Extraterritoriality

The operation of laws upon persons existing beyond the limits of the enacting state or nation but who are still amenable to its laws. Jurisdiction exercised by a nation in other countries by treaty, or by its own ministers or consuls in foreign lands.

In INTERNATIONAL LAW, extraterritoriality exempts certain diplomatic agencies and persons operating in a foreign country from the jurisdiction of the host country. Instead, the agency or individual remains accountable to the laws of the native country. The effects of extraterritoriality extend to troops in passage, passengers on war vessels, individuals on mission premises, and other agencies and persons.

The concept of extraterritoriality stems from the writings of French legal theorist and jurist Pierre Ayraut (1536–1601), who proposed the theory that certain persons and things, while within the territory of a foreign sovereign, remained outside the reach of local judicial process. Classical writers such as HUGO GROTIUS (1583–1645) and Samuel von Pufendorf (1632–94) gave Ayraut's ideas greater circulation. In 1788, the multilingual translation of Georg Friederich von Martens's Summary of the Law of Nations put the actual word extraterritoriality into the international vocabulary.

Extraterritoriality for ambassadors and other diplomatic representatives gained widespread acceptance during the reign of Queen Anne of Great Britain (1665–1714). In this period, British officials arrested a Russian ambassador who had run up substantial debt to the British government. An international incident ensued as Russian officials and others throughout the world objected to Britain's disregard for the diplomat's IMMUNITY. Because of the outcry, Britain passed the Act Preserving the Privileges of Ambassadors in 1708. Other nations followed Britain's example, and the United States enacted an essentially identical statute in 1790.

In the modern world, the UNITED NATIONS has held a key position in upholding extraterritorial law. In a 1961 agreement made in Vienna, the U.N. Conference on Diplomatic Intercourse and Immunities extended exemption from the laws of host countries to the staff and family of DIPLOMATIC AGENTS. In addition, officials of the United Nations and the members of the delegations of its member states receive extensive procedural, fiscal, and other immunities from the jurisdiction of the host country. Separate and special arrangements govern the United States and Switzerland because the United States hosts the U.N. headquarters and Switzerland has U.N. offices in Geneva.

The general laws binding nations to extraterritorial agreements still rest on principle more than established order. The modern, global marketplace has put an additional dimension into extraterritoriality. The United States has consistently held that unless international jurisdiction conflicts are managed or mitigated, they have the potential to interfere seriously with the smooth functioning of international economic relations. The United States has therefore declared that it cannot disclaim its authority to act where needed in defense of its national security, foreign policy, or law enforcement interests.

The policies of the United States with respect to extraterritoriality have caused crises in other nations. In 2002, two U.S. servicemen allegedly killed two young girls in a traffic accident in South Korea. Despite protests from South Koreans to have the servicemen tried in a Korean court, the soldiers were tried—and acquitted—by a U.S. military court. The treatment of the men caused anti-American protests throughout South Korea.