Ottoman Empire capitulations v. US Extraterritorial Jurisdiction: a Comparative Analysis

Ottoman Empire capitulations v. US Extraterritorial Jurisdiction: a Comparative Analysis

The concept of extraterritoriality in an increasingly globalised and inter-connected world raises substantial issues for the domain of international law, with extensive debate prevailing over the problem of extraterritorial jurisdiction (ETJ) (Parrish, 2011). Defined as the 'exercise of jurisdiction, or legal power, outside territorial borders' (Colangelo, 2014: 1304), this legal tool has developed to become a key component of state jurisprudence and led to increasing clashes of sovereignty between nations (Grundman, 1980: 257). Capitulations on the other hand can perhaps be viewed as its historical counterpart to some degree, whereby the Ottoman Empire bestowed jurisdictional privileges to foreign subjects of European states, thus allowing them to be held accountable to their own domestic laws (Augusti, 2011: 294). The following paper seeks to present a comparative analysis of the two legal concepts, via delineating both similarities and differences between the noted capitulation system (in its early form) and the current extent of US ETJ.

Similarities

No other state has participated in the judicial realm quite like the United States, ranging from the application of criminal (Doyle, 2012) to employment (Kirkpatrick, 1993) law abroad – leading Grundman to classify US law as one of its three major exports (Grundman, 1980: 257). This proactive stance towards construction of a broad legal regime on a global scale may serve to highlight a difference between the motivations of the US and the Ottomans, notably the US' propensity to utilize ETJ as a function of power projection (Raustiala, 2011), however simultaneously exposes a perception which does not see territory as a limit of judicial power. As such, the current US disposition in viewing ETJ as non-threatening to its notion of sovereignty perhaps aligns more towards the perspective held by states in the 'First Period' outlined by Sousa (1933: 153-156), whereby a preference for the 'personality of law' (Stigall, 2013: 12; Bentwich, 1923) existed, prior to the development of the concept of territorial sovereignty.
A unilateral aspect in each case can also be considered, with the Porte granting these 'privileges' (Angell, 1901) to foreign subjects – 'the capitulations were at root imperial decrees – unilaterally granted and unilaterally revocable pledges to non-Muslim sovereigns' (Ozsu, in Fassbender & Peters, 2012: 430). Raustiala similarly touches upon this characteristic (albeit in a different form) via discussion of the US' aggressive application of domestic law abroad in the post-1945 era, whereby extraterritoriality has ultimately been utilized to assert American hegemony and 'often simply imposed on foreign actors by the US' (2011: 614). Moreover the prominence of economics can also be identified as a linkable feature within both expressions of ETJ: whether through the fundamental objective to secure economic stability and promote a global environment conducive to American firms and interests (ibid); or the emergence of the capitulatory system in the Ottoman Empire as a modus vivendi, and method of regulating inter-state merchant trade and commerce (Thayer, 1923).
Finally, prior to the capitulations transforming into a 'mechanism of subjugation' by the European powers (Ozsu, in Fassbender & Peters, 2012: 442), the notion of an asymmetrical relationship did exist however via the stronger status of the 'granting' state (Surridge & Matthews, 1934). Thus the Ottoman Empire's dominant position can be paralleled by the US' elevated status over various other nations, and is perhaps epitomized by the Status of Forces Agreements (SOFAs) which Stigall notes as baring considerable similarity to the pluralistic jurisdiction encapsulated by the capitulatory regime (2013: 38).

Differences

The aforementioned unilateral feature conversely illuminates multiple differences. Firstly and most importantly, capitulations were granted and viewed as a privilege for foreign subjects residing within or passing through the territory of the Ottoman Empire, rather than imposed externally in the US context and applicable to both US and non-US citizens in certain cases as prescribed by the effects doctrine (Amann, 2014). Consequently the long reach of US ETJ to encompass foreign citizens and corporations differs crucially from the capitulations, and alongside the extension of other domestic laws abroad causes Chien-Hale to write that 'the United States can be said to be expanding the definition of extraterritoriality' (1997: 228). This furthermore signifies a difference in the impact of ETJ in each case, as during the Ottoman period Augusti explicitly notes that the 'grant did not undermine Ottoman foreign independence' (2011: 297). On the contrary US ETJ within its expanding judicial realm potentially poses serious problems for the territorial and legal sovereignty of other nations and possibly embodies a violation of international law, as Raimo observes the lack of oversight in regards to the US' counter-terrorism efforts is worrying even though the 'United States attempts to mitigate sovereignty infringement through the use of extradition treaties and international cooperative undertakings' (1999: 1505).
Secondly, in contrast to the legal episteme of naturalism existent during the early Ottoman Empire (Pal, 2012: 52), the current US context is built upon the foundations of the positivist legal episteme developed during the 19th century by the Western powers, and specifically the British (Kayaoglu, 2010). As such the post-World War II use of extraterritoriality by the US constitutes a new hybrid of 'legal imperialism' which balances legal positivism with evolved American legal thought, 'which requires the analysis of competing interests' (ibid: 201). Raustiala similarly comments on the evolution of American legal jurisprudence, whereby effects-based ETJ and the emergence of 'balancing' and 'interests analysis' overtook the preceding system of legal reasoning (2009: 110), signifying the transition towards a perspective of pragmatism.

Conclusion

This brief analysis has explicated some of the various similarities and differences identifiable between the early capitulations of the Ottoman Empire and the current extent of US ETJ in a limited fashion, however nevertheless highlights the significant differences that can be found between the legal natures of the two cases. Whilst the US can arguably be seen as leading a partial reinvigoration of the notion of personal sovereignty, this has simultaneously been met with a degree of juridical restraint as shown by the development of 'interest balancing' (Maier, 1983) – 'any exercise of criminal jurisdiction will be guided by context and political expediency' (Brownlee, 2010: 337). Crucially this has meant an imposition of domestic law abroad, often to the displeasure of US allies (Raustiala, 2011: 614), but which stands in contrast to the more amicable 'granting' of ETJ to preferred European powers by the Ottoman Empire. The evolution of the international legal landscape in the 19th and 20th centuries ultimately contributes to the difference between the two cases, and subsequently it is perhaps more pertinent to align current US ETJ with the 'unequal treaties' that existed during the decline of the Ottoman Empire (Stigall, 2013: 13).



















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In contrast to the Ottomans' desire to defer legal jurisdiction to a non-Muslim entity partly in order to maintain conformation to Shari'a law (Ozsu, in Fassbender & Peters, 2012: 431).
'Congress may enact laws that have effects beyond the territorial borders of the United States' (Roche, 2013: 1465).
Highlighted by the US investigation of corruption at FIFA, and terrorism prosecutions of foreign citizens (Clifford, 2015). See also Madslien & Marston (2012), and Wu (1997) for a discussion on the seminal case of United States v. Aluminum Co. of America (Alcoa), 148 F.2d 416 (2d Cir. 1945).
Promoted by the State Department as international comity, see Small (1987: 295).