Description

Extraterritorial jurisdiction, as practised by Western states in the nineteenth and early twentieth centuries, is usually described as a ‘derogation’ from non-Western territorial sovereignty. We are told that extraterritoriality was justified by positivist jurists who regarded Asian states like China and Japan as imperfectly sovereign and therefore fair targets for jurisdictional encroachment. Yet the concession that Britain secured in the Treaty of Nanking of 1842 was not originally extraterritorial jurisdiction per se, but a variety of personal jurisdiction that was conceptually and practically interwoven with what modern lawyers will recognise as an agreement for mutual extradition. The lack of attention to extradition in the historiography has resulted in a misplaced fixation on territoriality as the immutable organising principle of the Sino-British jurisdictional conflict. In reality, the diplomatic tussle in the mid-nineteenth century was centred on reciprocity and personal jurisdiction. China’s contention was that, contrary to the spirit of Nanking, Chinese jurisdiction was excluded in British Hong Kong. Britain, however, gave partial and indirect effect to China’s claims by means of extradition, which was practised liberally, albeit for self-serving reasons. It was not until British extradition practice became more restrictive and territorialised in the 1860s that non-reciprocal extraterritoriality in modern parlance truly emerged.

About The Speaker

Ivan joined the NUS Faculty of Law in 2014. His research interests lie in legal history and criminal law, with emphasis on law and the British Empire in Asia. He is currently working on a PhD at the University of Cambridge, looking at the politics of extradition and criminal jurisdiction in early colonial Hong Kong.