Turan Kayaoglu, The Extension of Westphalian Sovereignty: State Building and the Abolition of...

7/28/2019 Turan Kayaoglu, The Extension of Westphalian Sovereignty: State Building and the Abolition of Extraterritoriality

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The Extension of Westphalian Sovereignty:

State Building and the Abolition ofExtraterritoriality

Turan Kayaoglu

University of Washington

What explains the abolition of extraterritoriality in world politics?Which factors account for the variation in the timing of the abolitionprocess? I develop a state-building explanation for the abolition of

extraterritoriality. I find that traditional explanations of the abolition ofextraterritoriality that rely on power and culture do not account forWestern states decisions to keep or abolish extraterritoriality. I suggestthat the state-building practices of non-Western countries, specificallythe institutionalization of a state-based legal system, are key to explain-ing why Western states decided to keep or abolish extraterritoriality.I test my argument against alternative explanations using a comparativecase study of the abolition process in Japan and China.

On October 24, 1886, a storm caught the British freighter Normanton off thecoast of Oshima Island, Japan. The freighter hit a rock and sank. While all ofthe Japanese passengers drowned, all of the British officers and crew, with theexception of one, survived by taking the two lifeboats. Consequently, the Britishextraterritorial court, Her Britannic Majestys Court at Hyogo, Japan, acquittedthe crew (Chang 1984).

Two decades later, while passing through a village in Chinas Yunan province,the U.S. adventurer Henry Demenil killed a Tibetan Buddhist lama. DistrictAttorney Arthur Bassett of the U.S. District Court for China brought the case tothe court in Shanghai in December 1907 (US v. Demenil). Drawing on Demenilsdiary, which describes the incident as unintentional, the judge acquitted Deme-

nil and concluded that the killing was due to the defendants nervous condi-tion and physical debilitation, brought on by the rarefied mountain air of thelocality, the loneliness of the place, and wilderness of surroundings (Scully2001).

Apart from the questions of justice, these narratives are striking because ofthe existence of Her Britannic Majestys Court in Hyogo and the U.S DistrictCourt for China in Shanghai. Students of international politics take exclusive ter-ritorial jurisdiction for granted: a state has, by definition, exclusive jurisdictionover a territory. However, the existence of extraterritorial courts suggests territor-ial jurisdiction is not a timeless feature of world politics. Around the mid-1880s,

Authors note: I thank Jeffrey Checkel, Rob Farley, George Gavrilis, Arda Ibikoglu, Resat Kasaba, Yuko Kawato,

Ahmet Kuru, Elizabeth Kier, Tuna Kuyucu, Terence Lee, Isik Ozel, Kate Marshall, Jonathan Mercer, Jason Schied-

man and Mike Strausz as well as anonymous reviewers at ISQ for insightful comments on earlier drafts of this

International Studies Quarterly (2007) 51, 649675


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44 Western consular courts operated through various treaty ports of Japan. InChina, four decades later (1926), 35 Japanese, 26 British, 18 United States, and18 French consular courtsa total of 121 consular courts of Western countriesand Japanoperated.

These extraterritorial courts constituted Western extraterritoriality in non-Western countries. As opposed to territoriality, where a state claims exclusivejurisdiction over all people within its territorial boundaries regardless of theirnationality, extraterritoriality refers to a legal regime where a state claims exclu-sive jurisdiction over its citizens in another state. Extraterritoriality is a subset ofextraterritorial jurisdiction. In world politics, a state uses territorial jurisdictionwithin its boundaries, and extraterritorial jurisdiction within the boundaries ofanother state.

States claim jurisdiction within the boundaries of another state in three ways.First, states may claim jurisdiction within a delimited area in another state, suchas jurisdiction over a military base or leased territory. Second, states claim juris-diction over activities within the boundaries of another state, such as extraterrito-

rial applications of antitrust and environmental laws. Third, states claimjurisdiction over people within the boundaries of another state, such as diplo-mats, peacekeepers, and military personnel. In a form of extraterritorial jurisdic-tion, extraterritoriality, states claim jurisdiction over their citizens. Although thisform of extraterritorial jurisdiction is extinct, Western states claimed jurisdictionover their citizens in non-Western, noncolonized countries in the second half ofthe nineteenth and first half of the twentieth century.1

The abolition of extraterritoriality marked the extension of the Westphalianorderstates mutual exclusion from each others domestic authority struc-turesinto non-Western countries. That exclusion denoted Western statesrecognition of non-Western countries claims of Westphalian sovereignty.

As a Western legal institution in non-Western states, extraterritoriality demon-strates that the states absolute territorial jurisdiction is a unique feature of themodern international system. Various IR scholars have suggested territorial juris-diction is constructed through the interactions of various state, nonstate, andinternational actors.2 Non-Western rulers authority claims waxed and wanedbefore those rulers achieved territorial jurisdiction and external recognition oftheir claims to absolute territorial jurisdiction. The variation in the timing of theabolition of extraterritoriality shows that the diffusion of territorial sovereigntyinto non-Western countries occurred over time at irregular intervals from theend of the nineteenth century to the middle of the twentieth century (Table 1).

What explains the abolition of extraterritoriality in world politics? What

explains the variation in the timing of the abolition process? This paper offersa second-image argument to explain the abolition of extraterritoriality: the insti-tutionalization of state law. The extension of Westphalian sovereignty requiresthe institutionalization of state law. In the Western state-building experience, therevival of Roman law allowed rulers to institutionalize state law to clarify andenforce legal and property rights within their borders. State-clarified and

1 Krasner (2004) mentions extraterritoriality as one of the forms of shared sovereignty where external actors

and domestic rulers shared domestic sovereignty.2 In the last two decades, a significant literature has emerged to explore the constructed nature of territorial

sovereignty. Jackson (1990) examines how the territorial sovereignty of African states is constructed through exter-

nal legitimization. Ashley (1984, 1989) and Thomson (1994) examine how rulers came to legitimize foreign rulers

rights to domestic violence in the international system. Ruggie (1983, 1993) and Spruyt (1994) explore how mod-

ern states with mutually exclusive territorial jurisdiction came to dominate the modern international system. Bartel-

son (1995) Walker (1993) and Weber (1995) focus on discursive practices in the construction of territorial

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enforced legal and property rights coordinated rulers authority claims overtransnational interactions. I argue that the coordination of transnational interac-tions through state law became the precondition for state rulers to recognizeother rulers claims of territorial jurisdiction. More specifically, Western rulersdemanded that non-Western rulers institutionalize state law as a precondition forthe recognition of non-Western countries claims of Westphalian sovereignty.

This paper has three sections. In the first section, I contrast my state-building

approach against power politics and culture arguments. In the second and thirdsections, I test the hypothesis of these theories with evidence from the abolitionof extraterritoriality in China and Japan.

IR Theory and the Abolition of Extraterritoriality

The state-building approach connects the abolition of extraterritoriality to theinstitutionalization of state law. Power-politics approaches may link its abolitionto one of three factors: narrowing power asymmetry between home and hoststates, the lack of demands from domestic constituencies, and geopolitical calcu-lations. Cultural approaches link the abolition of extraterritoriality to the expan-

sion of international society through standards of civilization.

State Building and the Abolition of Extraterritoriality

The institutionalization of state law refers to the systemization of rules, stateenforcement of rules, and the establishment of the states legal hierarchy.3 Theinstitutionalization of state law facilitates and regularizes transnational interac-tions by providing information about legal and property rights, providingcredibility to enforce these rights and creating state responsibility and account-ability for the legal system within its boundaries. By demanding the institutionali-zation of state law in non-Western countries, Western states aligned domestic

TABLE 1. Abolition of Extraterritoriality

Abolition of

Extraterritoriality Method of the Abolition

Algeria 1830 Occupation (France)Tunisia 1881 Occupation (France)Zanzibar 1890 Protectorate (Britain)Tonga 1890 Protectorate (Britain)Madagascar 1896 Occupation (France)Samoa 1899 Occupation (Germany U.S.A.)

Japan 1899 NegotiationsCongo 1908 Occupation (Belgium)Korea 1910 Occupation (Japan)Morocco 1912 Protectorate (France)Turkey 1923 NegotiationsIran 1928 NegotiationsThailand 1937 Negotiations

China 1943 Negotiations

Note: Prepared from the data Liu (1925) presents.

3 Giddens (1987), Poggi (1978, 1990), Tilly (1992), and Weber (1978) develop a political account of state build-

ing emphasizing legal institutionalization. Jessop (1990) offers a Marxist approach to the role of legal institutionali-

zation in state building For a new institutional economics approach to state building and legal institutionalization

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arrangements making them compatible with the expansion of Westphalian sover-eignty as well as capitalism.

The international dimension of a states law-making and law-enforcing author-ity exists because domestic legal arrangements have international implicationsthrough their influence on transnational interactions and visiting or resident for-eigners. A states legal claims should be coordinated and aligned with those ofother states to enable and facilitate transnational interactions. For example,transnational commercial transactions will not be possible if business groups donot have information about legal and property rights in other countries. Thegroups willingness to transact will be precarious if they do not have credibleinformation about the enforcement of these rights. The need for legal coordina-tion and security of foreigners makes state rulers responsible and accountabletoward each other through aligned domestic legal arrangements.

The institutionalization of state law started before Westphalia-dominated Euro-pean legal systems in the nineteenth century. The Westphalian system representsa break from the medieval system in domestic legal arrangements. While frag-

mented and overlapping legal claims characterized the medieval system, sover-eign states have claimed supreme law-making and law-enforcing authoritythrough the institutionalization of state law. Some IR scholars acknowledge therole of state law institutionalization in the formation of the modern state system.Kratochwil (1986, 1995) argues that European rulers used the notion of privateproperty in Roman law to exclude others from intervening within their domains.Ruggie (1983, 1993) recognizes the role of state enforcement of its laws in theconstruction of domestic sovereignty. Both Kratochwil and Ruggie limit theimportance of the revival of Roman law to domestic sovereignty except for itsone external implication: the establishment of the mutually recognized, exclusiveterritorial domains of states. The revival of Roman law contributed to the emer-

gence of the modern international system more than either scholar suggests.Roman laws revival, the institutionalization of state law, established the back-ground for territorial jurisdiction. This background enabled states to coordinatetheir legal structures through territorial jurisdiction and thus facilitated andregularized transnational interactions.

After reducing the role of the institutionalization of state law to domestic sov-ereignty, Ruggie suggests social empowerment to link domestic and Westpha-lian sovereignty. Social empowerment refers to state rulers recognition of eachother as sovereign rulers within their territory. This recognition, I argue, is con-ditioned on the understanding that other rulers would institutionalize state lawwithin their territories. Following Giddens (1987), Spruyt (1994) offers another

mechanism to link the domestic and international aspects of sovereignty: mutualempowerment. Mutual empowerment among sovereign states occurs because(1) recognizing clear boundaries eliminates conflicts among authorities and(2) state rulers commit themselves to their international arrangements. I do notdispute that state borders establish focal points around which states coordinatetheir authority claims, but as the existence of extraterritorial jurisdiction indi-cates, state boundaries and authority structures do not necessarily match. I agreewith Spruyt that sovereign states better commit themselves to fulfilling their exter-nal commitments; however, I also claim that state rulers have a responsibility toother state rulers to clarify and enforce property rights within their boundaries.

In the Western state-building experience, the revival of Roman law enabledand regularized transnational interactions through territorial jurisdiction. At thesystemic level, territorial jurisdiction institutionalized state rulers cooperation tofacilitate and regularize transnational interactions. Territorial jurisdiction allowed

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rulers to establish institutions, which clarify and enforce laws. The Westphaliansystem made legal institutionalization the responsibility of the state.

Sovereign state rulers demand that other rulers institutionalize state law,enabling transnational interactions, securing a fair legal process of foreigners,and moderating the conflict of jurisdictions over transnational transactions.Three conditions are necessary for state rulers to facilitate transnational interac-tions: internal stability, information about legal and property rights, and enforce-ment of legal and property rights.4 Although the institutionalization of state lawempowers all states to a degree, it most empowers states whose citizens canengage in long-distance trade. The absence of the institutionalization of state law(or the dominance of local customary legal institutions) empowers local mer-chants against long-distance traders (Greif 1993), because customary law createsinformation and enforcement asymmetries regarding legal and property rights.State law moderates the information and enforcement asymmetries by makingthe state rulers responsible and accountable for systemizing and standardizingrules and applying them uniformly. In other words, the responsibility of sover-

eign authorities to regulate trade through the institutionalization of state lawminimizes the advantages that locals may have due to information asymmetriesand enforcement asymmetries (Spruyt 1994:168).

One should not underestimate the role of material power in the expansion ofstate law institutionalization and Westphalian sovereignty. As Western gunboatdiplomacy to open China and Japan to international markets illustrates, thedemand to enable transnational interactions was a Western-driven process. Like-wise, the institutionalization of state law in these countries was a Western-drivenprocess. Western traders explored, invested, and traded with non-Western localmerchants. In the nineteenth century, non-Western states legal systems werefragmented, as state rulers shared legal authority with societal groups and local

communities. The absence of a state-based legal system created an asymmetry ofinformation and enforcement among the interacting parties based upon theasymmetrical knowledge about informal rules, past behavior of local people, andthe ability to retaliate in the future. The asymmetries of information about localrules and the difficulties of sanctioning locals empower local people against dis-tant parties, particularly foreigners. State rulers are able to moderate the asym-metry of information and enforcement by designating the right andresponsibility of ultimate jurisdiction within a territory to other state rulers.

There are three components of the institutionalization of state law: (1) the cla-rification of rules is necessary to provide information about legal and propertyrights; (2) the spread of the states court system is important to enforce the

states rules; and (3) the establishment of a legal hierarchy is required for statesto assume responsibility and accountability for the clarification and enforcementof legal and property rights.

State rulers systemize and standardize the rules to provide information toother state rulers. State rules can rely on court decisions (case law) or legislativecodes (civil law) or a combination of codes and cases to systemize and standard-ize the rules. Codification has been the dominant tool for the systemization andstandardization of rules. Through codification, state rules both replace custom-ary local rules with uniform law and systematically arrange them to provide infor-mation to other rulers.5

During the Medieval era, the Justinian codethe revival of Roman lawoper-ated partially and locally in certain parts of Europe (particularly in Italian andGerman states). European state builders started to employ the Justinian Code asthe feudal legal system faded. Following the Peace of Westphalia, the popularity

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of the Code increased in continental Europe. Through adaptation of the Justin-ian Code and the compilation of new codes, European rulers codified territorialrules and called it state law. The codification occurred differently in differentcountries: through revolution in France (the Napoleonic Code) and through therevival of Roman law in German states (and later as a means of unifyingGermany).6 Both these codes represent major state-building efforts in modernEurope. Initially, other rulers in Europe and Latin America, and then non-Western rulers, adopted old codes and compiled new codes to prepare state law.

In addition to clarifying rules as state law, state rulers are responsible forenforcing state law. State rulers do not just demand that all rulers provide infor-mation about legal and property rights, but also demand that they enforce therules. State courts have been the dominant means state rulers use to adjudicatedisputes over the enforcement of state law. Without courts, individuals wouldselect informal means to solve their legal problems. Although throughout historyother forms of dispute resolution such as mediation and communal courts havebeen practiced, the states systemization of legal rules brought state monopoliza-

tion of dispute resolution.The last requirement for the institutionalization of state law is the establish-

ment of a judicial hierarchy, necessary to make rulers responsible and account-able for legal failures and legal changes. First, state rulers are responsible (toother states rulers) for rectifying legal failuresfailures to clarify legal and prop-erty rights or failures to enforce them when these failures affect other states orforeigners. Second, state rulers are responsible and accountable for legal chan-ges that may affect other states or foreigners. State rulers create a bureaucraticlegal hierarchy under the state bureaucracy to take responsibility and account-ability for the states legal system. The absence of an internal judicial hierarchymay obstruct transnational interactions: it may be difficult to determine who is

responsible and accountable for correcting legal failuresinconsistenciesbetween the codified rules and the actual adjudication of disputes.

Rulers of sovereign states, not the rulers of city leagues or empires, took onthe responsibility of remedying violations of a foreigners life and property(Spruyt 1994:168). Sovereign states establish bureaucratic control over the legalsystem to institutionalize the process for correcting legal failures. The statesappellate structure supervises local courts and obliges judges to apply state lawsto adjudicate disputes. In Europe, the appellate system emerged as the dominanttool for state rulers to impose state law on local courts, limiting the influence ofmedieval customary laws. For example, in England the central government usedthe appellate courts to enforce state rules on the lower courts (Shapiro 1981:39).

The state-building hypothesis suggests that Western states demanded that non-Western countries institutionalize state law as a condition for the abolition ofextraterritoriality. The institutionalization of state law was necessary to facilitateincreasing transnational transactions between Western states and non-Westerncountries in the nineteenth and early-twentieth centuries. After non-Westerncountries institutionalized state law by clarifying the legal rules, enforcing legalrights, and taking responsibility and accountability for legal failures and change,Western states gave up their claims to extraterritoriality.

The state-building argument is closely related to that of constructivism in IR.In addition to the state-building literature, one strand of constructivism (Ruggie1993; Spruyt 1994; Thomson 1994; Kratochwil 1995) led me to develop my ownstate-building argument. In this version of constructivism, state practices andinstitutions are deemed more influential than normative pressures in explainingworld politics. While these scholars do not reject normative influences, they large-l b h d i d i i i A h d f



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constructivism (Keck and Sikkink 1998; Risse, Ropp, and Sikkink 1999; Wendt1999) emphasizes the role of normative pressures in world politics. Withoutrejecting the role of state practice and institutions, their version of constructiv-ism largely subsumes them under normative pressures.

While the state-building argument concentrates more on state practices andinstitutions, I do not deny the role of normative pressures, particularly diffusionof the sovereign equality norm, which changed perceptions of the legitimacy ofextraterritoriality. The judicial criteria of sovereign equality replaced the empir-ical criteria of state building around the Second World War (Jackson 1990). Thisnormative change triggered decolonization in the 1950s and had a strong influ-ence on Western states semicolonizing policies like extraterritoriality. Combi-ning these two strands of constructivism, one may expect that normativeinfluences against extraterritoriality may facilitate the abolition of extraterritorial-ity during or after the Second World War first in places with partial institutionali-zation of state law.

Power Politics and the Abolition of Extraterritoriality

Realist theories clarify the mechanisms through which powerful states imposedomestic political arrangements (i.e., informal empire and legal imperialism) onweaker states to enhance their national interests. Those promoting realist theor-ies agree with the English School and advocates of the state-building approachconcerning the influence of powerful Western states in shaping, aligning, andmanipulating the domestic politics of weaker states, including their legal systems.However, they differ in their emphasis on which existing conditions allow exter-nal states to abolish the domestic political arrangements in other states. The fol-lowing section outlines three realist hypotheses, two of whichpower asymmetry

and domestic constituenciesare from Stephen Krasners Organized Hypocrisy,7

and the thirdstrategic competitionis from neorealism.

Power Asymmetry HypothesisAccording to Krasner, given contradictory international norms of state behaviorand rulers dependence on domestic constituencies, rulers use internationalnorms to satisfy their constituencies. Applying Krasners theory from OrganizedHypocrisy to the abolition of extraterritoriality, one may suggest that the shrinkingpower asymmetry between home and host countries and the lack of demand athome for extraterritoriality are both sufficient conditions for the abolition ofextraterritoriality.8

State rulers cannot extract an agreement for extraterritoriality without thecapacity to impose and maintain it. Krasner notes that while conventions andcontracts are Pareto efficient, leaving no party worse off than prior to thecontract or convention, coercion and imposition leave one party worse off(Krasner 1999:1216). Characterized as unequal treaties by rulers of non-Western countries, extraterritoriality required coercion and imposition, andtherefore power asymmetry (Krasner 1999:37). The narrowing powerasymmetry between a home and host country can lead to the abolition ofextraterritoriality.

7 Krasner (1999) distinguishes his approach from traditional and neorealist theories. His emphasis on power

asymmetry to explain violations of norms of sovereignty, however, qualifies his approach as a power-politics

approach.8 The domestic cost of extraterritoriality had no influence on Western states policies The consular court sys-

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Domestic Constituencies HypothesisAs rulers are calculators whose purpose is to stay in power (Krasner 1999:41),9

their willingness to use power to impose the will of their constituencies on a statewill be proportionate to their sensitivity to the constituencies needed to stay inpower. As the abolition of extraterritoriality influences the interests of two powerfulconstituencies, I expect state rulers to be responsive to their demands. The businesscommunity (located both in home and host states) may demand extraterritorialityto protect their commercial activities, and missionaries, their religious activities.

Strategic Competition HypothesisThe level of struggle among great powers in a region may influence rulers deci-sions to keep or abolish extraterritoriality. With a high level of strategic competi-tion in a region, great powers will compete to increase their influence overa host country. Thus, the rulers hope that extraterritoriality will create an incentivefor the home states citizens to move to the host state for business and missionaryactivities, to increase its influence over the host state. Given the high level of

strategic competition and the fact that unilateral abolition of extraterritorialitymay lessen the influence of a great power over a host state, a home state will notabandon its extraterritorial claims as long as strategic competitors do not aban-don theirs. However, a great power may abolish extraterritoriality under highlevels of strategic competition as a result of a strategic alliance with a host state,particularly if a great power is losing its influence in the region or if it has nostrategic allies in the region.

The English School and the Abolition of Extraterritoriality

The English School links the abolition of extraterritoriality to the expansion of

international society. Although the English School is theoretically and methodo-logically diverse, the differentiation of the international system and internationalsociety is one of the English Schools core principles.10 While states that havesufficient contact between them, and have sufficient impact on one anothersdecisions, to cause them to behaveat least in some measureas parts of awhole are part of the international system, only a subset of states conscious ofcertain common interests and common values, form a society in the sense thatthey conceive themselves to be bound by a common set of rules in their relationswith one another, and share in the working of common institutions (Bull1977:9) constitute an international society. States can enter into internationalsociety if they fulfill the membership requirements.

Despite this clear theoretical prediction, the conceptual vagueness of the terminternational society makes it difficult to derive strong empirical prediction.11

Gerrit Gongs conceptualization of international society exemplifies the difficultyof measuring the English Schools core variable. Gong lists five sets of policiesthat non-Western countries should accomplish in order to become a part ofinternational society: (1) guarantee basic rights (especially for foreigners), inclu-ding life, dignity, property, freedom of travel, commerce, and religion; (2) an effi-cient bureaucracy with a capacity for self-defense; (3) adherence to internationallaw and maintenance of an efficient legal system with published laws guarantee-ing justice both for their own citizens and foreigners; (4) working diplomacy;and (5) obedience to civilized norms prohibiting practices such as suttee,

9 Krasner (1999:41).10 Bull (1977), Bull and Watson (1984), Gong (1984), and Watson (1992). Alderson and Hurrell (2000), and

Watson (1987) review Bulls view on international society Buzan (1993) and Little (1995) discuss the international



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polygamy, and slavery (Gong 1984:1415). After specifying the standards withwhich non-Western countries should comply, Gong argues that the standard ofcivilization has an implicit and subjective dimension. Even if a non-Westerncountry accomplishes all five of the criteria, the Western countries may continueto perceive it as noncivilized and thus not a member of international society.Therefore, perhaps it is not membership in international society but perceptionof membership that explains the abolition of extraterritoriality.

Like the state-building approach, the English School links the abolition ofextraterritoriality to host states domestic change. Both theories share a commonvariablelegal institutionswith three differences. Theoretically, the two theor-ies differ on the function of legal institutions. The English School emphasizesthe role of legal institutions as a prerequisite for non-Western entities to attainlegitimacy as a civilized state in international society. The state-building approachstresses the role of legal institutionalization to enable and regularize transnation-al interactions. Methodologically, legal institutions are only one of several causalvariables used by the English School. For example, the capacity for self-defense

(close to the realist power asymmetry variable) and abolition of polygamy andslavery are Western cultural standards. Empirically, the English Schools argu-ment is tautological. To begin, they explain standards of civilization through theperception of Western elites. Subsequently, they explain the change of Westernperception through Western policies. Thus, they argue that change in Westernpolicies reflects the fulfillment of non-Western countries standards of civiliza-tion. The state-building approach measures its causal variable, legal institutionali-zation, independently of Western rulers perceptions and policies. If Westernrulers perceptions and policies do not reflect change in the causal variable, thatis evidence against the state-building hypothesis. Given the theoretical, methodo-logical, and empirical problems with the English School, the state-building hypo-

thesis offers a parsimonious and rigorous refinement compatible with theEnglish School.

In the remaining sections, I develop a comparative case study (Bennett 2004;George and Bennett 2005) by investigating the abolition of extraterritoriality inJapan and China to test the hypotheses. Since extraterritoriality continued for43 years in Japan and 101 years in China, the two cases provide many years ofobservations. In Japan and China, I analyze two successful (Japan, 1899 andChina, 1943) and two failed (Tokyo Conference, 1882 and Washington Confer-ence, 1921) attempts to abolish extraterritoriality.12 Selecting two observationseach from China and Japan provides sufficient leverage to establish causalityregarding the abolition of extraterritoriality in non-Western and noncolonized

countries.

13

Theoretical approaches offer five plausible factors to account for theabolition of extraterritoriality. First, following Mills method of agreementasJapan is the first country (1899) and China (1943) is the last country to abolishextraterritorialityI establish a correlation between the abolition of extraterrito-riality and the five alternative factors above. Second, by adding two failedattempts, I increase the number of my observations to four, which also enablesme to follow Mills method of difference. Last, I increase the number of specificobservations by analyzing discussions before, during, and after the negotiations.Analysis of these negotiations also provides data for process tracing to directlyconnect the abolition of extraterritoriality to independent variables.

12 Two of these observations are multilateral conferences, implying that extraterritoriality was a collective decis-

ion made among Western states. For the other two observations, as leading extraterritorial powers, British and U.S.

decisions were the crucial decisions which other Western states followed Other states decisions to follow British

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I excluded colonized cases because of overdetermination of the abolition ofextraterritoriality. Once a Western country colonized a non-Western countrywhere extraterritoriality existed prior to the colonization, realism, the EnglishSchool, and state building predict the abolition of extraterritoriality. The mater-ial strength of the colonizer, as realism predicts, may deter Western states fromcontinuing to impose extraterritoriality. Because the colonization of a countrymay bring that territory into international society, as the English School predicts,Western states may give up their extraterritoriality. Lastly, colonizers state-build-ing practice of integrating the legal system of colonized territories into theirlegal hierarchies, as the state-building argument claims, may lead to the abolitionof extraterritoriality.14

The Abolition of Extraterritoriality in Japan

In 1880, the Japanese contacted the ministers of states with extraterritoriality inJapan. In the 1882 Tokyo Conference, Britain and France rejected the Japanese

demand for the abolition of extraterritoriality. Twelve years later, on the eve ofthe SinoJapanese War of 1894, Britain and Japan signed the AokiKimberleyTreaty to abolish British extraterritoriality in 1899. Other home states followedthe British lead in abolishing extraterritoriality in Japan by 1899. I argue thatMeijis state-building reforms, specifically institutionalization of state law, explainthe abolition of extraterritoriality, and thus the Japanese success in achievingexclusive territorial jurisdiction. This change of legal institutions at the state levelin Japan explains the change of system-level practices of extraterritoriality.Through imposing extraterritoriality on Japan and demanding the institutionali-zation of state law, Western states forced Japan to align its domestic legal systemwith Westphalian sovereignty.

The Tokyo Conference of 1882 and Extraterritoriality

During the Tokugawa period (16151868), Japan lacked a state-based legal sys-tem. Judicial authority was feudally dispersed among hundreds of daimyos, theimperial court, and the Tokugawa Shogunate that represented the state(Henderson 1968:397399). The institutionalization of a state-based legal systemconstituted an important part of the state-building process of the Meiji rulers(18681912) who aimed to eliminate the feudal, semi-independent domainsthrough imposing a unified administrative structure. Even though they disagreeon its sources, Japan experts agree on the Meiji rulers success in establishing

a unified administrative structure.

15

The establishment of a unified legal system was also an integral part of Meijistate-building projects. In the first stage of legal reforms (18681882), Meiji lead-ers focused on the creation of a central judicial system and the codification ofcriminal law with a court system to support it (Ryosuke 1958:1315; Henderson1968:416417). In the second stage (18821898), they focused on the systemiza-tion of their prior reforms through a constitution and the codification of anextensive body of law for the entire private law field, replacing customary law(Ryosuke 1958:14).16 In the remaining part of this section, I examine the Tokyo

14 Liu (1925) provides evidence for the abolition of extraterritoriality in cases of colonization. The evidence

he provides suggests that the discussions in colonial cases of the abolition of extraterritoriality focused on the legal

system.15 For a historical account of Japanese state building, see Beasley (1989). Silberman (1993) puts Japanese state

building in comparative study with Western cases Ward and Burks (1968) and Ward and Rustow (1964) compare



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Conference discussions to suggest that the lack of the institutionalization of statelaw prevented the abolition of extraterritoriality.

In July 1881, Lord Granville, British Secretary of State, replied to Mori Arinori,the Japanese Ambassador, that Britain could not accept the abolition withoutprevious careful examination of the laws of Japan and the constitution and legalprocedure of the Japanese Courts (FO8814763 18811882). Rather than abol-ishing extraterritoriality, Granville proposed a multilateral conference betweenJapan and Western states to examine the Japanese legal system.17

In the Tokyo Conference, Inoue, the Japanese Foreign Minister, proposed agradual abolition of extraterritoriality. He demanded Japanese jurisdiction overforeigners on all issues except for certain capital offenses and certain parts offamily law after a 5-year transition period. During the transition period, theJapanese courts, composed in part of foreign judges, would have jurisdictionover foreigners.18 Harry Parkes, the British Ambassador, raised four objections toInoues demands. First, there had not been sufficient time to observe the effect-iveness of the new Japanese codes such as the Criminal Code of 1880, which had

become effective in January 1882. Second, Japan lagged behind: It did not havea civil or commercial code. Third, Japanese judges did not have training in West-ern legal systems and conceptions, training which Parkes saw as necessary for theapplication of laws adopted from Western legal systems. Fourth, the 5-year per-iod would not be sufficient to replace the judges of the old system with new jud-ges to apply the codes.19 After these discussions, the British and Frenchrepresentatives concluded that they would veto the proposed abolition of extra-territoriality.20

The British justification to keep extraterritoriality on the basis of the Japan-ese legal system in the Conference was consistent with British policy on extra-territoriality. Like Granville earlier, Parkes established a direct connection

between legal institutionalization in Japan and the abolition of extraterritorial-ity. When the Tokyo Conference ended, Parkes conceded that extraterritorial-ity was a temporary system and that Britain would accept its abolition whenJapan perfects her legal system by promulgating a criminal code, a code ofcriminal procedures, a civil code, a commercial code, and a code of civil pro-cedure all of which Britain approves (Jones 1931:95; Kamikawa 1958:142).Following the Conference, the British Foreign Office published the followingmemorandum:

With regard to the proposal laid before the Conference by the president for theestablishment of courts with foreign Judges, having jurisdiction over foreigners,and the eventual abolition of consular jurisdiction, Her Majestys Government,

while they are willing and anxious to give due weight to the views and wishes ofthe Japanese Government on this question, are unable to express an opinion onthe present proposal until the new laws and rules of procedure for the proposedcourts are completed and translated (FO8814778 (1883)).

17 From Granville to Jushie Morie, October 12, 1881, FO8814763 18811882:8. Also, see Lane-Poole and Dic-

kins (1894:309311). Following the letter, Granville contacted other home states (Netherlands, German, France,

The Swiss Confederation, Austro-Hungary, and Portugal) encouraging them to act together against the Japanese

proposal. He also sent letters to chambers of commerce (Incorporated Chamber of Commerce of Liverpool, Bir-

mingham Chamber of Commerce, Yorkshire Chamber of Commerce, and Bradford Chamber of Commerce) to

learn their opinion about extraterritoriality. See FO8814763 (18811882:518). Granville also contacted the

Tokyo Embassy to solicit information about Japanese codes, particularly Criminal and Criminal Procedures Codes

and the Japanese court system FO8814763 (18811882:18).18 FO 881 4763 (18811882:144158) In his speech Inoue also gives a detailed distribution of courts in Japan

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The Foreign Office memorandum supplements Granville and Parkes argu-ments that the lack of institutionalization of state law in Japan was the reason forBritains rejection of the proposal to abolish extraterritoriality in Japan. In thenext section, I will examine the debates on extraterritoriality between Japan andBritain during 18931894 to suggest that the Japanese institutionalization of state

law explains the abolition of extraterritoriality.

The Meiji Restoration and the Abolition of Extraterritoriality in Japan

In 1893, Aoki Shuzo, the Japanese Ambassador to Britain and Germany, presen-ted a draft for a new treaty between Japan and Britain, which included the abol-ition of extraterritoriality (FO8816488 1893). Fraser, the British Ambassador,was disappointed with the draft: there were no guarantees for the protection ofBritish residents in their person or property (Perez 1999:107). Fraser recom-mended to Lord Rosebery, the British Prime Minister, that he suspend the dis-cussions until after the new Japanese law codes had been in actual operation

for at least a year, in order to determine not the nature of the laws, but also themanner in which they were to be implemented (FO8816488 1893:32).Frasers reservations about the abolition of extraterritoriality reflected his con-

cerns that the legal reforms in Japan had not yet led to the codification of com-mercial and civil laws (Ryosuke 1958:19). By failing to institutionalize the statelaw, Japan did not demonstrate to Western states its ability to protect rights ofWestern citizens. As I argue later, the close timing of codification and the abol-ition of extraterritoriality was not coincidental. Britain required the codificationof Japanese laws for the abolition of extraterritoriality (Table 2).

In addition to the codification of laws, during the 18821899 period, Meijistatesmen established an extensive court structure to consolidate a state-based

legal authority in Japan. The 1890 Law of the Organization of Courts establisheda court system with four levels: a Supreme Court, appeal, local, and districtCourts.

Table 3 shows the increase of the courts of first instance (local and districtcourts) in Japan.21 As Japan did not extend its territorial boundaries during thisperiod and did not experience dramatic population growth, an almost 80%increase in the number of courts of first instance indicates the increased level oflegal consolidation in Japan. These numbers suggest that by the end of the nine-teenth century, Japan had established an extensive statewide court system.

As a first step, the British government requested information about the Japan-ese codes (FO8815072 1894:15). Mutsu promised a diplomatic note showingthe enforcement and publication of the codes before the enforcement of the

new treaty abolishing extraterritoriality (FO8815072 1894:2326). In other

TABLE 2. Codification in Japan

Name of the Code Enforcement Date

Imperial Constitution 1889Criminal Code 1898Criminal Procedure 1890Civil Code 1898Civil Procedure 1890Commercial Code 1898



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words, Japan, like Britain, accepted the link between abolition and codification.On the first day of negotiations, April 2, 1894, F. L. Bertie, the British chiefnegotiator, indicated that the Japanese failure to provide full information as tothe laws which would be enforceable upon British subjects on the cessation ofconsular jurisdiction was the major problem.22 When Bertie asked to examinetranslations of the codes, Aoki replied that if any existed they would be ineither German or French, as Japan modeled their codes on the French andGerman codes. Aoki promised to provide translated codes to the British Govern-ment, if they were in fact available (FO8815072 1894:78). The Britishrequest to examine Japanese codes reflected the standard British response to allinquiries about the abolition of extraterritoriality. Japanese (and other non-West-ern states) codification was a means for non-Western countries to signaltheir commitment to provide protection for the legal and property rights offoreigners.

On July 16, 1894, Britain and Japan signed the AokiKimberley Treaty to abol-ish British extraterritoriality in Japan. With the treaty, Japan gave a diplomaticnote to Britain declaring that the Japanese government would not enforce thetreaty until the codes were in full operation (FO8815072 1894:94). In the fol-

lowing 2 years, 18941896, other Western states signed similar treaties withJapan, giving up their claims of extraterritoriality in Japan.

To sum up, Meiji leaders completely institutionalized state law in Japan. Threeelements of the institutionalization of state law (codification, spread of statecourts, and the establishment of legal hierarchy) took place in Japan in the1880s and 1890s. The Japanese finished the codification of commercial and civilcodes in 1898, just a year before the Western states abolished extraterritoriality.The discussions and negotiations that led to the abolition of extraterritorialityindicate that Japans institutionalization of state law and Western states abolitionof extraterritoriality were related. While Western states demand for legal reformsto protect the rights of Western citizens explains part of the motivation for the

Meiji governments legal reforms, the institutionalization of state law explainsWestern states decision to abolish extraterritoriality in Japan.

Power Politics and the English School on the Abolition of Extraterritorialityin Japan

The abolition of extraterritoriality in Japan casts doubt on three power-politicshypotheses. First, the power asymmetry between Japan and major home statesremained high when the latter decided to abolish extraterritoriality. Second,none of the major states used the abolition of extraterritoriality to get strategicconcessions from Japan. Last, the most important merchant community, the

British merchants community and their sponsors activities in Britain, did notprevent the British decision to abolish extraterritoriality.

TABLE 3. Courts in Japan, 18771900

Year 1877 1879 1881 1883 1885 1887 1889 1891 1893 1900

Local courts 49 67 70 79 99 99 99 48 49 49District courts 89 139 170 187 190 194 198 299 301 310Total 138 206 240 266 289 293 297 347 350 359

Note: Compiled from Tokei Nenkan (Japan Statistical Yearbook), various years from 18821902.

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Power Asymmetry

In history and political science scholarship, the narrowing power asymmetryargument is more commonly used to explain the abolition of extraterritorialityin Japan (Foster 1903:361; Soyeshima 1910:107). Some may argue that it was notchanges in Japans relative material capability, but the Western perception of thequick Japanese victories over China in 1894 that explains the Western countriesdecision to abolish extraterritoriality.23

There are three problems with arguments based on Japans perceived strengthin the SinoJapanese war. First, the leading extraterritorial state, Britain, agreedto abolish extraterritoriality before the war. Second, the treaties other countriessigned with Japan copied both the timing and content of the BritishJapaneseTreaty of 1894. These similarities suggest that Britains abolition of extraterritori-ality, rather than Japanese victories over China, motivated other home states toabolish extraterritoriality. Third, the Treaty of Shimonoseki, terminating theSinoJapanese war, ceded the Liaotung Peninsula to Japan. On April 23, 1895,

6 days after the signature of the treaty, Russia, France, and Germany pressuredJapan to return the peninsula to China in an event that has come to be knownas the Triple Intervention (Langer 1951; Nish 1968; Paine 2003). Home stateswere able to militarily coerce Japan during the period in which they abolishedextraterritoriality. Therefore, it is questionable to link home countries decisionsto abolish extraterritoriality to the Japanese victory over China or to growing Jap-anese military capabilities.

Strategic Calculation

Home states did not use the abolition of extraterritoriality in Japan in 1899 to

advance their strategic goals. Compared with the Tokyo Conference of 1882, the1890s was a period of intense strategic competition among the great powers inEast Asia. Even though England controlled about 65% of Chinese trade andabout 31% of Japanese trade, France, the United States, and, especially Germanyand Russia were challenging British supremacy in East Asia in the 1890s (Langer1951:167). Three factors contributed to the increasing strategic competition inEast Asia. First, unhappy with the icy conditions of Vladivostok harbor, Russiawas searching for another harbor in the Pacific from which to base its navaloperations (Langer 1951:168). Second, in the 1890s Germany emerged as animperial power in East Asia. Third, the FrenchRussian naval alliance of the late1880s threatened British supremacy over East Asia. In response to the alliance,

the British government enacted a Naval Defense Act for arms to match the com-bined French and Russian fleets (Marder 1940:238; Kennedy 1986:179).The great-power struggle in East Asia during the 1890s was much more intense

than in the 1880s. Given this intensity, realism predicts that states will use allpossible means to maintain and further their influence in the region. However,during a period of intense competition, the great-powers decision to abolishextraterritoriality, the most important means to sustain informal influence innon-Western countries, contradicts the expectations of realism associated withstrategic competition. One may argue that by following a conciliatory policy toabolish extraterritoriality, Britain wanted to create an alliance with Japan againstincreasing Russian influence in the region. The following five arguments suggestthat Western states decisions to abolish extraterritoriality did not reflect aninstrumental logic of great-power competition. First, process tracing of Britishpolicy does not show any evidence of the possibility of an alliance-motivated



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British policy. Second, Britain and Japan established an alliance 8 years after Brit-ains decision to abolish extraterritoriality. If a strategic alliance considerationmotivated British policy, one would expect to see British attempts to maximizeits strategic gains following a conciliatory policy on extraterritoriality. Britain,however, did not demand any strategic concession from Japan in return for abol-ition. Third, although the Triple Intervention provided Britain with an oppor-tunity to consolidate a strategic alliance with Japan and Japan waited for itssupport, Britain did not take any action to support Japan during that time.Fourth, even if one assumes that strategic calculations can explain British policy,they cannot explain other major states decisions to abolish extraterritoriality.Fifth, despite the immense strategic competition among great powers in EastAsia, they acted together on the issue of extraterritoriality. The British govern-ment, for example, informed and consulted other home states before abolishingextraterritoriality (FO8816582 (1894)).

Extraterritorial GroupsWestern states decisions regarding extraterritoriality did not reflect the influ-ence of their constituencies, as there were not many home country citizens inJapan. The fewer the number of the extraterritorial groups, the less the ruler willfeel pressure to satisfy their demands. Japanese seclusion until 1868, prohibitionof Christianity until 1873, and prohibition of residence outside of treaty portsuntil 1899 limited the number of foreigners in Japan. There were 4,216 foreign-ers in Japan in 1893 (Tokei 1894) compared with 231,540 foreigners in China in1924 (China Year Book 1925).24

Despite their small size, foreigners in Japan were vocal against the abolition ofextraterritoriality. The possibility of abolishing extraterritoriality alarmed the

British merchant and missionary communities. They organized meetings, issuedstatements demanding the continuation of extraterritoriality, and contacted themerchant communities in Britain to lobby on their behalf. Despite these organ-ized efforts, the British government ignored the demands of merchants and mis-sionaries and decided to abolish extraterritoriality. Western states insensitivity tothe demands of business and missionary communities in Japan was not isolated.As I suggest later, Western states continuously ignored business and missionarydemands on extraterritoriality in China.

English School Hypothesis

Civilization-based arguments for the abolition of extraterritoriality in Japan arecommon in political science and history. They are also most difficult to refutedue to the methodological problem of measuring the Western opinion of Japa-nese Westernization. Extraterritoriality is the most important indicator of theWestern perception of Japanese Westernization for English School scholars, cre-ating a problem of tautology in developing an English School argument for theabolition of extraterritoriality. Despite these methodological problems, I offertwo reasons to problematize the English Schools standard-of-civilization argu-ment and to suggest that the state-building argument offers a more refined ver-sion of the English Schools argument.

The discussion over the abolition of extraterritoriality started as the anti-foreignmovement in Japan was expanding. Their most important aim was to prevent themixed residence of foreigners and Japanese to prevent the infusion of Christian-ity and corruption of Japanese values.25 The British embassy reported incidents of

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increasing anti-foreign movement in 1893. Concerned about the growing move-ment, the embassy reported that many members of the Lower House andthree of ten major daily papers supported the anti-foreign agitation.

In 1894, the anti-foreign movement organized street protests during the extra-territoriality negotiations. Prime Minister Lord Rosebery suggested postponingindefinitely negotiations.26 The British Embassy later reported that the Japanesegovernment was able to suppress the anti-foreign newspapers and disperse theanti-foreign protesters. Despite concerns of British citizens and British local news-papers about xenophobia, the British embassy argued that the Japanese govern-ment was able to control protestors and secure the life and property offoreigners. After receiving these embassy reports, Kimberly agreed that as theJapanese Government had recently shown its determination to protect foreign-ers, I was willing that the negation should be proceeded with (FO88165821894:62). Western rulers were aware of the anti-Western attitudes of Japanesenationalists, but given the institutionalization of state law in Japan, Western rul-ers were not concerned about the anti-Western values of Japanese.

Second, during this period, foreigners in treaty ports organized meetings todiscuss their options to prevent the abolition of extraterritoriality. The ChinaAssociation, the most powerful British interest group in East Asia, was most vocal.Not only did it organize the Treaty Port foreign community and pressure thediplomats in Japan to prevent the abolition of extraterritoriality, but it lobbiedin London to prevent the British government from abolishing extraterritoriality.In their arguments, the China Association cited differences between Japaneseand Western legal systems and anti-foreign incidents as reasons for the continu-ation of extraterritoriality. The London Chamber of Commerce raised concernsof British firms who engaged in trade with Japan (FO8816582 1894:167170).The negotiations took place in secret and finished very quicklythe British com-

munities were angry both because the government ignored their opinions andbecause it concluded the negotiations in secret. Unable to prevent the prepar-ation of the treaty, the foreign communities lobbied to prevent its ratification. Inits letter sent to the members of parliament, the China Association made a cul-turally based argument against the abolition of extraterritoriality:

Englishmen are accustomed to a degree of personal and political freedomremote from the conception [of] an Oriental Government or peopleThe dif-ferences are not merely in Code or technical provisions, but in spirit and concep-tion; and nothing but evidence of satisfactory and competent administration ofnew Codes over a sufficient period will be readily acceptable as evidence of theiradequacy to meet the European requirements (FO8816582 1894:153154).

To sum up, from the perspective of the foreigners, Japan did not meet thestandards of civilization. They offered firsthand, culturally based reservations tokeep extraterritoriality. Yet, the British government based its decision to abolishextraterritoriality on the Japanese governments ability to protect legal and prop-erty rights of Britains citizens through new codes and courts. Thus, the logic ofstate building as opposed to the logic of culture can explain the abolition ofextraterritoriality in Japan. In the next section, I suggest that the state-buildinglogic also explains the abolition of extraterritoriality in China.

The Abolition of Extraterritoriality in China

This section compares Chinas failure to abolish extraterritoriality in the 1920swith its success in 1943. I suggest that the failure of the early Republican govern-



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ment to institutionalize state law in the 1920s and the Kuomintangs legalreforms to institutionalize state law in the 1930s explains the variation. Westerncountries demanded the institutionalization of state law as a prerequisite to abol-ish extraterritoriality, which they imposed following the Opium War. Throughthis demand, Western states shaped the development of Chinese domestic insti-tutions in the 1920s and 1930s. The quest for the abolition of extraterritorialitybecame the catalyst for Chinese legal reforms. Yet, due to the SinoJapaneseWar and the Japanese occupation of China, the Kuomintangs institutionalizationof state law remained partial. The incomplete institutionalization of state lawcombined with strong normative pressure from U.S. statesmen explains the abol-ition of extraterritoriality in China in 1943.

The Washington Conference and the Commission on Extraterritoriality in China

Even though the Treaty of Nanjing in 1842 formalized extraterritoriality inChina, it was not until the twentieth century that debates about its abolition star-

ted. Only after the abolition of extraterritoriality in Japan in 1902 did the UnitedStates and Britain promise to abolish extraterritoriality if China established ade-quate judicial institutions to protect the legal and property rights of foreigners.27

The major reason for this late promise was the absence of legal state-buildingreforms in China. The abolition of extraterritoriality in Japan following Japaneselegal reforms and Western states promises to abolish extraterritoriality condi-tioned on Chinese legal reforms encouraged the Chinese legal reorganization.

Legal reforms started in China with the establishment of the Law CodificationCommission in 1904 (Chen 1999:19). Yet, the central government failed tocodify. For example, the Law Codification Commission drafted a civil code basedon the Japanese Civil Code. However, the central government could not promul-

gate it due to strong conservative resistance (Huang 2001:29). Chinas codifi-cation attempts failed until the Kuomintangs legal reforms in the early 1930s.The failure to institutionalize state law led to the late abolition of extraterritorial-ity in China.

Following the 1911 Revolution, the central government aimed to establishmodern courts to replace the judicial responsibilities of local magistrates.However, like codification, they failed to disseminate state courts. For example,by 1926 the government had established only 91 courts out of 1,300 districts.The number of courts is a striking difference with Japan where 350 courts oper-ated when Western states abolished extraterritoriality. The difference is evenmore striking given Japans smaller geographic size and population. Compared

with Meiji rulers success in establishing the states legal hierarchy in Japan inthe 1890s, Chinese rulers failed to establish the states legal hierarchy by the1920s.

In addition to the lack of modern courts, the central governments legalauthority collapsed in the 1920s, when warlords took military and administrativecontrol in their territories. In other words, the 1911 Revolution failed to bringprovinces under the central governments legal hierarchy. Warlords, not the cen-tral government, fulfilled judicial responsibilities.

Responding to Chinas demand for the abolition of extraterritoriality duringthe Washington Conference, home states established a Commission of Extraterri-toriality, which played a critical role in major home states decisions to keepextraterritoriality. After 9 months of data collection on the Chinese judiciary, the

27 Article XII of the 1902 Mackay Treaty between China and Britain states: Great Britain agrees to give every

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Commission wrote The Report of the Commission on Extraterritoriality in China.28 Thereport had four parts: Practice of Extraterritoriality, Laws and Judicial System ofChina, Administration of Justice in China, and Recommendations. After acknow-ledging the efforts of the Chinese Law Codification Commission, the reportclaimed that the Chinese Parliament enacted only a few of the laws and indica-ted that China lacked civil and commercial codes. Like the debates in the Japan-ese case, in China, Western states linked the abolition of extraterritoriality tocodification of Chinese laws.

The third part described the condition of law enforcement, claiming that theincreasing disorder following the death of President Yuan Shi-Kai prevented thecourts from protecting legal and property rights. In the absence of a strong cen-tral authority, warlords retained administrative, legislative, and judicial functions.Because military leaders rather than the central government had been payingthe salaries of judges and police, these military leaders regularly interfered withthe judicial process, thus compromising the independence of the judiciary(Report of the Commission on Extraterritoriality [Commission] 1926). In addi-

tion to stressing the necessity of the independence of the courts from warlords,the report also assessed the number of existing courts. According to the report,there was one court of first instance for every 4,400,000 people, a proportion,the report argued, that was inadequate to the population and size of the country(Commission 1926:100). In sum, the third part urged the central government toincrease the number of courts and to put these courts through an appellate andsupervisory system with adequate funding under the central governments con-trol. In other words, the report discussed the central governments inability tostandardize and systemize the rules within its territory and its inability to estab-lish a legal hierarchy to protect legal and property rights.

After pointing out the problems with the codification of the laws and the con-

solidation of judicial authority in China, the fourth part recommended followingthe reforms for the abolition of extraterritoriality. (1) A civilian judiciary shouldadminister the legal issues of civilians without any interference from other bran-ches, civil or military, of the government; (2) China should complete codifica-tion, such as a civil code and a commercial code; (3) China should establish andmaintain a uniform system for the regular enactment, promulgation, and rescis-sion of laws to prevent legal uncertainties; (4) China should extend the systemof modern courts; and (5) China should make adequate financial provisions forits judiciary (Commission 1926:107109). The recommendations of the reportsuggest that Western states linked the abolition of extraterritoriality to the insti-tutionalization of state law in China through codification, the spread of state

courts, and the establishment of the central governments legal hierarchy.Following the commissions recommendation, home states kept extraterritori-ality.29 The late abolition of extraterritoriality in China reflects the Chinese cen-tral governments inability to institutionalize state law. In the next section,I suggest that the Kuomintangs legal reforms in the 1930s and strong normativepressures against extraterritoriality in the U.S. State Department facilitated theabolition of extraterritoriality in China in 1943.

The Kuomintangs Legal Reforms and the Abolition of Extraterritoriality

After establishing the National Government in Nanking in April 1927, the Kuo-mintang initiated a series of state-building projects. The consolidation of the

28 Vindicating the lack of authority of the central government over the provinces the Canton government



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governments legal hierarchy was an integral part of the state-building process(Chen 1999:23). The Chinese Legislative Yuan established commissions to codifycivil, commercial, and criminal laws (The Civil Codes of the Republic of China1931:xiv).

In addition to the standardization and systemization of rules through codifica-tion, the Kuomintangs reforms built up the central governments legal hierarchy

for the uniform enforcement of rules. As a first step, the Nationalist Governmentstarted to replace the magistrates courts with modern courts. The OrganicLaw of 1931 put the Chinese judiciary under the control of the Judicial Yuanwhose most important function was to standardize the interpretations of the lawand apply them throughout the country (Chien 1950:132133).30 Furthermore,the Law of Organization of the Judiciary of 1932 divided the courts into threedifferent groups: District Courts in districts, High Courts in provinces, and theSupreme Court. This period also witnessed a spread of state courts. The numberof modern courts grew from 139 in 1926 to 406 in 1937.31 The activities ofthe Judicial Yuan from 1928 to 1937 show that the Nationalist Government tooksteps to consolidate the states authority and to enforce the codes it promulga-

ted. Although only about a quarter of districts had modern courts, the centralgovernments reforms indicated a strong trend toward further consolidation ofthe states legal authority. The SinoJapanese War and the Japanese occupationof eastern China stopped the Kuomintangs state-building projects, includinglegal reforms (Table 4).

Intradepartmental debates split the State Department and Foreign Officeabout extraterritoriality. In the British Foreign Office, Ashley Clarke, the headof the Far Eastern Department, and Anthony Eden, the British Foreign Minis-ter, advocated for the immediate abolition of extraterritoriality. In Edenswords:

I personally believe it to be a good policy to abolish extraterritoriality now, andI should like to do it in such a manner that China knows that the initiative isours, not American. I am not afraid that gesture would be regarded as one of

weakness. (FO37131657 (1942)).

However, Alexander Cadogan, the undersecretary of the Foreign Office and for-mer British Ambassador to China, was concerned about showing a sign of weak-ness in wartime by abolishing extraterritoriality (FO37131657 1942; see alsoFO37131660 and FO37135679). Winston Churchill agreed with Cadogansconcern that the abolition of extraterritoriality might signal Britains weakness.32

When the United States agreed not to act alone on extraterritoriality, the For-eign Office shelved the issue (FO37131657 1942).

TABLE 4. Codification in China

Name of the Code Enforcement Date

Criminal Code 19301931Criminal Procedure 1928Civil Code 19291930Civil Procedure 1931Commercial Code 1931

30 Chien (1950:132133)

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Initially the U.S. State Department, like the British Foreign Office, wasunwilling to abolish extraterritoriality. In a memorandum on March 19, 1942,Walter A. Adams of the Far Eastern Affairs Bureau highlighted U.S. concernsabout extraterritoriality. The Japanese occupation eliminated the U.S. presence,thus its extraterritoriality. Following the war, despite the Kuomintangs state-building efforts to unify China, postwar disorder was likely due to the strugglebetween the Kuomintang and the communists. Adams concluded that there ismore to be lost than gained by abolishing extraterritoriality now and thatextraterritorial treaties should be eliminated based on conditions after thedefeat of Japan (FRUS 1942:268270). On March 27, 1942, agreeing with theoverall conclusions of the Adams report, the Chief of the Far Eastern AffairsDivision, Maxwell M. Hamilton, added two normative concerns: extraterritorial-ity is anachronistic for the manifestation of the war aims of the UnitedNations and The extraterritorial system is bound to goIt would seem desir-able not to envisage the re-emergence of a system, which in a broad sense nolonger conforms to modern concepts (FRUS 1942:270273). While in the

beginning of May 1942, the Foreign Office and the State Department reacheda consensus not to abolish extraterritoriality (FRUS 1942:276278), Hamiltonsarticulation of normative concerns about extraterritoriality dominated laterdiscussions.

In July and August 1942, American policy shifted. On July 11, 1942, CordellHull wrote to the U.S. Ambassador in the United Kingdom that the UnitedStates would abolish extraterritoriality at the earliest moment (FRUS1942:281). Hulls message did not offer any justification. But later in August,Hull argued normatively that extraterritoriality was not compatible with moderninternational practices, general norms in international relationships, andgenerally accepted principles of modern international law (FRUS 1942:282

285). In another letter to the ambassador a week later, Hull enumerated threeobjectives that the abolition of extraterritoriality may accomplish:

(1) some psychological and political benefit to the cause of the United Nationswhich would be of concrete assistance to China and thus tend to strengthen thedetermination of that country in its war effort; (2) the wiping out once and forall of an existing anomaly in our relations with China; and (3) the achievementof agreement in principle to regularize in China the usual rights normallyacquiring to American and British nationals in friendly foreign countries (FRUS1942:287288).

The State Department and Foreign Office documents offer two conclusions.

First, certain about the victory over Japan, the U.S. and British policy makersseemed more motivated about organizing the postwar international order. Sec-ond, U.S. and British policy makers believed that extraterritoriality would nothave a place in the postwar order, calling it an anomaly, and anachronisticand stating in interdepartmental documents that the extraterritorial system isbound to go, and has no place in international law, suggesting the existenceof a normative shift about the appropriateness of extraterritoriality in the inter-national system.

The abolition decision on normative grounds, however, does not refute thestate-building hypothesis, as the U.S. and British governments received assur-ances of further legal institutionalization. U.S. and British governments abol-

ished extraterritoriality in China on January 11, 1943; on the same day, the StateDepartment and the Foreign Office gave a statement to the Chinese ambassa-dors. The content and the timing of the statement suggest the existence of



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This Government has been following in recent years the progressive steps, whichthe Chinese Government has taken in matters relating to the administration of

justice. This government has noted the spirit, which the Chinese Governmenthas shown in adopting new civil and criminal codes, in establishing moderncourts of justice, and in building improved prisons. It is believed that it is in the

intention of the Chinese Government that this progressive program shall beextended throughout the territory of the Republic of China and that as areas ofChinese territory now under Japanese military control are restored to Chinese

jurisdiction modern courts of justice will be re-established and modern prisonswill be restored or be built in such areas (FRUS 1942:418).

Abolishing extraterritoriality in China a century after its formal imposition, West-ern states recognized Chinas claim to territorial jurisdiction. This recognitioncame unexpectedly when the Chongqing governments territorial authority waslimited to eastern China. Neither Chinese failure to fulfill the abstract standardof civilization nor its international weakness, but its internal weakness in failing toinstitutionalize a state-based legal system explains the late abolition of extraterri-

toriality in China.Although there was a normative shift against extraterritoriality in the 1940s,

the Kuomintangs state-building practices facilitated the abolition of extraterrito-riality. One may also counterfactually argue that the Kuomintangs legal reformsin the 1930s could have led to the abolition of extraterritoriality if Japans attackhad not occurred. The Japanese attack forced Western countries to postponetheir decisions to abolish extraterritoriality in China for a decade.33

Power Politics and the English School on the Abolition of Extraterritoriality inChina

During the Washington Conference and the Second World War, China was inno position to impose its will through military means over home states. Theinfluence of power asymmetry between home states and China is indeterminatein explaining the abolition of extraterritoriality. The literature does not offer anyexplanation based on power asymmetry. Although there are some power-politicsexplanations based on the role of extraterritorial groups and strategic calcula-tions, Western states policies did not reflect the pressure of either.

Extraterritorial Groups

The highest level of involvement between Western rulers and domestic constitu-

encies dates from the Washington Conference of 1921 to the ExtraterritorialityCommission in 1926. During this time, state rulers established institutionalizedaccess with missionaries and business groups to solicit their opinions about extra-territoriality. Yet, both the level and the direction of the influence of the extra-territorial groups were indeterminate.

For example, after discussions with British missionaries, the Foreign Officeasked Skinner Turner, the chief representative of the British delegation in theExtraterritoriality Commission, to informally seek advice from Harold Balme,a representative of the Committee of the National Christian Council of China(FO37111646 (1926:610)). However, the high level of access afforded to mis-sionaries does not offer any strong predictions because missionaries and businessgroups differed about extraterritoriality. While business groups lobbied to keepextraterritoriality, certain missionary groups (e.g., young Protestant missionaries)

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advocated for the abolition of extraterritoriality because they perceived it asoffensive to the Chinese, and thus, an impediment to missionary efforts to con-vert Chinese to Christianity.34 Protestant missionaries who went to China beforethe First World War and Catholic missionaries vehemently regarded extraterrito-riality as necessary for the protection of their lives and property. Divergencebetween business groups and missionaries and within the missionary communityreduced their influence on home states rulers, thereby reducing sensitivity totheir demands. Upon receiving memorandums from British missionaries, theForeign Office concludes: The missionarys attitude, being neither unanimousnor very clearly thought out, is not very helpful. No Action. (FO4077101926). In short, the interests of the domestic constituencies about extraterritori-ality did not shape the policies of their home governments.

Strategic Competition

Both historians and political scientists have offered strategic competition argu-

ments stating that the United States and Britain abolished extraterritorially inChina to support it against Japan (Iriye 1986:533; Clifford 1991:277). There arethree problems with the strategic support argument. First, given that Chinas sur-vival was at stake, it is not clear why the Allies needed to abolish extraterritorial-ity to forge their alliance with China. Because of Chinas dependence on theAllies military support for survival, China was not in a position to impose itsdemands on the Allies about extraterritoriality. Second, it is also not clear whatkind of strategic gain the Allies received by abolishing extraterritoriality. Duringthe negotiations, neither the United States nor Britain used their decision toacquire any strategic gain in China.

English School

The English School argues that Western states abolished extraterritoriality inJapan in 1899 because they perceived Japan to be a member of internationalsociety (Gong 1984:164165; Suganami 1984:197) and that they then abolishedextraterritoriality in China in 1943 because they perceived China to be a memberof international society (Gong 1984). However, using a variety of other indicatorsof international society, historians and political scientists suggest that Chinesemembership in international society occurred well earlier than the abolition ofextraterritoriality.

Observing the establishment of Western diplomatic legations in China (1858

1861), Chinese acceptance of international law (18621972), the Chinese invita-tion to the Association for the Reform and Codification of the Law of Nations(1878), and the opening of Chinese diplomatic legations abroad (18681880)Hsu argues that by 1880 China was integrated into the world community ofnations (Hsu 1960). Furthermore, China attended The Hague Peace Confer-ences of 1899 and 1907 (Gong 1984:152).

Quincy Wright suggests that following the establishment of the Republic ofChina in 1911, China became part of the international system by joining interna-tional organizations on postal, telegraphic and radio services, opium and health,patents and copyrights, and slavery and labor standards (Wright 1939:114).Zhang Yongjin, to support his argument that China joined international societywith the First World War and subsequent peace treaties, suggests that the accept-ance of Chinas full membership in the League of Nations and its electionto the League Council as a nonpermanent member in December 1920 confirm



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a de facto recognition of China as a full member of the international commu-nity (Zhang 1991:147). Election records of the nonpermanent members of theLeagues Council, an index of the popularity of a nation in international soci-

ety during the interwar years, suggest that Chinas status was not inferior in theLeague of Nations (Figure 1) (Quan 1939:37).

Combined with the Chinese membership in intergovernmental organizationsand observations of political scientists and historians, the Chinese League ofNations records provide evidence to suggest that China was a member of inter-national society by the time of the Washington Conferencetwo decades priorto the abolition of extraterritoriality in China.

Conclusion

This study argues that state-level authority structures (e.g., the domestic legal

system) and system-level authority structures (e.g., extraterritorial jurisdiction) arelinked. Jurisdiction over transnational interactions links state- and system-levelauthority structures. Transnational interactions require states to coordinate theirauthority claims to facilitate and regulate their claims of jurisdiction. Because ofthe need to coordinate authority relations on transnational interactions, statescommunicate and negotiate state-level authority structures. In the process ofcoordination of system-level authority relations, changes of the state-level authoritystructures may result in changes in system-level authority structures.

By linking changes of extraterritorial jurisdiction to states domestic legal struc-tures, this study challenges arguments that link the abolition of extraterritorialityto changes of brute material power and the expansion of international society.

Extraterritoriality emerged in the beginning of the process of incorporation ofnon-Western states into the Westphalian state system, and its abolition markedthe completion of this process. The institutionalization of state law is integralto the process of incorporation of non-Western states into the Westphalian statesystem.

The coordination of authority structures at the international level is nota power-free functional process. Powerful states lock their first-mover advantageby standardizing the rules of transnational interactions through legal and institu-tional means. They then create both positive and negative incentives to compelothers to agree to the rules for international transactions. The rise and declineof extraterritoriality marked the first wave of a global increase in private interac-tions in the late nineteenth century. Driven by the need to regulate transnationalinteractions, extraterritoriality became the catalyst of large-scale legal reformsacross non-Western, noncolonized countries. Leading expansion of the rule of

l l l f l i f i l i i h

China in the council elections

0

20

40

60

80

100

Election Years

%o

fvotes

Chinarecieved

outof

validvotes

1921

1922

1923

1924

1925

1928

1926

1930

1931

1934

1936

a

1936b

FIG. 1. Chinas votes in the League of Nations Council (19211936)

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foreigners alike. The first wave of globalization-expanded sovereignty and itscharacteristicsstates legal hierarchy within its boundaries.

While the Second World War marked the end of extraterritoriality, regulatoryextraterritorial jurisdiction increased (Putnam 2005). Like nineteenth centuryextraterritoriality, the second wave of a global increase in transnational interac-tions, post-Second World War, drove the need to regulate transnational interac-tions. Leading rule of law, Western states increasing use of extraterritorialjurisdiction forced other state rulers to develop legal means either to hinderother states extraterritorial penetration or to converge powerful states legalpractices to eliminate the need for extraterritorial penetration. The last way toregulate transnational interactions by eliminating the need of extraterritorialregulation that was not available to nineteenth century rulers is to legalize themat inter- and supra-governmental levels of world politics (Goldstein, Kahler, Ke-ohane, and Slaughter 2000). Like its nineteenth century counterpart of theextension of Westphalian sovereignty, the global increase of private interactionsin the twentieth century motivated and enabled powerful Western states to dic-

tate the rules and standards for transnational interactions through legal means.

Bibliography

Abbreviations

FO: Foreign Office Files, Public Records Office.

FRUS: Foreign Relations of the United States.

Archival and Primary Sources

China Year Book. 1925.FO37111646. (1926) ChinaAbolition of Extality.FO37111647.

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