Throughout the nineteenth century, European powers enacted a number of treaties with Asian states that established their right to bypass national laws and place their own citizens under a system of extraterritorial courts and judicial institutions. The rise and abolition of this practice of “legal imperialism” is the subject of this fascinating new book by Turan Kayaoğlu, which brings together the study of imperialism and international law, and offers original and compelling insights into the origins of modern state sovereignty and legal development in non-European settings.
Drawing from an impressive range of legal and theoretical sources, especially constructivist and postcolonial theory, Kayaoğlu contends that the rise of extraterritorial arrangements in the mid-nineteenth century originated in new legal frameworks that justified imperialism, specifically the displacement of natural law with positive law in Western jurisprudence. Positive law equated sovereignty with a state's institutionalization of a domestic legal monopoly. By applying these legal ideas overseas, European powers “delegitimated Asian law and claims to sovereignty” (p. 14). This also prompted Western jurists to construct categories of nonsovereign and semisovereign states that allowed the West to exclude these Asian states from engaging in international sovereign practices such as treaty making (p. 28). Thus, by the end of the nineteenth century, Western states conferred the international rights of sovereignty only to states that adopted very specific forms of domestic legal institutions.
Of course, non-Western polities vigorously opposed the imposition of extraterritoriality. Besides infringing on their domestic authority, the practice curtailed tax revenue from merchants operating under foreign jurisdiction and conditioned domestic legal reforms on the approval of external powers. Non-Western powers challenged both the norms embodied within extraterritoriality and the institution's legal efficiency. However, the most effective contestation strategy, according to Kayaoğlu, was to respond to demands for positive legal institutions and establish an adequate formal legal system and state capacity to satisfy these positivist criteria.
The author applies this model of domestic legalization to three important states—Japan, the Ottoman Empire, and China—that accepted extraterritorial arrangements with European powers, each of which is afforded a chapter. The cases are appropriately chosen to demonstrate the rise and decline of extraterritoriality across different nominally sovereign, but weak, polities. The author additionally selects key episodes, such as international conferences and negotiations, to demonstrate the contrasting outcomes from before and after the adoption of domestic legal reforms.
The Japanese case offers the most compelling evidence of the author's claims. The far-reaching reforms and bureaucratic capacity introduced by the Meiji state clearly provided the justification for Tokyo to persuade the external powers to abolish the system of extraterritoriality. Beginning in 1894, Britain and the other powers disbanded their extraterritorial arrangements, and all foreigners were living under Japanese law by 1899.
The cases of the Ottoman Empire and China do not fit as cleanly, but still demonstrate important aspects of the author's argument. Kayaoğlu recounts how, since 1856, the Ottoman government had its persistent appeals to disband extraterritoriality spurned by the West. It was not until the Treaty of Lausanne in 1922, at the onset of Turkish legal reforms, that the European powers agreed to abolition. They did so conditionally and only after securing Turkey's acceptance of certain legal safeguards for a five-year transition period, including the hiring of four foreign legal advisors to supervise the reform process (p. 145).
Interspersed in his case narratives, the author also examines contending explanations for the abolition of extraterritoriality. In addition to his domestic law explanation, Kayaoğlu weighs the importance of relative power, especially the rising power of these host states, and international society or “English School” explanations. The latter is skillfully dealt with, as the author examines whether the target states of extraterritorial regimes attained a level of “civilization” before their legal systems were deemed worthy of recognition and acceptance by Western powers. He effectively demonstrates that in all of the cases, the timing of English School explanations, emphasizing norm adoption, simply does not correlate with the dissolution of extraterritoriality.
Kayaoğlu also is keen to dismiss more standard realist power-based explanations. In the Japan chapter, he presses the more general conclusion that “the great powers” policies transcended the geopolitical struggle among them. Rivals collaborated with one another against Japan. The debates about extra-territoriality should thus be understood within a Western versus non-Western context rather than a state-centric and strategic one” (p. 73). But in the Chinese case, even though the author argues that the Guomindang government's legal reforms in the 1930s were mostly responsible for the abolition of extraterritoriality in 1943, the United States and Great Britain had clear strategic reasons at the height of World War II to concede the issue in order to shore up Guomindang resistance to Japan.
More broadly, the author does not consider a more basic strategic explanation for the endurance of these extralegal arrangements. It is hardly surprising that external powers, viewed as an actual international legal regime, enforced by a group of self-interested states, would act to collectively preserve their monopoly rights, even if they did not individually benefit from them in every case. Many of the behaviors that Kayaoğlu finds puzzling from a strictly realist perspective seem more readily explainable as the routine maintenance of preferential regimes from a neoinstitutional lens.
Given the analytical precision and theoretical nuance that characterize most of the book, the sketched-out concluding chapter is unsatisfying. It is meant to show the broader relevance of the concept of legal imperialism to post–World War II U.S.-dominated commercial and military legal arrangements, such as the Bretton Woods system and the legal status afforded to U.S. military personnel overseas under Status of Forces Agreements (SOFAs).
This intriguing analogy is crudely developed, however. The substance of SOFAs greatly varies across host country and time, ranging from the U.S. assertion of pure extraterritoriality to the NATO SOFA that, in actuality, implements a system of concurrent criminal jurisdiction. Moreover, since World War II, even nominally weak host countries have successfully secured more favorable SOFAs from the United States through hard bargaining and the renegotiation of initially unequal or quasi-imperial agreements. Finally, it is somewhat surprising that a book about extraterritorial jurisdiction does not even mention the rise of the International Criminal Court (ICC) and universal jurisdiction. Which would constitute the practice more akin to “legal imperialism”: the indictments issued by the ICC or the refusal of the United States to even ratify the court's founding agreement?
This weak conclusion does not detract from the main achievements of the book. Legal Imperialism is an important contribution to the study of the origins and development of sovereignty, imperialism, and non-Western state formation. It provides an accessible account of a set of international institutional practices and norms that have been overlooked, perhaps tellingly, for far too long by international relations scholars.
