constitution creates’. These are: ‘“the Land,” the “United States,” “States,” “Territory,” “territory,” “Places,” “places,” “Property,” “possessions,” a “District,” the “Seat,” “districts,” the “high Seas,” and “admiralty and maritime Jurisdiction,” “circuits,” and administrative “regions.”’ Erbsen also adds ‘foreign trade “zones,” enterprise “communities,” historic “sites,” and the “special maritime and territorial jurisdiction of the United States,” which extends both extraterritorially and extraterrestrially’. Erbsen 2011, pp. 1175–76. 4 Valverde writes as follows: ‘But despite enjoying a considerable discursive apparatus (including constitutional documents and conflicts of laws doctrine), the sorting and ordering work of jurisdiction is only noticed by “technical” legal experts, not by social and political theorists. Theoreticians have not yet noted that governing projects and the powerknowledges that make them work are differentiated from one another and kept from overtly clashing by the workings of the machinery of “jurisdiction”, which instantly sorts governance processes, knowledges, and powers into their proper slots as if by magic, and sets up a chain by which (most of the time) deciding who governs where effectively decides how governance will happen.’ Valverde 2009, p. 145. 5 Ford calls it a technology as something of an aside in Ford 2001, pp. 200–2. It is a core part of the argument in Dorsett and McVeigh 2012, pp. 54–80; Valverde 2009, pp. 144–45. 6 United States v. Curtiss-Wright Export Corp. 1936, pp. 318–19; Irons 2005.

US jurisdictional assertions, 1934–50 153 have not yet figured into historical analyses of US foreign relations power at the critical moment existing imperial ambitions drove postwar hegemonic formation. The emerging regime of US hegemony, a full-spectrum imperial dominance, proved increasingly amenable to assertions of extraterritorial jurisdiction. Extraterritoriality increasingly operated as a core attribute of US empire after 1898 (often styled the imperial moment), and especially after 1945, when it became a central feature of the American hegemonic project. The American jurisdictional system spatialised differentiated sovereignty on the basis of a pragmatic divide between business activity, resource exploitation, and the projection of power abroad. This divide was not the product of an idealistic turn in US policymaking, but rather a structural approach to governance. When jurisdiction remained territorially constrained, it often allowed for the production of new spaces for the liberation of capital abroad. This arguably was the principal legacy of urextraterritoriality case American Banana if it is put in the proper context of US foreign policy interests.7 One effort to make this distinction functional came in the export cartel exception carved into the antitrust regime by the 1918 Export Trade Act (WebbPomerene Act). This act authorised association for the purpose of export and encouraged the creation of new associations impossible to form without a slipstream of extraterritorial jurisdiction serving the global projection of power and economic ambitions. It was another example of pragmatic policy ends achieved via jurisdiction within an idealistic-seeming approach. As its admirers William F. Notz and Richard S. Harvey theorised in 1921, ‘this [associative] provision of the Webb-Pomerene Act, which gives to that law extra-territorial jurisdiction in cases of unfair competition, represents one of the most noteworthy new departures in our own “trust” policy, if not in the entire realm of commercial legislation of the world’. The departure was the exception. The United States sought to disrupt existing sovereign formations by claiming exceptions of various kinds. The 1918 law, its champions promised, ‘constitutes a concrete effort to do away with the “double standard” in world trade and lays the foundation for a new and higher standard which is to govern the international trade practices of the future. It is America’s contribution to an upward trend in commercial ethics where “the stranger within (and without) our gates” is the person particularly concerned.’8 Webb-Pomerene established extraterritorial jurisdiction in a way that early observers understood to signal ‘that the principle of extraterritorial jurisdiction will be asserted more generally in the future than in the past’.9 This made sense as a policy designed to tilt global economic relations in favour of the Unites States, but extraterritorial exceptions created not a little incoherence in policy circles. As Leslie T. Fournier wrote with a sense of irony in 1932, allowing

7 American Banana v. United Fruit Company 1909, pp. 356–57. 8 Notz and Harvey 1921, p. 12. 9 Ibid. p. 237. On Webb-Pomerene and extraterritoriality, see further Notz and Harvey 1921, pp. 221–37.

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export cartels ‘has materially enhanced the problem of anti-trust law enforcement within the United States’.10 In the well-known 1945 Alcoa decision, growing global interests and national power created the conditions under which the United States brought the entirety of international business relations under its jurisdiction, at least potentially, while also strengthening antitrust control within the country.11 No longer was it necessary for business activity to occur within the territorial jurisdiction of the United States, since the potential extraterritorial jurisdiction for regulatory governance created by effects of business activity was without limit. The reasons for an emergent post-1945 emphasis on extraterritoriality were complex, but directly related to the unilateralist pursuit of US hegemony using the law to shape transnational jurisdictional and regulatory systems into compliant forms.12 Without doubt, as Raustiala has argued, the energetic turn to extraterritoriality after 1945 reflected a political-economic reality of ‘postwar America’s unparalleled economic dominance’, and also the unilateralist impulse to shape global regulatory environments through ‘an expansive understanding of the reach of domestic law’.13 Ignoring the centrality of economic interests in determining policy choice conversely distorts the turn to extraterritoriality. Tonya L. Putnam, for example, has recently de-emphasised the importance of economic or strategic interests in comparison to changes in legal thinking. She connects the expansion of extraterritorial decisions in the federal courts and the emphasis on extraterritoriality in the postwar period to the expansion of administrative and regulatory authority through ‘changes in the structure and character of the US legal system, and specifically to the growing role of courts and litigation as tools of regulation’.14 And as Anthony J. Colangelo writes, there was a basic systemic reason for the rise in extraterritorial assertions in global spaces: ‘cliché as it may be to say, the more multi-jurisdictional activity becomes, the more frequent extraterritoriality becomes’.15 It emerges as a pragmatic modality of the unilateralist, imperial state.

Zones of governance The connections between policy and jurisdictional assertions were clear in the novel efforts US policymakers took to structuring US trade regimes with extraterritorial effects. Using innovative zonal arrangements, the United States carved extraterritorial spaces within its existing territorial domain, variously choosing between pragmatic and differential zones of governance. In 1934 this jurisdictional experimentation eventually settled on ‘Foreign Trade Zones’ (FTZs), which became a persistent component of the US trade 10 11 12 13 14 15

Fournier 1932, pp. 18–33. Freyer 2009, p. 126; United States v. Aluminum Co. of America 1945. Ibid. pp. 102–59. Raustiala 2011, pp. 94–96. Putnam 2016, pp. 3–5, 21–22. Colangelo 2014, p. 1309.

US jurisdictional assertions, 1934–50 155 system. FTZs grew out of a Great Depression-era desire for novel jurisdictional structures to encourage and streamline foreign trade and aid national security. The FTZ Board created by the Foreign Trade Zone Act of 1934 consisted of the Secretaries of Commerce, Treasury, and War.16 The law provided for the suspension of US customs laws in certain areas of ports in the interest of more profitable warehousing, transshipment, and related activities. This arrangement effectively made sovereign territory extraterritorial, by shielding private enterprise FTZ activity from some customs jurisdiction but fully maintaining the zones as state spaces in service to state ends. The state deterritorialised the ports but reinforced its jurisdictional control. FTZs were built on the utility and logic of the exception. This was not an absence of the state or the freeing of the market. It many ways, it was the opposite, serving as one of the strongest assertions of spatialised sovereignty possible. Because they temporarily allow suspension of commercial restrictions and customs laws, and because they are intended to facilitate foreign commerce, FTZs catalyze critiques of globalization.17 Most profoundly, it is clear that through FTZs the state chooses its own spatial exceptions and creates a new space for their assertion. Now familiar in a globalised world of export processing zones and other zones of jurisdictional suspension in the world-system, the United States has been experimenting with a variety of trade zone forms since the early nineteenth century. Previously the idea had been almost exclusively restricted to foreign examples, such as the Free Ports in Genoa and Hamburg, the Zona Libre in Mexico (which was a source of much agitation in US politics), and subsequently in other places.18 The roots of US zone policy stretch back to nineteenth-century attempts to create structures of trade dominance rooted in jurisdictional elisions and exceptions in novel warehousing schemes growing out of a desire to assert jurisdiction on both space and time, and became expressed in overt projection of imperial power in places such as the Canal Zone in Panama.19 The FTZs may not have proven to be ‘like a magic wand, open[ing] the doors to development of foreign trade in any port’, as a Mexican analysis of US FTZs phrased it, but they were and remain significant, and have become widely adopted

16 Foreign-Trade Zones Board 1934. The full list of contemporary FTZs in the United States is available at US Department of Commerce, ‘U.S. Foreign-Trade Zones’. See also Tiefenbrun 2012. 17 Easterling 2005, p. 114: ‘export processing zones became a global contagion’. See also Orenstein 2011, pp. 36–61. 18 Bell and Smallwood 1982; Pérez 2004; Margolies 2007, pp. 72–76, 166–75. 19 Such free ports were earlier proposed in Nueva Granada in 1857. ‘The diplomatic strategy pursued in Bogotá by US officials in early 1857 shared less in common with the annexationist policy that produced the Treaty of Guadalupe-Hidalgo of 1848 than it did with the strategies of commercial empire that the United States had pursued earlier in Central America and East Asia, including the creation of treaty and free ports in which local sovereignty was curtailed or eliminated altogether in order to facilitate US economic and military interests.’ McGuinness 2009, p. 158; Free Zones in Ports 1919.

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and dispersed.20 FTZs represented a key aspect of US policies founded upon an overt emphasis on jurisdictional reduction ‘of governmental interference with the free movement of American exports’, as officials put it at the time.21 With new revisions to the legislation in 1950, the FTZ programme became more explicitly focused on using state spaces called ‘subzones’ to encourage assembly, remanufacturing, or manipulation as a means of preventing the export of jobs to lower-wage areas of the world-system. Any kind of legal merchandise, foreign or domestic, could now enter zones and be ‘stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed . . . or otherwise manipulated’. It then could be legally ‘exported, destroyed, or sent into the customs territory of the United States’.22 A critical part of the success and expansion of the FTZ system, and one which is especially interesting for the nexus of exports and resource management, is the ‘so-called “inverted tariff” situations’, where the manufactured products of the subzones finally entered the United States at lower tariff rates and later payment requirements than would have been possible for individual foreign components or materials.23 Although controversial in terms of overall tariff policy, this became the major area of growth for FTZs as time went on, later accelerating with increased global competition.24 It might be viewed as an import exception mirroring the exception of the export cartels. The implementation of subzone manufacturing indicated a blurring of the foreign/domestic divide even within the zones, shifting categories of state space in ways found in extraterritorial zones and territorial possessions in far-flung regions of the world. A similar effort occurred at the same time in US territories in other parts of the globe, the status and significance of which had shifted in the aftermath of the Second World War. Unlike the incorporated regions in the insular empire, which had been formally subject to fitful extension of the rights associated with US sovereignty related to trade policy and equal access to the continental common market,25 these regions (deemed either ‘assimilated’ or ‘not regarded as assimilated’26) faced a more fluid trade situation worth considering here briefly.27 Products of Guam, Samoa, and smaller territories like the Swan Islands in central America, both as material components and goods, shifted between being treated as either exports or domestic goods in fluid and fungible jurisdictional decisions.

20 Free Ports (Foreign Trade Zones) in the United States and Mexico 1956. FTZs have received astoundingly little attention from historians of American foreign relations, and amazingly there has not been a scholarly book on them since Thoman 1956. 21 ‘DRAFT 1/8/58’. 22 Act of June 17, 1950, ch. 296. 23 Swenson 1997, pp. 36–37. 24 Implications of Foreign-Trade Zones for U.S. Industries 1984, pp. viii-xii. Appendix D provides both the FTZ Act of 1934 and the Boggs Amendment in 1950 which expanded it. 25 And, of course, in the process denying or curtailing the extension of American rights to the colonised. Sparrow 2006, pp. 79–211. 26 See ‘Extent of Tariff Assimilation of the Territories and Possessions of the United States’. 27 The incomplete extension of US constitutional sovereignty is considered in US General Accounting Office 1997.

US jurisdictional assertions, 1934–50 157 The trade issues were repurposed as jurisdictional problems in addition to territorial and strategic material questions. For example, in 1940 it emerged that while tobacco could come in free from the Swan Islands, coconuts faced a new struggle. As the Treasury Department noted, ‘for reasons that are not clear from the available files, the [State] Department held that [such] products of the Swan Islands should be treated for customs purposes as products of foreign territory’. The Treasury Department had viewed the Swan Islands as ‘appurtenances’ of the United States since 1863 under the terms of the 1856 Guano Act, and thus American possessions. While the United States finally determined that ‘products of the Swan Islands including coconut are exempt from duty when brought from these islands to the United States’,28 other cases of territorial possession and trade were both more complex and less clear. One good example was Guam, which was removed from US naval administration and reorganised into a territorial status under the Guam Organic Act of 1 August 1950. Robert F. Rogers writes as follows: The Organic Act functions as a constitution for Guam, but it does not derive its powers from the people of the island. They never voted on it. The US Congress retains plenary power (i.e. full authority) to amend the act or to enact any legislation it wished for Guam without consideration of the Guamanians, a power that the Congress does not possess when dealing with the citizens of a US state. In other words, the Organic Act did not apply to Guam the normal statutory and judicial presumptions that favour local democratic government in the American system.29 Although not independent, Guam achieved what the US State Department, in an internal 1952 memo, rather imperially called ‘an appreciable degree of local autonomy to the civilian government’.30 Indeed, the idea arose that Guam might possibly become, in the words of its first governor, Carlton S. Skinner, a useful imperial space as ‘the new Hong Kong of the Pacific’.31 Skinner argued that today, many large United States corporations are disturbed about the safety of their investments in the Orient. They naturally would like the safest possible place to keep these investments. Guam is that safe place. Guam is the natural and ideal headquarters for large American corporations doing business in the Orient. Here, their headquarters is [sic] under the American flag. Their operating capital is an American bank. They are protected by Federal law and by a Federal court. Nowhere else in this part of the world can they have all that [sic]. Yet, they would be close enough to their oriental markets to supervise them.

28 29 30 31

Gaston 1940. Rogers 1995, pp. 226–29. ‘Note for the Files: Duty-Free Importation of Guamanian Products’ 1952. Skinner quoted in ‘Note for the Files: Duty-Free Importation of Guamanian Products’ 1952.

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Skinner thus called for the total elimination of customs duties because of their expense and paperwork – a full extraterritorial relationship.32 Yet the State Department noted the concern about the possibility that ‘certain manufacturing operations carried out in the United States possession of Guam [would legally] alter the nationality of foreign materials so as to permit their entry into the continental United States duty-free as products of Guam’. The Treasury Department began seeking advice from ‘other interested agencies’ because of the ‘loophole in customs legislation’. Treasury expressed that it was taking its role as ‘protector of the revenue’ seriously to check up on this with State, Commerce, Interior and Treasury, as well as Congress.33 The problem applied to a wide variety of items, from watches to copra. Questions arose whether Guamanian copra crushed on Guam and shipped to the United States to be made into soap, margarine, or paint as coconut oil could be considered a ‘first domestic processing’ and therefore subject to a processing tax. Was Guam actually ‘domestic’ or ‘foreign’? Copra and oil made from copra pressed in Guam was duty-free entirely, but the processing tax raised questions about the exact location and limits of the United States in jurisdictional terms. Skinner noted that ‘[i]t seems economically right for the copra from the Trust territory to be processed on Guam. . . . The peculiar tax and customs duty situation of Guam brings about an astonishing price benefit for coconut oil processed here’ as compared to the Philippines or the Dutch East Indies. The savings were indeed significant, with a five cent per pound benefit on a thirteen cent retail price.34 The Treasury Department decided in June 1950 that ‘the mere crushing or expressing of oil from copra on Guam [was] not processing’. Considering the kerfuffle, Treasury Deputy Commissioner Charles J. Valaer concluded in 1950 that the term ‘United States’ was used ‘in a geographic sense’ rather than a jurisdictional sense when it came to copra processing. Thus, Guam was not the United States for these purposes. It was considered to be extraterritorial.35 It is worth mentioning that establishing the particulars of these kinds of territory/jurisdiction exceptions while maintaining the integrity of a globally distributed system of state spaces with extraterritorial power was a persistent issue for US planners as they engaged substantive planning in early International Trade Organization negotiations. Pressure took hold to establish a ‘general type exception’ to US trade laws for all of its territorial possessions. In a restricted State Department communiqué, the idea arose that a ‘general type exception avoids at present time difficult legal problems of compiling specific list [for] dependent territories and permits continuing preferential treatment to particular territories’. Guam, Samoa, and the Virgin Islands were all included, but questions remained about tiny possessions like Kingman Reef, Midway, and Wake, all of which were

32 33 34 35

Box 529. ‘Note for the Files: Duty-Free Importation of Guamanian Products’ 1952. Rice 1935, pp. 156–61. James P. Davis to Skinner, 3 July 1950; Skinner to Oscar L. Chapman, Secretary of the Interior, 2 February 1950; Charles J. Valaer to Dan H. Wheeler, 16 June 1950.

US jurisdictional assertions, 1934–50 159 enhanced in strategic and economic significance with the rise of new commercial aviation networks across the Pacific. These areas fell into an administrative nether region under ‘customs jurisdiction Navy’, for which ‘no separate tariff schedules exist[ed]’. The Philippines was included in the general type exception, but the memo noted that it was unnecessary to list the Canal Zone since it was fully implemented already as an extraterritorial space. A handwritten note appended said it was ‘signed low enough so that Puerto Rico could be mentioned if you think appropriate’.36 Another example of novel readings of jurisdiction worth considering is something that has been ignored by both American and Japanese scholars of the American occupation of Japan, but which signalled the jurisdictional approach at work. This was the creation of FTZs in occupied Japan in Kobe, Yokohama, Sasebo, and elsewhere, which was discussed by American authorities extensively from 1949 onward.37 These presented a complex interpolation of jurisdictional exceptions within the space of US extraterritorial occupation authority in Japan. In June 1949, the Japanese ministry of transportation argued that ‘it is true that the tariff rates in Japan are lower than those of the United States. And so far as this point is concerned there is little need for establishing a free zone. However, the free zone is highly necessary to leave out the complicated customs formalities’. Such was the appeal of the exception, argued the ministry, that a ‘free port district (in which manufacturing is not free) is desirable for us and it would promote and facilitate the transshipment trade between America and China’.38 The FTZs of occupied Japan were a state space through Japanese territory designed to link the United States with China. F.E. Pickelle, Chief of the Foreign Trade and Commerce Division of SCAP, determined that studies had ‘indicate[d] a serious need for a liberalization of regulations governing the entry into and exit from Japan of goods destined either for domestic consumption or transhipment’. He argued that the ‘privilege of assembly or processing within the free zone should not be restricted to the “repair of incoming and outgoing vessels,” but should be extended to permit assembly of finished products and limited forms of processing in so far as such activities are not deemed detrimental to Japanese economic recovery’.39 The move to FTZs continued apace, based entirely upon the 1934 US model. Importantly, the concept strongly hewed to the jurisdictionally defined zonal space: ‘the so-called “Free Port System” may be classified into (a) free ports, (b) Free Port Districts, (c) Free Zones and (d) Foreign Trade Zones. In case any of the above systems is to be adopted, a system similar to that of Foreign Trade Zones (called tentatively Free Trade Zones) is considered most appropriate in view of the present circumstances prevailing in Japan.’ The zone allowed for 36 Ellsworth Carlson to John Leddy 1947; Troutman to Secretary 14 June 1947. The aviation routes issue is crucial topic but too large to discuss here; see boxes 8, 10, 14, NARA RG 126 Office of Territories. 37 Free Trade Zone (Draft). 38 ‘Opinions of the Free Port’, 24 June 1949, box 7619. 39 ‘Establishment of Free Trade Zone’ memo, box 7619.

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goods to be ‘stored, broken up, repacked, sorted, graded, cleaned, or otherwise manipulated’.40 As the Yomiuri-Shimbun reflected the US attitude, ‘it has become necessary to establish new relay foreign trade zones for the Orient, on account of the new situations as stagnancy of Japanese exports [sic], the occupation of Shanghai by the Reds, and the Hong Kong’s critical serious situation. . . . The Foreign-Trade Board supports this plan for establishing the Free-Trade Zones of American style with the object to expand the Japanese foreign trade.’41

Conclusion: jurisdiction in extraterritorial space offshore This chapter concludes by considering the ways in which these divisions of space, sovereignty, and jurisdiction played out in the late-1940s conflict over offshore resources in the continental shelf. The conflict over this enormous prize generated lively challenges to US jurisdictional overreach which unintendedly served the interests of the expansive imperial state at the moment of its most strident assertion. This interesting tension between state sovereigntist claims and state affirmation of empire exploded in three Supreme Court cases, starting with United States v. California, the 1947 case that clarified the boundaries between ownership (dominium), jurisdiction, and sovereignty as expressed in the foreign relations imperium.42 This case, and the rapidly following Louisiana and Texas cases of 1950 which built directly upon it, were ultimately overtaken by political agitation in one of the most intensely waged domestic political campaigns of the postwar era. Despite being overturned later, these cases provided an important precedent for imperial governance as a new postwar modality arguably as significant as recognised cornerstones of US global extraterritorial jurisdiction. Their impact could be placed alongside the 1945 Alcoa decision, which David Gerber correctly called ‘jurisdictional unilateralism’.43 This issue marked a transformational moment during the Truman era that has not been given due weight. The United States had something of a double movement of jurisdictional expression – one toward new areas of extraterritorial state space in the marginal seas and continental shelf as claimed by Truman in September 1945, and the other internally directed and manifesting as a massive brawl over state power and the limits of federal ownership and authority. In some ways, this parallel movement might be viewed as a refraction of the spatial conflict over oceanic authority which was gaining worldwide scope at the same time. The struggles to delimit federal dominium and imperium in the submerged lands of the continental shelf in 1945–53 formed key parts of the postwar US imperial system, both internally 40 ‘Establishment of Free Trade Zone’ [draft 3 in the box]. 41 Handwritten translation, dated 24 June 1949, box 8736. 42 United States v. California 1947; United States v. Louisiana 1950; United States v. Texas 1950. 43 United States v. Aluminum Co. of America 1945. See also Gerber 2012, pp. 63–66; Raymond 1967, pp. 558–70. See further Freyer 2009, p. 102: ‘After World War II containing American managerial capitalism’s national and international hegemony was a continuing struggle.’

US jurisdictional assertions, 1934–50 161 and internationally. While the domestic politics were unique and reflective of the gnarled sovereigntist politics of the South and West, the issues of ownership and sovereignty are most usefully framed in terms of global oceanic politics and a jurisdictional history of the globally oriented US empire. The submerged lands dispute marked early adoption of William Appleman Williams-esque ‘empire as a way of life’,44 greased by oil revenues and greed, driven by state sovereigntist politics and partisan ambition, and wilfully ignorant of the true nature and cost of the systemic transformations produced by empire. United States v. California turned on the question of determining ‘which government owns, or has paramount rights in and power over, the submerged land off the coast of California between the low water mark and the three-mile limit and has a superior right to take or authorize the taking of the vast quantities of oil and gas underneath that land (much of which has already been, and more of which is about to be, taken by or under authority of the State)’. The majority decided on 23 June 1947 that ‘California is not the owner of the threemile marginal belt along its coast, and the Federal Government, rather than the State, has paramount rights in and power over that belt, an incident to which is full dominion over the resources of the soil under that water area, including oil’. The United States owned it all – land and resources – as ‘a function of national external sovereignty’.45 The Supreme Court saw no problem ruling on the issue despite the fact that ‘the coastal line is indefinite, and that its exact location will involve many complexities and difficulties’. This complexity of the sinuous coastline ultimately required its own body of negotiation and determination. The Court rejected the idea that any investment or expenses would have an impact on the ‘great national question whether the State or the Nation has paramount rights in and power over the three-mile belt’. This sharp disagreement could only be resolved by the Court itself: ‘Such concrete conflicts as these constitute a controversy in the classic legal sense, and are the very kind of differences which can only be settled by agreement, arbitration, force, or judicial action.’46 One noteworthy recognition in the decision was that Congress was fully empowered to make ‘all needful Rules and Regulations’ for territory and land. The Court noted that ‘we have said that the constitutional power of Congress in this respect is without limitation’.47 The Court rejected its early rulings about sponge harvesting in Florida, and rather bluntly enhanced the authority of the federal government to reconfigure its basis of global power through control of the coast lands and their resources: ‘The ocean, even its three-mile belt, is thus of vital consequence to the nation in its desire to engage in commerce and to live in peace with the world; it also becomes of crucial importance should it ever again become impossible to preserve that peace.’ The new situation reaffirmed that ‘national interests[,] responsibilities, 44 45 46 47

Williams 1980. United States v. California 1947, p. 20. Ibid. p. 25. Ibid. p. 27.

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and therefore national rights, are paramount in waters lying to the seaward in the three-mile belt’.48 The insistent invocation of necessity in the language of this case reflects a key attribute of what is termed the sovereign exception. In Giorgio Agamben’s useful formulation, ‘the concept of necessity [acted] as the foundation of the state of exception. . . . The theory of necessity [being] none other than a theory of the exception by virtue of which a particular case is released from the obligation to observe the law.’49 The sovereign commands the authority to declare exceptions to order, rule, stricture, and established practice on the basis of interest famed in terms of necessity. As Nick Vaughan-Williams argues, ‘the exception is a mechanism by which operations outside the law can nevertheless remain part of the law’.50 Foreign relations provided precisely this exception in the California case. Unsurprisingly, the final, critical part of the decision rested on the United States v. Curtiss-Wright Export Corp. case of 1936, underscoring the new jurisdictional effort to shape state spaces free of the traditional strictures of territorial governance. United States v. California in significant ways enshrined this slide quite readily. In so doing, it embraced the full flavour of the sovereign exception generated by Curtiss-Wright, which really reified the exception into US law and practice. The bifurcation of domestic and foreign in both of these cases is an interesting refraction of the state/federal divide in the submerged lands, and the continental shelf dominium/imperium divide that the Truman Proclamation enshrined. The exception can be viewed usefully as the power of the sovereign to exclude itself from law, to elide or reverse rules, or even to suspend application of the law entirely on a situational basis in which the state remains in control – what Aihwa Ong calls the ‘techniques of calculative choice institutionalized in mechanisms and procedures’, and what Peter Fitzpatrick and Richard Joyce call ‘the intrinsic ability of law to become other to itself . . . [where] even the most seemingly stable law carries with it a power of being radically revised or reversed’.51 United States v. California transformed the submerged lands issue by drastically opening the legal aperture to bring foreign relations into what had long been a domestic property issue. The Supreme Court’s reaffirmation of the expansive and unrestricted executive foreign relations power in the California, Louisiana, and Texas cases provided a significant early post-war justification and template for the exercise of imperial jurisdictional authority in federal state spaces in the domestic system, and also in the spatialised resource and regulatory regimes across the world-system. 48 Ibid. p. 36. 49 Agamben 2005, pp. 24–25. 50 Vaughan-Williams 2009, p. 109. This is related to the kind of expansionist executive authority that can also be seen driving the submerged lands issue in its origin. This is tracked in Posner and Vermeule 2013, p. 91, where it is argued (from a contrary political perspective) that ‘all of these institutional features are central to American administrative law, and they create the preconditions for the emergence of the legal black holes and legal grey holes that are integral to its structure’. 51 Ong 2006, pp. 18–19; Fitzpatrick and Joyce 2007, p. 70, n. 26.

US jurisdictional assertions, 1934–50 163 The states’ revolt against federal enclosures offshore and assumption of title in these submerged lands underscored the advantages of divided jurisdiction under federalism while simultaneously empowering the imperial state in the realm of foreign affairs in enduring and significant ways. Multi-state efforts to wrest jurisdictional and economic control over marginal sea submerged land resources reified the overall US imperial approach to governance in offshore state space after 1945. The ultimately successful state sovereignty claims disputing title to submerged land arrested a rather blunt expansion of federal space as a matter of internal tax and leasing revenue streams. But that victory of property law spearheaded by politicians and lawyers in California and Texas ultimately should be seen as merely a fight over (a lot of) money. Importantly, US foreign relations power conjured and enforced via jurisdictional assertions in novel state spaces on a potentially limitless and global scale was not challenged. The successful state battle did nothing to mitigate federal claims of sovereignty and unilateral range of action in an expansive territorial sea, in the subsoil zone stretching to the limits of the continental shelf, or in the aggressive and unilateral push into global spaces of extraterritorial jurisdiction. This was a fight over revenue embedded in a tussle over jurisdiction which overturned long-established rules of ownership and local sovereignty rights. As with all extraterritorial assertions, it ended up serving empire.

Bibliography Archival materials Box 529, ‘9–3–12 to 9–3–14’, folder: ‘Commerce-general’, National Archives and Records Administration [NARA], Record Group [RG] 126 Office of Territories, Classified File, 1907–1951, Guam, entry 1A Davis, James P. to Skinner, 3 July 1950; Skinner to Oscar L. Chapman, Secretary of the Interior, 2 February 1950; Charles J. Valaer to Dan H. Wheeler, 16 June 1950; folder 937, ‘Industries-copra’, NARA RG 126, Classified File, 1907–1951, Guam, entry 1A ‘DRAFT 1/8/58’, folder: ‘Antitrust Matters’, NARA RG 59, Textual Records from the Department of State. Office of the Legal Advisor. Lot 698D98, Entry 5393, NN3-059-96-010 Ellsworth Carlson to John Leddy, 29 April 1947, folder: ‘Possessions of the U.S.’ NARA RG 59, Lot 698D98, Entry 5393, NN3-059-96-010 Entry 1: Equatorial Islands, boxes 8, 10, 14, NARA RG 126, Central Classified Files, 1907–1951 ‘Establishment of Free Trade Zone’ memo, box 7619, NARA RG 331: Records of Allied Operational and Occupation Headquarters, World War II, 1907–1966 [SCAP] Economic and Scientific Section. (08/22/1949–04/28/1952), ARC Identifier 444264, ENTRY 1747 ‘Extent of Tariff Assimilation of the Territories and Possessions of the United States’, ‘Possessions of the United States’, box 12, NARA RG 59, Lot 698D98, Entry 5393, NN3-059-96-010 Free Ports (Foreign Trade Zones) in the United States and Mexico. (1956) pamphlet (Mexico: D.F.), Benson Latin American Collection, University of Texas-Austin

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Free Trade Zone (Draft), Box 6667, NARA RG 331: Records of Allied Operational and Occupation Headquarters, World War II, 1907–1966 Economic and Scientific Section. Director of Trade and Services. Foreign Trade and Commerce Division. (08/22/1949–04/28/1952), ARC Identifier 444264, ENTRY 1747 Gaston, Herbert E. to Secretary of State (15 August 1940), ‘Possessions of the U.S.’ folder, NARA RG 59, Lot 698D98, Entry 5393, NN3-059-96-010 Handwritten translation, dated 24 June 1949, box 8736, NARA RG 331, ARC Identifier 444264, ENTRY 1747 ‘Note for the Files: Duty-Free Importation of Guamanian Products’ (7 February 1952), box 9, NARA RG 59 Lot 698D98, Entry 5393, NN3-059-96-010 ‘Opinions of the Free Port’, 24 June 1949, box 7619 NARA RG 331: Records of Allied Operational and Occupation Headquarters, World War II, 1907–1966 [SCAP] Economic and Scientific Section. (08/22/1949–04/28/1952), ARC Identifier 444264, ENTRY 1747 ‘Possessions of the U.S.’ NARA RG 59 698D98, Entry 5393, NN3-059-96-010 The Implications of Foreign-Trade Zones for U.S. Industries and For Competitive Conditions Between U.S. and Foreign Firms (February 1984), Report to the Committee on Ways and Means, U.S. House of Representatives, on Investigation No. 332–165 Under Section 332(g) of the Tariff Act of 1930 (Washington, DC: United States International Trade Commission) Troutman to Secretary 14 June 1947; folder: ‘Possessions of the U.S.’ NARA RG 59, 698D98, Entry 5393, NN3-059-96-010

Secondary literature Agamben, Giorgio (2005), State of Exception (Chicago: University of Chicago Press). Bell, Samuel E. and James Smallwood (1982), The Zona Libre, 1858–1905: A Problem in American Diplomacy (El Paso: Texas Western Press, University of Texas at El Paso). Colangelo, Anthony J. (2014), ‘What is Extraterritorial Jurisdiction?’ 99 Cornell Law Review 1303. Delaney, David, Richard T. Ford, and Nicholas Blomley (2001), ‘Preface: Where is Law?’, in: Nicholas Blomley, David Delaney, and Richard T. Ford (eds), The Legal Geographies Reader (Oxford: Blackwell Publishers), pp. xiii – xxii. Dorsett, Shaunnagh and Shaun McVeigh (2012), Jurisdiction (New York: Routledge). Easterling, Keller (2005), Enduring Innocence: Global Architecture and Its Political Masquerades (Cambridge: MIT Press). Erbsen, Allen (2011), ‘Constitutional Spaces’ 95 Minnesota Law Review 1168. Fitzpatrick, Peter and Richard Joyce (2007), ‘The Normality of the Exception in Democracy’s Empire’ 34 Journal of Law and Society 65. Ford, Richard T. (2001), ‘Law’s Territory (A History of Jurisdiction)’, in: Nicholas Blomley, David Delaney, and Richard T. Ford (eds), The Legal Geographies Reader (Oxford: Blackwell Publishers), pp. 200–17. Foreign-Trade Zones Board (1934), Establishment of Foreign-Trade Zones in the United States (Washington: Government Printing Office). Fournier, Leslie T. (1932), ‘The Purposes and Results of the Webb-Pomerene Law’ 22 American Economic Review 18. Freyer, Tony A. (2009), Antitrust and Global Capitalism, 1930–2004 (Cambridge: Cambridge University Press).

US jurisdictional assertions, 1934–50 165 Gerber, David (2012), Global Competition: Law, Markets, and Globalization (Oxford: Oxford University Press). Irons, Peter (2005), War Powers: How the Imperial Presidency Hijacked the Constitution (New York: Metropolitan Books). Lawson, Gary and Guy Seidman (2004), The Constitution of Empire: Territorial Expansion and American Legal History (New Haven: Yale University Press). Layne, Christopher (2006), The Peace of Illusions: American Grand Strategy from 1940 to the Present (Ithaca: Cornell University Press). McGuinness, Aims (2009), Path of Empire: Panama and the California Gold Rush (Ithaca: Cornell University Press). Margolies, Daniel S. (2007), Spaces of Law in American Foreign Relations (Athens: University of Georgia Press). Notz, William F. and Richard S. Harvey (1921), American Foreign Trade: As Promoted by the Webb-Pomerene and Edge Acts (Indianapolis: Bobbs-Merrill Company). Ong, Aihwa (2006), Neoliberalism as Exception: Mutations in Citizenship and Sovereignty (Durham: Duke University Press). Orenstein, Dana (2011) ‘Foreign-Trade Zones and the Cultural Logic of Frictionless Production’ 109 Radical History Review 36. Pérez, Octavio Herrera (2004), La zona libre: Excepción fiscal y conformación histórica de la frontera norte de México (Mexico City: Secretaría de Relaciones Exteriores, Mexico, Dirección General del Acervo Histórico Diplomático). Posner, Eric A. and Adrian Vermeule (2013), The Executive Unbound: After the Madisonian Republic (Oxford: Oxford University Press). Putnam, Tonya L. (2016), Courts without Borders: Law, Politics, and US Extraterritoriality (Cambridge: Cambridge University Press). Raustiala, Kal (2011), Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law (Oxford: Oxford University Press). Raymond, John M. (1967), ‘A New Look at the Jurisdiction in ALCOA’ 61 American Journal of International Law 558. Rice, Lloyd P. (1935), ‘Philippine Copra and Coconut Oil in the American Market’ 4 Far Eastern Survey 156, 9 October 1935. Rogers, Robert F. (1995), Destiny’s Landfall: A History of Guam (Honolulu: University of Hawaii Press). Sparrow, Bartholomew (2006), The Insular Cases and the Emergence of American Empire (Lawrence: University Press of Kansas). Swenson, Deborah L. (1997), ‘Explaining Domestic Content: Evidence from Japanese and U.S. Automobile Production in the United States’, in: Robert C. Feenstra (ed.), The Effects of U.S. Trade Protection and Promotion Policies (Chicago: University of Chicago Press), pp. 33–53. Thoman, Richard S. (1956), Free Ports and Foreign-Trade Zones (Cambridge: Cornell Maritime Press). Tiefenbrun, Susan (2012), Tax Free Trade Zones of the World and in the United States (Cheltenham: Edward Elgar). US Department of Commerce, ‘U.S. Foreign-Trade Zones’, online: http://ia.ita. doc.gov/ftzpage/letters/ftzlist-map.html. US General Accounting Office (1997), U.S. Insular Areas: Application of the U.S. Constitution, GAO/OGC-98–5. Valverde, Mariana (2009), ‘Jurisdiction and Scale: Legal “Technicalities” as Resources for Theory’ 18 Social and Legal Studies 139.

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Vaughan-Williams, Nick (2009), Border Politics: The Limits of Sovereign Power (Edinburgh: Edinburgh University Press). Williams, William Appleman (1980), Empire As A Way of Life: An Essay on the Causes and Character of America’s Present Predicament Along with a Few Thoughts about an Alternative (New York: Oxford University Press).

Legal instruments Act of June 17, 1950, 64 Stat. 246

Case law American Banana v. United Fruit Company, 213 U.S. 347, 356–357 (1909) United States v. Aluminum Co. of America, 148 F.2nd 416 (2nd Cir. 1945) United States v. California, 332 U.S. 19 (1947) United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) United States v. Louisiana, 339 U.S. 690 (1950) United States v. Texas, 339 U.S. 707 (1950)

Part III

Extraterritoriality in the contemporary world-system

10 The interplay between extraterritoriality, sovereignty, and the foundations of international law Austen L. Parrish Introduction In recent decades, legal theorists in the United States have advanced a new orthodoxy that downplays the importance of territorial sovereignty and sovereign equality in international law. Rooted partly in a theory of cosmopolitan transnationalism, theorists have attempted to move law beyond the limitations of a state-based international system. Buoyed in part by this new orthodoxy, unilateral extraterritorial regulation – along with recourse by the United States to other forms of unilateralism and exceptionalism – has become a prominent feature of the legal landscape. Unilateral extraterritorial regulation in the last two decades has at times displaced traditional international law and is one of the principal ways the United States and other nations now engage globally. This chapter explores the interplay between international law, territorial sovereignty, and extraterritorial regulation – the use of national law to address global or transboundary challenges. It begins by describing how particular legal theories about global governance provided cover for an expansive view of national power that sought to remake international jurisdictional law. It traces the rise, beginning in the late 1980s and early 1990s, of extraterritorial regulation in the United States, and then, more recently, the retreat from the broadest forms of extraterritorial judicial jurisdiction. It concludes by suggesting that the attempt to abandon the territorial-based jurisdictional limitations of national law can often lead to the very problems that the international legal system was designed to prevent. Instead of serving as a tool for achieving global respect for human rights and improving transnational justice, unilateral extraterritoriality has often served as a tool for empire-building.1 The chapter ends with two normative reflections about the interplay between extraterritoriality and international law. First, contrary to what is frequently assumed, the use of domestic courts and national law applied abroad is rarely a complementary way to develop international norms, but rather a way to

1 Cohen 2004, p. 2. (‘the sovereignty-based model of international law appears to be ceding not to cosmopolitan justice but to a different bid to restructure the world order: the project of empire’).

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undermine them (an attempt to avoid international law’s constraints). Second, the rhetoric of transnationalism has played into the hands of isolationists and antiinternationalists, who have sought to undermine international institutions and the multilateral cooperation upon which international law rests. Working within the existing international law system to promote cosmopolitan goals, rather than seeking to tear it down, may be the better path to advancing transnational justice goals.

Competing theories and the foundations of international law Significant changes in international law and international relations theory have occurred over the last thirty years. With the end of the Cold War and the proliferation of new threats to international peace and security, scholars sought to craft a new strand of legal theory that redefined international law as a law of individuals.2 Instead of enhancing the international system, the result, in several aspects, often resembled a return to the imperialism and empire-building of earlier eras.3

A. Territorial sovereignty For decades, territorial sovereignty – the idea that the nation-state established the borders of a political community – had been a bedrock principle of international law. At least since the end of the Second World War, three central principles of territorial sovereignty formed the foundation of the international system: ‘the notion of equal sovereignty of states, internal competence for domestic jurisdiction, and territorial preservation of existing boundaries’.4 These were not just legal principles, but core components of an international system designed to reduce conflict, maintain peace, and constrain would-be empire-builders.5 In its ideal form, international law sought to serve as a constraint on power, not as its handmaiden. In this way, territorial sovereignty (at least its twentieth-century version) was intended to be a foundational prerequisite to self-determination and democratic self-government. International law, with its egalitarian focus on consent, served as a means of constraining power, while enabling powerful states to still benefit from international legal regulation. Under a multilateral system where both internal and external sovereignty was protected, states would surrender some degree of sovereignty to the international system as a way of restoring control lost to external forces.6 To give effect to these ideals, national law only 2 3 4 5

Reisman 1990, pp. 866–76; Slaughter 1995, pp. 503–38. See generally Parrish 2011. For detailed analysis from a political science perspective, see Cohen 2012. Elden 2006, p. 11. UN Charter, art. 2, para. 4 (‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.’). Hersch Lauterpacht described international law’s mission as leading ‘to enhancing the stability of international peace, to the protection of the rights of man, and to reducing the evils and abuse of national power’. Ratner 1998, p. 65. 6 Chayes and Chayes 1995, p. 27.

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generally applied within a state’s borders to people with some connection to the state. Nations could not unilaterally exercise authority over non-citizens outside their territories, and nations could not unilaterally write laws that purported to regulate and govern the conduct of foreigners abroad. This is not to say that transnational regulation was disfavoured. On the contrary, transnational regulation was essential to maintaining the integrity of national legal systems and to avoiding the creation of regulatory free zones. But cross-border regulation was viewed as typically within the purview of international law and international institutions. Resolution of transnational challenges required bilateral and multilateral engagement – finding mutually acceptable solutions to shared challenges – not the exercise of unilateral prerogative. Outside legally authorised forms of intervention (e.g. collective action mandated by the UN Security Council), unilaterally interfering and imposing the will of one nation on another was seen at best as unseemly meddling or bullying, and at worst unlawful and imperialistic empire-building.7 This preference for international over extraterritorial national regulation was well grounded: regulating foreigners abroad through the projection of national law, when those regulated had no say in the passage of those laws, was contrary to basic principles of self-determination and democratic government.8 That was certainly true in the United States, where the concept of ‘consent of the governed’9 and the idea of legislative sovereignty had once been a ‘cornerstone of developing American political theory’.10

B. A new legal orthodoxy While in formal law, jurisdictional limits on national authority remained clear, scholars began to chip away at territory as a conceptual constraint in international law. After the end of the Cold War in the 1990s and 2000s, a number of scholars sought to remake international law,11 viewing pluralism, transnational networks, regulatory convergence, and cosmopolitan human rights as not just a way to describe changes occurring in the global system, but a normative vision for the future.12 While different critiques were on offer, the idea of an international society created through a system of consent-based rules became 7 Grundman 1980, p. 255; Krisch 2005, pp. 400–04. 8 Brilmayer 1991, p. 1; Brilmayer 1989, p. 1277. 9 Declaration of Independence, para. 2 (‘Governments are instituted among Men, deriving their just powers from the consent of the governed’). 10 Post 1998, pp. 529, 535. 11 Taft 2006, p. 504 (arguing that, although an acceleration of international cooperation was expected after the Cold War, the 1990s revealed a loss of enthusiasm in the United States for multilateral approaches). 12 For a classic example, Koh 1999. See also Cohen 2012 (describing changes); Michaels 2004, p. 105 (describing changes); Raustiala 2009, p. 8 (describing the ‘widespread belief today that territoriality is under siege’ and noting that ‘[s]ome see the relentless rise of a borderless, globalized world that is dismantling traditional sovereignty’).

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increasingly viewed as anachronistic by some. In some quarters, the new orthodoxy in the United States sought to supplant international law based on state sovereignty entirely.13 The attacks on territorial constraints to state power were often well intentioned. Territoriality had challenging baggage,14 and had been used at times for hegemonic purposes.15 In the commercial context, extraterritorial regulation was driven by an attempt to prevent corporate malfeasance and a frustration with the ineffectiveness of multilateral mechanisms. Human rights advocates also understandably sought to use unilateral regulation to protect human rights at a time when reports of horrific atrocities were occurring and the need to act quickly was pressing.16 Territorially based international law, with its focus on consent, increasingly seemed too slow or ill equipped to address the world’s most pressing problems.17 The proliferation of new threats from outside the nation-state – from terrorism, to expanding cross-border trade and crime, to burgeoning global migration and human trafficking, to transnational ecological problems – also appeared to demand a shift away from an international legal system once designed for sovereign states. Certainly, the attempt to change law’s focus seemed at times congruent with changes occurring on the ground. A new global system with a wide array of supranational and subnational actors was emerging, making it tempting to view the end of borders as upon us.18 And globalisation meant that people, trade, and activity regularly crossed borders. A misstep in analysis, however, became common as some legal scholars took descriptive claims from other disciplines and transformed them into normative claims. Thus, while anthropologists and sociologists described the growing pluralistic and disaggregated nature of the world, US legal scholars increasingly argued that international law should disaggregate and become more focused on sub-state actors and mechanisms, as if one necessarily led to the other.19

13 Cohen 2004, p. 2 (‘[W]hat seems obvious to those seeking to foster legal cosmopolitanism is that sovereignty talk and the old forms of public international law based on the sovereignty paradigm have to go.’) 14 Parrish 2011, pp. 1120–22 (expanding on this argument); Ford 1999 (describing challenges with territoriality). See also Margolies 2011, pp. 140–75 (describing US actions at its southern border and how legal spatiality and extraterritoriality were deployed in US foreign relations). 15 See, e.g., Powell 1999, pp. 206–7 (criticizing government invocations of territorial sovereignty as a way of limiting compliance with international human rights law); Clapman 1999, p. 522 (‘Westphalian sovereignty provided the formula under which territories which did not “count” as states according to the criteria adopted by the European state system could be freely appropriated – subject only to their capacity to conquer the incumbent power holders – by those which did count.’). 16 Reisman 2000, p. 17 (urging unilateral humanitarian interventions that ‘manifestly fail the test of formal legality under the U.N. Charter’ when necessary to protect against abuses). 17 Guzman 2012, p. 747. 18 Spiro 1998, p. 808; Keck and Sikkink 1998. See also Halliday and Shaffer 2015. 19 Slaughter 2004.

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The attacks were also buttressed by changes in US law. Domestically, improvements in communications and technology had led to changes in conflict of laws and jurisdictional doctrines. As the United States’ federal system developed after the New Deal and the nation became more accustomed to federal power, state borders within the United States became less salient.20 It was perhaps understandable, then, for domestic doctrines to separate from their territorial jurisdictional moorings. Unfortunately, the changes in the domestic legal system were often imported wholesale into the international system without much thought as to whether the context was similar, which it largely was not.21 Rarely did the new theories advance a workable approach to managing conflict. Often there was an assumption that the world agreed broadly on certain basic postulates, even though such agreement was fleeting or didn’t exist. It also seemed difficult to separate these efforts from a reinvigorated rhetoric of US unilateralism after the onset of the ‘war on terror’.22 For many observers, the new approach to jurisdiction was indistinguishable from earlier approaches to building empire – and dangerously similar to extralegal intervention.23 Certainly, some of the starker forms of unilateralism, even in the name of humanitarian concerns, struck most outside the United States as blatantly unlawful. One might expect greater resistance, but the cosmopolitan approach found an unlikely ally. Neo-realists and sovereigntists had also been attacking and trying to dismantle international law and its institutions.24 Admittedly, these attacks came from a radically different perspective with different goals, but these scholars too viewed unilateral action as more advantageous than multilateral compromise. For the advocate of cosmopolitanism, international law and state sovereignty was a relic of a bygone age. For the neo-realist, international law was a threat to domestic sovereignty and self-interest.25 While once right-leaning theorists had supported international engagement when it promoted free trade and neoliberal policies, that support too began to subside. The rhetoric of some human rights activists and others, who sought to embrace unilateral action, also ironically

20 Raustiala 2009 (describing these changes). 21 See Sitaraman and Weurth 2015, p. 1901 (describing how the Court began to treat ‘foreign relations issues as if they were run-of-the-mill domestic policy issues, suitable for judicial review and governed by ordinary separation of powers and statutory interpretation principles’). 22 See Garth 2006, pp. 3–4 (explaining how the Bush administration believed ‘[i]nternational law needed to be put in the service of the War on Terror or ignored’); Koh 2006, p. 2354 (describing how ‘America’s new diplomatic strategy emphasizes strategic unilateralism and tactical multilateralism characterized by a broad antipathy toward international law and global regime-building through treaty negotiation.’). 23 Krisch 2003, pp. 156–73. 24 Ohlin 2015; Goldsmith and Posner 2005. 25 Bellinger 2012, p. A35 (‘an increasing number of Republicans had come to view treaties in general (especially multilateral ones) as liberal conspiracies to hand over American sovereignty to international authorities’).

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played into the hands of powerful states and actors that wished to weaken international rules to provide greater legitimacy to their own agendas.26

The ebb and flow of US extraterritorial regulation The changes in legal theory described above had an impact. Combined with globalisation, they provided intellectual cover for the United States to take steps in a hegemonic direction that were intended to displace traditional international law. Unilateral projection of domestic law, of which extraterritorial regulation was a cornerstone, became commonplace. It was congruent with the new legal theories because it purported to allow individuals, rather than states, to advance transnational justice goals. And it reflected American exceptionalism too, as extraterritorial law rarely constrained US actors.

A. Using national law to regulate foreign conduct The 1990s and 2000s witnessed a dramatic increase in the number of national laws applied to foreign conduct. The growth began in the private law context, with antitrust and securities law.27 Public law areas soon followed.28 By the late 2000s, many American international lawyers and US scholars welcomed the use of domestic courts and expanded concepts of universal jurisdiction as an alternative method of promoting accountability and exporting a particular brand of justice. The criminal law field provides a good example of these changes where (particularly after 11 September 2001) the projection of national law abroad grew dramatically. While criminal law had once been strictly territorially confined,29 in a 2016 report the Congressional Research Service identified hundreds of US criminal laws that purported to apply to activity occurring abroad,30 with observers concluding that the United States now ‘extends aggressively its criminal laws to activity occurring halfway around the globe’.31 Some crimes require no demonstration that the crime has any connection with the United States or

26 See, e.g., Posner 2009 (favouring US coercive power over law); cf. Cohen 2006, p. 486 (‘The relentless attack on the principal of sovereign equality makes it complicit with imperial projects of powerful states interested in weakening the principles that constrain the use of force, and that deny them legal cover or political legitimacy when they violate international law.’). 27 Buxbaum 2006, pp. 253–56. 28 Koh 1991, p. 2347. See also Turley 1990, p. 598 (describing different treatment of extraterritoriality in public and private law contexts). 29 Blackstone 1876, p. 1058; Hirst 2003, pp. 3–9. See also Lowe 2007 (describing the basic tenet of international law limiting enforcement jurisdiction by territory). 30 Doyle 2016, p. 1 (‘A surprising number of federal criminal statutes have extraterritorial application, but prosecutions have been few.’). See also Meyer 2011, pp. 181–84 (appendix A listing US laws that apply extraterritorially). 31 Colangelo 2007, p. 127.

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its citizens.32 US criminal prosecutions of foreign firms for corporate crime also increased.33 And through its ‘war on terror’, the United States was widely seen as evading and changing international humanitarian law,34 while at the same time withdrawing from multilateral processes and international institutions (e.g. the International Criminal Court).35 Not limited to criminal law,36 national law was also projected abroad in the human rights context, with the development of human rights litigation.37 Before the 1980s, it was almost unheard of for a foreign national to sue in a US court for conduct occurring abroad by a foreign actor.38 In the 1990s that changed. In a relatively short period of time, human rights advocates ‘deploy[ed] domestic courts around the world’.39 Human rights litigation underwent a ‘significant expansion, both in terms of the number of cases filed as well as the scope of the claims raised’.40 The use of national law, applied extraterritorially, as a way to displace international law did not stand on its own. This growth combined with other unilateral actions that eroded the force of traditional international law. The most prominent was the unilateral use of force and humanitarian intervention,41 in Kosovo, Iraq, Afghanistan, and elsewhere.42 But it also included the use of unilateral economic sanctions, the weakening of rules of sovereign immunity, and the systemic undermining of treaty regimes through reservations.43 It likewise included attempts to generate new legal doctrine and claim exemption from other international norms.44 Some examples were the tendentious efforts by the United States to exempt itself from regimes it had formerly supported, to advance meritless arguments about the legality of targeted assassinations,45 and the position that the 32 33 34 35 36

37 38 39 40 41 42 43

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Meyer 2011, pp. 183–84. Garrett 2011, p. 1. Cohen 2006, p. 494. Galbraith 2003; Cuéllar 2003. Parrish 2009, pp. 846–48 (listing contexts in which US laws have been applied extraterritorially, from antitrust, to copyright, to securities regulation, to trademark, to corporate law and governance, to bankruptcy and tax, to criminal, environmental, civil rights, and labour laws); United Nations 2006 (describing and providing examples of how US domestic laws that regulate foreign conduct are becoming ‘increasingly common’). Davidson 2017. Slaughter and Bosco 2000, p. 104. Dubinsky 2005, p. 216. Bradley 2001, p. 458. Reisman 2000 (arguing for unilateral humanitarian intervention even when formally illegal and prohibited by the UN Charter). Nzelibe 2009. Vagts 1998, pp. 458–60 (describing an ‘alarming exacerbation’ of the United States’ failure to fully respect its treaty obligations in the 1990s); Franck 1988, p. 67 (explaining that ‘the United States seems increasingly content to be perceived by other nations as indifferent to its most solemn treaty obligations’). Dupuy 2003, pp. 182–83 (describing how the ‘United States claims simultaneously to subject other states to respect for international law while freeing itself as far as possible from the constraints that same law imposes’). Alston 2011, pp. 289–95, 301–18.

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US constitution stands above and beyond international law. Often this has been described as ‘American exceptionalism’ – an attempt to dictate the substance of law while not being subject to it.46

B. The retreat from judicial extraterritoriality The above has described the process through which unilateral extraterritorial regulation grew after the Cold War, and how this growth was in fundamental tension with an international system based on territorial sovereignty. While the expansion has been dramatic, more recently, at least in the United States, the broadest forms of extraterritorial judicial power have started to be curtailed, even as other forms of unilateral extraterritorial regulation continue. In a series of decisions, the US Supreme Court has indicated that statutes should not be so readily interpreted to apply to foreigners acting abroad. A trilogy of cases underscored this change in mindset. In Morrison v. National Australia Bank, the Supreme Court rejected an ‘effects test’ approach to jurisdiction and made clear that the presumption against extraterritoriality applied even if effects are felt within the United States.47 In Kiobel v. Royal Dutch Petroleum, the Court concluded that the presumption applied equally in the public law context, and even to a jurisdictional statute.48 And in RJR Nabisco v. European Community, the Court’s most recent, major decision in this area, it became clear that the presumption against extraterritorial regulation applies even if nationality jurisdiction is implicated.49 As a result, some have begun to question whether we are witnessing the end of an era.50 Oddly though, the curtailing has had little to do with a theory of transnationalism or internationalism. In many ways, the retreat from broad unilateralism appears mostly to have been driven by responses to domestic political squabbles related to tort reform, to claims of excessive litigation, and to debates about clear statement rules and legislative primacy51 than to any vision of international law and its restraints on national power. Some justices on the Court appear to be driven by a distrust of public law litigation of any kind. Rarely do the US courts grapple with the bigger global governance issues at stake. Even with this retreat, American exceptionalism remains prominent. The United States continues to appear to promote a double standard by frustrating efforts to hold its own citizens and officials liable for foreign human rights abuses.52 46 47 48 49

Hathaway 2000; Ignatieff 2005. Morrison v. National Australia Bank 2010. Kiobel v. Royal Dutch Petroleum 2013. RJR Nabisco v. European Community 2016. For a more detailed treatment of these and other recent US jurisdictional cases, see Parrish 2017. 50 Putnam 2016, pp. 264–69. 51 Brilmayer 2008. 52 See, e.g., Ali v. Rumsfeld 2011 (finding that US officials are immunised for claims brought under the Alien Tort Statute for actions within their scope of employment); Medellín v. Texas 2008, p. 504 (holding that while there may exist ‘an international law obligation on the part of the United States . . . not all international law obligations automatically constitute binding federal law enforceable in United States courts’); Lin 2008, p. 1718 (describing the double-standard created where US officials are immunised for human rights violations).

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Under-appreciated international law: a check on empire building? As the Supreme Court has begun to trim back on judicial extraterritoriality, some legal academics have viewed the move as further evidence of isolationism and hostility to international law.53 Complicating matters, many commentators have overlooked the international and transnational implications, and engaged with the cases mostly on the basis of domestic law questions. The cases’ potential significance to international law seem overlooked. As a preliminary matter, it is worth emphasising that the retreat from unilateral extraterritorial regulation has been modest and has occurred mostly in the courts and in the context of private rights of action. Extraterritorial unilateral regulation from other branches of government, despite the tension with international law when in its broadest form, remains commonplace.54 Even if the US Supreme Court is generally inclined to interpret laws as only regulating domestic conduct, the executive branch implements a range of laws in a unilateral way, sometimes in excess of the jurisdiction traditionally granted under international law, or in tension with existing treaty obligations.55 Against this backdrop, it is descriptively wrong to suggest that recent decisions that pull back from extraterritorial assertions necessarily reflect a retreat from international engagement. Extraterritorial regulation can undermine international law by incentivising the United States to continue to act in the political realm, while giving its action the superficial veneer of legality. Or as Nico Krisch describes it, ‘dominant states merely pursue international law by other means – they replace it with domestic law, which makes it easier to establish hierarchies and to directly govern other states’.56 Although theoretically extraterritorial regulation could spur the creation of international harmonised standards,57 rarely has it worked this way.58 Often it is the United States that is unwilling to compromise to reach international agreement, and in this context US extraterritorial regulation diminishes the incentive for the United States to come to the bargaining table.59 When viewed through this lens, extraterritorial regulation is not the friend of international law, but its enemy. Extraterritoriality is evidence of a hegemonic state seeking to exempt itself from the international legal system. Extraterritorial regulation, and the disengagement from multilateralism with which it is associated, has also revealed itself to be dangerous in other ways. On the one hand, it gives the illusion that action is being taken, when the reality is 53 Bookman 2015. 54 See, e.g., Doyle 2016. 55 The recent United States v. Microsoft case, in which the US government bypassed its treaty obligations based on a claim of expediency, illustrates this phenomenon. See Daskal 2015. 56 Krisch 2005, p. 371. 57 Coffee 2014, p. 1261 (arguing that ‘this assertion of extraterritorial authority can be viewed as an interim stage in the eventual development of meaningful soft-law standards’). 58 Parrish 2009, pp. 871–72. 59 Putnam 2016, p. 6 (describing how when courts have refused to permit the extension of domestic statutes extraterritorially, those refusals have served as encouragement for the United States to engage in it bilaterally or multilaterally).

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that little is being done. Global challenges often require comprehensive responses, while extraterritorial regulation generally leads to piecemeal fragmentation and short-term responses. Because extraterritorial regulation often reflects an inability or unwillingness to engage multilaterally, it can also be isolationist, and thereby reduce US relevance in solving global problems. Why bother working with the United States if it can simply ignore the rules it negotiates and just act on its own through domestic processes?60 There is also the problem of reciprocity. Other nations have increasingly begun to act unilaterally – mimicking in their own ways the exceptionalism the United States promoted.61 As Jean Cohen has pointed out in a slightly different context, these are symptomatic problems with an approach that ignores international law’s sovereignty-based constraints. A free-for-all approach, where each nation has authority to regulate foreign action it believes to be problematic, has no anchoring principle to constrain other actors with different views.62 The diffuse, pluralistic, and policy-oriented approach with which it is affiliated is ‘too readily exploited by powerful states anxious to disguise their particularist agendas as compelled by, or at least consistent with, international law’.63 And it can provide cover for less powerful states also to engage in unilateral extraterritorial regulation. The extraterritorial approach is also a problem for neo-realists. The piecemeal growth of unilateral law not only legitimises politics, but is a much greater threat to democratic sovereignty because it allows foreign courts to adjudicate matters involving people and entities with little connection to the state.64 This is not to say that multilateralism itself is not also a form of legal empire or does not suffer from flaws of its own. But the consent-based approach of traditional international law leads to both greater political legitimacy and ultimate enforceability. Indeed, multilateral engagement often leads to longer-standing, stable, and more predictable relationships.65 The United States would benefit from a return to responsible multilateral engagement in which traditional consent-based international law regains its central role.66 60 Kaye 2013. 61 See Posner 2009, p. 228 (arguing that China, Russia, India, and Brazil ‘will be able to advance their views about international law – views that will no doubt serve their interests’, and noting that ‘Russia has quickly learned that pliable human rights language and the precedents of Kosovo and Iraq can be turned to its advantage’); Chandler 2006, p. 62 (describing how the end of the Cold War encouraged Western states to use the language of human rights to justify and legitimise greater intervention abroad). The Russian invasion of Georgia and Ukraine provides an example where US unilateral action was used to justify Russia’s own likely illegal action. 62 Cohen 2004; Cohen 2006. 63 Hathaway 2003, p. 128; cf. Benvenisti and Downs 2010, p. 595 (explaining the challenges and concerns over the increased fragmentation of international law). 64 For a more detailed argument, see Parrish 2009. 65 Krisch 2005, p. 373 (‘[M]ultilateral norms and institutions are less vulnerable to later shifts in power than ad hoc political relations; they will thus be relatively stable even if the hegemon declines, and will for some time preserve an order that reflects the hegemon’s preferences (stabilization).’) 66 Kaye 2013 (describing benefits of multilateralism).

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Conclusion In recent decades, legal theorists have advanced a new legal orthodoxy that downplays the role of territorial sovereignty and sovereign equality as cornerstones of international law, as it seeks to re-envision international law and politics. Extraterritorial regulation – the regulation of non-citizens for conduct occurring abroad – has become a feature of a world system that downplays territorial sovereignty. This chapter has suggested that the attempt to move law beyond the limits of a state-based international system is not an advancement of international law, but largely reflects a particular version of American exceptionalism. Extraterritoriality risks being much more a strategy for empire-building than a strategy of law.

Bibliography Secondary literature Alston, Philip (2011), ‘The CIA and Targeted Killings beyond Borders’ 2 Harvard National Security Journal 283. Bellinger, John B. (2012), ‘Obama’s Weakness on Treaties’ New York Times, 18 December. Blackstone, William (1876), Commentaries on the Laws of England, Fourth edition (London: Murray). Benvenisti, Eyal and George W. Downs (2010), ‘The Empire’s New Clothes: Political Economy and the Fragmentation of International Law’ 60 Stanford Law Review 595. Bookman, Pamela K. (2015), ‘Litigation Isolationism’ 67 Stanford Law Review 1081. Bradley, Curtis A. (2001), ‘The Costs of International Human Rights Litigation’ 2 Chicago Journal of International Law 457. Brilmayer, Lea (1989), ‘Rights, Fairness, and Choice of Law’ 98 Yale Law Journal 1277. Brilmayer, Lea (1991), ‘Liberalism, Community, and State Borders’ 41 Duke Law Journal 1. Brilmayer, Lea (2008), ‘New Extraterritoriality: Morrison v. National Australia Bank, Legislative Supremacy, and the Presumption Against Extraterritorial Application of Law’ 40 Southwestern Law Review 655. Buxbaum, Hannah (2006), ‘Transnational Regulatory Litigation’ 46 Virginia Journal of International Law 251. Chandler, David (2006), From Kosovo to Kabul and Beyond: Human Rights and International Intervention, Second edition (London: Pluto Press). Chayes, Abram and Antonia Handler Chayes (1995), The New Sovereignty (Cambridge: Harvard University Press). Clapman, Christopher (1999), ‘Sovereignty and the Third World State’ 47 Political Studies 522. Coffee, John C. (2014), ‘Extraterritorial Financial Regulation: Why E.T. Can’t Come Home’ 99 Cornell Law Review 1259. Cohen, Jean L. (2004), ‘Whose Sovereignty? Empire versus International Law’ 18 Ethics and International Affairs 1. Cohen, Jean L. (2006), ‘Sovereign Equality v. Imperial Right: The Battle Over the “New World Order”’ 13 Constellations 485.

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Cohen, Jean L. (2012), Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism (Cambridge: Cambridge University Press). Colangelo, Anthony (2007), ‘Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law’ 48 Harvard International Law Journal 121. Cuéllar, Mariano-Florentino (2003), ‘The International Criminal Court and the Political Economy of Antitreaty Discourse’ 55 Stanford Law Review 1597. Daskal, Jennifer (2015), ‘The Un-Territoriality of Data’ 125 Yale Law Journal 326. Davidson, Natalie R. (2017), ‘Shifting the Lenses on Alien Tort Statute Litigation: Narrating United States Hegemony in Filartiga and Marcos’ 28 European Journal of International Law 147. Doyle, Charles (2016), Extraterritorial Application of American Criminal Law (Congressional Research Service). Dubinsky, Paul (2005), ‘Human Rights Law Meets Private Law Harmonization: The Coming Conflict’ 30 Yale Journal of International Law 211. Dupuy, Pierre-Marie (2003), ‘Comments on Chapters 4 and 5’, in: Michael Byers and Georg Nolte (eds), United States Hegemony and the Foundations of International Law (Cambridge: Cambridge University Press), pp. 176–96. Elden, Stuart (2006), ‘Contingent Sovereignty, Territorial Integrity, and the Sanctity of Borders’ 26 SAIS Review of International Affairs 11. Ford, Richard T. (1999), ‘Law’s Territory (A History of Jurisdiction)’ 97 Michigan Law Review 843. Franck, Thomas M. (1988), ‘Taking Treaties Seriously’ 82 American Journal of International Law 67. Galbraith, Jean (2003), ‘The Bush Administration’s Response to the International Criminal Court’ 2 Berkeley Journal of International Law 683. Garrett, Brandon L. (2011), ‘Globalized Corporation Prosecutions’ 97 Virginia Journal of International Law 1. Garth, Bryant G. (2006), ‘Rebuilding International Law After the September 11th Attack: Contrasting Agendas of High Priests and Legal Realists’ 4 Loyola University Chicago International Law Review 3. Goldsmith, Jack L. and Eric A. Posner (2005), The Limits of International Law (Oxford: Oxford University Press). Grundman, V. Rock (1980), ‘The New Imperialism: The Extraterritorial Application of United States Law’ 14 International Lawyer 255. Guzman, Andrew (2012), ‘Against Consent’ 52 Virginia Journal of International Law 747. Halliday, Terence and Gregory Shaffer (eds) (2015), Transnational Legal Orders (Cambridge: Cambridge University Press). Hathaway, James C. (2000), ‘America, Defender of Democratic Legitimacy’ 11 European Journal of International Law 121. Hirst, Michael (2003), Jurisdiction and the Ambit of Criminal Law (Oxford: Oxford University Press). Ignatieff, Michael (ed.) (2005), American Exceptionalism and Human Rights (Princeton: Princeton University Press). Kaye, David (2013), ‘Stealth Multilateralism: United States Foreign Policy Without Treaties – Or the Senate’ 92 (September/October) Foreign Affairs 113. Keck, Margaret and Kathryn Sikkink (1998), Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca: Cornell University Press).

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Koh, Harold Hongju (1991), ‘Transnational Public Law Litigation’ 100 Yale Law Journal 2347. Koh, Harold Hongju (1999), ‘How Is International Human Rights Law Enforced?’ 74 Indiana Law Journal 1397. Koh, Harold Hongju (2006), ‘Setting the World Right’ 115 Yale Law Journal 2350. Krisch, Nico (2003), ‘More Equal Than the Rest? Hierarchy, Equality and United States Predominance in International Law’, in: Michael Byers and Georg Nolte (eds), United States Hegemony and the Foundations of International Law (Cambridge: Cambridge University Press), pp. 135–75. Krisch, Nico (2005), ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’ 16 European Journal of International Law 369. Lin, Karen (2008), ‘An Unintended Double Standard of Liability: The Effect of the Westfall Act on the Alien Tort Claims Act’ 108 Columbia Law Review 1718. Lowe, Vaughan (2007), International Law (Oxford: Oxford University Press). Margolies, Daniel S. (2011), Spaces of Law in American Foreign Relations (Athens: University of Georgia Press). Meyer, Jeffrey A. (2011), ‘Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of United States Law’ 95 Minnesota Law Review 110. Michaels, Ralf (2004), ‘Territorial Jurisdiction After Territoriality’, in: Piet Jan Slot and Mielle Bulterman (eds), Globalization and Jurisdiction (The Hague: Kluwer), pp. 105–30. Nzelibe, Jide (2009), ‘Courting Genocide: The Unintended Effects of Humanitarian Intervention’ 97 California Law Review 1171. Ohlin, Jens D. (2015), The Assault on International Law (Oxford: Oxford University Press). Parrish, Austen L. (2009), ‘Reclaiming International Law from Extraterritoriality’ 93 Minnesota Law Review 815. Parrish, Austen L. (2011), ‘Rehabilitating Territoriality in Human Rights’ 32 Cardozo Law Review 1099. Parrish, Austen L. (2017), ‘Fading Extraterritoriality and Isolationism? Developments in the United States’ 24 Indiana Journal of Global Legal Studies 207. Posner, Eric (2009), The Perils of Global Legalism (Chicago: University of Chicago Press). Post, David G. (1998), ‘The “Unsettled Paradox”: The Internet, the State, and the Consent of the Governed’ 5 Indiana Journal of Global Legal Studies 522. Powell, Catherine (1999), ‘Locating Culture, Identity, and Human Rights’ 30 Columbia Human Rights Law Review 201. Putnam, Tonya (2016), Courts Without Borders: Law, Politics, and Extraterritoriality (Cambridge: Cambridge University Press). Ratner, Steven R. (1998), ‘International Law: The Trials of Global Norms’ 16 Foreign Policy 65. Raustiala, Kal (2009), Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law (Oxford: Oxford University Press). Reisman, Michael W. (1990), ‘Sovereignty and Human Rights in Contemporary International Law’ 84 American Journal of International Law 866. Reisman, Michael W. (2000), ‘Unilateral Action and Transformation of the World Constitutive Process: The Special Problem of Humanitarian Intervention’ 11 European Journal of International Law 3.

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Sitaraman, Ganesh and Ingrid Weurth (2015), ‘The Normalization of Foreign Relations Law’ 128 Harvard Law Review 1897. Slaughter, Anne-Marie (1995), ‘International Law in a World of Liberal States’ 6 European Journal International Law 503. Slaughter, Anne-Marie (2004), A New World Order (Princeton: Princeton University Press). Slaughter, Anne-Marie and David Bosco (2000), ‘Plaintiff’s Diplomacy’ 79 (September/October) Foreign Affairs 102. Spiro, Peter (1998), ‘Nonstate Actors in Global Politics’ 92 American Journal of International Law 808. Taft IV, William H. (2006), ‘A View from the Top: American Perspectives on International Law After the Cold War’ 31 Yale Journal of International Law 503. Turley, Jonathan (1990), ‘When in Rome: Multinational Misconduct and the Presumption Against Extraterritoriality’ 84 Northwestern University Law Review 598. Vagts, Detlev F. (1998), ‘Taking Treaties Less Seriously’ 92 American Journal of International Law 458. Wai, Robert (2002), ‘Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization’ 40 Columbia Journal of Transnational Law 209.

United Nations documents United Nations (2006), Report of the International Law Commission, 58th Session (2006), Annex E, at 516, UN Doc. A/61/10

Legal instruments Charter of the United Nations, signed 24 October 1945, 1 United Nations Treaty Series xvi United States Declaration of Independence, 1776

Case law Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011) Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013) Medellín v. Texas, 552 U.S. 491 (2008) Morrison v. National Australia Bank, 561 U.S. 247 (2010) RJR Nabisco v. European Community, 136 S. Ct. 2090 (2016)

11 Extraterritoriality as an analytic lens Examining the global governance of transnational bribery and corruption Ellen Gutterman Introduction Since the end of the Cold War, scholars of international relations have debated the appropriate analytic lens through which to identify, understand, and explain permutations in world order and how best to address an ever-expanding catalogue of governance crises beyond the state.1 The empirical challenges of globalisation – including complex transnational flows of people, money, and goods (both licit and illicit) and emergent catastrophic crises in human security wrought by poverty, disease, environmental degradation, terrorism, and nuclear proliferation – defy unilateral resolution by even the most powerful states. How do these evolving patterns and problems of globalisation shape our basic concepts of the state, prospects for global governance, and our understanding of world order? Thinking about these questions twenty-five years ago, in reaction to what then seemed the shifting grounds of economic globalisation, John Ruggie invited a conversation about the prospects of systemic transformation in our time. In his now seminal article ‘Territoriality and Beyond’, Ruggie prompted his readers to think about the relationship between authority and territoriality and how we might go ‘beyond territory’ to consider the ways in which authority functions in the new era of globalisation.2 In startling new trends – the emergence of new institutional forms of governance in Europe, the tremendous growth in offshore markets and production facilities, and new developments in transnational microeconomic links, trade in services, and in global finance – Ruggie identified the unbundling of the territorially bound state. Jumping into an emerging debate about the withering of the state in the face of such global and transnational forces, Ruggie lamented the paucity of available vocabularies for exploring the implications of this unbundling, even the possibility of a ‘fundamental institutional discontinuity in the system of states’.3 For a useful start, he suggested the 1 See, e.g., Acharya 2018; Buzan and Lawson 2015; Cerny 2010; Cox and Sinclair 1996; Ikenberry 2001; Ikenberry 2011; Keohane and Nye 2012; Mearsheimer 2001; Tickner 1992; Wendt 1999. 2 Ruggie 1993. 3 Ibid. p. 143.

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concept of territoriality. Ruggie averred, ‘it is truly astonishing that the concept of territoriality has been so little studied by students of international politics; its neglect is akin to never looking at the ground that one is walking on’.4 Inspired by Ruggie, and going beyond his suggestion to think about ‘territoriality and beyond’, this chapter invites consideration of extraterritoriality as a useful starting point for thinking about world order, today. The notion of extraterritoriality – a newly emerging focus of interdisciplinary scholarship in international relations and international law – refers to the application of a sovereign state’s law outside the juridical bounds of its territory, or the ‘unilateral projection of domestic rules into the international arena’.5 It is the exercise of jurisdiction by governments and domestic courts over matters beyond the territorial and juridical boundaries of the state’s sovereignty. As Austen Parrish and others have noted, extraterritoriality became widespread in US law and other jurisdictions in the 1990s, amidst the complex interdependence of financial and industrial globalisation – a convenient substitute for more traditional international law making and multilateralism.6 Until quite recently, however, and despite a globalising trend towards its use, interdisciplinary scholarship in international relations and international law has largely ignored this trend.7 International relations scholars, for the most part, have tended to conceive of law in a limited sense as a functional regulatory mechanism.8 David Kennedy and other critical scholarship on international law, in contrast, identifies law itself as a practice of articulative power, with important distributive effects.9 In this frame, law is a medium through which inequalities between regions either develop or reduce, an effective distributor of power and authority. Similarly, Michael Zürn’s theory of global governance situates states and other actors of world politics within a global normative and institutional structure of hierarchy and inequality that itself is endogenously productive of contestation, resistance, and distributional struggles.10 Building on these scholars’ insights about the power of law (and law as power),11 this chapter takes extraterritoriality as a focus of analysis through which to evaluate and understand recent trends in global governance. The purpose is to consider to what extent it might be useful to deploy extraterritoriality as a central concept for reasoning about global governance. If we foreground practices and 4 Ibid. p. 174. 5 Buenger 2016, p. 268; Raustiala 2009; Putnam 2016; Parrish 2013; Parrish 2008. 6 Parrish 2013, pp. 221–26; Arnell 2012; Putnam 2016; Gutterman 2016a. On complex interdependence, see Keohane and Nye 2012. 7 For example, Slaughter, Tulumello, and Wood 1998; Abbott and Snidal 2000; Goldstein et al. 2001; Raustiala and Slaughter 2002; Dunoff and Pollack 2013. Key exceptions are Raustiala 2009; Putnam 2016; Kaczmarek and Newman 2011. On other limitations of international relations/international law scholarship, see also Howse and Teitel 2010. For a most recent review of the literature, see Whytock 2018. 8 Abbott and Snidal 2000; Finnemore and Toope 2001. 9 Kennedy 2016. See also Koskenniemi 1990; Anghie 2005; Koskenniemi 2017. 10 Zürn 2018. 11 See also Rajkovic, Aalberts, and Gammeltoft-Hansen 2016; Krisch 2005.

Extraterritoriality, bribery, corruption 185 patterns of extraterritoriality in our analyses of global governance, what insights or observations might this reveal? As an analytic lens, a focus on extraterritoriality entails attention to particular ways in which the international sphere is shaped by the national, domestic politics of certain states, especially powerful ones. Both directly through the application of national laws outside the boundaries of the sovereign state and indirectly through the emanation of legal norms and practices from one sovereign jurisdiction to others, patterns and practices of extraterritoriality extend domestic political norms and practices into the global sphere. An analytic focus on extraterritoriality, then, highlights the impact of domestic politics – including domestic regulative and social norms, values, and identities – on the processes and outcomes of global governance. Especially when it comes to legal extraterritoriality employed by powerful states, this analytic approach emphasises how the extension of national law and regulation into the international sphere can promote certain kinds of world order. In contrast to multilateral institution-building, extraterritoriality is a unilateral approach to domesticating the international sphere. One of the implications of this is the following: to the extent that powerful states with the capacity to do so employ various strategies of extraterritoriality in order to shape global politics in accordance with their own interests, this may mitigate against the kind of systemic transformation scholars like Ruggie have contemplated in the age of globalisation. Extraterritoriality represents not so much a transformation of political authority beyond the state as a conservative effort to retain territorially differentiated authority and to extend it through transnational political processes within the complex infrastructures of the global economy.12 To illustrate, the next section foregrounds extraterritoriality in an analysis of one area of global governance where it has been especially prominent: global efforts to control transnational bribery and corruption. Viewed through the lens of extraterritoriality, the global regime of anti-corruption is revealed as a domain that is shaped definitively by the extraterritorial impact of American legal norms and practices – as opposed to the direct role of courts,13 of US coercive power,14 or the promotion of US interests and legitimacy through international institutions.15 This emphasis makes explicit the considerable influence of specifically American legal norms and practices on what is nominally a multilateral, global regime. The extraterritorial lens thus accentuates the point that transnational politics ‘do not float freely’;16 they are grounded – socially, legally, politically, and economically – in specific national contexts. The analysis suggests that – in contrast to Ruggie’s perhaps hopeful expectation that going ‘beyond territoriality’ might open possibilities for thinking about transformation – extraterritoriality in

12 13 14 15 16

Cerny 2014. Putnam 2016. Mearsheimer 2001. Ikenberry 2001. Risse-Kappen 1994.

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the global governance of corruption in fact functions as a conservative brake on meaningful and effective control of corruption.

Extraterritoriality in the global governance of transnational bribery and corruption Bribery and corruption – alongside cronyism, extortion, influence-peddling, fraud, and kleptocracy – are age-old, universal phenomena.17 The treatment of corruption as a problem in international relations, however, is relatively recent. Corruption first became a subject of global governance in the 1990s, prompted by a number of factors. The end of the Cold War reduced strategic and geopolitical incentives for powerful countries in the West to tolerate corruption in their allies.18 An ‘eruption’ of major corruption scandals in democratic, industrialised states also revealed that the problem did not belong to the ‘Third World’ alone.19 New research presented mounting evidence of corruption’s harmful effects on, among other things, economic growth, trade, investment, and political stability in a globalised liberal economy. The World Bank identified corruption as ‘the single greatest obstacle to economic and social development’ and committed to fight against it. The Organisation of American States (OAS), the Organisation for Economic Cooperation and Development (OECD), the Council of Europe, the IMF, and the UN, together with an array of private-sector and nongovernmental organisations, produced treaties, policy recommendations, codes of conduct, and advocacy strategies focused on curbing corruption.20 Today widespread public acceptance, a high degree of institutionalisation, and extensive treaty ratifications – more than 180 states are party to at least one international anti-corruption treaty, and dozens have obligated themselves under multiple and overlapping such agreements – indicate that ‘anti-corruption’ is a relatively robust global norm, embedded in a thick regime complex of international rule and regulation.21 Corruption nevertheless remains difficult to pin down, conceptually and in practice. A complex and multifarious phenomenon, it is a major challenge for transnational governance. Whether identified generally as ‘the abuse of entrusted power for private gain’,22 associated specifically with transactional bribery or kleptocratic regime practices,23 or regarded as encompassing a wider range of behaviour within ‘illicit globalization’,24 corruption evades easy definition, measurement, explanation, and control. In addition to illicit financial practices and transactions, the notion of corruption also evokes normative ideas about 17 18 19 20 21 22 23 24

Noonan 1984. Rose-Ackerman and Palifka 2016, p. 5; Theobald 1999. Naím 1995; Glynn, Kobrin, and Naím 1997. Gutterman 2016b; Heckel and McCoy 2001. Gutterman and Lohaus 2018. Transparency International (n.d.). Gutterman 2016b, 2016a; Sharman 2017. Andreas 2011.

Extraterritoriality, bribery, corruption 187 justice and fairness, and (in modern times) the appropriateness of markets versus bureaucracies as distributive mechanisms in society. By prescribing norms about how government officials, politicians, members of the judiciary, and business actors ought to behave, international rules against corruption affect domestic legal frameworks and policymaking in ways that some states find intrusive and contrary to the principles of regulatory autonomy and sovereignty.25 Yet in a globalised economy where both licit and illicit transactions transgress the bounds of national jurisdiction, corruption remains an urgent problem to address. Corruption enables multiple patterns (and harms) of illicit globalisation to flourish, including human trafficking, drug trafficking, money laundering, and terrorist financing.26 Corruption exacerbates deeply immiserating trends, domestically and transnationally. Plenty of research on corruption tackles these problems, from a variety of theoretical and empirical approaches. Important contributions include anthropological studies,27 studies from the perspective of global security,28 comparative political investigations,29 rational-institutional analyses of formal anti-corruption institutions in different national governance contexts,30 and studies that focus on corruption norms and informal institutions.31 Several journalistic and anecdotal studies of global corruption have also been important.32 Fewer studies have examined the global governance of bribery and corruption in theoretically explicit ways. Drawing on sociological institutionalism in international relations, Anja Jakobi has analysed the anti-corruption regime – and the emergence of global crime governance more generally – through the lens of world society theory, a perspective in which international organisations ‘disseminate world cultural principles and cause policy change in national politics and society’.33 Global governance, in this frame, ‘assembles a set of diverse actors that strive for a common regulation in a selected issue area’.34 In his account of the emergence of the global norm against kleptocracy, on the other hand, J. C. Sharman emphasises structural trends and a more decentralised, undirected, and coincidental process of change amidst the confluence of the end of the Cold War and the need to account for development policy failures.35 In contrast to these existing studies, the analytic lens of extraterritoriality introduces a different perspective on the global governance of transnational bribery and corruption: a focus on the United States as a source of legal norms

25 26 27 28 29 30 31 32 33 34 35

Gutterman and Lohaus 2018, p. 252. Andreas 2011; Allum and Gilmour 2012. Haller and Shore 2005. Rotberg 2009. Johnston 2005. Mungiu-Pippidi et al. 2011; Mungiu-Pippidi 2015. Kubbe and Engelbert 2018. Vogl 2012; Cockcroft 2012; Chayes 2015; Cockcroft and Wegener 2016. Jakobi 2013, p. 17. Ibid. See also Avant, Finnemore, and Sell 2010. Sharman 2017.

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and practices, directly and indirectly driving anti-corruption enforcement and shaping the global regime. Although it did not unilaterally create the global regime, the United States is the chief enforcer of international rules against transnational bribery, primarily through its extraterritorial enforcement of the US Foreign Corrupt Practices Act (FCPA). First enacted in 1977 in the aftermath of the Watergate scandal – at a time when transnational business bribery was routine, expected, and in many jurisdictions tax-deductible as an ordinary business expense – the FCPA prohibits corrupt payments by individuals and companies to foreign government officials for the purpose of ‘securing any improper advantage’ in obtaining or retaining business abroad.36 It is jointly enforced by the criminal division of the Department of Justice (DOJ) and the enforcement division of the Securities Exchange Commission (SEC), and it applies to any US person (individual or entity) and any non-US person with securities registered in the US (‘non-US issuers’) and their employees engaged in proscribed acts outside the territory of the United States. In short, the FCPA bans bribery abroad by US persons and some non-US persons alike.37 US enforcement of the FCPA has surged, especially over the past decade. Since 2008 the DOJ and the SEC have collected over $9 billion in monetary sanctions in hundreds of enforcement actions against both US and non-US companies and individuals.38 Among these some especially notable enforcement actions stand out. In 2008 German multinational Siemens paid $1.6 billion to American and European authorities to settle charges that it routinely used bribes and slush funds to secure huge public works contracts around the world.39 Siemens’ $800 million payout to US authorities in this case was the largest anti-bribery enforcement in history. Sweden’s Telia Company AB broke that record in 2017 with $965 million in total penalties to resolve FCPA violations in Uzbekistan.40 In 2016 Dutch company VimpelCom Limited, the world’s sixth largest telecommunications company, and its Uzbek subsidiary, Unitel LLC, paid $795 million to settle an enforcement action for paying $114 million in bribes to government officials in Uzbekistan between 2006 and 2012.41 To date eight of the ten largest FCPA enforcement actions have been against non-US based companies.42 36 Gutterman 2015. From the outset, American companies complained that the FCPA unfairly disadvantaged them in international business while foreign competitors won contracts by paying bribes. The US government’s response was to pursue a policy of internationalisation. This was not successful until 1997, when the OECD countries finally created an international convention modelled on the FCPA, to criminalise transnational bribery. Despite widespread adoption of national laws in compliance with the Convention, however, the United States remains the most active enforcer of anti-bribery law in global commerce. 37 Bartle, Chamberlain, and Wohlberg 2014; Gutterman 2016a. 38 For up-to-date information on FCPA enforcement data and trends, see generally http:// fcpa.stanford.edu/index.html/; www.fcpablog.com/; and http://fcpaprofessor.com/. 39 Lichtblau and Dougherty 2008; Schubert and Miller 2008. 40 Cassin 2017; Schoenberg and Dolmetsch 2017. 41 Cassin 2016; Raymond and Deutsch 2016. 42 Cassin 2018.

Extraterritoriality, bribery, corruption 189 These and other actions indicate the evolving and expanding bases upon which the US government enforces the FCPA, on an extraterritorial basis.43 The United States, it seems, has set itself up as the ‘ultimate arbiter’ of anti-bribery enforcement around the world.44 When France did not do so, for example, US agencies proceeded with cases against French companies Alcatel-Lucent ($137 million in 2010), Total S.A. ($398 million in 2013), and Alstom S.A. ($722 million in 2014). France eventually passed new domestic legislation to enhance their international anti-bribery enforcement and has since coordinated with the US agencies in one of the biggest actions of all time, against Société Générale S.A. ($585 million in 2018). This pattern seems to confirm Sarah Kaczmarek and Abraham Newman’s findings that foreign jurisdictions in which the United States pursued FCPA enforcements are significantly more likely to enforce their own national rules.45 In sum, the United States has been leading the way in enforcing international anti-corruption efforts globally – and this trend appears set to continue.46 On what basis do US agencies enforce the FCPA abroad? US citizens and domestic concerns are subject to the FCPA regardless of where they act, by virtue of citizenship and nationality. By the terms of the statute, SEC issuers, regardless of nationality, are also subject to FCPA enforcement for actions taken outside the United States. Foreign entities, on the other hand, may be subject to the FCPA according to the territoriality principle; that is, for acts committed in the United States in furtherance of a violation. However, since 2012 the DOJ and SEC have also asserted jurisdiction over any foreign national or company that ‘aids and abets, conspires with, or acts as an agent of an issuer or domestic concern, regardless of whether the foreign national or company itself takes any action in the U.S.’.47 While this jurisdictional claim may exceed what the language of the statute actually allows,48 contentions of overreach have not stopped the DOJ nor the SEC from continuing to expand the jurisdictional reach of their claims to assert authority over bribery committed by foreign nationals outside the territory of the United States.49 For example, the DOJ has proceeded on the basis that even ‘fleeting contact’ with US territory over bribery committed by foreign nationals in furtherance of a bribery scheme may constitute a sufficient basis upon which to assert jurisdiction over foreign entities and individuals for conduct that occurred outside the United States.50 They have done so even when the money or correspondence is not knowingly or intentionally routed to the United States, and does not remain in the United States for a significant length of time.51 The agencies have also 43 44 45 46 47 48 49 50 51

Coleman 2017; Koehler 2017; Koehler 2018. Davis 2016, p. 342. Kaczmarek and Newman 2011. Anello and Janowski 2017; Simidjiyska and Fuller 2017. US Department of Justice and US Securities and Exchange Commission 2012, p. 21. Casino and Maberry 2013. Ashe 2005; Koehler 2014; Wilson 2014. Hecker and Laporte 2013. Ross 2012.

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invoked accomplice theories of liability to prosecute foreign defendants who did not act within the United States, as in 2012 actions against Japanese and European companies Marubeni, JGC, and Snamprogetti, charged with conspiring with and aiding and abetting a domestic concern’s FCPA violations. The SEC, for its part, has also ‘aggressively stretched agency principles to impute parent liability for subsidiary conduct’ that takes place abroad.52 This expanding ambit of extraterritoriality in FCPA enforcement has been happening without the explicit endorsement of US courts. To the contrary, in recent cases such as Morrison v. Australia National Bank, Ltd. in 2009 and Kiobel v. Royal Dutch Shell Co. in 2013, US courts up to and including the Supreme Court have been limiting the extraterritorial application of US law.53 With respect to the FCPA, however, the trend has been quite the opposite – US anti-corruption law is reaching farther and farther into global regulatory environments and into other sovereign jurisdictions. This pattern has developed in tandem with a particularly American aspect of anti-corruption enforcement: the use of negotiated settlement agreements. Since at least 2008 the DOJ and the SEC have relied to an unprecedented extent on deferred-prosecution agreements (DPAs) and non-prosecution agreements (NPAs) – known as ‘diversion agreements’ – in FCPA enforcement. Diversion agreements permit corporations implicated in FCPA violations to avoid criminal prosecution when they admit wrongdoing and accept various other stipulations related to anti-corruption reform. For example, they may be required to undertake comprehensive compliance systems, hire compliance advisors, and pay significant financial penalties and restitution.54 To date, diversion agreements are the primary legal mechanism employed by the enforcement agencies to conclude FCPA enforcement actions against corporate defendants.55 And they are exempt from judicial scrutiny. It may be that in extending its jurisdiction abroad, the government expects that companies will choose to settle with diversion agreements rather than test the limits of the government’s jurisdiction in court.56 In sum, neither courts nor Congress have been endorsing the extraterritorial application of the FCPA. Rather, it is US agencies deploying particular legal practices. Another particularly American legal practice that has shaped anti-corruption efforts abroad is the use of plea agreements in criminal enforcement. With plea agreements, prosecutors press lesser charges or ask for a lighter sentence in return for a defendant pleading guilty or offering evidence to incriminate others. Plea agreements have long been a cause of suspicion in other jurisdictions, as well as a worry for anti-corruption activists, who argue that, like diversion agreements, plea deals allow violators to pay a fine and not face further punishment.57 Nevertheless, the practice is spreading. Whereas in 1990 just nineteen of ninety 52 53 54 55

Volkov 2016. Bright 2013; Stephan 2013; Putnam 2016. Urofsky 2014; Thomas 2009; Wirz 2013. Since 2016 they have also added a pre-trial programme of ‘declinations and disgorgements’. See Woody 2018. 56 Casino and Maberry 2013. 57 Fortado 2016.

Extraterritoriality, bribery, corruption 191 surveyed countries used plea agreements in criminal procedure, by 2017 that number was sixty-six.58 The trend is particularly pronounced in the realm of anticorruption enforcement. In France, for example, the reaction to US enforcement against iconic French companies accused of foreign corporate bribery prompted the adoption of US-style plea agreements in new anti-corruption legal provisions known as Sapin II. Since US enforcement against the French company Alstom netted the United States a $772 million fine in 2014, ‘there has been a new push for changes in a French judicial system that has historically preferred convictions to negotiated deals’.59 The turn to negotiated agreements and plea deals in France under Sapin II represents a significant shift from the criminal procedure that has prevailed in France for centuries, based on the investigating magistrate status of prosecutors, where the magistrate is the key player in gathering evidence. The impact of US-style plea agreements has perhaps been most pronounced in the case of Brazil. Brazil’s recent experience with Operation Car Wash – the biggest anti-corruption scandal, not just in Brazil, but possibly ‘in history’60 – has unfolded in a manner consonant with the United States’ approach to anticorruption enforcement. Particularly in its acceptance of plea bargaining within a legal-institutional approach to investigation and prosecution, Operation Car Wash has been presented as a model of anti-corruption and integrity by the global anti-corruption movement.61 Launched in March 2014, the investigation codenamed ‘lava jato’ initially targeted black-market money dealers (doleiros) who used small businesses such as gas stations and car washes to launder the proceeds of crime. Among the doleiros’ clients, however, investigators discovered a man named Paulo Roberto Costa – the director of refining and supply at Petrobras, the largest corporation in Latin America.62 Through an unprecedented series of USstyle plea bargains, a succession of arrested officials revealed account after account of corruption, bribery, and other illicit payments throughout Brazil’s political system. Costa and other Petrobras directors, it turned out, had been deliberately overpaying on contracts with various suppliers for office construction, drilling rigs, refineries, and exploration vessels. In exchange for guaranteed business on ‘excessively lucrative terms’, the companies agreed to funnel between one to five percent of every such contract into secret slush funds.63 Petrobras directors then allocated money from secret funds to the politicians who had appointed them in the first place, and to their political parties. The scheme, rife with bribery and outright

58 59 60 61 62

The Economist 2017. Bohlen 2015. Watts 2017. Transparency International 2016. Watts 2017. A ‘flagship’ for Brazil’s emerging economy amidst the biggest oil discovery of the twenty-first century in huge new oil fields in deep waters off the coast of Rio de Janeiro, Petrobras accounts for more than an eighth of all investments in Brazil, provides hundreds of thousands of jobs in construction firms, shipyards, and refineries, and has business ties with all kinds of international suppliers, including Rolls-Royce and Samsung Heavy Industries. 63 Watts 2017.

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theft of billions of dollars from shareholders and taxpayers, funded personal accounts as well as election campaigns to keep the governing coalition in power. Operation Car Wash eventually discovered illegal payments of more than $5 billion to company executives and political parties of all stripes. Prosecutors put billionaires in jail and questioned the finances and reputations of some of the world’s biggest companies. There have been more than 240 criminal charges and 118 convictions, including high-level politicians and business people ‘previously considered untouchable’.64 The investigation exposed a culture of systemic graft in Brazilian politics, and provoked ‘a backlash from the establishment fierce enough to bring down one government and leave another on the brink of collapse’.65 Although this anti-corruption drive has received widespread popular support in Brazil, its impact on Brazilian democracy over the long run remains in question. Critics have noted that the episode has elevated the role of lawyers in the Brazilian political system to an unwarranted degree, particularly those trained in the United States and following US-dominant norms concerning the use of plea bargaining and litigation as a political tool.66 To the extent that Operation Car Wash has elevated judges and prosecutors to the level of folk hero status with some untouchable power resources, ‘lawyers may have found and seized those opportunities to convert their social and cultural capital into political capital’.67 This episode may be likely to reinforce the global norm of anti-corruption while – perhaps ironically – potentially eroding representative democracy at home. Viewed through the lens of extraterritoriality, the spread and impact of USstyle plea deals and negotiated settlements in cases such as Brazil and France reveal the extent to which the global regime of anti-corruption is tightly bound with US-driven styles and patterns of enforcement. It is through both direct extraterritorial enforcement and the informal diffusion of legal rules and practices – as in the diffusion of plea bargaining – that a dominant state such as the United States may extend its legal authority on an extraterritorial basis. On another note, the emergence of the global regulatory norm of anti-corruption in the first place can be understood as a facet of extraterritoriality. The spread of anti-corruption norms in the context of a broader agenda of ‘good governance’, aid conditionality, and rankings of states according to their levels of corruption may be viewed as reminiscent of an earlier period of colonial expansion in which foreign polities were required to capitulate to the extraterritorial jurisdiction of Western powers.68 The extraterritorial application of US law and practice in the global governance of corruption has not increased the effectiveness of global anti-corruption efforts. Nor has it led to demonstrably lower levels of corruption in the global economy. To the contrary, US extraterritoriality acts as a brake on global anti-corruption

64 65 66 67 68

Transparency International 2016. Watts 2017. de Sa e Silva 2017. de Sa e Silva 2017, p. 378. Hindess 2005.

Extraterritoriality, bribery, corruption 193 efforts in a broader sense. The FCPA itself comprises a narrow conception of corruption as transactional bribery, focused on discrete incidents of bribery. FCPA enforcement therefore tends to single out specific actors and instances of corrupt transactions rather than tackling the embedded networks and practices in which opportunities for corruption are cultivated in the global economy. Corruption in international commercial activity entails multiple sets of connected transactions, processes, and relationships that unfold within a variety of transnational networks – both licit and illicit – and they are rarely isolated instances.69 For all its vigour, US enforcement of the FCPA challenges none of the practices of such transnational corruption networks. Rather, it ‘stovepipes’70 anti-corruption resources towards a narrow focus on transnational business bribery, ignores the broader, networked practices in which bribery transactions are embedded and in which US actors often are complicit, and prevents the emergence of a global approach to curbing corruption in its many forms.71 The United States also resists the enactment of corporate transparency laws, which advocates promote as a means of revealing the true beneficial ownership of shell companies and overseas trusts. These laws could expose the ill-gotten gains of the corrupt and the secretly held wealth of tax evaders who otherwise benefit from a system that rewards anonymity.72 In sum, the extraterritorial impact of US norms both promotes a specific kind of anti-corruption enforcement and obstructs a broader, potentially more meaningful and effective control of corruption in the global economy.

Conclusion The global governance of transnational bribery and corruption unfolds within an American-dominated regime of extraterritoriality. Although the general emergence of the anti-corruption regime in some respects has been diffuse, nondirected, and contingent,73 it is also fundamentally grounded in US-based social, legal, and political conceptions of corruption and anti-corruption.74 These are expressed directly through extraterritorial enforcement of the FCPA, as well as indirectly though the diffusion of negotiated settlements and plea agreements in anti-corruption enforcement. While this informal diffusion of rules and legal practices relies on the free acceptance of norms by foreign jurisdictions – whether due to a self-interested adoption of the rules of a dominant state or a belief in their superiority – this kind of indirect extraterritoriality in global governance may conceal the ‘pervasive processes of normalisation of a hegemonic ideology’.75 In this analysis, the concept of extraterritoriality provides a distinct opening for identifying the extent to which an ostensibly multilateral governance 69 70 71 72 73 74 75

Cooley and Sharman 2013. Garrett 2007. Gutterman 2018. Bohlen 2016. Sharman 2017. Gutterman 2018. Krisch 2005, p. 404; Hindess 2005.

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arrangement is in fact grounded in the domestic norms, politics, and particular interests of a dominant state. The upshot is to shift international law and international relations inquiry out of a limited focus on problems of compliance and effectiveness,76 and towards questions about the fundamental legitimacy and appropriateness of international norms and rules themselves. As an analytic lens, extraterritoriality can bridge theoretical developments occurring across the study of international law and global governance. Notwithstanding Ruggie’s expectation that going ‘beyond territory’ may open vistas for the transformative potential of globalisation, contemporary patterns and processes of globalisation may seem less transformative to systems of inequality that are sustained by corruption when conceived as extraterritorial manifestations of dominant state power. At a moment when power politics seems to be reasserting itself in international relations, this may be an opportune time for conventional approaches to foreground power in accounts of international law and international relations. Thinking of extraterritoriality as a conceptual lens for the analysis of global governance and world order is a start in that direction.

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Extraterritoriality, bribery, corruption 197 Koehler, Mike (2014), ‘FCPA 101’ FCPA Professor, online: www.fcpaprofessor.com/ fcpa-101. Koehler, Mike (2017), ‘The FCPA’s Record-Breaking Year’, online: https://papers. ssrn.com/abstract=2971529/. Koehler, Mike (2018), ‘Foreign Corrupt Practices Act Continuity in a Transition Year’, online: https://papers.ssrn.com/abstract=3153003/. Koskenniemi, Martti (1990), ‘The Politics of International Law’ 1 European Journal of International Law 4. Koskenniemi, Martti (2017), ‘Introduction: International Law and Empires – Aspects and Approaches’, in: Walter Rech, Manuel Jiménez Fonseca, and Martti Koskenniemi (eds), International Law and Empire: Historical Explorations (Oxford: Oxford University Press), pp. 1–18. Krisch, Nico (2005), ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’ 16 European Journal of International Law 369. Kubbe, Ina and Annika Engelbert (eds) (2018), Corruption and Norms: Why Informal Rules Matter (Cham, Switzerland: Palgrave Macmillan). Lichtblau, Eric and Carter Dougherty (2008), ‘Settling Bribery Case to Cost Siemens $1.6 Billion’ New York Times, 15 December. Mearsheimer, John J. (2001), The Tragedy of Great Power Politics (New York: Norton). Mungiu-Pippidi, Alina (2015), The Quest for Good Governance: How Societies Develop Control of Corruption (Cambridge: Cambridge University Press). Mungiu-Pippidi, Alina, Masa Loncaric, Bianca Vaz Mundo et al. (2011), Contextual Choices in Fighting Corruption: Lessons Learned: Report 4/2011 (Oslo: Norad – Norwegian Agency for Development Cooperation). Naím, Moisés (1995), ‘Corruption Eruption’ Brown Journal of World Affairs, Summer, online: http://carnegieendowment.org/1995/06/01/corruption-eruption/ 3248. Noonan, John Thomas (1984), Bribes (New York: Macmillan). Parrish, Austen L. (2008), ‘Reclaiming International Law from Extraterritoriality’, online: https://doi.org/10.2139/ssrn.1013740/. Parrish, Austen L. (2013), ‘Kiobel, Unilateralism, and the Retreat from Extraterritoriality’ 28 Maryland Journal of International Law 208. Putnam, Tonya L. (2016), Courts without Borders: Law, Politics, and US Extraterritoriality (New York: Cambridge University Press). Rajkovic, Nikolas M., Tanja Aalberts, and Thomas Gammeltoft-Hansen (eds) (2016), The Power of Legality: Practices of International Law and Their Politics (Cambridge: Cambridge University Press). Raustiala, Kal (2009), Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law (Oxford: Oxford University Press). Raustiala, Kal and Anne-Marie Slaughter (2002), ‘International Law, International Relations and Compliance’, in: Beth A. Simmons, Walter E. Carlsnaes, and Thomas Risse (eds), Handbook of International Relations (London: Sage), pp. 538–58. Raymond, Nate and Anthony Deutsch (2016), ‘VimpelCom to Pay $795 Million to Resolve U.S., Dutch Bribery Probes’, Reuters, 19 February. Risse-Kappen, Thomas (1994), ‘Ideas Do Not Float Freely: Transnational Coalitions, Domestic Structures, and the End of the Cold War’ 48 International Organization 185.

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12 From extraterritorial jurisdiction to sovereignty The annexation of Palestine Alice M. Panepinto

Introduction Brandishing the Torah before the UN Security Council in December 2016, Israeli ambassador Danny Danon vehemently rejected the landmark Resolution 2334,1 which reaffirmed the illegality of settlement activities in occupied Palestine. Danon invoked Israel’s historic, divine right to the biblical land of Israel, claiming that ‘we will continue to be a Jewish state, proudly reclaiming the land of our forefathers’.2 In the absence of clearly recognised borders between Palestine and Israel, compounded by a fifty-year-old military occupation and over half a million Israeli settlers living in the West Bank and East Jerusalem, Danon’s statement quite simply describes the reality on the ground: Israel’s territorial expansion into Palestinian land continues despite (and because of) international law. Adopting settler colonialism as a theoretical framework, this chapter considers how the extraterritorial reach of Israeli jurisdiction over Palestinian land and people contributes to the annexation of Palestine. It investigates how Israel acquires and consolidates control over Palestinian land, both private and public, through extraterritorial jurisdiction. It does so by contextualising Supreme Court cases involving Palestinian rights and land in the occupied Palestinian territories (OPT) without having to engage openly in armed territorial conquest in every instance. In the absence of an impartial and independent international arbiter over Israeli – Palestinian disputes over land, there are pragmatic considerations to take into account whenever Palestinians and the international community acquiesce in Israeli extraterritorial jurisdiction over Palestinian matters. Yet resignation to the jurisdictional status quo, in light of the governing party’s recent vote supporting formal annexation,3 is transforming Israel’s extraterritorial jurisdiction over Palestine into something more: occupied Palestinian land is in the process of being absorbed into the sovereign jurisdiction of Israel, and Palestine is in the process of being conquered through an expansion of jurisdiction. The first part of this chapter will present the (international) legal framework within which Israel is

1 SC Resolution 2334. 2 Baruch 2016. 3 Levinson 2018.

The annexation of Palestine 201 gradually taking possession of the West Bank. The second part will consider how extraterritorial jurisdiction, as a core expression of the Israeli state in the West Bank, may operate as a tool of territorial conquest.

The legal framework enabling extraterritoriality A. Legal landscape of the West Bank The protracted occupation of Palestine has created a peculiar ‘political geography of law’.4 This is particularly evident in the occupied West Bank as regulated by international law,5 and under the extensive reach of the Israeli state’s military and civilian jurisdiction. This ‘elastic geography’ of the West Bank, to borrow from Eyal Weizman,6 and the dynamic, constantly shifting borders backed by Israel’s military power over Palestine are entangled in the legal framework. The ambiguities of this legal landscape pose both challenges and opportunities for Israel to assume control over Palestinian land, despite the fact that under international law, in theory, ‘there is not an atom of sovereignty in the authority of the occupying power’.7 The law of occupation plays an important role in the analysis of Israel’s control over Palestine.8 However, prolonged occupations such as this ‘violate the normative premises and predicates for the application of the law of occupation’, and the legal framework itself therefore fails to deal with predatory acts of the occupying power over the territories it occupies.9 Indeed, there is a ‘risk of using the law of occupation in its current version to legitimize new variations of conquest and colonialism’.10 Aeyal Gross has investigated the extent to which the concept of occupation constitutes a normative shift from the now prohibited regimes of conquest, colonialism, and apartheid.11 The three basic principles inherent in the law of occupation include the principle of inalienability of sovereignty, which is based on the right to self-determination and ‘cannot be breached through the actual or threatened use of force’, the trust vested in the occupying power for the management of public order and civil life of which the people living under occupation are beneficiaries, and the temporary nature of the occupation.12 An occupation that does not satisfy these three criteria may slip into the dangerous

4 I borrow this expression from Hajjar 2005, pp. 23–25. 5 On this point see, among others, Arai-Takahasi 2009, pp. 145–66; Dinstein 2009, p. 132; Benvenisti 2012. 6 Weizman 2012, pp. 6–7. 7 Oppenheim 1917, cited in Gross 2017, p. 20. 8 See, among others, Playfair 1992; Shehadeh 1997; Imseis 2004; Shany 2008. 9 Azarova (forthcoming), pp. 2–3. 10 Gross 2017, abstract and p. 23 (expanding on arguments presented in Ben Naftali, Gross, and Michaeli 2005). 11 Ibid. pp. 17–18 (again expanding on arguments presented in Ben Naftali, Gross, and Michaeli 2005). 12 Ibid. p. 18.

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territory of (now prohibited) conquest, dressed up ‘in the garb of legitimacy’.13 Building on Sharon Korman’s seminal work,14 Gross argues that ‘military occupation cannot be a legal way of acquiring territory and ... “conquest” is illegal’, based in no small part upon the UN Charter’s prohibition of the threat or use of force.15 However, international law grants the occupying power extensive authority over occupied territories and its inhabitants, as evidenced in the 1907 Hague Regulations (HR) and 1949 Fourth Geneva Convention (IVGC). In particular, Article 43 of the HR recognises the ‘authority of the legitimate power having in fact passed into the hands of the occupant’, which in turn acknowledges a substantial role of the occupying power in the regulation of many aspects of life of the local population (‘protected persons’ under IVGC). Indeed, the occupier lawfully exercises a type and degree of power that is more often associated with the sovereign state. These powers include: public order and safety (Art. 43, HR), collection of taxes and other contributions (Arts. 48–49, HR), requisitions in kind and services (Art. 52, HR), the rights of administrator and usufructuary of public buildings, real estate, forests, and agricultural estates (Art. 55, HR), the provision of services for children (including schooling and registration) (Art. 50, IVGC), public health (Art. 56, IVGC), the removal of public officials from their posts (Art. 54, IVGC), repeal and suspension of penal legislation (Art. 64, IVGC), and establishment of military courts (Art. 66, IVGC). In line with its overall aims, the IVGC is primarily concerned with civilians living under occupation, with the authority of the occupant including a range of positive and negative duties towards them (to echo human rights language ordinarily used to describe the relationship between citizens and state). Yet, the concept of ‘military necessity’ provides a justification for the occupying power to limit the rights of protected persons, for instance with regard to population transfers (Art. 49, IVGC), destruction of private property (Art. 53, IVGC), the temporary restrictions of food and medical supplies, or requisition of hospitals (Art. 57, IVGC). It is reported that immediately after the 1967 war, Israel’s military advocate general advised the state ‘to rethink its position vis-à-vis international law’ and ‘rejected the applicability of the 1949 Fourth Geneva Convention’ to the OPT, since they were considered disputed territory.16 Crucially, while the land as such was considered to be outside the remit of IVGC, its inhabitants were not. The laws in force prior to the occupation, in light of the 1907 Hague Convention, were recognised ‘provided they did not contradict any legislation of the military

13 14 15 16

Ibid. p. 23. Korman 1986, in particular pp. 218–20. Gross 2017, pp. 21–22. Gordon 2008, p. 26. Notably, Theodor Meron, then legal advisor to the Israeli foreign ministry, wrote a legal opinion in September 1967 holding that the Fourth Geneva Convention did indeed apply to the occupied Palestinian territories. See Tilley 2012, p. 37. For a longer discussion, see also Gross 2017, pp. 141–80.

The annexation of Palestine 203 commander’.17 Neve Gordon has considered the extent to which ‘Israel’s concerns far exceeded those of a temporary occupying power’, and how, by espousing a ‘rule of law approach’, it presented itself as an ‘enlightened rule[r]’ establishing judicial institutions (military courts) to sanction ‘the legality, legitimacy, and morality of the occupation’.18 Indeed, ‘without establishing this comprehensive legal system, Israel could never have administered the occupied regions effectively. The law served as the foundation for almost all of the other controlling apparatuses and practices and in many ways shaped their operations.’19 In this context, law is reshaped and used for specific state purposes. The Oslo Accords marked another milestone in the normative framework of the West Bank.20 However, little change came about, given that the accords ‘did not actually transfer meaningful authority over the OPT from Israel to the PLO’.21 The political geography of law resulting from the accords formalised the A-B-C distinction of the West Bank, giving Israel different degrees of authority over the various sections of the OPT, and complete military and civilian control in Area C, constituting over 60 per cent of the West Bank. Consequently, the international community effectively vested Israel with default authority over the West Bank, which was meant to be transferred to the Palestinian Authority over the coming years.22 Through the executive authority of the military commander, Israeli civil legislation is channelled to settlements, and the Israeli executive also issues laws applicable to Israelis residing in settlements.23 These include provisions to extend the jurisdiction of Israeli criminal courts extraterritorially in the West Bank, to ensure Israeli settlers and tourists are only tried according to Israeli law and courts – and not by Palestinian judges.24 The ultimate jurisdiction over Israeli citizens in the West Bank rests with the Israeli Supreme Court in High Court of Justice formation (ISC/HCJ), which reviews actions of the Israeli authorities in the OPT.25 And on the legislative front, the Knesset has enacted laws that apply extraterritorially to Israelis living in the West Bank on matters of taxation, census-taking, human rights, and oversight of products and services. In general, applying Israeli law to Israeli citizens in the West Bank and disregarding the local Palestinian legal system squares with the annexationist aims of settler colonialism.26 However, the extraterritorial extension of Israeli law into the West Bank does not just concern Israeli citizens. The ISC/HCJ exercises judicial review over the actions of state agents, which has long included the activities of the Israeli military 17 18 19 20 21 22 23 24 25 26

Gordon 2008, p. 26. Ibid. pp. 27–28 (also citing Raja Shehadeh). Ibid. p. 28. I have discussed the accords elsewhere; see Panepinto 2017. For an interesting critical analysis of the Oslo lines, see Burns and Perugini 2016. Tilley 2012, p. 41. For a critical discussion of the West Bank division into Areas A, B, and C, see Said 2000, pp. 78–80. Tilley 2012, pp. 65–66. Ibid. pp. 65–66, citing the 1977 Extension of Emergency Regulations Law. Kretzmer 2002, p. 10. Tilley 2012, p. 67, citing the 2005 Supreme Court judgment in the Gaza coast case.

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apparatus operating in Palestine.27 Through its jurisprudence, the ISC/HCJ has given Palestinians the right to petition against actions carried out by the Israeli military (or under the aegis of the military), at times finding in favour of individual Palestinians and against the Israeli state.28 Regardless of who wins a specific case, scholars have argued for decades that in exercising jurisdictional oversight in the West Bank the ISC/HCJ has legitimised Israeli control and actions in the OPT.29 Over time, the legalism articulated by the ISC/HCJ has helped make the occupation more palatable to sections of the Israeli elite, contributing to maintaining and upholding the occupation.30 This judicial function, manifesting extraterritorial jurisdiction traits, also fits the model of settler colonialism, much like the extension of legislative power of Israeli lawmakers over settlers living in the West Bank. As an expression of the Israeli state in the West Bank, the ISC/ HCJ plays a pivotal role in affirming Israeli claims to the land. One area of Israeli law applies only to Palestinians in the OPT: military law as enforced by military courts.31 Hajjar has considered this area of Israeli law as ‘a constitutive factor in the conflict’, highlighting its ‘paradoxical capacity to serve and secure the authority of the state while also enabling means of resisting that authority’.32 More recently, numerous human rights organisations, including the high-profile Israeli NGO B’Tselem, have divested from the Israeli military court system, describing it as a fig leaf for the occupation.33 As the military legal system is part of the package of Israeli laws applied extraterritorially, there seems to be a deeper ‘entrenchment of a permanent regime of legalized control’ which tests the boundaries of the very notion of occupation in the West Bank.34 To a doctrinal international lawyer, the military court system is premised on the (exceptional) laws of armed conflict. But a closer look indicates that Israeli courts, both military and civilian, have developed routine jurisdiction over Palestinians living under occupation on all issues that affect the Israeli state – from armed resistance to peaceful activism, political journalism, land confiscation, and much more. Using the paradigm of security and law enforcement, the existence of a military occupation has been sidelined, with the Israeli state preferring terms like ‘administered’ to indicate and deproblematise its de facto sovereignty over land outside its formal (and internationally recognised) territorial jurisdiction.35 Yet the expansive Israeli military and civilian jurisdiction suggests that the occupier and de facto sovereign in the West Bank has not clearly demarcated its territory from lands it holds under military occupation. This is especially apparent in the 27 Kretzmer 2002, pp. 1 and 19–21. I briefly discuss these issues in Panepinto 2017. 28 See Dinstein 2009, pp. 25–26; Shamir 1990, p. 785; Weill 2015, p. 2; Weill 2014. 29 See notably Kretzmer 2002, pp. 2–3; Shamir 1990; Shehadeh 1985; Shehadeh 1992; Sultany 2014; Weill 2015. 30 Kretzmer 2002, p. 198; Harpaz and Shany 2010, p. 515; Al-Haq 2010. 31 See Hajjar 2005. 32 Hajjar 2005, p. 24. 33 B’Tselem 2016. 34 Panepinto 2017. 35 See Hajjar 2005, p. 31.

The annexation of Palestine 205 civilian court system – and the posturing of the ISC/HCJ extraterritorial jurisdiction over the occupied West Bank reveals how a seemingly innocuous institution can become a key player in the Israeli conquest of Palestine in the framework of settler colonialism.

B. The slippery slope: from occupation to conquering sovereignty We have seen that occupation and sovereignty are mutually exclusive in theory, but that in practice the law of occupation may allow the occupier to exercise its power in a manner similar to a sovereign state. Can protracted occupation result in a form of conquest, leading ultimately to sovereignty? Conquest has been defined as ‘the forcible seizure and subsequent control of territory by one political group from either another such group or a recognized central government’.36 As such, it consists of two concurring elements: first, the taking of territory through force; second, the assumption of sovereignty by the conqueror. The first element consists of the taking of territory (presumed to be part of a state) and the use of force to do so, prohibited by Article 2(4) of the UN Charter.37 The second element consists largely of the occupying entity’s effective control over territory, to the exclusion of the political entity that formerly controlled it. The law has a crucial role to play in consolidating that process. The international law principle that occupation and conquest are mutually exclusive does not hold in cases of protracted occupations, in which the occupying power may have more ambitious designs for the foreign land and peoples it controls after the formal cessation of hostilities. An extended occupation carries features of both sovereignty and war,38 and in some cases there is an ‘intermediate status between invasion and conquest’, termed ‘transformative occupation’.39 In these contexts, an occupying power can in practice extend its exercise of authority over occupied territory, regulated under international humanitarian law (IHL), to a condition that resembles sovereign power. As such, the over-legalisation of the occupation in Area C (and more broadly in the West Bank) raises the question whether the distinction between occupation and conquest has collapsed. The (secular) basis for Israeli territorial claims to Palestinian land in the West Bank is found in the 1967 war, which marks the start of the occupation. At that time, reports historian Ilan Pappe, ‘there could not be a de jure annexation of the territories’ and expulsion of its inhabitants, but it was clear that Israel intended to control the area indefinitely.40 The theoretical lens of settler colonialism helps us contextualise this scenario, and it is increasingly being adopted to analyse the role of law in Israel-Palestine.41 Indeed, it has been argued that ‘Israel’s urgent 36 37 38 39 40 41

Hurrell 2003, p. 290. For a detailed discussion, see Korman 1986, pp. 199–200. Koskenniemi 2008, pp. 32–35. Bhuta 2005, pp. 725–26; Roberts 2006. Chomsky and Pappe 2015, pp. 168, 173, and 177. Most recently, in relation to Israeli constitutional law, see Masri 2017, pp. 15–20. See more generally Salamanca, Qato, Rabie, and Samour 2012.

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desire to normalise the exceptional status of its regime of occupation in accord with law’ and the shift towards hyper-legality, has successfully incorporated the OPT ‘within its undeclared borders as an included excluded’ and divided Israeli settlers and the Palestinian population ‘over which it exercises de facto rule along apartheid lines’.42 Settler colonial projects are ‘predominantly about territory’ and the ‘deterritorialisation of indigenous outsiders’.43 As a juridical phenomenon, settler colonialism entails the displacement and non-recognition of indigenous law, which is replaced by settler laws.44 The development of settler laws obscures the violent origins of settler colonialism and gives an allure of the ‘civilising mission’, of fairness and justice.45 When it comes to expanding territorial control, extraterritorial applications of settler-colonial law can become an effective tool to smooth the process of conquest. The extraterritorial jurisdiction of the Israeli Supreme Court to assert civilizational superiority (based on law) over land struggles in the OPT is a fitting example of this process. The notion of extraterritoriality helps us understand the effects of the application of Israeli laws – both military and civilian – to the West Bank, and the expansion of the jurisdiction of the ISC/HCJ over Palestinian territory. Extraterritorial uses of law are framed as ordinary state administration of justice, according to Israeli laws, when it comes to Israeli citizens and interests. The Knesset may issue laws that apply extraterritorially in the OPT, the Supreme Court exercises its jurisdiction between the River Jordan and the Mediterranean Sea, and the (Israeli) rule of law is maintained – despite the obvious problems vis-à-vis IHL (occupation does not transfer sovereignty) and human rights (Palestinians and Israelis are treated differently by Israeli laws and courts operating extraterritorially, raising serious questions of discrimination). By treating Palestinian land beyond the Green Line (the putative border) as Israeli, and Israeli citizens in the West Bank as if they were within the jurisdictional boundaries of Israel proper, extraterritorial legislation and jurisdiction contributes directly to the settler-colonial project. Indeed, the role of Israeli laws and jurisdictional authority extended extraterritorially to conquer Palestinian land in the West Bank echoes the legal history of East Jerusalem, over which Israel extended its laws and jurisdiction following the 1967 Six Day War,46 before formal annexation in the 1980 basic law.47 The legal landscape of the West Bank has enabled the entrenchment of Israeli control over occupied Palestinian land, highlighting the ambiguities of 42 Lloyd 2012, pp. 75–77. 43 Veracini 2008, pp. 367–68. On settler colonialism more generally, see Veracini 2010; Veracini 2011; and the seminal Wolfe 2006. 44 For a valuable discussion of the colonial power of Western law in the context of settler colonialism, building on Agamben, see Morgensen 2011. 45 On settler-colonial jurisdictional claims, see Pasternak 2014; Smandych 2013. 46 Law and Administration Ordinance. Note that the term ‘Eretz Israel’ indicates the biblical land of Israel, not the modern state of Israel. 47 Tilley 2012, pp. 37–38. This has not been recognised by the international community, as evidenced by General Assembly Resolution 181, which recommends that the city be administered as a separate entity, and Security Council Resolution 242, which prohibits the acquisition of territory by force.

The annexation of Palestine 207 international law in protecting Palestine from Israeli territorial expansionism. The next part of the chapter will consider the role played by the Israeli courts in facilitating the conquest and subtle annexation of the West Bank – in a manner that is not openly in violation of international law, but the results of which are nevertheless in blatant contradiction with it.

Extraterritorial jurisdiction as a tool of conquest Jurisdiction and its extraterritorial applications help to shape material and social reality. As a juridical expression of the Israeli state, Israeli extraterritorial jurisdiction over the West Bank has contributed significantly to the erasure of Palestinian legal and judicial authority, with severe political consequences. In the context of settler colonialism and territorial expansionism, the way in which jurisdiction of an occupying power is exercised over occupied land is constructive of a new experience of jurisdiction, one that conquers land. Jurisdiction possesses ‘material/ special attributes’, but it is ‘also a discourse, a way of speaking and understanding the social world’.48 So the presumption of Israeli jurisdiction over Area C – as seen in the recent case on the demolition of Al Khan al Ahmar to make way for settlement expansion49 – exemplifies the paradox of the ISC/HCJ attempting to offer a fair and impartial tribunal for grievances against the Israeli state by Palestinians in the West Bank. By presenting itself as the only court providing judicial oversight over land disputes in the West Bank, and in particular Area C, and denying the jurisdiction of Palestinian (or international) courts, the ISC/HCJ creates both a material reality and a narrative about its role in the area that goes beyond its borders, thereby effectively dissolving them. From the perspective of international law, in particular the laws of occupation, Israeli extraterritorial jurisdiction over the West Bank establishes a practicable way for the occupying power to ensure that its courts, and not Palestinian judges, enjoy judicial oversight with respect to Israeli settlers and all other issues that pertain to Israel’s interests in the region. In the context of settler colonialism, the use of Israeli jurisdiction to assert control over Palestinian land is a device for (extra-)territorial expansion without resorting to armed force openly. The deliberate exclusion of Palestinian law and jurisdiction from Area C is one of the many tools used to evaporate Palestinian control over that territory. As a particularly potent expression of the Israeli state’s power, the ISC/HCJ is an effective tool for bringing the West Bank into the fold of Israel proper, without the economic and political costs of a larger military operation.

A. A jurisprudence of extraterritorial jurisdiction as sovereign expansionism The exercise of Israeli extraterritorial jurisdiction over the West Bank and especially Area C, which since the Oslo Accords falls entirely under security and 48 Ford 1999, p. 855. 49 As discussed extensively in Panepinto 2017, and further in Panepinto 2018.

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administrative control of the occupying power, echoes past experiences of how law and imperialism connect. Historically, ‘extraterritoriality was quintessential legal imperialism’, extending ‘Western legal authority into non-Western territories’ and limiting ‘non-Western legal authority over Western foreigners’.50 This required, on the one hand, a legal framework able to replace the local laws, and on the other, the ‘material capability’ to protect these courts from the indigenous populations.51 The situation in occupied Palestine, especially Area C, is a fitting example of how the extraterritorial application of the law of the colonisers furthers imperialist projects. The ongoing military occupation facilitates the ‘material capability’ to defend the courts (i.e. military courts and ordinary Israeli civilian courts, including the ISC/HCJ) that operate extraterritorially. But the denial of Palestinian legal authority is not simply an Israeli practice: the international community has sanctioned this in the Oslo Accords, which gave Israel de facto authority over the West Bank as a default position. This authority was meant to be temporary, but is yet to be relinquished. With the creation of Area C, Israeli power over more than 60 per cent of the West Bank was endorsed by the international community, adding to the preexisting de facto control over the area. Since the Oslo II Accord of 1995, the Palestinian Authority has been virtually excluded from operating in Area C, and its jurisdiction over Palestinians in those parts is suspended. And while Area C is an integral part of Palestine according to the United Nations, the removal of Palestinian jurisdiction has created a legal vacuum that Israeli courts have filled with their own jurisdiction. Thus, by cutting Area C off from Palestinian domestic jurisdiction, the Oslo II Accord has had the effect of strengthening Israel’s hold of Area C through extraterritorial jurisdiction. This jurisdictional conundrum emerges in the context of the limited sovereignty afforded to Palestinians under Israeli settler colonialism. Israeli law envelopes indigenous Palestine and Palestinians, creating the conditions for displacement of the native group and extraterritorial extension of its own jurisdiction. To borrow from Kayaoğlu, Palestine is the ‘non-Western state’ that becomes ‘the nonsovereign “other” . . . excluded from the realm of sovereignty’.52 As part of a ‘positivist construction of sovereignty’, Western law (Israeli law) is idealised and displaces non-Western law (Palestinian law), even encouraging the ‘removal or replacement of the non-Western judicial elite in order to eliminate or significantly limit indigenous legal systems’ (often from an orientalist stance).53 There are numerous historic examples of legal imperialism that can and have been interpreted through the lens of settler colonialism, for instance, in Ireland or Australia.54 What emerges is that extraterritorial uses of colonial law can displace

50 51 52 53 54

Kayaoğlu 2010, p. 6. Ibid. p. 6. Ibid. p. 10. Ibid. p. 32. Pawlisch 2002, pp. 3–5; Orford 2007.

The annexation of Palestine 209 and eliminate not only indigenous laws but also indigenous populations, as well as their social and cultural structures. In Area C the limitation of Palestinian jurisdiction and the default supremacy of the extraterritorial jurisdiction of the ISC/HCJ over both Israeli settlers and Palestinians whose actions affect Israeli public or private interests undermines Palestinian jurisdiction and entrenches Israeli settler colonialism. The jurisprudence relating to land disputes between Palestinians and Israeli settlers in the West Bank brings to the fore the ambiguities of Israeli jurisdiction over Palestinian rights and property, as an individual as well as a collective issue. Consider the dispute involving Micheal Lessens, an Israeli settler, who took possession of an uncultivated plot of land owned by Ahmad Abed-el-Kader, a Palestinian farmer who subsequently sought to reenter his property.55 At first glance, this is a private land dispute. But in the context of occupation it is also a manifestation of a political battle in which the occupying power ‘is creating the conditions’ to exclude Palestinians from proper safeguard and enforcement of property rights.56 In fact, Lessens’ possession was secured by military protection, whereas Abed-el-Kader could not rely on a system of organised military protection – aside from having no recourse in the Palestinian justice system, nor easy access to Israeli courts.57 Additionally, since the introduction of Military Order 1586 in 2007, the head of Israel’s Civil Administration (the institution that administers the West Bank) can directly interfere in private land disputes.58 The Supreme Court eventually found that the order required the occupying power to protect private property, and the land was returned to Abed-el-Kader in 2012.59 But this decision was heavily criticised by settlers and other Israelis. Shortly afterwards, an alternative view was put forward in the Levy report (commissioned by Benjamin Netanyahu), which claimed that Israel did not occupy the West Bank, and called for a change in the law to ensure that Israelis could ‘gain rights based solely on cultivation’, regardless of any pre-existing Palestinian property rights.60 By neglecting the socio-political context of the occupation and adopting a private law approach, the occupying power’s obligations towards protected persons under IHL are laid aside.61 Ronit Levine-Schnur suggests that the occupying power should provide an ‘opportunity for a hearing before an independent tribunal’.62 This point is crucial: land law disputes between Palestinians and Israelis heard within the Israeli court system should instead be heard by impartial judges. International acquiescence in the jurisdictional status quo of the ISC/ 55 Abed-el-Kader v. Military Board of Appeals, HCJ 5439/09 (2012), reported in LevineSchnur 2017, pp. 130–32. 56 Levine-Schnur 2017, pp. 130–32. 57 Ibid. 58 Ibid. 59 Ibid. pp. 136–37. 60 Ibid. pp. 138–39, citing the Levy Commission Report on the Legal Status of Building in Judea and Samaria (Jerusalem, 21 June 2012). 61 Levine-Schnur 2017, p. 140. 62 Ibid. p. 141.

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HCJ in the OPT rests on the assumption that Israeli judges are willing and able to provide fair and impartial oversight over land disputes in the West Bank. This assumption is clearly problematic, given that these courts are an expression of the Israeli state and operate within a specific national framework and settler-colonial context.

B. Extraterritorial jurisdiction as a tool of conquest As I have argued elsewhere,63 regardless of the outcome of a given case, the Israeli Supreme Court’s extension of jurisdiction to the adjudication of disputes in the West Bank is inherently troublesome. The conflict of interest between Israelis and Palestinians is too deep: the right of Palestinians to a fair trial before an impartial and independent judge is invariably tainted by the institutionalisation of the Israeli Supreme Court as an organ of the Israeli state, capable of deferring to the Knesset and Israeli government. By exercising extraterritorial jurisdiction over the West Bank, the ISC/HCJ, as an institutional expression of the Israeli state, asserts its ‘peaceful’ control over Palestinian matters – as if the broader context of occupation and structural disparity in legal right and political authority can be overcome by the extension of (Israeli) judicial oversight and rule of law. If unchallenged, this extraterritorial reach will consolidate the legal fiction of normality fostered by the Israeli Supreme Court’s jurisdiction over the West Bank. As the ISC/HCJ’s jurisdiction over the West Bank is deployed in the context of settler colonialism, the effects of juridical expansionism highlight the intention to act as sovereign by extending Israeli legality over Palestine. This extraterritorial jurisdiction is an outward projection of sovereignty ratione loci, personae et materiae over land, people, and matters that fall outside a state’s formal jurisdictional limits, when the (political) purpose of controlling or conquering is disguised by law. By seeking to exercise judicial control over contiguous territories that Israel may hold physically with relative ease, and in the absence of clearly demarcated state borders, the line between extraterritorial jurisdiction and de facto annexation is blurred. Indeed, in this context, the function of extraterritorial jurisdiction as a means of controlling land and people seems to converge with straightforwardly military conquest. Palestinians do not for the most part have the option of divesting from Israeli courts when they find demolition orders affixed to their homes, or their farming land confiscated to allow the expansion of Israeli settlements, nature reserves, or closed military areas in the OPT. They can only buy time and engage with the available legal processes and institutions, despite what it might mean collectively for the Palestinian state project. However, bilateral and multilateral donors who provide aid and development assistance to Palestinian communities in the West Bank, in particular Area C, should consider carefully the ramifications of engaging with Israeli courts to stall or contest demolition orders. The international recognition of the jurisdiction of Israeli courts over Palestinian land implicitly 63 Panepinto 2017.

The annexation of Palestine 211 recognises Israeli sovereignty in the West Bank, contradicting the maxim that occupation does not transfer sovereignty.

Conclusion This chapter investigated how extraterritorial jurisdiction, as an expression of the occupying state, can be a vehicle for territorial conquest in the context of protracted occupation and settler colonialism. Exploring the situation in Palestine, specifically in the West Bank, it considered how Israeli extraterritorial jurisdiction transforms occupation into a more permanent reality. Considering the role of law in colonial expansion, it discussed the significance of the Israeli Supreme Court’s extraterritorial jurisdiction in the West Bank, in particular in Area C. The Israeli Supreme Court’s exercise of extraterritorial jurisdiction over matters involving Palestinian rights and land contributes to the construction of Israeli sovereignty in the West Bank. The unimpeded Israeli jurisdictional reach over Area C in particular undermines the authority of Palestinian law and courts. While it is tempting to interpret this process as something that occurs beyond the pale of international law, a closer look reveals that the ambiguities of international law itself (in particular some aspects of IHL) have facilitated this extraterritorial jurisdiction as a form of creeping annexation. The practice of extraterritorial jurisdiction in the West Bank is an assertion of sovereignty backed by the military threat inherent in the fifty-year occupation. The extension of the legal system of an occupying power to occupied territory has been successful before – despite the (relative) lack of international recognition in some cases, such as that of Jerusalem. Today the laws, courts, and law enforcement agencies in operation in East Jerusalem are Israeli. East Jerusalem has, in effect, been folded into the Israeli state. The quiet ‘annexation through extraterritorial jurisdiction’ that is also occurring in Area C may be less visible, but its effects undermine prospects of a just and durable peace no less seriously.

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Baruch, Uzi (2016), ‘Danon Condemns UN Security Council Resolution’ Israel International News, 24 December, online: www.israelnationalnews.com/News/ News.aspx/222203/. Ben Naftali, Orna, Aeyal Gross, and Keren Michaeli (2005), ‘Illegal Occupation: Framing the Occupied Palestinian Territory’ 23 Berkeley Journal of International Law 551. Benvenisti, Eyal (2012), The International Law of Occupation (Oxford: Oxford University Press). Bhuta, Nehal (2005), ‘The Antinomies of Transformative Occupation’ 16 European Journal of International Law 721. Burns, Jacob and Nicola Perugini (DAAR) (2016), ‘Untangling the Oslo Lines’, in: Jumana Manna and Sille Storihle (eds), The Goodness Regime, pp. 38–43, online: http://files.cargocollective.com/439134/TGR_essay_DAAR.pdf. Chomsky, Noam and Ilan Pappe (2015), On Palestine (London: Penguin). Dinstein, Yoram (2009), The International Law of Belligerent Occupation (Cambridge: Cambridge University Press). Ford, Richard T. (1999), ‘Law’s Territory (A History of Jurisdiction)’ 97 Michigan Law Review 843. Gordon, Neve (2008), Israel’s Occupation (Berkeley: University of California Press). Gross, Aeyal (2017), The Writing on the Wall: Rethinking the International Law of Occupation (Cambridge: Cambridge University Press). Hajjar, Lisa (2005), Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (Berkeley: University of California Press). Harpaz, Guy and Yuval Shany (2010), ‘The Israeli Supreme Court and the Incremental Expansion of the Scope of Discretion Under Belligerent Occupation Law’ 43 Israel Law Review 514. Hurrell, Andrew (2003), ‘International Law and the Making and Unmaking of Boundaries’, in: Allen Buchanan and Margaret Moore (eds), States, Nations and Borders: The Ethics of Making Boundaries (Cambridge: Cambridge University Press), pp. 275–97. Imseis, Ardi (2004), ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’ 44 Harvard International Law Journal 65. Kayaoğlu, Turan (2010), Legal Imperialism (New York: Cambridge University Press). Korman, Sharon (1986), The Right of Conquest (Oxford: Clarendon Press). Koskenniemi, Martti (2008), ‘Occupied Zone – “A Zone of Reasonableness”?’ 41 Israel Law Review 13. Kretzmer, David (2002), The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany: State University of New York Press). Levine-Schnur, Ronit (2017), ‘Private Property and Public Power in the Occupied West Bank’ 6 European Property Law Journal 122. Levinson, Chaim (2018), ‘Netanyahu’s Party Votes to Annex West Bank, Increase Settlements’ Haaretz, 1 January, online: www.haaretz.com/israel-news/.premiumnetanyahu-s-party-votes-to-annex-west-bank-increase-settlements-1.5630099/. Lloyd, David (2012), ‘Settler Colonialism and the State of Exception: The Example of Palestine/Israel’ 2 Settler Colonial Studies 59. Masri, Mazen (2017), The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State (Oxford: Hart). Morgensen, Scott Lauria (2011), ‘The Biopolitics of Settler Colonialism: Right Here, Right Now’ 1 Settler Colonial Studies 52.

The annexation of Palestine 213 Oppenheim, Lassa (1917), ‘The Legal Relations Between an Occupying Power and Its Inhabitants’ 33 Law Quarterly Review 364. Orford, Anne (2007), ‘Ritual, Mediation and the International Laws of the South’ 16 Griffith Law Review 353. Panepinto, Alice (2017), ‘Jurisdiction as Sovereignty Over Occupied Palestine: The Case of Khan-al-Ahmar’ 26 Social and Legal Studies 311. Panepinto, Alice (2018), ‘A Tiny West Bank Village is Due To Be Demolished: Here’s How International Law Could Be Used To Intervene’ The Conversation, 14 June, online: https://theconversation.com/a-tiny-west-bank-village-is-due-to-bedemolished-heres-how-international-law-could-be-used-to-intervene-97885/. Pasternak, Shiri (2014), ‘Jurisdiction and Settler Colonialism: Where Do Laws Meet?’ 29 Canadian Journal of Law and Society 145. Pawlisch, Hans (2002), Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (Cambridge: Cambridge University Press). Playfair, Emma (ed) (1992), International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and Gaza Strip (Oxford: Oxford University Press). Roberts, Adam (2006), ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ 100 American Journal of International Law 580. Said, Edward (2000), The End of the Peace Process: Oslo and After (London: Vintage). Salamanca, Omar Jabary, Mezna Qato, Kareem Rabie, and Sobhi Samour (2012), ‘Past is Present: Settler Colonialism in Palestine’ 2 Settler Colonial Studies 1. Shamir, Ronen (1990), ‘Landmark Cases and the Reproduction of Legitimacy: The Case of Israel’s High Court of Justice’ 24 Law and Society Review 783. Shany, Yuval (2008), ‘Forty Years After 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context’ 41 Israel Law Review 6. Shehadeh, Raja (1985), Occupier’s Law: Israel and the West Bank (Washington: Institute for Palestine Studies). Shehadeh, Raja (1992), ‘The Legislative Stages of the Israeli Military Occupation’, in: Emma Playfair (ed.), International Law and the Administration of Occupied Territories (Oxford: Clarendon Press), pp. 151–67. Shehadeh, Raja (1997), From Occupation to Interim Accords: Israel and the Palestinian Territories (The Hague: Kluwer). Smandych, Russell (2013), ‘Colonialism, Settler Colonialism, and Law: Settler Revolutions and the Dispossession of Indigenous Peoples Through Law in the Long Nineteenth Century’ 3 Settler Colonial Studies 82. Sultany, Nimer (2014), ‘Activism and Legitimation in Israel’s Jurisprudence of Occupation’ 23 Social and Legal Studies 315. Tilley, Virginia (2012), ‘The Legal Context in the Occupied Palestinian Territories’, in: Virginia Tilley (ed.), Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories (London: Pluto Press) pp. 26–78. Veracini, Lorenzo (2008), ‘Settler Collective, Founding Violence and Disavowal: The Settler Colonial Situation’ 29 Journal of Intercultural Studies 363. Veracini, Lorenzo (2010), Settler Colonialism: A Theoretical Overview (Basingstoke: Palgrave Macmillan). Veracini, Lorenzo (2011), ‘Introducing Settler Colonial Studies’ 1 Settler Colonial Studies 1.

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Weill, Sharon (2014), The Role of National Courts in Applying International Humanitarian Law (Oxford: Oxford University Press). Weill, Sharon (2015), ‘The Legitimating Role of the Israeli High Court of Justice: From Occupation to Segregation’ 15 Global Jurist 1. Weizman, Eyal (2012), Hollow Land: Israel’s Architecture of Occupation (London: Verso). Wolfe, Patrick (2006), ‘Settler Colonialism and the Elimination of the Native’ 8 Journal of Genocide Research 387.

Legal instruments Law and Administration Ordinance (Amendment No. 11) Law, 5727–1967, online: www.mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook1/pages/13%20 law%20and%20administration%20ordinance%20-amendment%20no.aspx Security Council Resolution 2334, UN Doc. S/RES/2334 (23 December 2016)

13 Extraterritoriality reconsidered Functional boundaries as repositories of jurisdiction Ezgi Yildiz

Introduction There is a myth that states have a monopoly of force within their borders and that they may not interfere in the affairs of other states. It is called the ‘Westphalian frame’, and it is in decline.1 The structural reorganisation of the international system has challenged the fields of international law and politics, and human rights is no exception. Human rights treaties operate within this frame and their successful implementation depends upon sovereign states that are willing and able to do so.2 The question is, as ‘the Westphalian frame is notoriously fracturing’,3 how will human rights law accommodate the tectonic shifts in the system? This chapter addresses this puzzle, though tackling such a far-reaching question in its entirety would exceed its scope. More specifically, it examines how legal institutions have adapted to an international system whose foundational myth is shattering. Territorial sovereignty is the consecrated organising principle of the international system. Yet it is becoming clear that it is not a useful concept for understanding international politics. How do international tribunals generate solutions to current problems with such inadequate tools? I focus on how the European Court of Human Rights (ECtHR) approaches extraterritorially committed violations of human rights. The ECtHR has changed its approach to extraterritoriality. One thing has, however, remained constant. It has been careful not to extend the application of the European Convention of Human Rights (ECHR) beyond the territories of European countries. It has devised some varyingly strict criteria to limit the extraterritorial application of the Convention. The one adopted in Jaloud v. the Netherlands appears to be the product of judicial innovation, and perhaps the most fitting approach to meet the needs of the current international system.4 This chapter examines closely the ECtHR’s reasoning in Jaloud. Drawing from the logic employed in this case, I propose the concept of ‘functional boundaries’ in order to understand the Court’s most recent jurisdictional test. I define 1 2 3 4

Koskenniemi 2011, p. 65; Koskenniemi 2016. Bhuta 2016, p. 2. Ibid. p. 10. Jaloud v. the Netherlands 2014.

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‘functional boundaries’ as repositories of authority exercised by a state on foreign soil. They are demarcation lines that establish extraterritorial jurisdiction, thereby holding states accountable for human rights violations committed on foreign soil. As the notion of neatly defined territorial borders as demarcation lines weakens, this concept may hold the potential to help us navigate in the current international order. However, one should also note that while useful in addressing extraterritorially committed human rights violations, this is an innovation that is not produced in an entirely progressive spirit. Rather, it is a concession that strikes a balance between, on the one hand, ensuring accountability for human rights violations perpetrated beyond the territorial boundaries of European states, and on the other, not fully opening the ECHR system to claims emanating from outside Europe.

The European Court of Human Rights and the principle of territoriality The ECtHR is certainly not the most progressive court in ensuring the extraterritorial application of human rights treaties. A progressive approach for a human rights court would entail constructing a more inclusive legal doctrine regarding states’ extraterritorial human rights obligations. In this regard, the Inter-American Court of Human Rights (IACtHR) and the Human Rights Committee are generally regarded as more progressive.5 For example, the IACtHR holds that states have extraterritorial obligations wherever they have ‘authority and control over individuals or their specific situations’.6 Similarly, the Human Rights Committee found that an incident would fall under a state’s jurisdiction as long as it was perpetrated by the agents of the state concerned.7 By contrast, the ECtHR has followed a rather conservative line of argument. It has devised strict tests to limit the application of the ECHR to extraterritorially committed acts. However, the conservative line that the ECtHR has pursued is precisely the reason the ECtHR illustrates an innovative – and inconsistent – way to understand extraterritorial jurisdiction. The Court’s meticulous attempts to limit the ECHR’s territorial application are reminiscent of the days when the European human rights regime was created. This regime is now considered the most authoritative regional forum for human rights protection.8 However, it was entangled with controversy from the beginning. The most glaring of those was the fact that some of the founding members were still colonial powers when the ECHR was drafted in 1949.9 Indeed, it was the French and the British who took the lead in drafting the ECHR, despite being

5 For a good analysis of how different tribunals approach extraterritorial jurisdiction, see Cleveland 2010. 6 Hathaway et al. 2011, p. 406. 7 Lopez Burgos v. Uruguay 1979, §12.2. 8 Helfer 2008, p. 126. 9 Reynolds 2017, pp. 129–30.

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implicated in serious human rights violations in their colonies.10 As a result, the way it was drafted gave the impression that the rights safeguarded were for ‘a select groups of individuals’.11 This is most evident in the way that Article 56 of the ECHR is drafted. This infamous ‘colonial clause’ acknowledged the existence of ‘overseas territories’ (read colonies). Member states were empowered with the decision to extend the application of the Convention to ‘all or any of the territories for whose international relations it is responsible’. This effectively meant that this protection system would be applicable only to Europeans by default. Does the ECtHR’s approach to the ECHR’s territorial application reproduce the hierarchies upon which the system was built? In order to answer this question, I turn to the ECtHR’s views on jurisdiction and extraterritoriality.

The Court’s view on jurisdiction and extraterritoriality Article 1 of the ECHR, which links the contracting states’ obligations to their jurisdiction, reads as follows: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms in Section I of this Convention.’ However, while Article 1 refers to the contracting states’ obligations to the persons within their jurisdiction, it does not offer a working definition of jurisdiction itself. However, in Bankovic and Others v. Belgium and Others, the ECtHR defined the scope of the contracting states’ jurisdiction as follows: [J]urisdictional competence of a State is primarily territorial. While international law does not exclude a State’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States.12 This definition underscores the idea that territoriality is the core constitutive element of jurisdiction, and extraterritorial jurisdiction is constrained by the territorial sovereignty of other states. According to Sarah Miller, this approach is ‘intensely pragmatic’ and reflects ‘the realistic constraints of the system and a sense of comity’; it also ‘eliminates some, but not all, categories of legal black holes’.13 This approach arguably limits the complications that may arise from expanding the obligations of contracting states beyond their territorial borders, but it also leaves sufficient room for further developing the obligations if need be in the future.14

10 11 12 13 14

Madsen 2007, p. 144. Christoffersen and Madsen 2011, p. 1. Bankovic and Others v. Belgium and Others 2001, §59 (emphasis added). Miller 2010, p. 1246. Ibid.

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The ECtHR further reinforced the principle of territoriality by explaining that ‘Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case’.15 More importantly, with this statement the ECtHR established a ‘rule and exception paradigm’: territorial jurisdiction is the rule, extraterritorial jurisdiction only applies in exceptional circumstances, and it requires specific justifications. Such an approach sets the bar high for an extraterritorial act to fall within the jurisdiction of the state concerned. Therefore, it limits state obligations arising from such acts. Extraterritorial jurisdiction, then, is an exception to the rule that jurisdiction is primarily territorial. Although this distinction appears straightforward, establishing the existence or the absence of extraterritorial jurisdiction in specific cases is a daunting task. In practice, the ECtHR devised different tests to establish the existence of extraterritorial jurisdiction. While doing so, it has generated a rather inconsistent jurisprudence, as we will see in the coming sections. Piecing different approaches adopted by the ECtHR together, one can conclude that there are two jurisdictional tests: the spatial control model (the exercise of control over territory) and the state agent authority and control model (the exercise of control over individuals).16

The spatial control model: effective control over territory According to the spatial control model, states have extraterritorial jurisdiction if they exercise effective control over territory or they assume some functions usually performed by governments. This model was first developed and deployed in cases concerning the Turkish occupation of Northern Cyprus. A particularly important case is Loizidou v. Turkey. A Cypriot citizen who could not access her properties in Northern Cyprus brought this case before the Court. It related to an interesting ground for defining and clarifying what extraterritorial jurisdiction entails. The ECtHR ruled that the concept of ‘jurisdiction’ under Article 1 of the Convention (art. 1) is not restricted to the national territory of the Contracting States. Accordingly, the responsibility of Contracting States can be involved by acts and omissions of their authorities which produce effects outside their own territory.17 Therefore, when a state exerts ‘effective control of an area outside its national territory’ – be it exercised directly by means of military forces or via a subordinate local administration – that state incurs obligations.18

15 16 17 18

Bankovic and Others v. Belgium and Others 2001, §61. Wilde 2010, p. 110; Rooney 2015, p. 408; Milanovic 2011, pp. 119–228. Loizidou v. Turkey 1996, §52. Ibid.

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The ECtHR supported its approach by arguing that an alternative scenario would result in ‘a regrettable vacuum in the system of human-rights protection in the territory in question by removing from individuals there the benefit of the Convention’s fundamental safeguards’.19 This statement laid the ground for a contentious concept: the ECHR’s ‘legal space’ (espace juridique), encompassing the entire territory of its signatories. Initially made to extend the ECHR’s protections to occupied Northern Cyprus, the statement would subsequently be used to limit the ECHR’s application. In a sense, Loizidou v. Turkey confirmed that only persons in privileged spaces are protected under the ECHR, an idea that goes back to the time of the Convention’s drafting. This ‘effective overall control’ test was reaffirmed in Cyprus v. Turkey, in which the government of Cyprus brought complaints regarding the 1974 invasion and the subsequent occupation of the northern portion of the island. The ECtHR ruled that ‘[h]aving effective overall control over northern Cyprus’, Turkey had responsibility over the acts of the local administration, which depended on the support of Turkey.20 This reasoning was further reinforced in Ilascu and Others v. Moldova and Russia.21 With these cases, the ECtHR determined that ‘effective overall control’ over a given territory (through, for instance, the presence of armed forces) is a sufficient and necessary condition for the establishment of extraterritorial jurisdiction. However, the Court revised this approach in Bankovic. The case was brought against Belgium and sixteen other European states that participated in the NATO airstrike on the Radio Televizija Srbije building in Belgrade in 1999. Faced with this difficult case against European NATO member states, the ECtHR chose to take a cautious step and re-emphasised that jurisdiction was, in principle, confined within the territorial boundaries of the contracting states.22 Having reiterated that jurisdiction was territorial, the Court repeated the exception to this rule: a state has extraterritorial jurisdiction over a territory when it exercises ‘effective overall control’ due to the presence of large numbers of troops in that territory.23 A state can wield such control over a given territory or population either through military occupation or by exercising all or some of the public powers with ‘the consent, invitation or acquiescence of the government of that territory’.24 Consequently, with Bankovic, the ECtHR refined the above mentioned rule and its exception, making the criteria for the establishment of extraterritorial jurisdiction even more stringent. Following this formula, the ECtHR found that airspace control was not sufficient to evoke extraterritorial jurisdiction. According to this reasoning, the control gained through aerial bombing does not pass the threshold to qualify as an exception to the rule.

19 20 21 22 23 24

Cyprus v. Turkey 2001, §78 (emphasis added). Ibid. §77. Ilascu and Others v. Moldova and Russia 2004. Bankovic and Others v. Belgium and Others 2001, §59. Loizidou v. Turkey 1996, §56. Bankovic and Others v. Belgium and Others 2001, §71.

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Moreover, the Court reiterated the Loizidou argument that the ECHR had a ‘legal space’. The borders of this legal space were limited to the territory of the contracting states to the ECHR. Hence, it was only normal to restrict its applicability to the ‘legal space’ of Europe. Not being a signatory to the ECHR at the time, Serbia was not within this space. Furthermore, the Court proclaimed ‘the Convention as a constitutional instrument of European public order’.25 The rights safeguarded under the ECHR could not be ‘divided and tailored’ for the particular circumstances of the extraterritorial act at issue.26 According to this logic, the protection of human rights by the ECHR was an exclusive public good which only protected those who were within the borders of the European legal space. This problematic and much-criticised decision served well for the purposes of political expediency. It evaded the complications that could arise from reviewing the acts of seventeen contracting states in a NATO operation. Thus, the ECtHR guarded itself against possible concerted criticisms coming from several of the contracting states. This also sent a message to the member states. The ECtHR effectively signalled that it would adhere to strict criteria when it came to reviewing future complaints arising from NATO operations in the region, or other similar operations in which the contracting states might participate.27 The story, however, did not end there.

The personal control model: the state agent authority and control The personal control model is the second model employed by the Court and it rests on a different logic. The control over an individual or a population – rather than a territory – is key here. In a nutshell, a state exercises jurisdiction over a specific individual or population under its control. A variant of this test is the ‘state agent authority and control’ model. According to this model, the source of jurisdiction is the state agents’ extraterritorial use of force or exercise of control over persons. In other words, a state exercises jurisdiction whenever it establishes authority or control over individuals outside of its territory. Markus Mayr argues that the state agent authority and control model was initially developed to cover state agents in embassies and consulates. Subsequently, it was extended to the cases concerning extraterritorial arrests and detentions.28 This model, which deals with control over persons, is more straightforward compared to the spatial model, in which one has to establish whether a state’s control over a given territory exceeds a certain threshold. An early example of the state agent authority and control model cases is found in M. v. Denmark. This case concerned the removal of an East German citizen 25 Ibid. §80 (original emphasis). 26 Ibid. §75. 27 The ECtHR softened this approach in Issa and Others v. Turkey 2004, in which it found that having overall control over a particular portion of territory was sufficient in order to establish the existence of extraterritorial jurisdiction. 28 Mayr 2010, p. 7.

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from the premises of the Danish embassy in East Berlin.29 The applicant, who wished to escape to the West, complained about the fact that the Danish authorities handed him over to the East German police. In this case, the European Commission of Human Rights (the Commission)30 argued that ‘authorized agents of a State, including diplomatic or consular agents, bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property’.31 This reasoning was built on an established rule under public international law regarding the special legal status of diplomatic premises, or vessels on high seas carrying a flag of a particular state.32 The ECtHR’s jurisprudence invoking the personal control model also includes cases concerning extraterritorial arrests and detentions, such as Ilich Sanchez Ramirez v. France33 and Ocalan v. Turkey.34 In both cases, the ECtHR found that the individuals concerned were under the authority and the jurisdiction of the responding states from the moment of their arrest. Then came Al-Skeini v. the United Kingdom. This case was brought against the United Kingdom and involved allegations about human rights violations committed by British forces during the occupation of Iraq. It contained five separate cases in which six Iraqis lost their lives as a result of arbitrary killings and torture employed by British soldiers. The applicants argued that ‘their relatives were within the jurisdiction of the United Kingdom . . . at the moment of death and that . . . the United Kingdom had not complied with its investigative duty under Article 2 [right to life]’.35 The United Kingdom invoked the above mentioned Bankovic case and denied having jurisdiction. When evaluating the claims of the parties, the ECtHR began with the territoriality principle, reaffirming that jurisdiction is primarily territorial. It then listed the exceptions to this rule, starting from the state agent authority and control model. Moreover, it refined this model and expanded its application. For the Court, this model has three dimensions: first, extraterritorial jurisdiction exercised by diplomatic and consular agents in a foreign territory; second, extraterritorial jurisdiction which arises from exercising all or some of the public powers in another country; and third, jurisdiction exercised by state agents when conducting extraterritorial arrest and detention.36 What is interesting about these three dimensions is that the ‘public powers’ exception was also present in Bankovic. Yet it was conceptualised as an indication of the effective control model. However, in Al-Skeini, the ECtHR redefined the 29 M. v. Denmark 1992. 30 The European Commission of Human Rights was the body that was responsible for carrying out initial screenings of applications and for establishing admissibility of cases until it was abolished in 1998. 31 M. v. Denmark 1992, §1. 32 Barker 2006. This reasoning was also applied in Hirsi Jamaa and Others v. Italy 2012. 33 Ilich Sanchez Ramirez v. France 1996. 34 Ocalan v. Turkey 2005. 35 Al-Skeini and Others v. the United Kingdom 2011, §95. 36 Ibid. §134–36.

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scope of the state agent authority and control model, and incorporated the public functions’ criterion. Having established the rules and exceptions once again, the ECtHR began assessing whether the acts concerned fell under the jurisdiction of the United Kingdom. For this purpose, it invoked the refined version of the state agent authority and control model. The next task was to establish whether the victims were under the control of British authorities. To this end, the Court turned to Security Council Resolution 1483, which designated the United Kingdom as one of the occupying powers in Iraq. The ECtHR took this resolution as a starting point, and found that the United Kingdom assumed ‘some of the public powers normally to be exercised by a sovereign government’.37 More specifically, the Court decided that the United Kingdom ‘through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations’.38 Thus, the jurisdictional link between British authorities and the deceased Iraqis was established. Al-Skeini is a landmark judgment, not only because of its concrete outcome, but also due to its broader legal significance. The Court seized the chance to clarify jurisdictional matters under the ECHR. Instead of repeating the reasoning and the tests used in Bankovic, the Court adopted a different approach. Effectively, it handpicked an element from the test used in Bankovic: the exercise of public powers. It added this criterion to the state agent authority control model, which was the only jurisdictional test applied in Al-Skeini. By doing so, the Court refined and broadened the state agent authority and control model.

Habemus functional jurisdiction One of the most significant implications of Al-Skeini is that it brought about an emphasis on public functions. This ‘nebulous Bankovic reference to public power’, however, changed the rules of the game.39 To recapitulate, the model according to which ‘the exercise of public powers [is] normally to be carried out by local government’ was first introduced in the Bankovic judgment as a criterion for measuring the effectiveness of control over territory. This model was then reintroduced as a criterion for measuring state authority to establish whether the United Kingdom exercised jurisdiction in the Al-Skeini case.40 The public powers at issue were the maintenance of security and stability (by assuming, among other things, the control of military and security institutions) and the maintenance of civil law and order (by supporting civil administration).41 The public powers exercised by the United Kingdom, for example, were ‘patrols, arrests, 37 Ibid. §149 (emphasis added). 38 Ibid. (emphasis added). 39 Milanovic argues that this change is likely to cause uncertainty in the long run. See Milanovic 2012, p. 139. 40 Ibid. p. 128. 41 Al-Skeini and Others v. the United Kingdom 2011, §144.

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anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations’.42 As Marko Milanovic argues, the public powers mentioned above are indications of ‘factual power, authority, or control that a state has over territory, and consequently over persons in that territory’.43 Therefore, it is safe to assume that having jurisdiction indeed means exercising ‘factual power’.44 Accordingly, jurisdiction is derived from ‘public power characteristic of sovereignty (“normally to be exercised by a sovereign government”)’.45 Admittedly, this conceptualisation resembles ‘functionalist approaches’ to sovereignty. Within this framework, inability to fulfil certain functions (such as the protection of a population) would nullify sovereign prerogatives and transfer the legitimacy of authority to (international) actors that claim to undertake these functions on behalf of or instead of national governments.46 However, what is at stake here is not legitimising authority claims. Rather, it is about attributing responsibility to those actors who enjoy authority generated through functions, and holding them accountable for the crimes committed while doing so. What is difficult, however, is to understand the confines of this functional authority and jurisdiction. As we will see in Jaloud, territorial boundaries, which are traditionally used as yardsticks, may not be able to demarcate the extent of authority at issue. Therefore, I propose the concept of ‘functional boundaries’ for delineating the sphere of public functions and its limits. Functional boundaries correspond to a slightly different limitation compared to territorial borders. In other words, they enclose a more fluid type of power: an assemblage of the islands of authority that a state enforces through the functions it assumes on foreign soil. Functional boundaries surround these islands of authority and demarcate zones of functional jurisdiction. Unlike territorial borders, functional boundaries can be divided and tailored within a given territory. Hence, they are arguably better tools for comprehending the extent of jurisdiction derived from exercising public functions, and for holding states accountable for violations committed while carrying out such functions. A need for reconfiguring political space is not a new idea. For example, John Ruggie explains that there are ‘nonterritorial functional spaces’, such as various types of functional regimes, common markets, and political communities, where the claims for exclusive territoriality are negated. Territoriality is unbundled in such spaces.47 However, one can observe that these spaces too are demarcated by boundaries. This is primarily because of the constitutive role of enclosure through boundaries. Considering the example of medieval city walls, Wendy Brown claims that such ‘walls produced a legal and political entity’.48 Brown’s observation here 42 43 44 45 46 47 48

Ibid. Milanovic 2011, p. 32. Ibid. p. 34. Bhuta 2016, p. 11. Orford 2011, pp. 196–99. Ruggie 1993, p. 165. Brown 2010, p. 47.

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is directly applicable to post-modern rearrangements of political space such as the one explored in this chapter. In what follows, I discuss Jaloud, the latest case in which the ECtHR tackled jurisdictional matters and also clarified the idea of functional jurisdiction, as well as its limitations.

‘It all makes sense now!’ Jaloud v. the Netherlands Jaloud was heard amidst fears that the Al-Skeini decision would set a precedent for complaints arising from violations committed during military operations or foreign interventions.49 The case was brought by an Iraqi national whose son had lost his life due to shots fired by Dutch forces stationed at a checkpoint.50 The Dutch government argued that the case was inadmissible, since the acts that gave rise to the complaint did not fall under the jurisdiction of the Netherlands.51 It further advanced that this case should be distinguished from Al-Skeini, because the Netherlands was not an ‘occupying power’ and did not exercise public functions or physical authority and control over the victim.52 Assessing the evidence presented, the ECtHR found that the victim lost his life when passing through a ‘checkpoint manned by personnel under the command and direct supervision of a Netherlands Royal Army officer’.53 Consequently, the ECtHR found that the Netherlands indeed exercised jurisdiction since the Dutch forces controlled the checkpoint and asserted ‘authority and control over persons passing through the checkpoint’.54 Put otherwise, the ECtHR found that the Dutch government exercised jurisdiction simply because the Dutch army operated a vehicle checkpoint, which represented a Dutch sphere of influence.55 What is striking about this ‘checkpoint jurisdiction’ approach is that it relied on an indirect deduction.56 The ECtHR first concluded that the Dutch forces were in control of the checkpoint and served a function associated with exercising public powers. The Netherlands had authority over this checkpoint and therefore the checkpoint and the victim who lost his life in an attempt to pass through it fell under its jurisdiction. This approach is built upon the idea that the exercise of jurisdiction is linked to the exercise of public functions. It is through these functions that the Netherlands had authority and control over the persons. What is at issue here is identifying the source of the authority and then demarcating its limits. In Jaloud, the extent of the authority was limited to the checkpoint

49 Cowan 2012. There were indeed other cases concerning the military operation in Iraq, see, e.g., Hassan v. the United Kingdom 2014. 50 Jaloud v. the Netherlands 2014, §10–16. 51 Ibid. §112. 52 Ibid. §112–19. 53 Ibid. §152. 54 Furthermore, the ECtHR also tackled the issue of attribution, which had not been discussed under the jurisdictional matters in its previous case law. For more on the link between attribution and jurisdiction see Rooney 2015. 55 Sari 2014, p. 301. 56 Haijer and Rynagaert 2015, p. 181.

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that was under the command of Dutch forces. This checkpoint demarcated the extent of Dutch jurisdiction. It was an island of Dutch authority in Iraq, and the Netherlands had direct jurisdiction and responsibility over what was going on at this checkpoint. And so was initiated a clear turn towards emphasising functional jurisdiction. The same logic was used again in Pisari v. the Republic of Moldova and Russia – another example of functional jurisdiction exercised at a checkpoint.57

Conclusion The concept of functional boundaries follows from an evaluation of public functions as demarcation lines of jurisdiction. It is the outcome of a compromise between an inclusive approach, which the ECHR applies whenever a person is under the authority and control of a member state, and a stringent approach, which the ECHR applies only to the ‘legal space’ of Europe. It is therefore a judicial innovation and the product of a prudential attempt to prevent over-expansion of the ECHR’s application, while still leaving avenues for seeking justice for extraterritorially committed human rights violations.58 This judicial innovation has its own complications. It sets up a different, more elusive type of boundary, and shifts the emphasis from territorial borders to functional boundaries.59 It is a more complicated legal test compared to identifying a border (territoriality), the existence of troops on the ground (effective overall control), or whether an individual has been arrested by agents of a certain state (authority and control over an individual). It is arguably difficult to establish the existence, degree, or scope of the public functions exercised by the state on a foreign territory. As a result, it is a boundary that is harder to discern. As for its broader impact, the concept of functional boundaries is an innovative approach to the question ‘what is within and what is beyond?’ The case of Jaloud illustrates how this notion could be used as a means of reconfiguring political space, and provides us with food for thought. As traditional approaches to attribute responsibility for extraterritorially committed violations increasingly show their limits, perhaps it is time to turn to another yardstick for understanding jurisdiction and its limits.

Bibliography Secondary literature Barker, J. Craig (2006), The Protection of Diplomatic Personnel (Aldershot: Ashgate). Bhuta, Nehal (2016), ‘The Frontiers of Extraterritoriality – Human Rights Law as Global Law’, in: Nehal Bhuta (ed.), The Frontiers of Human Rights: Extraterritoriality and its Challenges (New York: Oxford University Press), pp. 1–20.

57 Pisari v. the Republic of Moldova and Russia 2015. 58 De Costa 2012, p. 253. 59 Ibid. p. 247.

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Brown, Wendy (2010), Walled Sates, Waning Sovereignty (Cambridge: MIT Press). Christoffersen, Jonas and Mikael Rask Madsen (2011), ‘Introduction: The European Court of Human Rights between Law and Politics’, in: Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (New York: Oxford University Press), pp. 1–13. Cleveland, Sarah H. (2010), ‘Embedded International Law and the Constitution Abroad’ 110 Columbia Law Review 225. Cowan, Anna (2012), ‘A New Watershed? Re-evaluating Banković in Light of AlSkeini’ 1 Cambridge Journal of International and Comparative Law 213. De Costa, Karen (2012), The Extraterritorial Application of Selected Human Rights Treaties (Leiden: Martinus Nijhoff). Haijer, Friederycke and Cedric Ryngaert (2015), ‘Reflections on Jaloud v. the Netherlands: Jurisdictional Consequences and Resonance in Dutch Society’ 19 Journal of International Peacekeeping 174. Hathaway, Oona A. et al. (2011), ‘Human Rights Abroad: When Do Human Rights Treaty Obligations Apply Extraterritorially?’ 43 Arizona State Law Journal 389. Helfer, Laurence R. (2008), ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ 19 European Journal of International Law 125. Koskenniemi, Martti (2011), ‘What Use for Sovereignty Today?’ 1 Asian Journal of International Law 61. Koskenniemi, Martti (2016), ‘Expanding Histories of International Law’ 56 American Journal of Legal History 104. Madsen, Mikael Rask (2007), ‘From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics’ 32 Law and Social Inquiry 137. Mayr, Markus (2010), ‘Extraterritorial Application of the European Convention on Human Rights and the Access to the Court for Victims of Human Rights Violations of ESDP Missions’ 7 BSIS Journal of International Studies 1. Milanovic, Marko (2011), Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford: Oxford University Press). Milanovic, Marko (2012), ‘Al-Skeini and Al-Jedda in Strasbourg’ 23 European Journal of International Law 121. Miller, Sarah (2010), ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’ 20 European Journal of International Law 1223. Orford, Anne (2011), International Authority and the Responsibility to Protect (New York: Cambridge University Press). Reynolds, John (2017), Empire, Emergency and International Law (Cambridge: Cambridge University Press). Rooney, Jane M. (2015), ‘The Relationship between Jurisdiction and Attribution after Jaloud v. Netherlands’ 62 Netherlands International Law Review 407. Ruggie, John Gerard (1993), ‘Territoriality and Beyond: Problematizing Modernity in International Relations’ 47 International Organization 139. Sari, Aurel (2014), ‘Untangling Extra-territorial Jurisdiction from International Responsibility in Jaloud v. Netherlands: Old Problem, New Solutions?’ 53 Military Law and the Law of War Review 287. Wilde, Ralph (2011), ‘Remarks by Ralph Wilde’ 104 Proceedings of the Annual Meeting (American Society of International Law) 110.

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Case law Al-Skeini and Others v. the United Kingdom, application no. 55721/07, ECHR, 7 July 2011 Bankovic and Others v. Belgium and Others, application no. 52207/99, ECHR, 12 December 2001 Cyprus v. Turkey, application no. 25781/94, ECHR, 10 May 2001 Hassan v. the United Kingdom, application no. 29750/09, ECHR [GC], 16 September 2014 Hirsi Jamaa and Others v. Italy, application no. 27765/09, ECHR, 23 February 2012 Ilascu and Others v. Moldova and Russia, application no. 48787/99, ECHR, 8 July 2004 Ilich Sanchez Ramirez v. France, application no. 28780/95, Commission decision of 24 June 1996 Issa and Others v. Turkey, application no. 31821/96, ECHR, 16 November 2004 Jaloud v. the Netherlands, application no. 47708/08, ECHR [GC], 20 November 2014 Loizidou v. Turkey, application no. 15318/89, ECHR, 18 December 1996 Lopez Burgos v. Uruguay, communication no. R.12/52, UN Doc. Supp. No. 40 (A/36/40) at 176 (1981), 6 June 1979 M. v. Denmark, no. 17392/90, Commission decision of 14 October 1992 Ocalan v. Turkey, application no. 46221/99 ECHR [GC], 12 May 2005 Pisari v. the Republic of Moldova and Russia, application no. 42139/12 ECHR, 21 April 2015

Index

A. Ahlstrom Osakeyhtio v. Commission (‘Wood Pulp’) (1988) 38–39 Abed-el-Kader, Ahmad 209 Adair, E. R. 72, 73, 79 aircraft see hypermobile entities Alcock, Rutherford 113 Alcock Convention (1868) 111, 116 Alexandria Water Company 120–21, 126–27, 128 Al-Skeini v. the United Kingdom (2011) 40, 221–22, 224 ambassadorial immunity and privileges 72, 73, 76, 79, 82 American Banana Co. v. United Fruit Co. (1909) 153 American exceptionalism 174, 176, 179 Amos, Percy Maurice 122 anomalous zones 32–33 Anthropocene: concept of 50–52; link with capitalism 51–52 Anti-Corn Law League 136 anti-formalism 21n39 antitrust law: effects-based jurisdiction 33; effects-based jurisdiction of US antitrust law 37–38; enforcement in US 154; extension of conception of territoriality 39 Arrow War (or Second Opium War) (1856–60) 105, 111, 116 ascriptive jurisdiction 44–45 Bankovic and Others v. Belgium and Others (2001) 40, 217, 219–20, 222, 223 Batavia: VOC’s use of extraterritoriality 94–95

Becker Lorca, Arnulf 21 Belgium, territoriality in criminal law 34 Benton, Lauren 94 Biggerstaff, Knight 113–14 Blagden, H. R. C. 126 Bowring, John 136 Bowring Treaty (1855) 134, 136–38, 142 Bradford, O. B. 114 Brazil, Operation Car Wash 191–92 bribery and corruption: French policy 191–92; nature of 186; US influence on global anti-corruption regime 190–93; US anti-corruption policy 188–90 British Empire: annexation of Burmese Empire 135; early modern diplomatic practices 71, 78–79; embassy chapels 74, 78–79; extraterritoriality and transition to agrarian capitalism 76–81; jurisdictional reach into Ottoman Empire 92; merchants’ privileges in Ottoman Empire 89; social origins of diplomats 78–79; treaties with Siam 135, 136–38, 144; see also United Kingdom Brown, Shannon 114 Brown, Wendy 223 Bull, Hedley 72 Cambodia: border conflict with Thailand 146–47; as tributary of Vietnam and Siam 142 Canada, territoriality in criminal law 35–36

Index Canal Zone, Panama 155, 159 capitalism, extraterritoriality and transition to 76–81 capitulations 2, 73, 88–91, 106, 119–21, 131 Carlson, Ellsworth 110 Cassel, Pär Kristoffer 21, 104 Castree, Noel 51 Charles II (King of England) 91 Chiang Mai Treaty (1874) 143–44 China: Alcock Convention 111, 116; Arrow War 105, 111, 116; Canton system of trade 105; Costume Regulation, 116 113; First Opium War 97, 98–99, 105; foreign investment in railways and telegraphs 113–15; foreign merchants, resistance to inland residence of 111–13; legal pluralism 95–97, 106; Luoyuan Riot 107–11, 116; May Fourth and May Thirtieth movements 104; missionary activity 105–6; missionary incidents and legal jurisdiction 104, 106–7; objections to extraterritoriality 104–5; opposition to foreign privilege 104; protégés, problems with 106–7, 111, 113; Sino-Japanese War 141; treaties with Russia 96; unequal treaties and extraterritoriality 98–99, 105–7; Wusong railroad affair 114–15, 116; Zongli Yamen 107, 108, 110, 111–12, 113, 114, 116 Chulalongkorn (King of Siam) 134n1, 138, 140 Church Missionary Society (CMS) 107, 109 climate change 50, 51; human rights and 60–61 Cohen, Jean 178 Colangelo, Anthony 14, 154 competition law, territorial jurisdiction 38–39 conquest, illegality of 202, 205 corporate conduct 55–57; extraterritorial obligations 56–57; UN Guiding Principles on Business and Human Rights 53–55 corporations: connection to nationstates, 33, jurisdiction over 41–43

229

corruption see bribery and corruption cosmopolitan transnationalism 169, 173 Costa, Paulo Roberto 191 Council of Europe 186 Cribb, A. W. 109 Criminal Justice Act 1993 (UK) 35 criminal law: extension of conception of territoriality 39, 41; national traditions of defining territoriality 33–37; US prosecutions of foreign entities 174–75 critical legal studies movement 14n3 Crutzen, Paul 50 cybernetics 23n54 Cyprus v. Turkey (2001) 219 Danon, Danny 200 data, location of 42 democratic government 171 Dimmock, Spencer 77–78 diplomacy: ambassadorial immunity and privileges 72, 73, 76; class dynamics of 78–81; definition 69n3; embassy chapels 74, 74n21, 74n22, 75; lingua franca 81 diplomatic history: early modern extraterritoriality 69–70, 72–75; Eurocentrism 70–71 Double Irish Dutch Sandwich 43 Dover, Paul 74, 81 Dutch East India Company (VOC): in Batavia 94–95; forms of extraterritoriality in Asia 92–94; in Japan 93; name and establishment 87n3 Dutch Republic: diplomatic practices 71, 78–79; embassy chapels 74, 78–79; social origins of diplomats 78–79; treaty with Siam 93, 135; see also The Netherlands East India Company 94; establishment 87n3; and extraterritoriality 97–98; in Guangzhou 98; in India 98; in Penang 97–98 ecological interdependence, state sovereignty and 57–58, 61–63 economic entity, doctrine of 38

230

Index

Egypt: 1919 Revolution 120, 130; Alexandria municipality 125, 126–27, 128; Alexandria Water Company 120–21, 126–27, 128, 129; anti-colonial movement 120, 130–31; capitulations regime 119–20; commodification and regulation of drinking water 120–21, 127–31; mixed municipal commissions 125; transition to capitalism 120; see also Mixed Courts of Egypt Elizabeth I (Queen of England) 90 embassy chapels 71, 74, 74n21, 74n22, 75, 82 England see British Empire; United Kingdom environmental protection: human rights approach to 52–53, 58–61; toxic substances and hazardous waste 58–59 ETO Consortium 56, 57 ETOs (extraterritorial obligations) 55–57 European Community (EC), competition jurisdiction 38 European Convention on Human Rights (ECHR) 40; colonial clause 217; drafting of 216–17; territorial application by ECtHR 215–17 European Court of Human Rights (ECtHR) 40; application of ECHR 215, 216–17; approach to extraterritoriality 216, 217–18; effective overall control test 219, 222; functional jurisdiction 222–25; personal control model 220; spatial control model 218–20; state agent authority and control model 220–22 European Court of Justice (ECJ), territorial jurisdiction over foreign cartels 38–39 exceptionalism 174, 176, 178, 179 Export Trade Act (Webb-Pomerene Act) 1918 (US) 153 extraterritorial obligations (ETOs) 55–57 extraterritoriality: capitalism and 76–81; contextualisation 19–26; definition 184; early modern

extraterritoriality 69–70, 72–75; historical contextualisation 19–21, 24–25; imperialism and 72–75; initial basis in personal law 73; provision as right rather than privilege 91–92; as scholarly frame 13–14, 25–27; technical approaches to 14–19; territoriality distinguished from 31–33; theoretical contextualisation 21–24; as tool of conquest 207, 210– 11; as tool of imperial domination 100; unilateralism and empire building 169, 177–79 Feng Junguang 115 First Anglo-Burmese War (1824–26) 135, 143 First Opium War (1839–42) 97, 98–99 Fitzpatrick, Peter 162 Foreign Corrupt Practices Act 1977 (US) 188–90, 193 Foreign Jurisdiction Act 1843 (UK) 92, 92n33 Foreign Trade Zone Act 1934 (US) 155 foreign trade zones 33 Foreign Trade Zones (FTZs) 154–56 Fournier, Leslie T. 153–54 Fourth Geneva Convention (1949) (IVGC) 202 France: anti-corruption policy 189, 191–92; early modern diplomatic practices 71, 72, 74–75, 75n29, 78, 79; in Indochina 143; merchants’ privileges in Ottoman Empire 89; territoriality in criminal code 33–34; treaty with China 105–6; treaty with Siam 135 free ports 155, 155n19 functional boundaries 215–16, 223, 225 Gerber, David 160 Germany, territoriality in criminal law 34, 36 Gibney, Mark 57 globalisation 22, 24, 53, 172, 183, 185, 194 Gong (Qing Prince) 116 Gordon, Neve 203

Index governance: polycentric mode 53; recent trends in global governance 184–85; transformation of 22–24; zonal arrangements of United States 154–60 Grear, Anna 51–52 Gross, Aeyal 201, 202 Grotius, Hugo 72–73, 75 Guam 156, 157–58 Guam Organic Act 1950 (US) 157 Guano Act 1856 (US) 157 Gunneflo, Marcus 21 Hague Regulations (1907) 202 Hajar, Lisa 204 Haraway, Donna 51 Harbourne, William 90 Hart, Robert 110–11, 116 Harvey, Richard S. 153 Hernandez v. United States (2014) 39 Heyligers, Theodore 122 Hirsi Jamaa and Others v. Italy (2012) 39 Holland, T. E. 141 Hornburg, Alf 50 human rights: climate change and 60–61; environmental protection and 52–53, 58–61; jurisdiction in fundamental rights cases 39–41 human rights violations: jurisdiction and prosecutions see European Court of Human Rights (ECtHR) transnational corporate accountability for 52, 53 hypermobile entities: connection to nation-states 33; jurisdiction over 42–43 hypermodernism 23n53 Iijima, Akiko 144 Ilascu and Others v. Moldova and Russia (2004) 219 Ilich Sanchez Ramirez v. France (1996) 221 Imperial Chemical Industries, Ltd. v. Commission (‘Dyestuffs’) (1972) 38 imperialism, early modern extraterritoriality and 72–75 implementation, doctrine of 39

231

India, East India Company in 98 intangibles, jurisdiction over 41–43 Inter-American Court of Human Rights (IACtHR) 216 International Court of Justice 146–47 International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities 56 International Criminal Court (ICC), jurisdiction 36 international humanitarian law 175, 205 international law: applicability to the ‘Orient’ 122–23; boundaries in 30; categorisation of nations 91, 98, 122, 134n3, 137, 146; competing theories 170–74; consent-based 170–71, 178; epistemic perspective on 13; establishment as profession 77; neo-realist stance on 173; territorial sovereignty 170–71; undermining of 177–79; unilateral extraterritorial regulation 171–74 international tax law, territoriality in 41–42 Israel: claims to Palestinian land 205; extension of jurisdiction over East Jerusalem 206; extraterritorial jurisdiction as sovereign expansionism 207–10; extraterritorial jurisdiction as tool of conquest 207, 210–11; extraterritorial jurisdiction over occupied Palestinian territories 201–5, 206; Levy report 209; from occupation to conquering sovereignty 205–7 Israeli Supreme Court in High Court of Justice formation (ISC/HCJ) 203–4, 210, 211 Italian city-states, diplomatic practices 74, 78 Jacobi, Anja 187 Jaloud v. The Netherlands (2014) 40, 215, 223, 224–25 James I (King of England) 90 Japan: relationship with VOC 93; SinoJapanese War 141; US occupation and FTZs 159–60 Jettot, Stéphane 79, 80–81

232

Index

Joyce, Richard 162 jurisdiction: antitrust/competition jurisdiction 37–39; ascriptive jurisdiction 44–45; based on registration 41–43, 44–45; effectsbased jurisdiction as extraterritorial 33, 38; jurisdictional pluralism 44; location and 30–31; over hypermobile entities 42–43; over intangibles 41–43; as technology of spatial governance 152–54; territoriality as guide to establishing 32–33 jurisdictional pluralism 44 jurisdictional unilateralism 160 Kaczmarek, Sarah 189 Kayaoğlu, Turan 208 Kennedy, David 184 Khedivial Mail Company v. the Alexandria Water Company (1912) 123, 126–27 Kiobel v. Royal Dutch Petroleum Co. (2013) 52, 176, 190 Knox, John 52–53, 59 Knox, Thomas 143, 143n50 Kormon, Sharon 202 Krisch, Nico 177 Lady Hughes (British ship) 98 Lamont v. Woods (1991) 41 Lanna: colonisation 143–46; legal system 134n1; as tributary state of Siam 142 law, relational approach to 62–63 law of nowhere 43 Lawrence, Jessica 52 League of Nations 122, 140 legal black holes 33 legal pluralism: in China 95–97, 106; in Ottoman Empire 89–90; sovereignty and 62 legal thought, definition of 13n2 Lepori, Matthew 50 Lessens, Michael 209 Levant Company: establishment 87n3; and Ottoman Empire 90–92 Levine-Schnur, Ronit 209 Loizidou v. Turkey (1996) 218–19 Loraine, Sir Percy 119

Lorimer, James 91 Louis XIV (King of France) 74–75, 81 Lubrell, Noam 17 M. v. Denmark (1992) 220–21 Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights 55–57 Malm, Andreas 50 Martin, W. A. P. 113–14 Mattingly, Garrett 74 McIlwraith, Malcolm 121 Medhurst, Walter 114 Milanovic, Marko 17, 223 Miller, Sarah 217 Mixed Courts of Egypt: distinction between ‘native’ and ‘Egyptian’ entities 123–25; formation 120; jurisprudence 120; mixed interest 123–25, 126; ownership, dispossession and redistribution of property 125–27, 128–31; structure and functions 121–23 Mongkut (King of Siam) 137 Morrison v. National Australia Bank (2010) 31–32, 176, 190 multilateralism 62, 177, 178, 184 Napolitano, Elena Cristina 71, 73, 74–75 NATO airstrike in Belgrade 219–20 neo-realism 173, 178 Nesiah, Vasuki 146 The Netherlands: human rights violation in Iraq 224; territoriality in criminal law 34; see also Dutch Republic Newman, Abraham 189 Norway, oil and gas extraction policies 56–57 Notz, William F. 153 Ocalan v. Turkey (2005) 221 occupation, law of: basic principles 201–2; and protracted occupation of Palestine 201–5; sovereignty and 201, 205, 211 Ong, Aihwa 162 Orford, Anne 21

Index

233

Organisation for Economic Cooperation and Development (OECD) 186 Organisation of American States (OAS) 186 Oslo Accords 203, 207, 208 Ottoman Empire: capitulations to French and English 89, 106, 119–20; protection of protégés 106; legal basis of European extraterritoriality 120; legal system 89–90, 91, 92; and Levant Company 90–92; millet system 89, 120; structures of extraterritoriality 88–92 Özsu, Umut 19–20

RJR Nabisco v. European Community (2016) 176 Rockström, Johan 50 Rodriguez v. Swartz (2015) 39, 40–41 Rogers, Robert F. 157 Rolin-Jaequemyns, Gustave 140 Rome Statute of the International Criminal Court (1998) 36 Ruggie, John Gerard 22, 53, 54–55, 183–84, 185, 223 Ruskola, Teemu 20 Russia: invasion of Georgia and Ukraine 178n61; treaties with China 96 Ryngaert, Cedric 44

Pahuja, Sundhya 20 Palestinian occupied territories: entrenchment of Israeli control 205–7; Israeli extraterritorial jurisdiction as sovereign expansion 207–10; Israeli extraterritorial jurisdiction as tool of conquest 210–11; land law disputes 209–10; legal landscape of the West Bank 201–5; limitation of Palestinian jurisdiction 208–10 Palgrave, William Gifford 137 Panama, Canal Zone 155, 159 Pappe, Ilan 205 Paris Peace Conference 141 Parrish, Austen 18, 184 Permanent Court of International Justice 141 Petrobras 191 Philippines: climate change human rights petition 56; trade arrangements with US 159 Pickelle, F. E. 159 Pisari v. the Republic of Moldova and Russia (2015) 225 Pitkin, Wolcott H. 141 Political Marxism 70, 70n7, 76–77 Prasatthong (King of Siam) 92n33 protégés, protection of 106–7, 111, 113 public powers 222–23 Putnam, Tonya L. 154

Sassen, Saskia 22–23 Sayre, Francis Bowes 138 Schiff Berman, Paul 44 Schlag, Pierre 16–17 Scott, Hamish 74, 81 Second Opium War (or Arrow War) (1856–60) 105, 111, 116 self-determination 171 settler colonialism 200, 203, 204, 205–6, 208, 210, 211 Seward, George 114 Sharman, J. C. 187 ships see hypermobile entities Siam: abolition of slavery 140; colonisation of Lanna 143–46; creation of territorialised, centralised state 142–46; in First World War 141; importance for British capital 143–46; imposition of extraterritoriality 135–42; International Court 144–46; law and political organisation 137–38; and League of Nations 140, 141; legal reform and extraterritoriality 139–41; push to abolish extraterritoriality 140–41; racialised aspects of extraterritoriality 139n26; relations with neighbouring polities 142–43; relationship with VOC 93; treatment of aliens 135; treaties with Britain 134, 136–38, 142, 144; treaty with Dutch 193, 135 Sidqi, Ismail 119 Sino-Japanese War (1894) 141 Skinner, Carlton S. 157–58

Rajkovic, Nikolas 23 Raustiala, Kal 20, 154

234

Index

Skogly, Sigrun 57 Slade, Herbert 145 sovereignty: ecological interdependence and 57–58; occupation and 201, 205, 211; rethinking of 62–63; shift from personal to territorial concepts of 71, 73, 76–77, 81; territorial sovereignty 170–71 spatiality 22 Spain, early modern diplomatic practices 71, 78 special immigration zones 32–33 state, the: need for relational understanding of 61–63; sovereignty and ecological interdependence 57–58 Statutes of Batavia 94 structuralism 14n3 Sturdivant, Saundra 115 Swan Islands 157 Taiwan, relationship with VOC 93–94 Talbot, Michael 91 tax law, territoriality in 41–42 territorial sovereignty: international law and 170–71; principles of 170 territoriality: ambiguity of 44; in criminal law 33–37; extraterritoriality distinguished from 31–33; false assumptions behind 43–44; jurisdiction and 32–33; strict territoriality 37 Teubner, Gunter 22 Thailand, border conflict with Cambodia 146–47 transnationalism 169, 170, 173 Treaty of Kiakhta (1727) 96 Treaty of Lausanne (1923) 92 Treaty of Nanjing (1842) 98–99 Treaty of Nerchinsk (1689) 96 Treaty of the Bogue (1843) 99 Truman, Harry S. 160, 162 Tuncak, Baskut 58 Turkey, occupation of Northern Cyprus 218–19 Twiss, Travis 122–23 UN Committee on the Elimination of Discrimination Against Women 56–57

UN Global Compact 53 UN Guiding Principles on Business and Human Rights (UNGPs) 53–55, 56, 57, 58, 59 UN Human Rights Committee 216 UN Human Rights Council 53, 58–59, 60–61 UN Office of the High Commissioner for Human Rights (OHCHR) 60 unequal treaties 98–99, 105–7, 134 unilateral extraterritorial regulation 169 United Kingdom: human rights violations in Iraq 221–22; territoriality in criminal law 34–35, 36; see also British Empire United States: anti-corruption policy 188–90, 193; antitrust law 37–38; criminal law 35–36, 174–75; exceptionalism 174, 176, 179; extraterritorial regulation 174–76; foreign relations power 153, 162, 163; Foreign Trade Zones (FTZs) 154–56, 159–60; hegemony and extraterritoriality 153–54, 174; human rights litigation 175; jurisdiction in extraterritorial space offshore 160–63; post-1945 emphasis on extraterritoriality 154; regulation of foreign conduct via national law 174–76; retreat from judicial extraterritoriality 176; subzone manufacturing and tariff policy 156; territorial possessions and trade 156– 60; treaty with Siam 135; unilateral extraterritoriality and empire building 169, 177–79; unilateralism 173; ‘war on terror’ 173; zones of governance 154–60 United States v. Aluminium Co. of America (Alcoa) (1945) 38, 39, 154 United States v. American Tobacco Co. (1911) 37 United States v. California (1947) 160, 161–62, 163 United States v. Curtiss-Wright Export Corp. (1936) 162 United States v. Louisiana (1950) 160, 162

Index United States v. Sisal Sales Corp. (1927) 37 United States v. Texas (1950) 160, 162, 163 United States v. Verdugo-Urquides (1990) 39, 40 US Supreme Court: application of Alien Tort Statute, 52; effects-based jurisdiction of antitrust law 33, 38; retreat from judicial extraterritoriality 176

Wenxiang 110–11, 116 Westlake, John 141 Westphalian frame 215 Westphalian imaginary 76n32 Wilde, Ralph 16 Williams, William Appleman 160 Wolfe, J.R. 107, 108, 109, 110, 116 Xue Shengtang 108, 110 Xue Xinqing 110 Yinggui 107–9

Vaughn-Williams, Nick 162 VOC see Dutch East India Company (VOC) Wade, Thomas 114 Weizman, Eyal 201

235

Zaghloul, Saad 130 Zerk, Jennifer 15 Zumbansen, Peer 22 Zuo Zongtang 112, 113 Zurn, Michael 184