§ 181. Sources of Extraterritorial Rights. The extent of the extraterritorial jurisdiction of the United States in a given country is to be found in the treaty conferring extraterritoriality and in the statutes and regulations of the United States providing for the exercise of this jurisdiction by American diplomatic and consular officers. Such extraterritorial jurisdiction is exercised in conformity (1) with the laws of the United States, and, if they are unsuitable or deficient, (2). with "the common law, and the law of equity and admiralty," and if all these do not furnish appropriate and sufficient remedies, (3) with "decrees and regulations" having "the force of law," which the "ministers" may make to "supply such defects and deficiencies." 2 Besides the consular jurisdiction exercised over nationals, a wide degree of protection is extended by consuls to the subjects of non-treaty powers and even to natives in the employ of foreigners. This protection of non-nationals, which differs from jurisdiction, will be discussed hereafter.3 The so-called extraterritorial rights, resting in their origin upon treaty, have in the course of time, particularly in Turkey, Morocco and other countries, gathered around themselves by custom an accretion of further encroachments upon the local jurisdiction, so as to constitute in some countries a veritable imperium in imperio. Apart from all consideration of the justice or desirability of the step, one can understand and sympathize with the attempt of the Turkish government to rid itself-as it undertook to do by notification to the Powers shortly after the outbreak of the European War of 1914of the serious encroachments upon national sovereignty imposed by the Capitulations. The contention of the United States, to the effect that a treaty cannot be abrogated by a unilateral act, in the absence of specific stipulation, will serve to keep the matter in abeyance for 1 The federal government, as a matter of constitutional law, has the right to determine when and under what circumstances the rights of extraterritoriality will be exercised. 2 R. S., § 4086; 7 Op. Atty. Gen. 503; Moore's Dig. II, 614. 3 Infra, p. 467. * See an interesting note in 40 Law Mag. and Rev. (November, 1914), 84, and a discussion by Brown, Ph. M., Foreigners in Turkey, 112–118. the present. The success of Turkey's attempt will probably depend largely upon the outcome of the European War. § 182. Origin and Development of the System. The purpose of the extraterritorial privileges was quite different in origin from their present raison d'être. As early as the twelfth century various Italian cities had obtained from the Greek Christian rulers at Constantinople and later from their Mohammedan conquerors numerous charters or capitulations for the protection of their commerce, and exemption for their merchants in the Levant from the local jurisdiction.1 In the development of this system after the Moslem conquest, the exemption was based on a presumed inferiority of the western merchants as unfit to share in the privileges of Moslem law, so largely religious in character, resembling, in this respect, the grant of the jus gentium to foreigners at Rome, because they were considered unfit to share in the privileges of the jus civile. The spread of the system, however, is founded upon the desire of countries of the western world to protect their nationals from the operation of unfit or unequal laws and from the danger of corrupt and ignorant local courts.2 The exercise of extraterritoriality found an early prototype in the quasijudicial functions which foreign consuls had been accustomed to exercise in European ports as between merchants of their own country. Beginning with the capitulations in favor of the Italian republics, the system extended gradually to the nations of modern Europe. The Turkish capitulations in favor of France from 1535 on became the basis for the treaty rights of other powers.3 The extraterritorial rights of the United States in Turkey are based principally on the treaty of 1830. As early as 1787, however, the United States concluded a treaty with Morocco securing the privileges of extraterritoriality, followed in 1797, 1805 and 1815, by treaties with Tunis, Tripoli and Algiers 1 Hinckley, 2; Pelissié du Rausas, v. I, introduction. 2 Hall, 135. 3 Hinckley, 7; Brown, 33 et seq. 4 Philip M. Brown has recently written an interesting work on the legal status of foreigners in Turkey (Princeton, 1914) in which the much disputed question of the rights of American citizens under art. IV of the treaty of 1830 is discussed. See pp. 76-80. respectively. In 1844 the system was extended by treaty to China, and in 1857-1858 to Japan, in which country it has since been abandoned.1 The United States now exercises extraterritorial jurisdiction in Turkey, Bulgaria, China, Persia, Siam and Maskat. Owing to the many changes in the international status of the oriental countries with which the United States has negotiated treaties of extraterritoriality, extraterritorial jurisdiction is now either suspended or greatly modified in its exercise in Zanzibar, Borneo, Tonga, Tripoli and Morocco and has been entirely relinquished in Algiers, Japan, Korea, Madagascar, Roumania, Samoa, Servia and Tunis.2 3 It is obviously beyond the scope of this work to analyze the provisions of the treaties and statutes to determine in each particular country the extent of extraterritorial jurisdiction. The extraterritorial privileges usually include an exemption from the jurisdiction of the courts of the oriental state; inviolability of the domicil; freedom from arrest by native officials, except when in the act of committing a flagrant crime; if arrested, the right of surrender to the consul for trial and punishment; criminal or civil trial in consular or national courts of the accused or defendant; general jurisdiction of the foreign consul over his nationals, with right to require the assistance of the local authorities; and notification of the consul in case of the arrest of native employees of an American citizen.4 Hall mentions certain privileges which Great Britain and a few other favored nations possess to prevent an oppressive exercise of power on the part of the local authorities. Thus, in the territories to which the Capitulations extend, the local police are forbidden to enter by force the house of a British subject without notice to the ambassador or consul; or where a criminal is arrested flagrante delicto, notice of the arrest must be given to the consul within twenty-four hours. In 1 By the treaty of Nov. 22, 1894; Hinckley, 183. 2 Hinckley, 40; H. Doc. 326, 59th Cong., 2nd sess., 214–222, and citations to Hinckley; Moore's Dig. II, §§ 271, 282, 283, 284. 3 This has been done by Hinckley and Brown for the United States in particular, and for various European countries by the authors cited in note 2, p. 430. As to extraterritorial jurisdiction in China, see especially Koo, V. K. W., Status of aliens in China, New York, 1912, ch. IX-XII; and in Turkey, Brown, op. cit., ch. III and IV. Hinckley, 2 and H. Doc. 326, 59th Cong., 2nd sess., 202, quoting Atty. Gen. Cushing in 7 Op. Atty. Gen. 565, 569 and Hall. Persia, formal authorization from the minister or consul is required. Ships and their boats are assimilated to houses.1 A certain degree of protection is thus extended to things and places as well as to persons. This brief study of extraterritorial protection emphasizes the fact that the degree of diplomatic protection exercised in a given country is in inverse ratio to the degree of local security enjoyed by foreigners under the municipal law and institutions of the country of residence. 1 Hall, 143; H. Doc. 326, 59th Cong., 2nd sess., 209; Brook in 30 Law Mag. and Rev. 170. CHAPTER VI MEANS OF PROTECTION § 183. Agencies of Protection. International law has created various agencies which serve states to fulfill their function of protecting citizens abroad. The diplomatic and consular service, acting as the instrument of the Foreign Office, is the customary channel through which the rights of nationals are safeguarded and protected. The rights of aliens or citizens abroadare defined in the municipal law of each country, subject to the limitations imposed by the obligations of international law and of treaties. Treaties, therefore, which prescribe the reciprocal rights of nationals of one of the contracting parties in the country of the other, and of consuls of each country acting in special matters on behalf of their nationals, may appropriately be considered as a means of protection. The exercise of consular jurisdiction, with the wide range of powers involved in the protection of citizens as well as non-nationals in countries where extraterritorial privileges are enjoyed, and the exercise of the right of asylum in legations and public vessels-a practice universally discouraged by the United States as to non-nationals but still granted occasionally by many countries in backward states and (by inheritance and tradition, rather than justice) in the republics of Latin-Americamay be deemed institutions of international law designed to afford adequate protection to citizens and others requiring diplomatic assist Delegated protection, by which the consuls and diplomatic officers of one country assume, by request, the protection of the interests of the citizens of another country, and joint protection, are other methods of protecting citizens in certain emergencies. $ 184. Consular Service. One of the most important agencies for the protection of citizens |