Exporting Legality
|Chapter I – Definition and Early Origins of Extraterritorial Consular Jurisdiction
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I. Defining Extraterritorial Consular Jurisdiction
- 1 ‘Much like ambassadors in ordinary sovereign nations, citizens of Western powers in Asia and the M (...)
- 2 In support of the increasingly territorial articulations of jurisdiction in the United States, see (...)
1For the purposes of this project, ‘extraterritorial consular jurisdiction’ generally refers to the exemption, partial or complete, of aliens from the territorial laws of another state or normative culture and the application, in disputes of a foreign or mixed character, of the laws of their country of origin by their consular representatives. In other words, similar to the prescriptive, adjudicatory and enforcement immunities that diplomatic agents enjoy today in the territory of host states, extraterritorial consular jurisdiction was quite frequently assigned to foreign nationals residing abroad in the nineteenth century.1 The fundamental difference, however, is that most such foreign nationals were not official state representatives, but rather ordinary citizens enjoying jurisdictional immunities in another state or polity. Hence, whereas in Europe and the United States jurisdiction, particularly over penal matters, increasingly became an exclusive competence of the state on whose territory the conduct had occurred, in the Middle East and Asia, aliens were largely exempted from the application of local laws. Instead, any infractions or offences were assigned to the adjudication of a judge-consul.2
- 3 On ‘Unequal Treaties’ in International Law see generally Ingrid Detter, ‘The Problem of Unequal Tr (...)
- 4 See Ingrid Detter, ‘The Problem of Unequal Treaties’, The International and Comparative Law Quarte (...)
- 5 Richard S Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Em (...)
- 6 As it will be discussed later, the violent genealogy of Unequal Treaties is particularly evident i (...)
- 7 Paradoxically, while Americans in China enjoyed massive legal privileges during the nineteenth and (...)
- 8 In reference to the semi-colonial regime that European and American powers instituted in China, Si (...)
- 9 Capitulations were commercial and legal concessions used by the Sultan unilaterally granted to for (...)
2The form that extraterritorial consular jurisdiction – or ‘extraterritoriality’, as it has been generally referred to in past decades – often took was that of the so-called ‘Unequal Treaties’.3 Ingrid Detter defines an unequal treaty as ‘an agreement, which favours the interests of one of the parties or of one group of parties’ and promotes factual inequality through the legal fiction of sovereign equality.4 Arguably, treaties technically considered to be agreements between equal and consenting states were a standard practice in the European diplomatic world. But ‘exported eastward’, they came to have a more negative connotation, defining the rules of engagement between expanding European and American powers on the one hand, and non-Western polities on the other.5 In the case of extraterritorial consular jurisdiction, such agreements were particularly inequitable, as, in some cases, their genealogy indicates extremely violent enforcement, and the impossibility of their abrogation under the threat of the so-called ‘gunboat diplomacy’.6 Furthermore, the legal and other types of privileges that the treaties included were not usually reciprocal. For instance, a Chinese citizen in the United States could not legitimately claim the same jurisdictional privileges that an American could in China during the same period of time.7 Hence, as Western powers could not – or chose not – to directly colonize China, Thailand, the Ottoman Empire or Japan, they sought alternate ways to reconcile their growing desire for commerce with the need for order and security for their citizens abroad.8 The maintenance of capitulations in Turkey and the establishment of the so-called ‘treaty port system’ in the Qing Empire thus appeared to be an almost natural solution.9
- 10 For scholars criticizing the role of the so-called ‘standard of civilization’ in the development o (...)
3The primary epistemic argument used to institute or justify extraterritorial consular jurisdiction was usually an alleged ‘lack of law and civilization’ on the part of the host country – although the precise meaning of ‘civilization’ generally remained ambiguous.10 As a matter of fact, due to more or less consistent religious and cultural differences between the local inhabitants and foreign nationals, Western states asserted that the legal systems of the vast majority of Asian and Middle Eastern countries were too brutal, fallacious, vague or impure to allow Western citizens to be judged by their laws and customs. Consequently, the argument insisted on the need for an institution that granted legal securities to foreigners until such time that the host legal systems achieved similar legality and ‘civilization’. While the vehement discourse surrounding the ‘Orientalization’ of normativity in the Far and Middle East will be extensively discussed in the next chapter, Shalom Kassan expressed this logic in relatively gentle terms:
- 11 In Shalom Kassan, ‘Extraterritorial Jurisdiction in the Ancient World’, American Journal of Intern (...)
4‘In countries like China, Japan, Turkey, Egypt, Morocco, and various other States of the Levant and Africa, there exist or existed, fundamental and vital differences of social habits, standards of life, laws and customs, a diversity of moral sentiments and political institutions, with a primitive animosity towards foreigners due to differences in religious beliefs. Members of a European civilization could not, therefore, possibly abide by, and live according to, their regulations. Their ideas of justice were different from those of the Western world, and were not adequate to preserve the life, property and honour of foreign citizens before native courts.’11
- 12 ‘The unequal treaties generally had three elements: unilateral most-favoured-nation clauses, a lac (...)
5Hence, over the course of the nineteenth century, the institution of extraterritorial consular jurisdiction, protecting the ‘life, property and honour of foreign citizens’ gradually spread throughout Asia and the Levant. Great Britain and France played a pioneering role in negotiating with or compelling local rulers to sign unequal treaties. Other nations followed. Moreover, it is important to note that, in addition to their inclusion in separate agreements, extraterritorial privileges were also subject to the so-called most-favoured nation clause, wherein the rights granted to one state by treaty were automatically expanded to any other country, interested in conducting business within its territories.12Therefore, and perhaps paradoxically, with the parallel consolidation of sovereignty and territorial jurisdiction on the continent, extraterritoriality developed into an almost natural legal tool for conducting international relations with non-Western polities. This legal tool would come to be employed for an entire century in China and an even greater time in the Ottoman Empire.
II. The Early Origins and Development of Consular Jurisdiction
a) Legal Pluralism and the Non-Territoriality of Laws in Pre-Modern Social Arrangements
- 13 ‘The conception that the law of a state should automatically govern the relations of all persons w (...)
- 14 See Richard T. Ford, ‘Law’s Territory (A History of Jurisdiction)’, Michigan Law Review 97, no 4 ( (...)
6The construction of absolute territorial jurisdiction as a core principle of the prescriptive organization of society is a modern invention.13 The idea of the world map resembling a colourful puzzle, composed of an exact number of spatially delimited and separate pieces, each representing a different body of laws and mechanisms to interpret, administer and enforce them, is common sense today. However, throughout much of human history, the coexistence of empires, kingdoms, self-governed urban agglomerates, tribal political organizations and vast uninhabited lands, together with the dynamic groups of nomads, merchants, soldiers, pirates, mercenaries, explorers and religious communities, constituted a world map that more resembled the diffuse tones of an Impressionist painting, than the delimited boundaries of today. Various regional human units shared radically different yet coexisting normative systems, cosmological views and perceptions of the ‘other’, wherein the notion of a sovereign Leviathan sanctioning the ultimate legality of human behaviour presented a minor importance. In other words, the concepts of absolute sovereignty and territoriality in law were unknown, or interpreted very differently, in the pre-modern world.14
- 15 ‘Again, in the early stages of human development, it was religion, race or the nationality of the (...)
- 16 Onuma Yasuaki, ‘When was the Law of International Society Born? – An Inquiry of the History of Int (...)
- 17 According to what law are you living?
7Thus, during the early stages of human development, authority did not necessarily imply territoriality, nor did it aim at achieving a cohesive unity. Only in second place were the main criteriacriterion for the attribution of legal rights and obligations territorial as the gates for entering a certain community of law were often of radically different natures. In this sense, elements such as common affiliation with a certain religious, social, cultural, gender, civilization or ethnical group played a primary role.15 For the Sino-centric notion of the world, ‘the notion of a state as a body of people within a territorial unit was not so important as it is today. Rather, the question as to whether one was a civilized member of the Sino-centric world according to the Sino-centric cosmology was crucial.’16 It therefore appears that, prior to the nineteenth century, a considerable number of cultures around the globe employed other cognitive lenses, through which a particular territorial or normative reality could be seen. Empirical evidence reveals that certain human groups may have, indeed, inhabited a spatially contained and geographically contingent piece of the globe while sharing a common set of norms that prescribed or punished behaviour. This evidence is of crucial importance when searching for both the genealogy of such early communities of law and for the concrete outcomesof their historical development. Throughout much of human history, however, neither territoriality nor positivist legality constituted a direct answer to the question: ‘Qua lege vivis?’17
- 18 For present day advocates of legal pluralism transversal to the law of sovereign states, see Nikla (...)
- 19 ‘How many legal theorists and protagonists of international relations are still convinced of the a (...)
- 20 ‘There is a tendency in some writers (especially such as are given to glorify the present civiliza (...)
- 21 Lasa Oppenheim, International Law. (London: Green and Co., 1904). 44.
8Recognition of the previous existence of a plurality of prescriptive systems, transversal and parallel to that instituted by the nation state, requires, however, an approach to normativity unhindered by the norms, assumptions and practices of the Western state system.18 Inevitably, this recognition will also inform one’s premises and ability to conduct research on matters related to the historical dimension of international law.19 When engaging in the study of societies that radically differ, in geographical, temporal and cultural terms, from the dominant contemporary cognitive and historical milieu, the greatest methodological error is to analyse them utilising the value system and epistemological orientation of the ‘here and now’.20 In other words, it is important to avoid falling into the trap of classifying and interpreting historical matters through the exclusive lens of today’s (positivist) perspective. Although this is far from an easy task, being aware of the tendency towards such anachronistic analysis is already the first step towards the deconstruction of the grand-narrative, which reduces international law to merely ‘a law between sovereign and equal states based on the common consent of these states’.21
b) Selected Instances of Consular Institutions in Pre-Modern European Societies
- 22 ‘The barbarian was outside the pale of religion, and therefore incapable of amenability to the sam (...)
9Early consular arrangements that may be considered ‘extraterritorial’ existed for centuries before humanity settled into formally equal sovereign states. Frequently, the host community did not strictly subject foreigners to its territorial jurisdiction, nor was the law applicable to disputes always the lex fori. Because legal rights and obligations were primarily bestowed upon members of the same religious, ethnical or/and professional community, aliens often enjoyed a different legal status, wherein they would either live in accordance with their own laws and customs or be subject to a special, equitable jurisdiction.22 Additionally, special magistrates or consuls, appointed by either the expatriate community or the hosting city, exercised in a relatively autonomous administrative and political system, an adjudicatory jurisdiction with competence in exclusively foreign or mixed cases.
- 23 The dispute is recorded in the Demosthenic speech against Callipus (speech n. 52). For an English (...)
- 24 Probably corresponding to today’s Turkish city of Karadeniz Ereğli, in the Zonguldak Province.
- 25 For a factual overview of the case, see Démosthène, Demosthenes, Speeches: 50–59, supra. See also (...)
- 26 As a matter of evidence, Apollodorus testified that Lycon had already collected part of the above- (...)
10A good example of arrangements similar to the subsequent institution of consular jurisdiction is provided by what may be one of the first recorded arbitral cases in legal history. In 370 B.C., in Ancient Greece, the son of an Athenian banker Apollodorus brought a private suit against a man known as Callipus of Heracleotae.23 The plaintiff was an Athenian citizen, while the defendant was an alien permanently domiciled in Athens. The defendant came from the city of Heraclea, a town situated on the south eastern coast of the Black Sea.24 The dispute involved a certain Lycon of Heraclea who, before sailing for business to Lybia, deposited in Pasion’s bank the amount of 1,640 drachmas.25 Lycon’s profession was similar to that of today’s ‘international investor’ – in addition to his own direct engagement in overseas business, he lent money to other merchants for their trading voyages. The merchants would, in return, pledge their ships or the goods they carried as security. Subsequently, the investor would ask for repayment of the loan, with interest, for his financial services.26
- 27 The passage is cited in Benjamin W. Wells, ‘Banking in Old Athens’, The Sewanee Review 25, no 2 (1 (...)
11As carrying all of one’s capital when travelling was risky, Athenian merchants customarily entrusted a third party with safeguarding their finances while they were away. The choice of Lycon fell to the bank of Pasion, Apollodorus’ father. Unfortunately, the trip ended tragically, for pirates attacked Lycon’s ship, and wounded Lycon, who died at Argos. As Lycon had no natural heirs, a dispute arose regarding the legitimate heir to his fortune. Apollodorus recounts that, shortly after learning of Lycon’s death – Callipus went to Pasion’s bank to ask the cashier if the bank knew the deceased. The bank’s cashier answered that, yes, they did know him: ‘For he banks with us. But why do you ask?’ ‘Because’, answered Callipus, ‘I'll tell you. He's dead, and I'm the Heracleian consul. I want you to show me the accounts so that I may learn what he left. For it is my business to look out for all Heracleian affairs.’27
- 28 See Rachel Zelnick-Abramovitz, ‘The Proxenoi of Western Greece’, Zeitschrift für Papyrologie und E (...)
- 29 See Luke T. Lee and John Quigley, Consular Law and Practice. (Oxford, New York: Oxford Univerity P (...)
- 30 ‘A proxenos performed various services for the nationals of the sending State: giving them protect (...)
- 31 See Phillipson, Ibid : 154.
12Callippus was the proxenus of the Haracleotae people in Athens. The semantic meaning of the term proxenos is ‘public guest or friend’.28In addition to providing an example of the remarkable modernity of commercial litigation in Ancient Greece, the case provides crucial evidence of one of the earliest, if rudimentary, articulations of a system of consular jurisdiction in the history of international law.29Apparently, the proxenus was traditionally a national of the foreign polis, formally appointed by either his community of origin or the public authorities of the host city. His functions were strikingly similar to those prescribed by the modern corpus of consular law.30 Moreover, it appears that the proxenus sometimes acted as an arbitrator in ‘international’ as well as private disputes, exercising adjudicative jurisdiction in cases involving foreigners of his ‘nationality’.31
- 32 On the origins and subsequent developments of the peregrine praetor in Ancient Rome, compareDavid (...)
- 33 Shalom Kassan, ‘Extraterritorial Jurisdiction in the Ancient World’, American Journal of Internat (...)
13Similarly, with the expansion of its military and economic hegemony, Rome, in the age of antiquity, became a natural centre for migrants searching for work and protection. Consequently, Roman courts found themselves increasingly compelled to deal with cases involving aliens. However, the exclusion of foreigners from the enjoyment of civil and political rights equal to those of the restricted group of Roman citizens rendered the application of the Roman jus civile impossible. It was thus in response to such novel exigencies of Roman legal life that the system of peregrine praetorship was developed.32 In 242 B.C., Rome instituted the office of the praetor peregrinus to complement the activities of the praetor urbanus, and adjudicate cases involving foreign litigants. Hence, somewhat akin to the case of the proxenoi in Ancient Greece, Rome assigned a special jurisdiction to resident aliens, even though the praetor peregrinus was ‘just’ a Roman officer administering the jus gentium to foreigners. Thus, while a comprehensive account of the legal arrangements to which foreigners were subject in other ancient societies is beyond the scope of this thesis, it is fair to note that scholars of other pre-medieval entities argue that the custom of conferring a special jurisdictional status to aliens also existed in other ancient societies.33
- 34 The Frankish capitulary act of 768, for instance, stated: ‘All shall follow their own law, both R (...)
- 35 The statement appears in Friedrich Karl Von Savigny, Geschichte des römischen Rechts im Mittelalte (...)
- 36 For an overview of competing jurisdictions during and following the Middle Ages, see Joseph Story, (...)
14During the Middle Ages, the so-called system of the personality of laws developed. Following the break-up of the Roman Empire after a series of barbarian invasions, novel problems arose within European legal life. The great cultural and ethnic plurality characterizing Europe at that time, together with the lack of rigid geographic boundaries to structure and confine normativity along the lines of exact territorial delimitations, led to a pluralism and fragmentation of laws. In the absence of a territorial state, and in a world where religious and kinship ties played a considerable role in establishing the outer boundaries of a community of law, interactions came to be governed by the principle that each person could follow his or her own laws of origin.34 Accordingly, in the words of Bishop Agobard: ‘It often happens that five men, each under a different law, would be found walking or sitting together’.35 This led to the subsequent proliferation of a complex legal system, characterized by conflicts of laws in mixed litigation, as well as by the prescription of a plethora of rules by competing religious and political authorities.36
- 37 On the expansion of trade during the Middle Ages generally, see Roberto Sabatino Lopez, Raymond Ir (...)
- 38 George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairi (...)
- 39 See Alexandre Miltitz, Manuel des consuls. Vol. ii. (A. Asher, 1840).
- 40 Shih Shun Liu. Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 11.
- 41 On the development of ‘quasi-sovereign’ competences, including an autonomous system of autonomous (...)
- 42 On the genealogy of European trade in China see John Villiers, ‘Silk and Silver: Macau, Manila and (...)
15The results of the application of the doctrine of the personality of laws were particularly interesting, as the doctrine provided the flexibility necessary for the parallel development and the proliferation of so-called judge-consuls. With the expansion of commerce, continental merchants began to travel increasingly throughout Europe and onwards to further destinations in the Levant and the territories of the Russian Empire.37 Hence, both contacts and conflicts between the bearers of competing laws multiplied. According to Keeton, ‘to these origins may be traced the functions of the mercantile consul’ – the practice of appointing a representative within a given community of traders for the sake of adjudicating disputes either involving aliens exclusively or in mixed litigation cases.38 Apparently, the practice began in the Italian city-states of Venice, Florence, Genoa and Ancona, where it consisted of special jurisdictional arrangements struck either directly with the rulers of the hosting polity or between commercial organizations.39 The members of the Baltic Hanseatic League also negotiated similar legal privileges for their merchants and, according to Shin Shun Liu, ‘the German merchants and other inhabitants of Wisby on the island of Gothland in the Baltic enjoyed [such] privileges in the Republic of Novgorod in Russia.’40 It was therefore as a result of this highly adaptive, pluralist, and privately-oriented tradition of the commercial consuls in the Middle Ages that the East India Companies subsequently developed their autonomous adjudicatory bodies and jurisdictional concessions, obtained directly from local rulers.41 Similarly, as the case of China will illustrate, the East India Companies pioneered extraterritorial jurisdictional arrangements in East Asia.42
- 43 By reference to the Ottoman Empire, Augusti calls it the immiscibility of the alien doctrine: ‘Par (...)
16Admittedly, matters dating back to the pre-modern age may easily become the subject of academic speculation. The study of history is always about making choices, which inevitably implies the exclusion and simplification of the complex and indeterminate nature of a distant reality in order to provide support for one’s more proximate arguments. From the evidence examined above, it nevertheless appears that, at least to a certain extent, foreigners in ancient and medieval times enjoyed some separate jurisdictional status, and were not subject to the laws of host societies. This separation was primarily due to the general belief that substantial religious, kinship or professional ties were needed for a person to belong to a certain normative community.43 For this reason, evidence of the admission and coexistence of a plurality of legal systems on a same territory exists. In these systems, different arbitrators who often had the same nationality and religion as the litigants judged cases involving foreigners. The arbitrators thus decided in accordance with a different body of laws, particularly in civil and commercial matters.
- 44 On the development of the nation-state in Europe, see generally Jens Bartelson, A Genealogy of Sov (...)
17Whereas such considerations support the existence of a proto-system of consular jurisdiction in ancient Greece, Rome and, in all likelihood, other medieval societies, the difficulty lies in trying to classify this system as extraterritorial in the sense of a community’s unilateral and non-consensual exercise of prescriptive, adjudicatory or enforcement jurisdiction on the territory of another. Moreover, it is important to underline that extraterritoriality in the pre-nineteenth century world was conceptualized very differently than its more modern incarnation. Early instances of consular jurisdiction seem to have been the result of mutual concessions of hospitality – underscored by an idea of the immiscibility of the alien in one’s religious and civic community – rather than the outcome of an explicit policy of legal imperialism. Because an orthodox doctrine of the strict territoriality of laws did not exist, the ancient and medieval societal attitude towards the coexistence of a multiplicity of legal systems on a single territory appears to have been broader and more tolerant than contemporary doctrines on the attribution of jurisdiction. The fact that consular relations were, in the past, largely the prerogative of private parties or trading companies is another considerable difference between prior conceptions and those of the present. It was only with the rise of state-sovereignty on the Continent, beginning in the eighteenth century, that the state began to assume the monopoly on international consular arrangements, rendering them a prerogative of public international law. Otherwise stated, consular institutions gradually became subject to the shifting of the authority to enter into ‘international’ relations away from private parties towards its constitutions as a public and exclusive competence of the State. The greatest change that subsequently affected consular jurisdictional arrangements was their codification in the form of public treaties, backed by a significantly heightened possibility of state coercion.44
Notes
1 ‘Much like ambassadors in ordinary sovereign nations, citizens of Western powers in Asia and the Middle East enjoyed a form of extraterritorial protection. Extraterritoriality provided a way for Western citizens to reside outside the West yet enjoy near-total immunity from local law, as extraterritoriality as it was colloquially known at the time, reached its apogee at the turn of the twentieth century.’ Kal Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law. (Oxford: Oxford University Press, 2009). 17.
2 In support of the increasingly territorial articulations of jurisdiction in the United States, see the Supreme Court’s Chief Justice Marshall’s statement on the matter: ‘When private individuals of one nation spread themselves through another, as business or caprice may direct, mingling indiscriminately with the inhabitants of that other; or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society and would subject the laws to continual infraction, and the Government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it.’ In The Exchange v. McFaddon – 11 U.S. 116 (1812): 143. Similarly, Henry Wheaton asserts in his Elements of International Law that ‘exclusive power of civil and criminal legislation ... is an essential right of every independent state.’ See Henry Wheaton, Elements of International Law: With a Sketch of the History of the Science. (London: B. Fellowes, 1836). 98. For a general account of the contemporary scholarly debate on territorial jurisdiction in international law, see Frederick Alexander Mann, The Doctrine of Jurisdiction in International Law. Recueil des Cours (1964). Reproduced in Studies in International Law (Oxford: Clarendon Press,1973); Frederick Alexander Mann, The Doctrine of International Jurisdiction Revised After 20 Years. Recueil des Cours 186 (1984). Reproduced in Further Studies in International Law (Oxford: Clarendon Press, 1990); Cedric Ryngaert, Jurisdiction in International Law. (Oxford: Oxford University Press, 2008); Ralf Michaels, ‘Territorial Jurisdiction After Territoriality’, in Globalisation and Jurisdiction (The Hague: Kluwer Law International 2004); Hannah Buxbaum, ‘Territory, Territoriality, and the Resolution of Jurisdictional Conflict’, American Journal of Comparative Law 57, n. 3 (2009): 631–675; Jordan J. Paust, ‘Non-Extraterritoriality of Special Territorial Jurisdiction of the United States: Forgotten History and the Errors of Erdos’, Yale Journal of International Law 24 (1999): 305–328; Rosalyn Higgins, Problems and Process: International Law and How We Use It. (Oxford University Press, 1995). 56–77; Michael Akehurst, ‘Jurisdiction in International Law’ British Year Book of International Law 46 (1973): 145–258; D. W. Bowett, ‘Jurisdiction: Changing Patterns of Authority over Active resources’, BritishYearbook of International Law 53 (1982): 1–26; Berge Wendell, ‘Criminal Jurisdiction and the Territorial Principle’, Michigan Law Review 30 (1932): 238–269.
3 On ‘Unequal Treaties’ in International Law see generally Ingrid Detter, ‘The Problem of Unequal Treaties’, The International and Comparative Law Quarterly 15 (1966): 1069-1089; Stuart S. Malawer, ‘Imposed Treaties and International Law’, California Western International Law Journal 7 (1977): 1–178; Fariborz Nozari, ‘Unequal Treaties in International Law ‘ (PhD Thesis, Stockholms University, 1971); Matthew Craven, ‘What Happened to Unequal Treaties? The Continuation of Informal Empire’, Nordic Journal of International Law 74(2005): 335–380; Albert H. Putney, ‘Termination of Unequal Treaties’, American Society of International Law Proceedings 21 (1927): 87–100; Lung-Fong Chen, State Succession Relating to Unequal Treaties. (London: Archon Books, 1974); J. W. Garner, ‘The Doctrine of Rebus Sic Stantibus and the Termination of Treaties’, The American Journal of International Law 21, n. 3 (1927): 509 - 516. See also: Nico Krisch, ‘International law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’, European Journal of International Law 16, n. 3 (2005): 369–408; Antony Anghie, Imperialism, Sovereignty and the Making of International Law. (Cambridge: Cambridge University Press, 2007); Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order. (Cambridge: Cambridge University Press, 2004); Matthew Craven, The Decolonization of International Law: State Succession and the Law of Treaties. (Oxford: Oxford University Press, 2009). On Unequal Treaties in China, see Wang Dong, China’s Unequal Treaties: Narrating National History. (Lexington books, 2005); William L. Tung, China and the foreign powers: The impact of and reaction to unequal treaties. (New York: Oceana Publications, 1970) L. H. Woolsey, ‘China’s termination of unequal treaties’, The American Journal of International Law 21, n. 2 (1927): 289–294. On Unequal Treaties in the Ottoman Empire, see Eliana Augusti, ‘From Capitulations to Unequal Treaties: The Matter of an Extraterritorial Jurisdiction in the Ottoman Empire’, Journal of Civil Law Studies 4, n. 2 (2011): 285–307; Timur Kuran, ‘The Beginnings of Economic Modernization in the Middle East: Legal Impact of Unequal Trade Treaties’, UC Berkeley: Berkeley Program in Law and Economics (2006); Kémal Hilmy, ‘Les capitulations ottomanes’, Revue politique internationale (1915): 252–260; James B. Angell, ‘The Turkish Capitulations’, The American Historical Review 6, n. 2 (1901): 254–259. For a comparative account on Unequal Treaties in China vis-à-vis the Ottoman Empire, see Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge : Cambridge University Press, 2010);Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 445–486; George Williams Keeton, Extraterritoriality in International and Comparative Law. Recueil des Cours 072, (Hague: Librairie du Recueil Sirey 1948). 295.
4 See Ingrid Detter, ‘The Problem of Unequal Treaties’, The International and Comparative Law Quarterly 15 (1966):1070–1073.
5 Richard S Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 455.
6 As it will be discussed later, the violent genealogy of Unequal Treaties is particularly evident in the case of China.
7 Paradoxically, while Americans in China enjoyed massive legal privileges during the nineteenth and twentieth centuries, Chinese migrants to the United States were subject to both a number of substantial anti-immigration restrictions and a general attitude of racial discrimination. For a detailed illustration of past American policies towards Chinese migrants, see Stuart CreightonMiller, The Unwelcome Immigrant: The American Image of the Chinese, 1785–1882. (University of California Press, 1969); Neil Gotanda, ‘Exclusion and Inclusion: Immigration and American Orientalism’, Across the Pacific: Asian Americans and Globalization (1999): 129–51; Lisa Lowe. Immigrant Acts: On Asian American Cultural Politics. (Duke University Press, 1996).
8 In reference to the semi-colonial regime that European and American powers instituted in China, Siam and the Ottoman Empire, Horowitz emphasizes the apologetic role of international law in this process: ‘In the semi-colonial environment, international law embodied in unequal treaties and the associated discourse about civilization provided powerful external incentives for indigenous political elites to comply with this standard European model.’ In Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire During the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 484. See also Kal Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law. (Oxford: Oxford University Press, 2009). 17–18: ‘Similarly, Western powers could not, or chose not to, subdue and rule China, Thailand, or Japan. Instead, they sought alternative ways to accommodate their growing desire for commerce with their need for order and security for their citizens abroad. "Unequal treaties," sometimes known as capitulations, were commonly negotiated in the nineteenth century to solve this problem. These agreements coupled open trade to extraterritorial rights for sojourning Westerners. Nations like China abhorred these coercive treaties, rightly seeing their extraterritorial provisions as a humiliation, but they lacked the power to resist.’
9 Capitulations were commercial and legal concessions used by the Sultan unilaterally granted to foreign traders on the basis of a long-lasting custom and as a consequence of the religious nature of law within his Empire. For a descriptive account of the capitulatory system in the Ottoman Empire, see Thomas Naff, ‘Ottoman Diplomatic Relations with Europe: Patterns and Trends’, In Studies in Eighteenth Century Islamic History. (Carbondale: Southern Illinois University Press, 1977). 97–103; Nasim Sousa, Capitulatory Regime of Turkey. (Baltimore: Johns Hopkins University Press, 1933). 68–88; Edhem Eldem, ‘Capitulations and Western Trade’, The Cambridge History of Turkey 3 (2006): 283–335; Gabriel Bie Ravndal, The Origin of the Capitulations and of the Consular Institution. No. 34. (US Government Printing Office, 1921); Philip Marshall Brown, ‘The Capitulations’, Foreign Affairs 1, no. 4 (1923): 71–81; Pierre Crabites, ‘Islam, Personal Law and the Capitulations’, The Muslim World 18, no. 2 (1928): 173–176; Maurits H. Van den Boogert and Kate Fleet eds. The Ottoman Capitulations: Text and Context. (Istituto per l’Oriente CA Nallino, 2004); Maurits H. Van den Boogert, The Capitulations and the Ottoman Legal System: Qadis, Consuls, and Beraths in the 18th Century. (Brill, 2005); Lucius Thayer Ellsworth, ‘The Capitulations of the Ottoman Empire and the Question of their Abrogation as it Affects the United States’, The American Journal of International Law 17, n. 2 (1923): 207–233; David P. Fidler, ‘A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization’, Texas International Law Journal 35 (2000), 387-413; Ahmad Feroz, ‘Ottoman Perceptions of the Capitulations 1800–1914,’ Journal of Islamic studies 11, n. 1 (2000): 1–20; Nasim Soosa, ‘Historical Interpretation of the Origin of the Capitulations in the Ottoman Empire’, Temple Law Quarterly 4 (1929): 358–372.
As it will be extensively illustrated later, the treaty port system implied the Chinese Emperor’s concession of the right to conduct free trade in a limited number of specific city-ports, such as Shanghai, Canton, Hong Kong and Macao, to foreign powers. Such rights were mostly embedded in the form of bilateral treaties that also contained provisions on extraterritoriality. In addition to the maintenance of privileged legal and economical status within the treaty ports, at the turn of the twentieth century, foreigners were also to be allowed access to the Chinese inlands in their entirety. On the establishment of the treaty-port system in China, see Eileen P. Scully, Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1844-1942. (Columbia University Press, 2001); Rhoads Murphey, The Treaty Ports and China’s Modernization: What Went Wrong? (University of Michigan, Center for Chinese Studies, 1970); Chris Elder, China's Treaty Ports: Half Love and Half Hate: An Anthology. (Oxford: Oxford University Press, 1999); John K. Fairbank, ‘The Creation of the Treaty System’, The Cambridge History of China 10, no. Part 1 (1978): 214; Paul H. Ch’en, ‘The Treaty System and European Law in China: A Study of the Exercise of British Jurisdiction in Late Imperial China’, in European Expansion and Law: The Encounter of European and Indigenous Law in 19th-and 20th-Century Africa and Asia. (Oxford: Berg, 1992); Arnold Wright, Twentieth Century Impressions of Hong Kong, Shanghai, and Other Treaty Ports of China: Their History, People, Commerce, Industries, and Resources. Vol. 1. (London: Lloyds Greater Britain publishing Company, 1908); Tai En-Sai, Treaty Ports in China: A Study in Diplomacy. (University printing office, Columbia University, 1918); Stephen D. Krasner, ‘Organized Hypocrisy in NineteenthCentury East Asia’, International Relations of the Asia-Pacific 1, n. 2 (2001): 173–197.
10 For scholars criticizing the role of the so-called ‘standard of civilization’ in the development of international law during the nineteenth century, and for the establishment of extraterritorial consular jurisdiction more specifically, compare Gerrit W. Gong, The Standard of ‘Civilization’ in International Society. (Oxford: Clarendon Press, 1984); Antony Anghie, Imperialism, Sovereignty and the Making of International Law. (Cambridge: Cambridge University Press, 2007); Brett Bowden, ‘The Colonial Origins of International Law. European Expansion and the Classical Standard of Civilization’, Journal of the History of International Law 7, no. 1 (2005): 1-23; Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-century International Law’, Harvard International Law Journal 40 (1999): 1-80; Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 448–455; Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge : Cambridge University Press, 2010); Frank Michelman, ‘Law's Republic’, Yale Law Journal (1988): 1493-1537; Teemu Ruskola, ‘Legal Orientalism’, Michigan Law Review 101, no. 1 (2002): 179-234; Laura Nader, ‘Law and the Theory of Lack’, Hastings International & Comparative Law Review 28 (2004): 191- 204; Jean Allain, ‘Orientalism and International Law: The Middle East as the Underclass of the International Legal Order’, Leiden Journal of International Law 17, no. 2 (2004): 391-404; Jedidiah J. Kroncke, ‘Substantive Irrationalities and Irrational Substantivities: The Flexible Orientalism of Islamic Law’, UCLA Journal of Islamic and Near Eastern Law 4 n. 1 (2005): 41–73; Bryan S. Turner, Orientalism, Postmodernism and Globalism. (Routledge, 2002); Randall Peerenboom, ‘What Have We Learned about Law and Development? Describing, Predicting and Assessing Legal Reforms in China,’ Michigan Journal of International Law 27 (2006): 823-871; David P. Fidler, ‘The Return of the Standard of Civilization’, Chicago Journal of International Law 2 (2001): 137–157.
11 In Shalom Kassan, ‘Extraterritorial Jurisdiction in the Ancient World’, American Journal of International Law 29, No 1 (1935): 239. See also John Bassett Moore and Francis Wharton, A Digest of International Law. Vol. ii. (US Government Printing Office, 1906). 593: ‘Owing to diversities in law, custom, and social habits, the citizens and subjects of nations possessing European civilization enjoy in countries of non-European civilization, chiefly in the East, an extensive exemption from the operation of the local law. This exemption is termed “extraterritoriality”.’ Keeton presents a similar argument when discussing the origins of extraterritoriality in the Levant: ‘The core of the problem was the difference in civilization between the foreign merchants and the local inhabitants, and the close association of the Mohammedan religion with the laws which the local inhabitants followed. These reasons in themselves were sufficient for holding that the local Mohammedan law was not applicable to foreign merchants.’ George Williams Keeton, Extraterritoriality in International and Comparative Law. Recueil des Cours 072. (Hague: Librairie du Recueil Sirey 1948). 295.
12 ‘The unequal treaties generally had three elements: unilateral most-favoured-nation clauses, a lack of tariff autonomy for the non-Western partner, and what was known as consular jurisdiction for Westerners. Unilateral most-favoured-nation clauses ensured “equality in exploitation”: whatever rights one Western power received had to be granted to all.’ In Kal Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law. (Oxford: Oxford University Press, 2009).17. See also Georg Schwarzenberger, ‘The Most-Favored-Nation Standard in British State Practice’, British Year Book of International Law 22 (1945): 96–121. On the establishment of the most-favoured-nation clause in China, Cassel argues: ‘Most-favored-nation treatment and extraterritoriality would first be formally enshrined in the “General Regulations of Trade,” signed by representatives of the British Empire and the Qing Empire in July 1843 at Humen near Guangzhou and subsequently included in the Supplementary Treaty of the Bogue (Humen Tiaoyue) of October 8 the same year. Article 8 of the supplementary treaty referred to the fact that all Western nations were allowed to trade in the five ports opened for trade “on the same terms as the British” and stated that if the Qing emperor granted other nations “additional immunities and privileges” (xi en shi ji ge guo), British subjects would be able to enjoy the same “immunities and privileges.” The article also stated that most-favored-nation treatment should not be used a pretext for new demands being “unnecessarily brought forward.’
In Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York : Oxford University Press, 2012). 51. See also Earl H Pritchard, ‘The Origins of the Most-Favored-Nation and the Open Door Policies in China’, The Journal of Asian Studies 1, n. 02 (1942): 161–172; On the most-favored nation clause in the Ottoman Empire, see Hurewitz: ‘As the nineteenth century unfolded, half a dozen of the Western powers, including the United States, opened legations in the Persian capital and, under most-favored-nation clauses, their respective nationals came also to enjoy extraterritoriality’. J. C. Hurewitz ‘Ottoman Diplomacy and the European State System’, Middle East Journal 15, n. 2 (1961). 145. Compare to Eliana Augusti, ‘From Capitulations to Unequal Treaties: The Matter of an Extraterritorial Jurisdiction in the Ottoman Empire’, Journal of Civil Law Studies 4, n. 2 (2011): 292 – ‘Then, thanks to an extensive clause, the so called most-favourite-nation clause, not only France, but all European nations could enjoy contractual (and sanctioned) benefits of the imported capitulary text.’ On the most-favored-nation clause in other polities subject to extraterritorial consular jurisdiction, see Shinya Murase, ‘The Most-Favored-Nation Treatment in Japan’s Treaty Practice During the Period 1854-1905’, The American Journal of International Law 70, n. 2 (1976): 273–297; Francis Bowes Sayre, ‘The Passing of Extraterritoriality in Siam’, The American Journal of International Law 22, n. 1 (1928): 70–88; Kurt H. Nadelmann, ‘American Consular Jurisdiction in Morocco and the Tangier International Jurisdiction’, The American Journal of International Law 49, n. 4 ( 1955): 506–517.
13 ‘The conception that the law of a state should automatically govern the relations of all persons within the territorial boundaries of that state is, however, of modern origin.’In George Williams Keeton, Extraterritoriality in International and Comparative Law. Recueil des Cours 072. (Hague: Librairie du Recueil Sirey 1948). 288.
14 See Richard T. Ford, ‘Law’s Territory (A History of Jurisdiction)’, Michigan Law Review 97, no 4 (1999): 843 – ‘A thesis of this Article is that territorial jurisdictions – the rigidly mapped territories within which formally defined legal powers are exercised by formally organized governmental institutions – are relatively new and intuitively surprising technological developments… Today jurisdiction seems inevitable, but, like death, it is a habit to which consciousness has not been long accustomed.’ For a constructivist approach to sovereignty and its boundaries, see also Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900. (Cambridge: Cambridge University Press, 2009); James C. Scott, Seeing Like a State. How Certain Schemes to Improve the Human Condition Have Failed. (Yale:Yale University Press, 1999). Stephen Oknonmina, ‘States Without Borders: Westphalian Territoriality under Threat’, Journal of Social Sciences 24 (2010): 177–182; John Gerard Ruggie, ‘Territoriality and Beyond: Problemizing Modernity in International Relations’, International Organization 47, no. 1 (1993): 139–174.
15 ‘Again, in the early stages of human development, it was religion, race or the nationality of the people rather than the territory, which formed the basis of a community of law.’ In Shalom Kassan, ‘Extraterritorial Jurisdiction in the Ancient World’, American Journal of International Law 29, No 1 (1935): 240. Perhaps ‘ethnicity’, rather than ‘race’ or ‘nationality’, would be a better term.
16 Onuma Yasuaki, ‘When was the Law of International Society Born? – An Inquiry of the History of International Law from an Intercivilizational Perspective’, Journal of the History of International Law, II, no.2 (2000): 10.
17 According to what law are you living?
18 For present day advocates of legal pluralism transversal to the law of sovereign states, see Niklas Luhmann, Law as a Social System. (Oxford: Oxford University Press, 2004); Gunther Teubner e Andreas Fischer-Lescano, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’, Michigan Journal of International Law 25 (2004): 999–1046; Paul Berman, ‘A Pluralist Approach to International Law’, The Yale Journal of International Law 32 (2007): 301; Michel Coutu, ‘ Le Pluralisme Juridique Chez Gunther Teubner: La Nouvelle Guerre des Dieux’, Canadian Journal of Law and Society 12 (1997): 93–114; Martti Koskenniemi ‘Global Legal Pluralism: Multiple Regimes and Multiple Modes of Thought’, Presentation at Harvard Law School (2005). David Kennedy, ‘One, Two, Three, Many Legal Orders: Legal Pluralism and the Cosmopolitan Dream’, New York University Law Review of Law and Social Change, 31 (2007) 641–59. For an account on the debate on the ‘neo-medieval-esque’ fragmentation of international law, see Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Adopted by the International Law Commission at its Fifty-eighth session, finalized by M. Koskenniemi, A/CN.4/L.682, 13 April 2006. At http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/1_9_2006.pdf.
See also Georges Abi-Saab, ‘Fragmentation or Unification: Some Concluding Remarks’, New York University Journal of International Law and Politics 31 (1999): 919–923; Martti Koskenniemi, and Leino Päivi, ‘Fragmentation of International Law? Postmodern Anxieties’, Leiden Journal of International Law 15, no 03 (2002): 553–579; André Jean Arnaud, ‘Du lien tribal dans le village planétaire’, In La quête anthropologique du droit. (Paris: Karthala, 2003). 27–41; Pierre-Marie Dupuy, ‘The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice’, New York University Journal of International Law and Politics 31(1999): 791.
19 ‘How many legal theorists and protagonists of international relations are still convinced of the alleged “newness” of international law! Few of them are fully aware that the law of inter-State relations is nearly as ancient as the internal law of State-like societies. Few of them seem to realize how superficial it is to imagine that international law is but the crowing pinnacle of a single evolutionary process whereby the phenomenon of law, after originating in restricted spheres, gradually spread to wider circles, with the community of States coming at last. It is too often overlooked, in flagrant contradiction to historical reality, that in fact the emergence and progressive development of law occurred in parallel within human groupings of quite different types, composition and dimensions. And no less disregard of history is implied by failure to gasp the fact that international law is a phenomenon which has always emerged and developed among a group of distinct and sovereign political entities whenever sustained and organized relations have come to exist between them.’ InRoberto Ago, ‘The First International Communities in the Mediterranean World’, British Yearbook of International Law 53, n. 1 (1982): 213.
20 ‘There is a tendency in some writers (especially such as are given to glorify the present civilization to the extreme disadvantage of the ancient), who have not sufficiently investigated their subject, to regard this or that exceptional case, particularly so if it happens to be a prominent one, as representative of the usual prevailing conditions; and there is a still more injurious tendency in others who have not even superficially examined many issues relevant to their subject to embrace such views blindly and unreservedly.’ In Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome. (London: MacMillan, 1911). 127.
21 Lasa Oppenheim, International Law. (London: Green and Co., 1904). 44.
22 ‘The barbarian was outside the pale of religion, and therefore incapable of amenability to the same jurisdiction to which the natives were subject.’ In Shih Shun Liu, Extraterritoriality: Its Rise and Decline (New York: AMS Press, 1969). 9. ‘We find that in the ancient world foreigners were either subject to their own laws and customs or were placed under a special jurisdiction.’ In ShalomKassan, ‘Extraterritorial Jurisdiction in the Ancient World’, American Journal of International Law 29, No 1 (1935): 240. Compare George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948).290: ‘The territorial law was a law which was intimately connected with the religion and public conduct of the citizen, and it could not, therefore, be extended to foreigners who worshipped other gods, and who could not participate in the ritual practiced by citizens’.
23 The dispute is recorded in the Demosthenic speech against Callipus (speech n. 52). For an English translation of the oration, see Démosthène, Demosthenes, Speeches: 50-59. Translated by Victor Bers. (University of Texas Press, 2003). 46-55.
24 Probably corresponding to today’s Turkish city of Karadeniz Ereğli, in the Zonguldak Province.
25 For a factual overview of the case, see Démosthène, Demosthenes, Speeches: 50–59, supra. See also Benjamin W. Wells, ‘Banking in Old Athens’, The Sewanee Review 25, no 2 (1917): 157–158; Edward Harris, ‘The Liability of Business Partners in Athenian Law: The Dispute Between Lycon and Megacleides ([Dem.] 52.20–1)’, The Classical Quarterly 39, no 02 (1989): 341–343; Alan H. Sommerstein, and Andrew J. Bayliss, Oath and State in Ancient Greece. (Berlin, Boston: Walter de Gruyter, 2012). 106 - 106; A reference to the dispute is present also in Rachel Zelnick-Abramovitz, ‘The Proxenoi of Western Greece’, Zeitschrift für Papyrologie und Epigraphik 147 (2004): 96.
26 As a matter of evidence, Apollodorus testified that Lycon had already collected part of the above-mentioned loan through litigation on a loan that he had previously made to a third party for the purpose of conducting business abroad. That case regarded a loan Lycon made to Megacleides of Eleusis and his brother Thrasyllus for a return voyage to Ace. The two merchants eventually changed their mind and decided not to sail, so the sum had to be given back to the original creditor. For the details of the dispute, see Edward Harris, ‘The Liability of Business Partners in Athenian Law: The Dispute Between Lycon and Megacleides ([Dem.] 52.20–1)’, The Classical Quarterly 39, no 02 (1989): 341–343.
27 The passage is cited in Benjamin W. Wells, ‘Banking in Old Athens’, The Sewanee Review 25, no 2 (1917): 157. Regrettably, the verdict of the dispute is not reported in the original speech, since it only contains an illustration of the oral pleadings of the plaintiff Apollodorus. Hence, we will probably never know whether Callipus managed to obtain the above-mentioned sum, if it was assigned to the banker’s son, or if, alternatively, an equitable solution was reached.
28 See Rachel Zelnick-Abramovitz, ‘The Proxenoi of Western Greece’, Zeitschrift für Papyrologie und Epigraphik 147 (2004): 95.
29 See Luke T. Lee and John Quigley, Consular Law and Practice. (Oxford, New York: Oxford Univerity Press, 2008). 3–4; Coleman, Phillipson, The International Law and Custom of Ancient Greece and Rome. (London: MacMillan, 1911) 136–156; Douglas Macdowell, The Law in Classical Athens. (London: Cornell University Press,1986); David, J. Bederman, International Law in Antiquity. (Cambridge: Cambridge University Press, 2001). 130–134; PaulMonceaux, Les proxénies greques. (Paris: Ernest Thorin Editeur, 1886); S. Perlman, ‘A Note on the Political Implications of Proxenia in the Fourth Century B. C.’, The Classical Quarterly 8, no 3/4 (1958): 185–191; Benjamin W. Wells, ‘Banking in Old Athens’, The Sewanee Review 25, no 2 (1917): 144–163; M. B. Wallace, ‘Early Greek “Proxenoi”’, Phoenix 24, no 3 (1970): 189–208; Gabriel Herman, Ritualised Friendship and the Greek City. (Cambridge: CambridgeUniversity Press, 2002); A. W. Gomme, ‘Two Problems of Athenian Citizenship Law’, Classical Philology 29, no 2 (1934); Rachel Zelnick-Abramovitz, ‘The Proxenoi of Western Greece’, Zeitschrift für Papyrologie und Epigraphik 147 (2004): 93–106; Marie-Françoise Baslez, L'étranger dans la Grèce antique. (Paris: Belles Lettres, 1984); Andre Gerolymatos, ‘The Proxenia and the Development of Diplomacy in Classical Greece’, Papers in Greek Archaeology and History in Memory of Colin D. Gordon 1 (1987): 65.
30 ‘A proxenos performed various services for the nationals of the sending State: giving them protection, obtaining security for their loans, promoting the sail of their cargos, and proving their wills if they died intestate. A proxenos also received diplomatic officials of the sending state and helped them with their official business and sometimes even with their personal affairs. A proxenos might be called upon to assist in negotiating treaties and arbitrating disputes between the sending State and the Receiving State. On occasion a proxenos might be sent as ambassador of his own country to the country he previously represented….[T]he proxenoi, like our consuls, supplied information to the government that appointed them, and also furnished advice and assistance to the citizens who were subjects of that government whilst residing temporarily or more permanently in the territory of the other country…. If the foreign city which he represented was in any way involved in legal proceedings, he introduced to the court the advocates, who had been dispatched to plead its cause. He was present, as a witness, at certain civil transactions of his proteges, and particularly at the making of their wills. He determined the succession of deceased foreigners, who died without heirs. He obtained security for the loans of the strangers under his protection, and even acted as a broker as between the merchants of the two States in question…’In ColemanPhillipson, The International Law and Custom of Ancient Greece and Rome. (London: MacMillan, 1911: 149 – 153). On the functions of the proxenos see also Luke T. Lee and John Quigley, Consular Law and Practice. Oxford, New York: Oxford University Press, 2008: 4.
31 See Phillipson, Ibid : 154.
32 On the origins and subsequent developments of the peregrine praetor in Ancient Rome, compareDavid Daube, ‘The Peregrine Praetor’, The Journal of Roman Studies 41 (1951): 66–70; R. L. Gilbert, ‘The Origin and History of the Peregrine Praetorship, 242-166 B.C.’, Res Judicatae 2 (1941–1939): 50–58; Gordon E. Sherman, ‘Jus Gentium and International Law’, American Journal of International Law 12 (1918): 56–63; T. Corey Brennan, The Praetorship in the Roman Republic Volume 1: Origins to 122 BC. (Oxford: Oxford University Press, 2000); and T. Corey Brennan, The Praetorship in the Roman Republic: Volume 2: 122 to 49 BC. (Oxford: Oxford University Press, 2000); Henry C. Clark, ‘Jus Gentium Its Origin and History’, Illinois Law Review 14 (1920 - 1919): 243 - 265; Richard Wellington Husband, ‘On the Expulsion of Foreigners from Rome’, Classical Philology 11, no 3 (1916): 315–333; Ando Clifford, ‘Aliens, Ambassadors, and the Integrity of the Empire’, Law and History Review 26, n. 03 (2008): 491–519; Ariel Lewin, Gli Ebrei nell’Impero Romano: saggi vari. (Firenze: Casa Editrice Giuntina, 2001); Gustav Ludwig Theodor Marezoll e Giuseppe Polignani, Trattato delle istituzioni del dritto [sic] romano (Stabilimento tipografico Perrotti, 1866). Francesco Trinchera, Della genesi filosofica e storica del diritto internazionale e suoi fondamenti. (Napoli: Stamperia della Regia Università, 1863); Randall Lesaffer, European Legal History: A Cultural and Political Perspective: The Civil Law Tradition in Context. 1st ed. (Cambridge: Cambridge University Press, 2009);Henry Sumner Maine, Ancient Law [1917]. (Memphis: General Books, 2010).
33 Shalom Kassan, ‘Extraterritorial Jurisdiction in the Ancient World’, American Journal of International Law 29, No 1 (1935): 237–247. For further support for this perspective, see E. A. Speiser, ‘Cuneiform Law and the History of Civilization’, Proceedings of the American Philosophical Society 107, no 6 (1963): 536–541. Hassel E. Yntema, ‘The Historic Bases of Private International Law’, The American Journal of Comparative Law 2, no 3 (1953): 297‑317. Raymond Westbrook, Studies in Biblical and Cuneiform Law. (J. Gabalda et Cia., Editeurs, 1988). David J. Bederman, International Law in Antiquity. (Cambridge: Cambridge University Press, 2001). Christiana Van Houten, The Alien in Israelite Law. (Sheffield: Continuum International Publishing Group, 1991). Raymond Westbrook, ‘Slave and Master in Ancient Near Eastern Law’, Chicago-Kent Law Review 70 (1995): 1631–1676.
34 The Frankish capitulary act of 768, for instance, stated: ‘All shall follow their own law, both Romans and Salians; and those who come from other regions shall live according to the law of their own country’. Quoted in Maurizio Lupoi, The Origins of the European Legal Order. (Cambridge University Press, 2007). 394-395. A detailed account of the different laws and institutions of the Middle Ages can be found in Simeon L. Guterman, The Principle of the Personality of Law in the Germanic Kingdoms of Western Europe from the Fifth to the Eleventh Century. (P. Lang, 1990); Robinson, Olivia F. T. David Fergus, and William M. Gordon, European Legal History. (Butterworths, 2000); Kim Keechang, Aliens in Medieval Law: The Origins of Modern Citizenship. (Cambridge University Press, 2000); Paul S. Barnwell, ‘Emperors, Jurists and Kings: Law and Custom in the Late Roman and Early Medieval West’, Past & Present 168 (2000): 6–29; Vernon Valentine, Palmer, ‘Mixed Legal Systems...and the Myth of Pure Laws’, Louisiana Law Review 67 (2006): 1205–1218; Walter Ullmann, The Principles of Government and Politics in the Middle (Taylor & Francis, 2010); Wendy Davies and Paul Fouracre, The Settlement of Disputes in Early Medieval Europe. (Cambridge: Cambridge University Press, 1986); James M. Blythe, Ideal Government and the Mixed Constitution in the Middle Ages. (Princeton: Princeton University Press, 1992). On legal pluralism in the Middle Ages and today, see Brian Z. Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’, Sydney L. Rev. 30 (2008): 375 – 411; Hendrik Spruyt, The Sovereign State and its Competitors. (Princeton: Princeton University Press, 1994); Ralf Michaels, ‘The Re-Statement of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism’, Wayne Law Rev. 51 (2005): 1209–1260.
35 The statement appears in Friedrich Karl Von Savigny, Geschichte des römischen Rechts im Mittelalter vol.i (Heidelberg: JCB Mohr, 1834). 116. Agobard become Archbishop of Lyons in 816.
36 For an overview of competing jurisdictions during and following the Middle Ages, see Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard to Contracts, Rights, and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments. (The Lawbook Exchange, Ltd.,1841); Friedrich Karl Von Savigny, Private International Law. A Treatise on the Conflict of Laws: And the Limits of Their Operation in Respect of Place and Time. Vol. 8. (T. & T, 1869); Clark Ehrenzweig and Albert Armin, A Treatise on the Conflict of Laws. (West Pub. Co., 1962); Joseph H. Beale, Bartolus on the Conflict of Laws [1914]. (The Lawbook Exchange, Ltd. 2003); Hessel Yntema, ‘The Historic Bases of Private International Law’, The American Journal of Comparative Law 2, no. 3 (1953): 297–317; For a structural overview of the historical development of private international law with regard to public international law, see Alex Mills, ‘The Private History of International Law’, International and Comparative Law Quarterly 55 (2006): 1–50.
37 On the expansion of trade during the Middle Ages generally, see Roberto Sabatino Lopez, Raymond Irving Woodworth, and Olivia Remie Constable, Medieval Trade in the Mediterranean World: Illustrative Documents. (Columbia University Press, 2001).
38 George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948). 292. For an outstanding treatise of the history of consular institutions, beginning with the Middle Ages, see Miltitz, Alexandre. Manuel des consuls. A. Asher, 1840. William Mitchell treats the development of the judge-consul within the wider framework of the lex merchatoria that, according to the writer, ‘has been aptly called the private international law of the Middle Ages. It was regarded as a kind of jus gentium known to all the merchants throughout Christendom and the later writers who treated the subject laid stress upon its international character.’ See William Mitchell, An Essay on theEarly History of the Law Merchant. (Cambridge, Univ. Press, 1904). 1. On the early developments of consular institutions between European traders, see Chapter III, The Courts of the Law Merchant: 39 - 78. See also Avner Greif, Paul Milgrom, and Barry R. Weingast, ‘Coordination, Commitment, and Enforcement: The Case of the Merchant Guild’, Journal of political economy (1994): 745 – “…Merchant guilds emerged during the late medieval period to allow rulers of trade centres to commit to the security of alien merchants. The merchant guild developed the theoretically required attributes, secured merchants' property rights, and evolved in response to crises to extend the range of its effectiveness, contributing to the expansion of trade during the late medieval period.’ For further readings, see Paul R. Milgrom and Douglass C. North, ‘The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges, and the Champagne Fairs’, Economics & Politics 2, no. 1 (1990): 1–23; Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law. (Wm. S. Hein Publishing, 1983); Sheilagh C. Ogilvie, Institutions and European trade: merchant guilds, 1000-1800. (Cambridge University Press, 2011). Emily Kadens, ‘Order Within Law, Variety Within Custom: The Character of the Medieval Merchant Law’, Chicago Journal of International Law 5 (2004): 39–65; Bruce L. Benson, ‘The Spontaneous Evolution of Commercial Law’, Southern Economic Journal (1989): 644–661. Charles Donahue, ‘Medieval and Early Modern Lex mercatoria: An Attempt at the Probatio Diabolica’, Chicago Journal of International Law 5 (2004): 21 – 38; Charles Gross and Hubert Hall, Select Cases Concerning the Law Merchant. Vol. 1. (B. Quaritch, 1908).
39 See Alexandre Miltitz, Manuel des consuls. Vol. ii. (A. Asher, 1840).
40 Shih Shun Liu. Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 11.
41 On the development of ‘quasi-sovereign’ competences, including an autonomous system of autonomous adjudication, by the British East India Company, see Philip J. Stern, The Company-State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India. (Oxford University Press, 2011); James D Tracy, The Rise of Merchant Empires. (Cambridge: Cambridge University Press, 1990). For substantial instances of the judicial administration process within the East India Companies, as well as their impact on the development of indigenous legal systems, see Bankey Bihari Misra, The Judicial Administration of the East India Company in Bengal, 1765–1782. (Montilal Banarsidass, 1961); Bhawan Ruangslip, Dutch East India Company Merchants at the Court of Ayutthaya: Dutch Perceptions of the Thai Kingdom, Ca. 1604-1765. Vol. 8. (Brill, 2007). Santhi Hejeebu, ‘Contract Enforcement in the English East India Company’, Journal of Economic History 65, no. 2 (2005): 496–523; Kirti N. Chaudhuri, ‘The English East India Company and its Decision-Making’, In East India Company Studies: Papers Presented to Professor Sir Cyril Philips, edited by Kenneth Ballhatchet and John Harrison, 97–121. (Hong Kong: Asian Research Service, 1986); E. B. Sainsbury, Calendar of the Court Minutes of the East India Company, 1664–1667. (Oxford: Oxford University Press, 1925); Huw V. Bowen, The Business of Empire: The East India Company and Imperial Britain, 1756–1833. (Cambridge University Press, 2006); Kirti N. Chaudhuri, The Trading World of Asia and the English East India Company: 1660-1760. (Cambridge University Press, 2006); John William Kaye, The Administration of the East India Company: A History of Indian Progress. (Rich. Bentley, 1853); Els M. Jacobs, Merchant in Asia: The Trade of the Dutch East India Company during the Eighteenth Century. (CNWS Publications, 2006).
42 On the genealogy of European trade in China see John Villiers, ‘Silk and Silver: Macau, Manila and Trade in the China Seas in the Sixteenth Century’, A Lecture Delivered to the Hong Kong Branch of the Royal Asiatic Society at the Hong Kong Club 10 (1980). D. Warres Smith, European Settlements in the Far East: China, Japan, Corea, Indo-China, Straits Settlements, Malay States, Siam, Netherlands, India, Borneo, the Philippines, Etc...(London: S. Low, Marston, 1900); Chaudhuri, Kirti N. The Trading World of Asia and the English East India Company: 1660–1760. Cambridge University. On the role that the East India Companies had in the establishment of extraterritoriality in China, see also Wellington Koo, The Status of Aliens in China. (Columbia University, 1912: 62–165). See also Earl H. Pritchard, ‘The Origins of the Most-Favored-Nation and the Open Door Policies in China’, The Far Eastern Quarterly 1, no. 2 (1942): 161–172.
43 By reference to the Ottoman Empire, Augusti calls it the immiscibility of the alien doctrine: ‘Particularly in view of the Islamic doctrine of the immiscibility of Moslem and Christian communities and the radical divergence between the legal system of the Ottoman Empire and the Western Powers, it was considered to be the most natural and proper arrangement for foreigners in the Ottoman territories to be subject exclusively to the laws and jurisdiction of their own sovereigns, acting through their ministers and consuls.’ See Eliana Augusti, ‘From Capitulations to Unequal Treaties: The Matter of an Extraterritorial Jurisdiction in the Ottoman Empire’, Journal of Civil Law Studies 4 (2011): 294.
44 On the development of the nation-state in Europe, see generally Jens Bartelson, A Genealogy of Sovereignty. (Cambridge University Press, 1995); Charles Tilly, Coercion, Capital, and European States, AD 990–1992. (Oxford: Blackwell, 1992); Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages. (Princeton, NJ: Princeton University Press, 2006); Perry Anderson, Lineages of the Absolutist State. (Verso Books, 2013); Jürgen Habermas and Ciaran Cronin, ‘The European Nation-state: On the Past and Future of Sovereignty and Citizenship’, Public Culture 10, no. 2 (1998): 397–416; Jean Gottmann, ‘The Evolution of the Concept of Territory’, Social Science Information 14, no. 3 (1975): 29–47; Christian Reus-Smit, ‘The Constitutional Structure of International Society and the Nature of Fundamental Institutions’, International Organization 51, no. 4 (1997): 555–589; Thomas J. Biersteker, ‘State, Sovereignty and Territory’ in Handbook of international relations. (Routledge, 2002). 157–176; James Crawford, The Creation of States in International Law. (Oxford University Press, 2006). For a critical approach to the process of state building, see James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition have Failed. (Yale University Press, 1998); Stephen D. Krasner, Sovereignty: Organized Hypocrisy. (Princeton University Press, 1999); Antony Anghie, Imperialism, Sovereignty and the Making of International Law. (Cambridge University Press, 2007.) For a broad, theoretical perspective, see also Martti Koskenniemi, ‘Les doctrines du droit international dans le temps’, In Société francaise pour le droit international, Colloque de Paris: Le Droit international et le temps. (Paris, Pedone, 2001). 35–47.
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