EXTERRITORIALITY, a convenient term or metaphor for the immunities enjoyed by certain persons, property or places from the jurisdiction of the State in which they are situate.
In most systems of law, including that of England, foreign sovereigns and titular heads of States are exempt from the local jurisdiction (even if travelling incog nito) not merely for acts done in their sovereign, but also for acts done in their private, capacity. The same immunity extends to their property and would appear to extend to members of their family and suite. The English courts, however, assume jurisdic tion over the person or property of a sovereign where (a) he has instituted proceedings or has voluntarily submitted to the jurisdic tion; (b) property in which he is interested and which is sub ject to some equitable claim is found in the hands of a private person or corporation over whom the court has jurisdiction; (c) he is a subject of the Crown; (d) he is owner of immovable prop erty. It is commonly stated that foreign sovereigns are exempt not only from civil but also from criminal jurisdiction. There does not appear to be any support for this proposition in English law. On the contrary, when Mary of Scotland claimed her im munity as a sovereign, Sir Christopher Hatton L.C. replied "You say you are a queen; be it so. But in such a crime the royal dignity is not exempted from answering, neither by the civil nor canon law, nor by the law of nations." And Sir Robert Philli more stated that if a sovereign abused the hospitality, or com mitted an offence against the welfare, of the country in which he is a guest, the authorities would by international law be justi fied in placing him under arrest, and that if he perished in resist ing such restraint, no maxim of international law is violated. Fur ther it is at any rate clear that there is no rule or custom of international law exempting from criminal jurisdiction a foreign sovereign who has invaded the territory of another sovereign and committed an offence therein. Diplomatic agents representing heads of States enjoy similar immunities, which are also extended, so far as they are applicable, to members of their families and persons in their fixed service. They are also exempt from taxa tion and from custom duties on articles imported for their per sonal use. They retain the domicile of their own country and their children born within the embassy or legation acquire their domicile and nationality. Whilst it is said that they cannot be tried for a criminal offence and cannot as a rule be arrested, many jurists agree that they are not wholly free from the local juris diction in respect of crime committed by them whether against individuals or the State. If the offence is serious and urgent there is no doubt they may be arrested and retained in custody pending redress by their State, or for other reasons. In spite of the statute of Anne 1708, which provides that all writs and proc esses which may be sued or prosecuted whereby an ambassador or minister or their domestic servants are arrested or imprisoned or their goods detained, shall be null and void, Count Gyllen borge, the Swedish ambassador, was arrested and kept in custody in 1717 for treason. It would appear, therefore, that the statute only refers to civil jurisdiction. And in 1718 Prince Collemare, the Spanish ambassador in Paris, was arrested for a similar offence, and detained until the return of the French ambassador from Madrid. Such measures, says W. E. Hall, may be justified on the ground that the ambassador of a friendly power must prima facie be supposed to be exceeding his instructions in doing acts inimical to the Government to which he is accredited. Nor is he wholly exempt from civil jurisdiction. Such jurisdiction ex tends to property real or personal held by him as an owner, trustee or trader. He is free from all forms of taxation, but not from local rates unless by mutual arrangement. The position of the military forces of one State within the territory of another State with which it is in amity is similar to that of public vessels in territorial waters.
Places.—The residence of a diplomatic agent and its precincts are exempt from the local jurisdiction so far only as to secure the free exercise of his functions. Thus, where the safety of the State or public order is involved, entry may be made by the local authorities, papers may be searched and persons arrested, whether they are the minister himself, or members of his staff or retinue, or political refugees or criminals. But where the local sovereignty is in abeyance or unable to act owing to local disturbances or civil war, legations, etc., may grant asylum. In some non-Christian countries, e.g., Turkey, Egypt, Morocco, Muscat, Persia, China, Korea and Siam, communities were, or in certain cases still are, established of persons who, whilst resident in certain areas, are deemed for the purposes of civil and criminal juris diction to be extra-territorial and subject only to their respective national laws administered by their respective consuls or other authorities appointed by their respective Governments. Such communities have been established by capitulations or treaties. In such communities the consulates are regarded as exterritorial and the consuls themselves enjoy diplomatic immunities. Public vessels in the ports or territorial waters of a friendly Power, the crew and persons on board, and all property thereon are also exempt from the local jurisdiction. Private vessels, however, are not exempt, and legal processes may be served and arrests effected on board. Persons born on board a British vessel wherever situated or in an exterritorial community are natural-born British subjects (see NATIONALITY). An instance of immunity is that granted to the pope by the Italian Law of Papal Guarantees, 1871.
(H. H. L. B.)
