International Studies Quarterly (2007) 51, 649–675

The Extension of Westphalian Sovereignty: State Building and the Abolition of Extraterritoriality 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 abolition process? I develop a state-building explanation for the abolition of extraterritoriality. I find that traditional explanations of the abolition of extraterritoriality that rely on power and culture do not account for Western states’ decisions to keep or abolish extraterritoriality. I suggest that the state-building practices of non-Western countries, specifically the institutionalization of a state-based legal system, are key to explaining why Western states decided to keep or abolish extraterritoriality. I test my argument against alternative explanations using a comparative case study of the abolition process in Japan and China.

On October 24, 1886, a storm caught the British freighter Normanton off the coast of Oshima Island, Japan. The freighter hit a rock and sank. While all of the Japanese passengers drowned, all of the British officers and crew, with the exception of one, survived by taking the two lifeboats. Consequently, the British extraterritorial court, Her Britannic Majesty’s Court at Hyogo, Japan, acquitted the crew (Chang 1984). Two decades later, while passing through a village in China’s Yunan province, the U.S. adventurer Henry Demenil killed a Tibetan Buddhist lama. District Attorney Arthur Bassett of the U.S. District Court for China brought the case to the court in Shanghai in December 1907 (US v. Demenil). Drawing on Demenil’s diary, which describes the incident as unintentional, the judge acquitted Demenil and concluded that the killing was due to the defendant’s ‘‘nervous condition’’ and physical debilitation, brought on by ‘‘the rarefied mountain air of the locality, the loneliness of the place, and wilderness of surroundings’’ (Scully 2001). Apart from the questions of ‘‘justice,’’ these narratives are striking because of the existence of Her Britannic Majesty’s Court in Hyogo and the U.S District Court for China in Shanghai. Students of international politics take exclusive territorial jurisdiction for granted: a state has, by definition, exclusive jurisdiction over a territory. However, the existence of extraterritorial courts suggests territorial jurisdiction is not a timeless feature of world politics. Around the mid-1880s, Author’s 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 Schiedman, and Mike Strausz, as well as anonymous reviewers at ISQ for insightful comments on earlier drafts of this essay.  2007 International Studies Association. Published by Blackwell Publishing, 350 Main Street, Malden, MA 02148, USA, and 9600 Garsington Road, Oxford OX4 2DQ, UK.

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44 Western consular courts operated through various treaty ports of Japan. In China, four decades later (1926), 35 Japanese, 26 British, 18 United States, and 18 French consular courts—a total of 121 consular courts of Western countries and Japan—operated. These extraterritorial courts constituted Western extraterritoriality in nonWestern countries. As opposed to territoriality, where a state claims exclusive jurisdiction over all people within its territorial boundaries regardless of their nationality, extraterritoriality refers to a legal regime where a state claims exclusive jurisdiction over its citizens in another state. Extraterritoriality is a subset of extraterritorial jurisdiction. In world politics, a state uses territorial jurisdiction within its boundaries, and extraterritorial jurisdiction within the boundaries of another 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, such as jurisdiction over a military base or leased territory. Second, states claim jurisdiction over activities within the boundaries of another state, such as extraterritorial applications of antitrust and environmental laws. Third, states claim jurisdiction over people within the boundaries of another state, such as diplomats, peacekeepers, and military personnel. In a form of extraterritorial jurisdiction, extraterritoriality, states claim jurisdiction over their citizens. Although this form of extraterritorial jurisdiction is extinct, Western states claimed jurisdiction over their citizens in non-Western, noncolonized countries in the second half of the nineteenth and first half of the twentieth century.1 The abolition of extraterritoriality marked the extension of the Westphalian order—states’ mutual exclusion from each others’ domestic authority structures—into non-Western countries. That exclusion denoted Western states’ recognition of non-Western countries’ claims of Westphalian sovereignty. As a Western legal institution in non-Western states, extraterritoriality demonstrates that the state’s absolute territorial jurisdiction is a unique feature of the modern international system. Various IR scholars have suggested territorial jurisdiction is constructed through the interactions of various state, nonstate, and international actors.2 Non-Western rulers’ authority claims waxed and waned before those rulers achieved territorial jurisdiction and external recognition of their claims to absolute territorial jurisdiction. The variation in the timing of the abolition of extraterritoriality shows that the diffusion of territorial sovereignty into non-Western countries occurred over time at irregular intervals from the end 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 offers a second-image argument to explain the abolition of extraterritoriality: the institutionalization of state law. The extension of Westphalian sovereignty requires the institutionalization of state law. In the Western state-building experience, the revival of Roman law allowed rulers to institutionalize state law to clarify and enforce 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 external 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 modern states with mutually exclusive territorial jurisdiction came to dominate the modern international system. Bartelson (1995), Walker (1993), and Weber (1995) focus on discursive practices in the construction of territorial sovereignty. Wendt (1999) emphasizes ideas about the ‘‘self’’ and ‘‘other,’’ Onuf (1998) points out secular ideas about political authority, and Philpott (2001) suggests religious ideas about political authority in the construction of territorial sovereignty in the international system.

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Algeria Tunisia Zanzibar Tonga Madagascar Samoa Japan Congo Korea Morocco Turkey Iran Thailand China

Abolition of Extraterritoriality

Method of the Abolition

1830 1881 1890 1890 1896 1899 1899 1908 1910 1912 1923 1928 1937 1943

Occupation (France) Occupation (France) Protectorate (Britain) Protectorate (Britain) Occupation (France) Occupation (Germany ⁄ U.S.A.) Negotiations Occupation (Belgium) Occupation (Japan) Protectorate (France) Negotiations Negotiations Negotiations Negotiations

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

enforced legal and property rights coordinated rulers’ authority claims over transnational interactions. I argue that the coordination of transnational interactions through state law became the precondition for state rulers to recognize other rulers’ claims of territorial jurisdiction. More specifically, Western rulers demanded that non-Western rulers institutionalize state law as a precondition for the 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 third sections, I test the hypothesis of these theories with evidence from the abolition of extraterritoriality in China and Japan. IR Theory and the Abolition of Extraterritoriality The state-building approach connects the abolition of extraterritoriality to the institutionalization of state law. Power-politics approaches may link its abolition to one of three factors: narrowing power asymmetry between home and host states, the lack of demands from domestic constituencies, and geopolitical calculations. Cultural approaches link the abolition of extraterritoriality to the expansion 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, state enforcement of rules, and the establishment of the state’s legal hierarchy.3 The institutionalization of state law facilitates and regularizes transnational interactions by providing information about legal and property rights, providing credibility to enforce these rights and creating state responsibility and accountability for the legal system within its boundaries. By demanding the institutionalization of state law in non-Western countries, Western states aligned domestic 3 Giddens (1987), Poggi (1978, 1990), Tilly (1992), and Weber (1978) develop a political account of state building emphasizing legal institutionalization. Jessop (1990) offers a Marxist approach to the role of legal institutionalization in state building. For a new institutional economics approach to state building and legal institutionalization, see Barzel (2002) and North (1990). For a review of different conceptualizations of the state in international relations theory, see Hobson (2000). In my approach to state building, I follow Spruyt (1994) and Thomson (1994, 1995).

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arrangements making them compatible with the expansion of Westphalian sovereignty as well as capitalism. The international dimension of a state’s law-making and law-enforcing authority exists because domestic legal arrangements have international implications through their influence on transnational interactions and visiting or resident foreigners. A state’s legal claims should be coordinated and aligned with those of other states to enable and facilitate transnational interactions. For example, transnational commercial transactions will not be possible if business groups do not have information about legal and property rights in other countries. The groups’ willingness to transact will be precarious if they do not have credible information about the enforcement of these rights. The need for legal coordination and security of foreigners makes state rulers responsible and accountable toward each other through aligned domestic legal arrangements. The institutionalization of state law started before Westphalia-dominated European legal systems in the nineteenth century. The Westphalian system represents a break from the medieval system in ‘‘domestic’’ legal arrangements. While fragmented and overlapping legal claims characterized the medieval system, sovereign states have claimed supreme law-making and law-enforcing authority through the institutionalization of state law. Some IR scholars acknowledge the role of state law institutionalization in the formation of the modern state system. Kratochwil (1986, 1995) argues that European rulers used the notion of private property in Roman law to exclude others from intervening within their domains. Ruggie (1983, 1993) recognizes the role of state enforcement of its laws in the construction of domestic sovereignty. Both Kratochwil and Ruggie limit the importance of the revival of Roman law to domestic sovereignty except for its one external implication: the establishment of the mutually recognized, exclusive territorial domains of states. The revival of Roman law contributed to the emergence of the modern international system more than either scholar suggests. Roman law’s revival, the institutionalization of state law, established the background for territorial jurisdiction. This background enabled states to coordinate their legal structures through territorial jurisdiction and thus facilitated and regularized transnational interactions. After reducing the role of the institutionalization of state law to domestic sovereignty, Ruggie suggests ‘‘social empowerment’’ to link domestic and Westphalian sovereignty. Social empowerment refers to state rulers’ recognition of each other as sovereign rulers within their territory. This recognition, I argue, is conditioned on the understanding that other rulers would institutionalize state law within their territories. Following Giddens (1987), Spruyt (1994) offers another mechanism to link the domestic and international aspects of sovereignty: mutual empowerment. 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 not dispute that state borders establish focal points around which states coordinate their authority claims, but as the existence of extraterritorial jurisdiction indicates, state boundaries and authority structures do not necessarily match. I agree with Spruyt that sovereign states better commit themselves to fulfilling their external commitments; however, I also claim that state rulers have a responsibility to other state rulers to clarify and enforce property rights within their boundaries. In the Western state-building experience, the revival of Roman law enabled and regularized transnational interactions through territorial jurisdiction. At the systemic level, territorial jurisdiction institutionalized state rulers’ cooperation to facilitate and regularize transnational interactions. Territorial jurisdiction allowed state rulers to claim reciprocal jurisdiction over their subjects and citizens as well as the subjects and citizens of other rulers in their territory. Yet, this right of territorial jurisdiction is conditioned on each ruler’s responsibility to other state

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rulers to establish institutions, which clarify and enforce laws. The Westphalian system 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 interactions: internal stability, information about legal and property rights, and enforcement of legal and property rights.4 Although the institutionalization of state law empowers all states to a degree, it most empowers states whose citizens can engage in long-distance trade. The absence of the institutionalization of state law (or the dominance of local customary legal institutions) empowers local merchants against long-distance traders (Greif 1993), because customary law creates information and enforcement asymmetries regarding legal and property rights. State law moderates the information and enforcement asymmetries by making the state rulers responsible and accountable for systemizing and standardizing rules and applying them uniformly. In other words, the responsibility of sovereign authorities to regulate trade through the institutionalization of state law minimizes the advantages that locals may have due to information asymmetries and enforcement asymmetries (Spruyt 1994:168). One should not underestimate the role of material power in the expansion of state law institutionalization and Westphalian sovereignty. As Western gunboat diplomacy to ‘‘open’’ China and Japan to international markets illustrates, the demand to enable transnational interactions was a Western-driven process. Likewise, the institutionalization of state law in these countries was a Western-driven process. Western traders explored, invested, and traded with non-Western local merchants. In the nineteenth century, non-Western states’ legal systems were fragmented, as state rulers shared legal authority with societal groups and local communities. The absence of a state-based legal system created an asymmetry of information and enforcement among the interacting parties based upon the asymmetrical knowledge about informal rules, past behavior of local people, and the ability to retaliate in the future. The asymmetries of information about local rules and the difficulties of sanctioning locals empower local people against distant parties, particularly foreigners. State rulers are able to moderate the asymmetry of information and enforcement by designating the right and responsibility of ultimate jurisdiction within a territory to other state rulers. There are three components of the institutionalization of state law: (1) the clarification of rules is necessary to provide information about legal and property rights; (2) the spread of the state’s court system is important to enforce the state’s rules; and (3) the establishment of a legal hierarchy is required for states to assume responsibility and accountability for the clarification and enforcement of legal and property rights. State rulers systemize and standardize the rules to provide information to other state rulers. State rules can rely on court decisions (case law) or legislative codes (civil law) or a combination of codes and cases to systemize and standardize the rules. Codification has been the dominant tool for the systemization and standardization of rules. Through codification, state rules both replace customary local rules with uniform law and systematically arrange them to provide information to other rulers.5 During the Medieval era, the Justinian code—the revival of Roman law—operated partially and locally in certain parts of Europe (particularly in Italian and German states). European state builders started to employ the Justinian Code as the feudal legal system faded. Following the Peace of Westphalia, the popularity 4 5

For relations between state law and economics, see Barzel (2002) and Dixit (2004). Shapiro (1981:126). Also see, on code and codification, Merryman (1969).

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of the Code increased in continental Europe. Through adaptation of the Justinian Code and the compilation of new codes, European rulers codified territorial rules and called it state law. The codification occurred differently in different countries: through revolution in France (the Napoleonic Code) and through the revival of Roman law in German states (and later as a means of unifying Germany).6 Both these codes represent major state-building efforts in modern Europe. Initially, other rulers in Europe and Latin America, and then nonWestern rulers, adopted old codes and compiled new codes to prepare state law. In addition to clarifying rules as state law, state rulers are responsible for enforcing state law. State rulers do not just demand that all rulers provide information about legal and property rights, but also demand that they enforce the rules. State courts have been the dominant means state rulers use to adjudicate disputes over the enforcement of state law. Without courts, individuals would select informal means to solve their legal problems. Although throughout history other forms of dispute resolution such as mediation and communal courts have been practiced, the state’s systemization of legal rules brought state monopolization of dispute resolution. The last requirement for the institutionalization of state law is the establishment of a judicial hierarchy, necessary to make rulers responsible and accountable for legal failures and legal changes. First, state rulers are responsible (to other states rulers) for rectifying legal failures—failures to clarify legal and property rights or failures to enforce them when these failures affect other states or foreigners. Second, state rulers are responsible and accountable for legal changes that may affect other states or foreigners. State rulers create a bureaucratic legal hierarchy under the state bureaucracy to take responsibility and accountability for the state’s legal system. The absence of an internal judicial hierarchy may obstruct transnational interactions: it may be difficult to determine who is responsible and accountable for correcting legal failures—inconsistencies between the codified rules and the actual adjudication of disputes. Rulers of sovereign states, not the rulers of city leagues or empires, took on the responsibility of remedying violations of a foreigner’s life and property (Spruyt 1994:168). Sovereign states establish bureaucratic control over the legal system to institutionalize the process for correcting legal failures. The state’s appellate structure supervises local courts and obliges judges to apply state laws to adjudicate disputes. In Europe, the appellate system emerged as the dominant tool for state rulers to impose state law on local courts, limiting the influence of medieval customary laws. For example, in England the central government used the appellate courts to enforce state rules on the lower courts (Shapiro 1981:39). The state-building hypothesis suggests that Western states demanded that nonWestern countries institutionalize state law as a condition for the abolition of extraterritoriality. The institutionalization of state law was necessary to facilitate increasing transnational transactions between Western states and non-Western countries in the nineteenth and early-twentieth centuries. After non-Western countries institutionalized state law by clarifying the legal rules, enforcing legal rights, 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 (Ruggie 1993; Spruyt 1994; Thomson 1994; Kratochwil 1995) led me to develop my own state-building argument. In this version of constructivism, state practices and institutions are deemed more influential than normative pressures in explaining world politics. While these scholars do not reject normative influences, they largely subsume them under state practices and institutions. Another strand of 6

John (1989).

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constructivism (Keck and Sikkink 1998; Risse, Ropp, and Sikkink 1999; Wendt 1999) emphasizes the role of normative pressures in world politics. Without rejecting the role of state practice and institutions, their version of constructivism largely subsumes them under normative pressures. While the state-building argument concentrates more on state practices and institutions, I do not deny the role of normative pressures, particularly diffusion of the sovereign equality norm, which changed perceptions of the legitimacy of extraterritoriality. The judicial criteria of sovereign equality replaced the empirical criteria of state building around the Second World War (Jackson 1990). This normative change triggered decolonization in the 1950s and had a strong influence on Western states’ semicolonizing policies like extraterritoriality. Combining these two strands of constructivism, one may expect that normative influences against extraterritoriality may facilitate the abolition of extraterritoriality during or after the Second World War first in places with partial institutionalization of state law. Power Politics and the Abolition of Extraterritoriality

Realist theories clarify the mechanisms through which powerful states impose domestic political arrangements (i.e., informal empire and legal imperialism) on weaker states to enhance their national interests. Those promoting realist theories agree with the English School and advocates of the state-building approach concerning the influence of powerful Western states in shaping, aligning, and manipulating the domestic politics of weaker states, including their legal systems. However, they differ in their emphasis on which existing conditions allow external states to abolish the domestic political arrangements in other states. The following section outlines three realist hypotheses, two of which—power asymmetry and domestic constituencies—are from Stephen Krasner’s Organized Hypocrisy,7 and the third—strategic competition—is from neorealism. Power Asymmetry Hypothesis According to Krasner, given contradictory international norms of state behavior and rulers’ dependence on domestic constituencies, rulers use international norms to satisfy their constituencies. Applying Krasner’s theory from Organized Hypocrisy to the abolition of extraterritoriality, one may suggest that the shrinking power asymmetry between home and host countries and the lack of demand at home for extraterritoriality are both sufficient conditions for the abolition of extraterritoriality.8 State rulers cannot extract an agreement for extraterritoriality without the capacity to impose and maintain it. Krasner notes that while conventions and contracts are Pareto efficient, leaving no party worse off than prior to the contract or convention, coercion and imposition leave one party worse off (Krasner 1999:12–16). Characterized as unequal treaties by rulers of nonWestern countries, extraterritoriality required coercion and imposition, and therefore power asymmetry (Krasner 1999:37). The narrowing power asymmetry between a home and host country can lead to the abolition of extraterritoriality.

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 system made extraterritoriality a low-cost legal system because already existing consulates practiced extraterritoriality. Second, extraterritoriality also did not have adverse domestic implications because it did not enable American citizens to circumvent or challenge American domestic regulations.

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Domestic Constituencies Hypothesis As ‘‘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 state will be proportionate to their sensitivity to the constituencies needed to stay in power. As the abolition of extraterritoriality influences the interests of two powerful constituencies, I expect state rulers to be responsive to their demands. The business community (located both in home and host states) may demand extraterritoriality to protect their commercial activities, and missionaries, their religious activities. Strategic Competition Hypothesis The level of struggle among great powers in a region may influence rulers’ decisions to keep or abolish extraterritoriality. With a high level of strategic competition in a region, great powers will compete to increase their influence over a host country. Thus, the rulers hope that extraterritoriality will create an incentive for the home states’ citizens to move to the host state for business and missionary activities, to increase its influence over the host state. Given the high level of strategic competition and the fact that unilateral abolition of extraterritoriality may lessen the influence of a great power over a host state, a home state will not abandon its extraterritorial claims as long as strategic competitors do not abandon theirs. However, a great power may abolish extraterritoriality under high levels 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 no strategic 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 methodologically diverse, the differentiation of the international system and international society is one of the English School’s core principles.10 While states that ‘‘have sufficient contact between them, and have sufficient impact on one another’s decisions, to cause them to behave—at least in some measure—as parts of a whole’’ are part of the international system, only a subset of states ‘conscious of certain common interests and common values, form a society in the sense that they conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions’ (Bull 1977:9) constitute an international society. States can enter into international society if they fulfill the membership requirements. Despite this clear theoretical prediction, the conceptual vagueness of the term international society makes it difficult to derive strong empirical prediction.11 Gerrit Gong’s conceptualization of international society exemplifies the difficulty of measuring the English School’s core variable. Gong lists five sets of policies that non-Western countries should accomplish in order to become a part of international society: (1) guarantee basic rights (especially for foreigners), including life, dignity, property, freedom of travel, commerce, and religion; (2) an efficient bureaucracy with a capacity for self-defense; (3) adherence to international law and maintenance of an efficient legal system with published laws guaranteeing 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). Bull (1977), Bull and Watson (1984), Gong (1984), and Watson (1992). Alderson and Hurrell (2000), and Watson (1987) review Bull’s view on international society. Buzan (1993) and Little (1995) discuss the international state and international society distinction. For a critical view of the English School’s culture-based argument for the expansion of international society, see Stivachtis (1998) and Zhang (1991). 11 Copeland (2003:427) offers a methodological critique of the English School. 10

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polygamy, and slavery (Gong 1984:14–15). After specifying the standards with which non-Western countries should comply, Gong argues that the ‘‘standard of civilization’’ has an implicit and subjective dimension. Even if a non-Western country accomplishes all five of the criteria, the Western countries may continue to perceive it as noncivilized and thus not a member of international society. Therefore, perhaps it is not membership in international society but perception of membership that explains the abolition of extraterritoriality. Like the state-building approach, the English School links the abolition of extraterritoriality to host states’ domestic change. Both theories share a common variable—legal institutions—with three differences. Theoretically, the two theories differ on the function of legal institutions. The English School emphasizes the role of legal institutions as a prerequisite for non-Western entities to attain legitimacy as a civilized state in international society. The state-building approach stresses the role of legal institutionalization to enable and regularize transnational interactions. Methodologically, legal institutions are only one of several causal variables used by the English School. For example, the capacity for self-defense (close to the realist power asymmetry variable) and abolition of polygamy and slavery are Western cultural standards. Empirically, the English School’s argument is tautological. To begin, they explain standards of civilization through the perception of Western elites. Subsequently, they explain the change of Western perception through Western policies. Thus, they argue that change in Western policies reflects the fulfillment of non-Western countries’ standards of civilization. The state-building approach measures its causal variable, legal institutionalization, independently of Western rulers’ perceptions and policies. If Western rulers’ perceptions and policies do not reflect change in the causal variable, that is evidence against the state-building hypothesis. Given the theoretical, methodological, and empirical problems with the English School, the state-building hypothesis offers a parsimonious and rigorous refinement compatible with the English School. In the remaining sections, I develop a comparative case study (Bennett 2004; George and Bennett 2005) by investigating the abolition of extraterritoriality in Japan and China to test the hypotheses. Since extraterritoriality continued for 43 years in Japan and 101 years in China, the two cases provide many years of observations. In Japan and China, I analyze two successful (Japan, 1899 and China, 1943) and two failed (Tokyo Conference, 1882 and Washington Conference, 1921) attempts to abolish extraterritoriality.12 Selecting two observations each from China and Japan provides sufficient leverage to establish causality regarding the abolition of extraterritoriality in non-Western and noncolonized countries.13 Theoretical approaches offer five plausible factors to account for the abolition of extraterritoriality. First, following Mills’ method of agreement—as Japan is the first country (1899) and China (1943) is the last country to abolish extraterritoriality—I establish a correlation between the abolition of extraterritoriality and the five alternative factors above. Second, by adding two failed attempts, I increase the number of my observations to four, which also enables me to follow Mills’ method of difference. Last, I increase the number of specific observations by analyzing discussions before, during, and after the negotiations. Analysis of these negotiations also provides data for process tracing to directly connect the abolition of extraterritoriality to independent variables. 12 Two of these observations are multilateral conferences, implying that extraterritoriality was a collective decision 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 and U.S. decisions suggest generalizability of my argument to other Western states. 13 For case selection in comparative studies, see King, Keohane, and Verba (1994:115–149) and Geddes (2003:89–130). For comparative case studies, see Bennett (2004) and George and Bennett (2005).

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I excluded colonized cases because of overdetermination of the abolition of extraterritoriality. Once a Western country colonized a non-Western country where extraterritoriality existed prior to the colonization, realism, the English School, and state building predict the abolition of extraterritoriality. The material strength of the colonizer, as realism predicts, may deter Western states from continuing to impose extraterritoriality. Because the colonization of a country may bring that territory into international society, as the English School predicts, Western states may give up their extraterritoriality. Lastly, colonizers’ state-building practice of integrating the legal system of colonized territories into their legal hierarchies, as the state-building argument claims, may lead to the abolition of extraterritoriality.14 The Abolition of Extraterritoriality in Japan In 1880, the Japanese contacted the ministers of states with extraterritoriality in Japan. In the 1882 Tokyo Conference, Britain and France rejected the Japanese demand for the abolition of extraterritoriality. Twelve years later, on the eve of the Sino–Japanese War of 1894, Britain and Japan signed the Aoki–Kimberley Treaty to abolish British extraterritoriality in 1899. Other home states followed the British lead in abolishing extraterritoriality in Japan by 1899. I argue that Meiji’s state-building reforms, specifically institutionalization of state law, explain the abolition of extraterritoriality, and thus the Japanese success in achieving exclusive territorial jurisdiction. This change of legal institutions at the state level in Japan explains the change of system-level practices of extraterritoriality. Through imposing extraterritoriality on Japan and demanding the institutionalization of state law, Western states forced Japan to align its domestic legal system with Westphalian sovereignty. The Tokyo Conference of 1882 and Extraterritoriality

During the Tokugawa period (1615–1868), Japan lacked a state-based legal system. Judicial authority was feudally dispersed among hundreds of daimyos, the imperial court, and the Tokugawa Shogunate that represented the ‘‘state’’ (Henderson 1968:397–399). The institutionalization of a state-based legal system constituted an important part of the state-building process of the Meiji rulers (1868–1912) who aimed to eliminate the feudal, semi-independent domains through imposing a unified administrative structure. Even though they disagree on 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 Meiji state-building projects. In the first stage of legal reforms (1868–1882), Meiji leaders focused on the creation of a central judicial system and the codification of criminal law with a court system to support it (Ryosuke 1958:13–15; Henderson 1968:416–417). In the second stage (1882–1898), they focused on the systemization of their prior reforms through a constitution and the codification of an extensive 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 Meiji rulers’ state-building reforms with Turkish reforms. For the influence of Western institutional models on Japanese state building, see Westney (1987). 16 Ryosuke (1958:14).

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Conference discussions to suggest that the lack of the institutionalization of state law 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 ‘‘without previous careful examination of the laws of Japan and the constitution and legal procedure of the Japanese Courts’’ (FO ⁄ 881 ⁄ 4763 1881–1882). Rather than abolishing extraterritoriality, Granville proposed a multilateral conference between Japan and Western states to examine the Japanese legal system.17 In the Tokyo Conference, Inoue, the Japanese Foreign Minister, proposed a gradual abolition of extraterritoriality. He demanded Japanese jurisdiction over foreigners on all issues except for certain capital offenses and certain parts of family law after a 5-year transition period. During the transition period, the Japanese courts, composed in part of foreign judges, would have jurisdiction over foreigners.18 Harry Parkes, the British Ambassador, raised four objections to Inoue’s demands. First, there had not been sufficient time to observe the effectiveness 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 have a civil or commercial code. Third, Japanese judges did not have training in Western legal systems and conceptions, training which Parkes saw as necessary for the application of laws adopted from Western legal systems. Fourth, the 5-year period would not be sufficient to replace the judges of the old system with new judges to apply the codes.19 After these discussions, the British and French representatives concluded that they would veto the proposed abolition of extraterritoriality.20 The British justification to keep extraterritoriality on the basis of the Japanese legal system in the Conference was consistent with British policy on extraterritoriality. Like Granville earlier, Parkes established a direct connection between legal institutionalization in Japan and the abolition of extraterritoriality. When the Tokyo Conference ended, Parkes conceded that extraterritoriality was a temporary system and that Britain would accept its abolition when Japan ‘‘perfects her legal system by promulgating a criminal code, a code of criminal procedures, a civil code, a commercial code, and a code of civil procedure all of which Britain approves’’ (Jones 1931:95; Kamikawa 1958:142). Following the Conference, the British Foreign Office published the following memorandum: With regard to the proposal laid before the Conference by the president for the establishment of courts with foreign Judges, having jurisdiction over foreigners, and the eventual abolition of consular jurisdiction, Her Majesty’s Government, while they are willing and anxious to give due weight to the views and wishes of the Japanese Government on this question, are unable to express an opinion on the present proposal until the new laws and rules of procedure for the proposed courts are completed and translated (FO ⁄ 881 ⁄ 4778 (1883)).

17 From Granville to Jushie Morie, October 12, 1881, FO ⁄ 881 ⁄ 4763 1881–1882:8. Also, see Lane-Poole and Dickins (1894:309–311). 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, Birmingham Chamber of Commerce, Yorkshire Chamber of Commerce, and Bradford Chamber of Commerce) to learn their opinion about extraterritoriality. See FO ⁄ 881 ⁄ 4763 (1881–1882:5–18). Granville also contacted the Tokyo Embassy to solicit information about Japanese codes, particularly Criminal and Criminal Procedures Codes and the Japanese court system FO ⁄ 881 ⁄ 4763 (1881–1882:18). 18 FO ⁄ 881 ⁄ 4763 (1881–1882:144–158). In his speech, Inoue also gives a detailed distribution of courts in Japan. Inoue’s figures are the same as those in Table 2. 19 FO ⁄ 881 ⁄ 4938 (1883:166–170). 20 FO ⁄ 881 ⁄ 4763 (1881–1882:238–251).

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The Extension of Westphalian Sovereignty TABLE 2. Codification in Japan

Name of the Code Imperial Constitution Criminal Code Criminal Procedure Civil Code Civil Procedure Commercial Code

Enforcement Date 1889 1898 1890 1898 1890 1898

The Foreign Office memorandum supplements Granville and Parkes’ arguments that the lack of institutionalization of state law in Japan was the reason for Britain’s rejection of the proposal to abolish extraterritoriality in Japan. In the next section, I will examine the debates on extraterritoriality between Japan and Britain during 1893–1894 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, presented a draft for a new treaty between Japan and Britain, which included the abolition of extraterritoriality (FO ⁄ 881 ⁄ 6488 1893). Fraser, the British Ambassador, was disappointed with the draft: ‘‘there were no guarantees for the protection of British residents in their person or property’’ (Perez 1999:107). Fraser recommended to Lord Rosebery, the British Prime Minister, that he suspend the discussions ‘‘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 the manner in which they were to be implemented’’ (FO ⁄ 881 ⁄ 6488 1893:32). Fraser’s reservations about the abolition of extraterritoriality reflected his concerns that the legal reforms in Japan had not yet led to the codification of commercial and civil laws (Ryosuke 1958:19). By failing to institutionalize the state law, Japan did not demonstrate to Western states its ability to protect rights of Western citizens. As I argue later, the close timing of codification and the abolition of extraterritoriality was not coincidental. Britain required the codification of Japanese laws for the abolition of extraterritoriality (Table 2). In addition to the codification of laws, during the 1882–1899 period, Meiji statesmen established an extensive court structure to consolidate a state-based legal authority in Japan. The 1890 Law of the Organization of Courts established a court system with four levels: a Supreme Court, appeal, local, and district Courts. Table 3 shows the increase of the courts of first instance (local and district courts) in Japan.21 As Japan did not extend its territorial boundaries during this period and did not experience dramatic population growth, an almost 80% increase in the number of courts of first instance indicates the increased level of legal consolidation in Japan. These numbers suggest that by the end of the nineteenth century, Japan had established an extensive statewide court system. As a first step, the British government requested information about the Japanese codes (FO ⁄ 881 ⁄ 5072 1894:15). Mutsu promised a diplomatic note showing the enforcement and publication of the codes before the enforcement of the new treaty abolishing extraterritoriality (FO ⁄ 881 ⁄ 5072 1894:23–26). In other 21 The Japan Statistics Yearbook does not provide any information on why local courts decrease after 1889 from 99 to 48. The only plausible explanation is that some local courts counted as district courts in 1890. However, it is not clear whether this change is due to the reorganization of the courts or change in counting standards.

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Turan Kayaoglu TABLE 3. Courts in Japan, 1877–1900 Year

1877

1879

1881

1883

1885

1887

1889

1891

1893

1900

Local courts District courts Total

49 89 138

67 139 206

70 170 240

79 187 266

99 190 289

99 194 293

99 198 297

48 299 347

49 301 350

49 310 359

Note: Compiled from Tokei Nenkan (Japan Statistical Yearbook), various years from 1882–1902.

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 chief negotiator, indicated that the Japanese failure to provide ‘‘full information as to the laws which would be enforceable upon British subjects on the cessation of consular jurisdiction’’ was the major problem.22 When Bertie asked to examine translations of the codes, Aoki replied that ‘‘if any existed they would be in either German or French,’’ as Japan modeled their codes on the French and German codes. Aoki promised to provide translated codes to the British Government, ‘‘if they were in fact available’’ (FO ⁄ 881 ⁄ 5072 1894:78). The British request to examine Japanese codes reflected the standard British response to all inquiries about the abolition of extraterritoriality. Japanese (and other non-Western states’) codification was a means for non-Western countries to signal their commitment to provide protection for the legal and property rights of foreigners. On July 16, 1894, Britain and Japan signed the Aoki–Kimberley Treaty to abolish British extraterritoriality in Japan. With the treaty, Japan gave a diplomatic note to Britain declaring that the Japanese government would not enforce the treaty until the codes were in full operation (FO ⁄ 881 ⁄ 5072 1894:94). In the following 2 years, 1894–1896, other Western states signed similar treaties with Japan, giving up their claims of extraterritoriality in Japan. To sum up, Meiji leaders completely institutionalized state law in Japan. Three elements of the institutionalization of state law (codification, spread of state courts, and the establishment of legal hierarchy) took place in Japan in the 1880s and 1890s. The Japanese finished the codification of commercial and civil codes in 1898, just a year before the Western states abolished extraterritoriality. The discussions and negotiations that led to the abolition of extraterritoriality indicate that Japan’s institutionalization of state law and Western states’ abolition of extraterritoriality were related. While Western states’ demand for legal reforms to protect the rights of Western citizens explains part of the motivation for the Meiji government’s legal reforms, the institutionalization of state law explains Western states’ decision to abolish extraterritoriality in Japan. Power Politics and the English School on the Abolition of Extraterritoriality in Japan The abolition of extraterritoriality in Japan casts doubt on three power-politics hypotheses. First, the power asymmetry between Japan and major home states remained high when the latter decided to abolish extraterritoriality. Second, none of the major states used the abolition of extraterritoriality to get strategic concessions from Japan. Last, the most important merchant community, the British merchants community and their sponsors’ activities in Britain, did not prevent the British decision to abolish extraterritoriality. 22 FO ⁄ 881 ⁄ 5072 (1894:45). The other problems are related to coastal trade, treaty life, the ability of foreigners to hold property, the passport system, and other rights and privileges of foreigners.

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In history and political science scholarship, the narrowing power asymmetry argument is more commonly used to explain the abolition of extraterritoriality in Japan (Foster 1903:361; Soyeshima 1910:107). Some may argue that it was not changes in Japan’s relative material capability, but the Western perception of the quick Japanese victories over China in 1894 that explains the Western countries’ decision to abolish extraterritoriality.23 There are three problems with arguments based on Japan’s perceived strength in the Sino–Japanese war. First, the leading extraterritorial state, Britain, agreed to abolish extraterritoriality before the war. Second, the treaties other countries signed with Japan copied both the timing and content of the British–Japanese Treaty of 1894. These similarities suggest that Britain’s abolition of extraterritoriality, rather than Japanese victories over China, motivated other home states to abolish extraterritoriality. Third, the Treaty of Shimonoseki, terminating the Sino–Japanese war, ceded the Liaotung Peninsula to Japan. On April 23, 1895, 6 days after the signature of the treaty, Russia, France, and Germany pressured Japan to return the peninsula to China in an event that has come to be known as the Triple Intervention (Langer 1951; Nish 1968; Paine 2003). Home states were able to militarily coerce Japan during the period in which they abolished extraterritoriality. Therefore, it is questionable to link home countries’ decisions to abolish extraterritoriality to the Japanese victory over China or to growing Japanese 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, the 1890s was a period of intense strategic competition among the great powers in East Asia. Even though England controlled about 65% of Chinese trade and about 31% of Japanese trade, France, the United States, and, especially Germany and Russia were challenging British supremacy in East Asia in the 1890s (Langer 1951:167). Three factors contributed to the increasing strategic competition in East Asia. First, unhappy with the icy conditions of Vladivostok harbor, Russia was searching for another harbor in the Pacific from which to base its naval operations (Langer 1951:168). Second, in the 1890s Germany emerged as an imperial power in East Asia. Third, the French–Russian naval alliance of the late 1880s threatened British supremacy over East Asia. In response to the alliance, the British government enacted a Naval Defense Act for arms to match the combined 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 all possible means to maintain and further their influence in the region. However, during a period of intense competition, the great-powers’ decision to abolish extraterritoriality, the most important means to sustain informal influence in non-Western countries, contradicts the expectations of realism associated with strategic competition. One may argue that by following a conciliatory policy to abolish extraterritoriality, Britain wanted to create an alliance with Japan against increasing Russian influence in the region. The following five arguments suggest that Western states’ decisions to abolish extraterritoriality did not reflect an instrumental logic of great-power competition. First, process tracing of British policy does not show any evidence of the possibility of an alliance-motivated 23 See Soyeshima (1910:107). Similarly, Paine (2003) argues that Japanese victories over China led to the perception of it as a great power as early as September of 1894.

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British policy. Second, Britain and Japan established an alliance 8 years after Britain’s decision to abolish extraterritoriality. If a strategic alliance consideration motivated British policy, one would expect to see British attempts to maximize its strategic gains following a conciliatory policy on extraterritoriality. Britain, however, did not demand any strategic concession from Japan in return for abolition. Third, although the Triple Intervention provided Britain with an opportunity to consolidate a strategic alliance with Japan and Japan waited for its support, 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 East Asia, they acted together on the issue of extraterritoriality. The British government, for example, informed and consulted other home states before abolishing extraterritoriality (FO ⁄ 881 ⁄ 6582 (1894)). Extraterritorial Groups

Western states’ decisions regarding extraterritoriality did not reflect the influence of their constituencies, as there were not many home country citizens in Japan. The fewer the number of the extraterritorial groups, the less the ruler will feel pressure to satisfy their demands. Japanese seclusion until 1868, prohibition of Christianity until 1873, and prohibition of residence outside of treaty ports until 1899 limited the number of foreigners in Japan. There were 4,216 foreigners in Japan in 1893 (Tokei 1894) compared with 231,540 foreigners in China in 1924 (China Year Book 1925).24 Despite their small size, foreigners in Japan were vocal against the abolition of extraterritoriality. The possibility of abolishing extraterritoriality alarmed the British merchant and missionary communities. They organized meetings, issued statements demanding the continuation of extraterritoriality, and contacted the merchant communities in Britain to lobby on their behalf. Despite these organized efforts, the British government ignored the demands of merchants and missionaries and decided to abolish extraterritoriality. Western states’ insensitivity to the demands of business and missionary communities in Japan was not isolated. As I suggest later, Western states continuously ignored business and missionary demands on extraterritoriality in China. English School Hypothesis

Civilization-based arguments for the abolition of extraterritoriality in Japan are common in political science and history. They are also most difficult to refute due to the methodological problem of measuring the Western opinion of Japanese Westernization. Extraterritoriality is the most important indicator of the Western perception of Japanese Westernization for English School scholars, creating a problem of tautology in developing an English School argument for the abolition of extraterritoriality. Despite these methodological problems, I offer two reasons to problematize the English School’s standard-of-civilization argument and to suggest that the state-building argument offers a more refined version of the English School’s argument. The discussion over the abolition of extraterritoriality started as the anti-foreign movement in Japan was expanding. Their most important aim was to prevent the mixed residence of foreigners and Japanese to prevent the infusion of Christianity and corruption of Japanese values.25 The British embassy reported incidents of 24 25

China Year Book (1925). FO ⁄ 881 ⁄ 6488, November 1893:48, Bunsen to Rosebery.

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increasing anti-foreign movement in 1893. Concerned about the growing movement, the embassy reported that ‘‘many members of the Lower House’’ and ‘‘three of ten major daily papers’’ supported the anti-foreign agitation. In 1894, the anti-foreign movement organized street protests during the extraterritoriality negotiations. Prime Minister Lord Rosebery suggested postponing indefinitely negotiations.26 The British Embassy later reported that the Japanese government was able to suppress the anti-foreign newspapers and disperse the anti-foreign protesters. Despite concerns of British citizens and British local newspapers about xenophobia, the British embassy argued that the Japanese government was able to control protestors and secure the life and property of foreigners. After receiving these embassy reports, Kimberly agreed that as ‘‘the Japanese Government had recently shown its determination to protect foreigners, I was willing that the negation should be proceeded with’’ (FO ⁄ 881 ⁄ 6582 1894:62). Western rulers were aware of the anti-Western attitudes of Japanese nationalists, but given the institutionalization of state law in Japan, Western rulers were not concerned about the anti-Western values of Japanese. Second, during this period, foreigners in treaty ports organized meetings to discuss their options to prevent the abolition of extraterritoriality. The China Association, the most powerful British interest group in East Asia, was most vocal. Not only did it organize the Treaty Port foreign community and pressure the diplomats in Japan to prevent the abolition of extraterritoriality, but it lobbied in London to prevent the British government from abolishing extraterritoriality. In their arguments, the China Association cited differences between Japanese and Western legal systems and anti-foreign incidents as reasons for the continuation of extraterritoriality. The London Chamber of Commerce raised concerns of British firms who engaged in trade with Japan (FO ⁄ 881 ⁄ 6582 1894:167–170). The negotiations took place in secret and finished very quickly—the British communities were angry both because the government ignored their opinions and because it concluded the negotiations in secret. Unable to prevent the preparation of the treaty, the foreign communities lobbied to prevent its ratification. In its letter sent to the members of parliament, the China Association made a culturally based argument against the abolition of extraterritoriality: Englishmen are accustomed to a degree of personal and political freedom remote from the conception [of] an Oriental Government or people…The differences are not merely in Code or technical provisions, but in spirit and conception; and nothing but evidence of satisfactory and competent administration of new Codes over a sufficient period will be readily acceptable as evidence of their adequacy to meet the European requirements (FO ⁄ 881 ⁄ 6582 1894:153–154).

To sum up, from the perspective of the foreigners, Japan did not meet the standards of civilization. They offered firsthand, culturally based reservations to keep extraterritoriality. Yet, the British government based its decision to abolish extraterritoriality on the Japanese government’s ability to protect legal and property rights of Britain’s citizens through new codes and courts. Thus, the logic of state building as opposed to the logic of culture can explain the abolition of extraterritoriality in Japan. In the next section, I suggest that the state-building logic also explains the abolition of extraterritoriality in China. The Abolition of Extraterritoriality in China This section compares China’s failure to abolish extraterritoriality in the 1920s with its success in 1943. I suggest that the failure of the early Republican govern26

FO ⁄ 881 ⁄ 6582 (January 2, 1894).

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ment to institutionalize state law in the 1920s and the Kuomintang’s legal reforms to institutionalize state law in the 1930s explains the variation. Western countries demanded the institutionalization of state law as a prerequisite to abolish extraterritoriality, which they imposed following the Opium War. Through this demand, Western states shaped the development of Chinese domestic institutions in the 1920s and 1930s. The quest for the abolition of extraterritoriality became the catalyst for Chinese legal reforms. Yet, due to the Sino–Japanese War and the Japanese occupation of China, the Kuomintang’s institutionalization of state law remained partial. The incomplete institutionalization of state law combined with strong normative pressure from U.S. statesmen explains the abolition 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 in China, it was not until the twentieth century that debates about its abolition started. Only after the abolition of extraterritoriality in Japan in 1902 did the United States and Britain promise to abolish extraterritoriality if China established adequate 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-building reforms in China. The abolition of extraterritoriality in Japan following Japanese legal reforms and Western states’ promises to abolish extraterritoriality conditioned on Chinese legal reforms encouraged the Chinese legal reorganization. Legal reforms started in China with the establishment of the Law Codification Commission in 1904 (Chen 1999:19). Yet, the central government failed to codify. For example, the Law Codification Commission drafted a civil code based on the Japanese Civil Code. However, the central government could not promulgate it due to ‘‘strong conservative resistance’’ (Huang 2001:29). China’s codification attempts failed until the Kuomintang’s legal reforms in the early 1930s. The failure to institutionalize state law led to the late abolition of extraterritoriality in China. Following the 1911 Revolution, the central government aimed to establish ‘‘modern 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 operated when Western states abolished extraterritoriality. The difference is even more striking given Japan’s smaller geographic size and population. Compared with Meiji rulers’ success in establishing the state’s legal hierarchy in Japan in the 1890s, Chinese rulers failed to establish the state’s legal hierarchy by the 1920s. In addition to the lack of ‘‘modern courts,’’ the central governments’ legal authority collapsed in the 1920s, when warlords took military and administrative control in their territories. In other words, the 1911 Revolution failed to bring provinces under the central government’s legal hierarchy. Warlords, not the central government, fulfilled judicial responsibilities. Responding to China’s demand for the abolition of extraterritoriality during the Washington Conference, home states established a Commission of Extraterritoriality, which played a critical role in major home states’ decisions to keep extraterritoriality. 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 assistance to such reform, and she will also be prepared to relinquish her extraterritorial rights when she is satisfied that the state of the Chinese laws, the arrangement for their administration, and other conditions warrant her in so doing’’ Fishel (1952:72).

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Commission wrote The Report of the Commission on Extraterritoriality in China.28 The report had four parts: Practice of Extraterritoriality, Laws and Judicial System of China, Administration of Justice in China, and Recommendations. After acknowledging the efforts of the Chinese Law Codification Commission, the report claimed that the Chinese Parliament enacted only a few of the laws and indicated that China lacked civil and commercial codes. Like the debates in the Japanese case, in China, Western states linked the abolition of extraterritoriality to codification of Chinese laws. The third part described the condition of law enforcement, claiming that the increasing disorder following the death of President Yuan Shi-Kai prevented the courts from protecting legal and property rights. In the absence of a strong central authority, warlords retained administrative, legislative, and judicial functions. Because military leaders rather than the central government had been paying the salaries of judges and police, these military leaders regularly interfered with the judicial process, thus compromising the independence of the judiciary (Report of the Commission on Extraterritoriality [Commission] 1926). In addition 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 to increase the number of courts and to put these courts through an appellate and supervisory system with adequate funding under the central government’s control. In other words, the report discussed the central government’s inability to standardize and systemize the rules within its territory and its inability to establish a legal hierarchy to protect legal and property rights. After pointing out the problems with the codification of the laws and the consolidation of judicial authority in China, the fourth part recommended following the reforms for the abolition of extraterritoriality. (1) A civilian judiciary should administer the legal issues of civilians without any interference from other branches, civil or military, of the government; (2) China should complete codification, such as a civil code and a commercial code; (3) China should establish and maintain a uniform system for the regular enactment, promulgation, and rescission of laws to prevent legal uncertainties; (4) China should extend the system of modern courts; and (5) China should make adequate financial provisions for its judiciary (Commission 1926:107–109). The recommendations of the report suggest that Western states linked the abolition of extraterritoriality to the institutionalization of state law in China through codification, the spread of state courts, and the establishment of the central government’s legal hierarchy. Following the commission’s recommendation, home states kept extraterritoriality.29 The late abolition of extraterritoriality in China reflects the Chinese central government’s inability to institutionalize state law. In the next section, I suggest that the Kuomintang’s legal reforms in the 1930s and strong normative pressures against extraterritoriality in the U.S. State Department facilitated the abolition of extraterritoriality in China in 1943. The Kuomintang’s Legal Reforms and the Abolition of Extraterritoriality

After establishing the National Government in Nanking in April 1927, the Kuomintang 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 refused the visit of the Commission of Extraterritoriality. FO ⁄ 881 ⁄ 6317 (1926). 29 For the influence of the report on the U.S. decision to keep extraterritoriality, see FRUS (1926:978–979). On its influence on Britain’s decision, see FO ⁄ 371 ⁄ 11646 (1926) and FO ⁄ 371 ⁄ 11647 (1926).

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Turan Kayaoglu TABLE 4. Codification in China Name of the Code Criminal Code Criminal Procedure Civil Code Civil Procedure Commercial Code

Enforcement Date 1930–1931 1928 1929–1930 1931 1931

government’s legal hierarchy was an integral part of the state-building process (Chen 1999:23). The Chinese Legislative Yuan established commissions to codify civil, commercial, and criminal laws (The Civil Codes of the Republic of China 1931:xiv). In addition to the standardization and systemization of rules through codification, the Kuomintang’s reforms built up the central government’s legal hierarchy for the uniform enforcement of rules. As a first step, the Nationalist Government started to replace the ‘‘magistrates courts’’ with ‘‘modern courts.’’ The Organic Law of 1931 put the Chinese judiciary under the control of the Judicial Yuan whose most important function was to standardize the interpretations of the law and apply them throughout the country (Ch’ien 1950:132–133).30 Furthermore, the Law of Organization of the Judiciary of 1932 divided the courts into three different groups: District Courts in districts, High Courts in provinces, and the Supreme Court. This period also witnessed a spread of state courts. The number of ‘‘modern courts’’ grew from 139 in 1926 to 406 in 1937.31 The activities of the Judicial Yuan from 1928 to 1937 show that the Nationalist Government took steps to consolidate the state’s authority and to enforce the codes it promulgated. Although only about a quarter of districts had ‘‘modern courts,’’ the central government’s reforms indicated a strong trend toward further consolidation of the state’s legal authority. The Sino–Japanese War and the Japanese occupation of eastern China stopped the Kuomintang’s state-building projects, including legal reforms (Table 4). Intradepartmental debates split the State Department and Foreign Office about extraterritoriality. In the British Foreign Office, Ashley Clarke, the head of the Far Eastern Department, and Anthony Eden, the British Foreign Minister, advocated for the immediate abolition of extraterritoriality. In Eden’s words: I personally believe it to be a good policy to abolish extraterritoriality now, and I should like to do it in such a manner that China knows that the initiative is ours, not American. I am not afraid that gesture would be regarded as one of weakness. (FO ⁄ 371 ⁄ 31657 (1942)).

However, Alexander Cadogan, the undersecretary of the Foreign Office and former British Ambassador to China, was concerned about showing a sign of weakness in wartime by abolishing extraterritoriality (FO ⁄ 371 ⁄ 31657 1942; see also FO ⁄ 371 ⁄ 31660 and FO ⁄ 371 ⁄ 35679). Winston Churchill agreed with Cadogan’s concern that the abolition of extraterritoriality might signal Britain’s weakness.32 When the United States agreed not to act alone on extraterritoriality, the Foreign Office shelved the issue (FO ⁄ 371 ⁄ 31657 1942). 30

Ch’ien (1950:132–133). Of these 406, 298 were District Courts, 107 High Courts or Branch High Courts, and there was one Supreme Court in Nanking. 32 Prime Minster Office Files, in the Public Record Office, London, 3740, WSC to FDR, 9 August, 1942. 31

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Initially the U.S. State Department, like the British Foreign Office, was unwilling to abolish extraterritoriality. In a memorandum on March 19, 1942, Walter A. Adams of the Far Eastern Affairs Bureau highlighted U.S. concerns about extraterritoriality. The Japanese occupation eliminated the U.S. presence, thus its extraterritoriality. Following the war, despite the Kuomintang’s statebuilding efforts to unify China, postwar disorder was likely due to the struggle between the Kuomintang and the communists. Adams concluded that ‘‘there is more to be lost than gained by abolishing extraterritoriality now’’ and that extraterritorial treaties should be eliminated based on conditions after the defeat of Japan (FRUS 1942:268–270). On March 27, 1942, agreeing with the overall conclusions of the Adams report, the Chief of the Far Eastern Affairs Division, Maxwell M. Hamilton, added two normative concerns: extraterritoriality is anachronistic for the ‘‘manifestation of the war aims of the United Nations’’ and ‘‘The extraterritorial system is bound to go…It would seem desirable not to envisage the re-emergence of a system, which in a broad sense no longer conforms to modern concepts’’ (FRUS 1942:270–273). While in the beginning of May 1942, the Foreign Office and the State Department reached a consensus not to abolish extraterritoriality (FRUS 1942:276–278), Hamilton’s articulation of normative concerns about extraterritoriality dominated later discussions. In July and August 1942, American policy shifted. On July 11, 1942, Cordell Hull wrote to the U.S. Ambassador in the United Kingdom that the United States would abolish extraterritoriality ‘‘at the earliest moment’’ (FRUS 1942:281). Hull’s message did not offer any justification. But later in August, Hull argued normatively that extraterritoriality was not compatible with ‘‘modern international practices,’’ ‘‘general norms in international relationships,’’ and ‘‘generally accepted principles of modern international law’’ (FRUS 1942:282– 285). In another letter to the ambassador a week later, Hull enumerated three objectives that the abolition of extraterritoriality may accomplish: (1) some psychological and political benefit to the cause of the United Nations which would be of concrete assistance to China and thus tend to strengthen the determination of that country in its war effort; (2) the wiping out once and for all of an existing anomaly in our relations with China; and (3) the achievement of agreement in principle to regularize in China the usual rights normally acquiring to American and British nationals in friendly foreign countries (FRUS 1942:287–288).

The State Department and Foreign Office documents offer two conclusions. First, certain about the victory over Japan, the U.S. and British policy makers seemed more motivated about organizing the postwar international order. Second, U.S. and British policy makers believed that extraterritoriality would not have a place in the postwar order, calling it an ‘‘anomaly,’’ and ‘‘anachronistic’’ and stating in interdepartmental documents that the extraterritorial system ‘‘is bound to go,’’ and ‘‘has no place in international law,’’ suggesting the existence of a normative shift about the appropriateness of extraterritoriality in the international system. The abolition decision on ‘‘normative’’ grounds, however, does not refute the state-building hypothesis, as the U.S. and British governments received assurances of further legal institutionalization. U.S. and British governments abolished extraterritoriality in China on January 11, 1943; on the same day, the State Department and the Foreign Office gave a statement to the Chinese ambassadors. The content and the timing of the statement suggest the existence of a relationship between the abolition of extraterritoriality and the Chinese judiciary. The American statement verifies that:

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This Government has been following in recent years the progressive steps, which the Chinese Government has taken in matters relating to the administration of justice. This government has noted the spirit, which the Chinese Government has shown in adopting new civil and criminal codes, in establishing modern courts 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 be extended throughout the territory of the Republic of China and that as areas of Chinese territory now under Japanese military control are restored to Chinese jurisdiction modern courts of justice will be re-established and modern prisons will be restored or be built in such areas (FRUS 1942:418).

Abolishing extraterritoriality in China a century after its formal imposition, Western states recognized China’s claim to territorial jurisdiction. This recognition came unexpectedly when the Chongqing government’s territorial authority was limited to eastern China. Neither Chinese failure to fulfill the abstract standard of civilization nor its international weakness, but its internal weakness in failing to institutionalize a state-based legal system explains the late abolition of extraterritoriality in China. Although there was a normative shift against extraterritoriality in the 1940s, the Kuomintang’s state-building practices facilitated the abolition of extraterritoriality. One may also counterfactually argue that the Kuomintang’s legal reforms in the 1930s could have led to the abolition of extraterritoriality if Japan’s attack had not occurred. The Japanese attack forced Western countries to postpone their decisions to abolish extraterritoriality in China for a decade.33 Power Politics and the English School on the Abolition of Extraterritoriality in China During the Washington Conference and the Second World War, China was in no position to impose its will through military means over home states. The influence of power asymmetry between home states and China is indeterminate in explaining the abolition of extraterritoriality. The literature does not offer any explanation based on power asymmetry. Although there are some power-politics explanations based on the role of extraterritorial groups and strategic calculations, Western states’ policies did not reflect the pressure of either. Extraterritorial Groups

The highest level of involvement between Western rulers and domestic constituencies dates from the Washington Conference of 1921 to the Extraterritoriality Commission in 1926. During this time, state rulers established institutionalized access with missionaries and business groups to solicit their opinions about extraterritoriality. Yet, both the level and the direction of the influence of the extraterritorial groups were indeterminate. For example, after discussions with British missionaries, the Foreign Office asked Skinner Turner, the chief representative of the British delegation in the Extraterritoriality Commission, to informally seek advice from Harold Balme, a representative of the Committee of the National Christian Council of China (FO ⁄ 371 ⁄ 11646 (1926:6–10)). However, the high level of access afforded to missionaries does not offer any strong predictions because missionaries and business groups differed about extraterritoriality. While business groups lobbied to keep extraterritoriality, certain missionary groups (e.g., young Protestant missionaries) 33 Discussions in Foreign Office (FO ⁄ 676 ⁄ 64) point to the British plans for gradual abolition of extraterritoriality in the 1930s. These plans were not carried out because of the Japanese occupation. For a similar argument, see Fishel (1952).

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advocated for the abolition of extraterritoriality because they perceived it as offensive to the Chinese, and thus, an impediment to missionary efforts to convert Chinese to Christianity.34 Protestant missionaries who went to China before the First World War and Catholic missionaries vehemently regarded extraterritoriality as necessary for the protection of their lives and property. Divergence between business groups and missionaries and within the missionary community reduced their influence on home states’ rulers, thereby reducing sensitivity to their demands. Upon receiving memorandums from British missionaries, the Foreign Office concludes: ‘‘The missionary’s attitude, being neither unanimous nor very clearly thought out, is not very helpful. No Action.’’ (FO ⁄ 407 ⁄ 7 ⁄ 10 1926). In short, the interests of the domestic constituencies about extraterritoriality did not shape the policies of their home governments. Strategic Competition

Both historians and political scientists have offered strategic competition arguments stating that the United States and Britain abolished extraterritorially in China to support it against Japan (Iriye 1986:533; Clifford 1991:277). There are three problems with the strategic support argument. First, given that China’s survival was at stake, it is not clear why the Allies needed to abolish extraterritoriality to forge their alliance with China. Because of China’s dependence on the Allies’ military support for survival, China was not in a position to impose its demands on the Allies about extraterritoriality. Second, it is also not clear what kind of strategic gain the Allies received by abolishing extraterritoriality. During the negotiations, neither the United States nor Britain used their decision to acquire any strategic gain in China. English School

The English School argues that Western states abolished extraterritoriality in Japan in 1899 because they perceived Japan to be a member of international society (Gong 1984:164–165; Suganami 1984:197) and that they then abolished extraterritoriality in China in 1943 because they perceived China to be a member of international society (Gong 1984). However, using a variety of other indicators of international society, historians and political scientists suggest that Chinese membership in international society occurred well earlier than the abolition of extraterritoriality. Observing the establishment of Western diplomatic legations in China (1858– 1861), Chinese acceptance of international law (1862–1972), the Chinese invitation to the Association for the Reform and Codification of the Law of Nations (1878), and the opening of Chinese diplomatic legations abroad (1868–1880) Hsu argues that by 1880 China was integrated into the ‘‘world community of nations’’ (Hsu 1960). Furthermore, China attended The Hague Peace Conferences of 1899 and 1907 (Gong 1984:152). Quincy Wright suggests that following the establishment of the Republic of China in 1911, China became part of the international system by joining international 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 society with the First World War and subsequent peace treaties, suggests that the acceptance of China’s full membership in the League of Nations and its election to the League Council as a nonpermanent member in December 1920 confirm 34 For the relations of business and missionary communities with the State Department on the abolition of extraterritoriality see FRUS (1924:599–604), Borg (1947:82–90), Fishel (1952:104), and Warg (1958).

671

China in the council elections 100 80 60 40 20 b

a

36 19

34

31

36 19

19

19

30 19

28 19

26 19

25 19

24 19

23 19

22 19

21

0 19

% of votes China recieved out of valid votes

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FIG. 1. China’s votes in the League of Nations’ Council (1921–1936)

‘‘a de facto recognition of China as a full member of the international community’’ (Zhang 1991:147). Election records of the nonpermanent members of the League’s Council, an ‘‘index of the popularity of a nation in international society’’ during the interwar years, suggest that China’s status was not inferior in the League of Nations (Figure 1) (Quan 1939:37). Combined with the Chinese membership in intergovernmental organizations and observations of political scientists and historians, the Chinese League of Nations’ records provide evidence to suggest that China was a member of international society by the time of the Washington Conference—two decades prior to 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) are linked. Jurisdiction over transnational interactions links state- and system-level authority structures. Transnational interactions require states to coordinate their authority claims to facilitate and regulate their claims of jurisdiction. Because of the need to coordinate authority relations on transnational interactions, states communicate and negotiate state-level authority structures. In the process of coordination of system-level authority relations, changes of the state-level authority structures may result in changes in system-level authority structures. By linking changes of extraterritorial jurisdiction to states’ domestic legal structures, this study challenges arguments that link the abolition of extraterritoriality to changes of brute material power and the expansion of international society. Extraterritoriality emerged in the beginning of the process of incorporation of non-Western states into the Westphalian state system, and its abolition marked the completion of this process. The institutionalization of state law is integral to the process of incorporation of non-Western states into the Westphalian state system. The coordination of authority structures at the international level is not a power-free functional process. Powerful states lock their first-mover advantage by standardizing the rules of transnational interactions through legal and institutional means. They then create both positive and negative incentives to compel others to agree to the rules for international transactions. The rise and decline of extraterritoriality marked the first wave of a global increase in private interactions in the late nineteenth century. Driven by the need to regulate transnational interactions, extraterritoriality became the catalyst of large-scale legal reforms across non-Western, noncolonized countries. Leading expansion of the rule of state law, state rulers left regulation of transnational interactions to other state rulers as long as those rulers agreed to institutionalize state law to clarify and enforce respect for the legal and private property of individuals—natives and

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foreigners alike. The first wave of globalization-expanded sovereignty and its characteristics—state’s legal hierarchy within its boundaries. While the Second World War marked the end of extraterritoriality, regulatory extraterritorial jurisdiction increased (Putnam 2005). Like nineteenth century extraterritoriality, the second wave of a global increase in transnational interactions, post-Second World War, drove the need to regulate transnational interactions. Leading rule of law, Western states’ increasing use of extraterritorial jurisdiction forced other state rulers to develop legal means either to hinder other states’ extraterritorial penetration or to converge powerful states’ legal practices to eliminate the need for extraterritorial penetration. The last way to regulate transnational interactions by eliminating the need of extraterritorial regulation that was not available to nineteenth century rulers is to legalize them at inter- and supra-governmental levels of world politics (Goldstein, Kahler, Keohane, and Slaughter 2000). Like its nineteenth century counterpart of the extension of Westphalian sovereignty, the global increase of private interactions in the twentieth century motivated and enabled powerful Western states to dictate 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.

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