Extraterritoriality

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Extra-territoriality ( Latin ex terra , "out of the country"), sometimes also referred to as extraterritoriality , describes the exceptional position vis-à-vis the sovereignty of the country of residence. The term has meanwhile changed in meaning. While it originally served to describe the special position of persons ( heads of state , government representatives , diplomats ) under international law , it is mostly only used today in connection with the status of diplomatic properties . However, the exact meaning is often unclear.

Original meaning in international law

The Legation Quarter in Beijing (here before 1912) was considered extraterritorial from the Chinese perspective.
Map of the Beijing Legation Quarter around 1903.

The term originally referred to the privileged position enjoyed primarily by diplomats in the receiving state. The older doctrine of extraterritoriality , which goes back to Hugo Grotius , explained the privileged position by means of a fiction : the diplomatic representative was treated as outside the territory of the receiving state during his stay in the receiving state. This was absolutely invulnerable to the representatives of the receiving state and was neither subject to the police nor the jurisdiction of the receiving state.

This went hand in hand with the fact that in earlier times the area that was left to the diplomats for unrestricted use was much larger than it is today. The perimeter of the privileged zone consisted not only of the actual embassy building (franchise de l'hôtel) , but also of the freedom of an entire quarter (franchise du quartier) . The district in which the legation was located, with the people living there or who happened to be there, were under the sole jurisdiction of the mission. Legation quarter ( English legation quarter , French quartier des légations ) and the embassy building were considered extraterritorial in the true sense of the word , almost as the territory of the state whose mission was there.

From extraterritoriality to diplomatic immunity

The more recent doctrine of functional necessity (functional theory) has given up this fiction. Diplomats and their properties are fundamentally subject to the legal system of the receiving state. The effective fulfillment of the tasks of the diplomatic mission as a representative body of the sending state is ensured by the granting of privileges. Instead of extraterritoriality, diplomats enjoy immunity and receive certain privileges and exemptions . Their respective scope depends on the aim of the mission, but also on the rank of the person concerned. The higher his rank, the more extensive the privileges and exemptions granted him. The diplomatic staff of a mission ( ambassadors , envoys , attachés ) enjoy stronger immunity than the administrative and technical staff (e.g. typists, security staff , drivers) of a mission. In the consular service, immunity - also at the management level - is usually limited to the official area. It is the same with most members of international organizations . According to Art. 105 of the UN Charter, the United Nations only enjoy the privileges and immunities in the territory of each member which are necessary for the realization of its goals . The representatives of the members and the employees of the UN likewise enjoy only the privileges and immunities which they require in order to be able to carry out their tasks related to the organization in full independence. The exact details are often agreed in a headquarters agreement between the host state and the UN (Art. 105 (3) UN Charter).

The functional theory is expressly emphasized in the preamble to the Vienna Convention on Diplomatic Relations (WÜD): The granting of privileges and exemptions does not serve the individual preference of a person, but the aim of ensuring the effective performance of the tasks of the diplomatic missions as representations of states .

Instead of fictitious extraterritoriality, the diplomat has the duty to observe the laws of the receiving state ( Art. 41 Para. 1 VÜD); however, he may not be punished for disregard ( Art. 31 Para. 1 VCDR). The requirement of state restraint as a reaction to the activities of the diplomat is offset by the equal obligation of the receiving state to protect it from harm. A diplomat who is unconscious as a result of a traffic accident may receive medical care from authorities in the receiving state, even without his express consent, as long as members of the mission of the sending state, who must be informed immediately, do not express the contrary will.

The balancing act that the receiving state sometimes struggles between restraint and protection is shown by the example of a diplomat who is found drunk in a motor vehicle. The diplomat is obliged to stop at the police's hand signals and identify himself. If there is a risk of self-harm, he can also be prevented from continuing his journey by removing his car keys. Finally, it is possible (and often useful) to bring him home or to his mission for protection by the police. Law enforcement measures such as carrying out an alcohol breath test against the will of the person concerned to determine the blood alcohol concentration , searching , seizing , including the driver's license, or provisional arrest , are not permitted. If the diplomat expresses the wish to continue the journey in a taxi after a drunk drive, he must not be prevented from doing so. The diplomat is therefore no longer extraterritorial in the sense of an absolute inviolability of his person.

For more details on diplomatic immunity, see the main article on diplomatic status .

Usage of the term today

Today extraterritoriality is no longer a legal term. The term is just as rarely used in written international law as it is in international law literature. It can only be found in colloquial language (especially in newspaper articles) and then mostly in a simplistic and catchphrase manner, the prohibition of the receiving state from entering the premises of the sending state or the international organization. The original personal relationship of the term has been almost completely lost.

Embassies

Extra-territorial real estate in the sense of areas over which the receiving state would not have territorial sovereignty, with the result that they become exclaves of another state, no longer exist in modern international law. The properties of a foreign mission are an integral part of the national territory on which they are located. The buildings and apartments of the diplomatic staff are no longer outside the receiving state, nor are they treated as if they were. Crimes committed there are committed on the territory of the receiving state; Contracts concluded in the embassy building were not concluded in the field of the sending but that of the receiving country. The common formula of the “extraterritoriality” of messages is therefore misleading. In a ruling from 1934, the German Reichsgericht already assessed the murder of the Afghan envoy Sardar Mohammed Aziz Khan on the premises of the Afghan embassy in Berlin as a domestic offense and applied German criminal law.

Legation districts with extensive areas that are left to the sending state for autonomous disposal also no longer exist today. As a rule, the representation consists of one or more individual buildings, in small states sometimes just one office floor. The sending state must observe the laws of the receiving state on the land made available, e.g. B. the local building regulations for the construction of the mission building. Only the mandatory enforceability of the laws of the receiving state is restricted, which is expressed above all in the fact that the mission site is inviolable in the language of international law ( Art. 22 VCDR) and may not be entered by representatives of the receiving state without the consent of the head of the mission.

There are some breakthroughs in the absolute prohibition of entry, which can be derived on the one hand from the claim to protection under international law and on the other hand from the self-defense and emergency law granted to the receiving state. For example, if a fire broke out on the mission site and human life is in danger, the fire brigade may enter the mission site at their own discretion if the consent of the head of mission cannot be obtained in good time. Here the protection of human life has priority over the fundamental inviolability of the mission area. A right of access should also exist in emergency situations. If the fire threatens to spread from the embassy to neighboring buildings, the embassy premises may also be entered without the consent of the ambassador. The sensitive question is whether the receiving state has a right of access if it becomes aware that dangerous quantities of explosives are being stored in the embassy , which also pose a significant risk to the environment. Here it is partly assumed that the receiving state has a right to intervene from the self-defense aspect, whereby it is to be seen as a violation of international law if nothing is found in a possible search. Ultimately, the question being discussed is whether the most serious human rights violations (“torture in the embassy”) entitle the receiving state to admission.

Access to mission sites in emergencies is not undisputed under international law and must be carefully considered by the receiving state. While the consent of the consul to enter in emergencies can be assumed with regard to consulates ( Art. 31, Paragraph 2, Clause 2 of the Vienna Convention on Consular Relations [WÜK]), there is no comparable regulation in the WÜD for the embassies. It was not by chance that this was not done because the risk of abuse (by the receiving state) is assessed by the international community as considerable.

International organizations

For international organizations, the scope of the special rights of each depends Headquarters Agreement ( Engl. Headquarters agreement ) from which has completed the organization with the host State. Here, too, there can be no question of absolute extraterritoriality. In accordance with international law, the receiving state grants the organization and its members exemptions and privileges only for official purposes and, if necessary, with regard to the leader (analogous to the ambassador) also for the private (personal) area. State practice is inconsistent here. While the extent of the exemptions in Germany depends on the one hand on the rank of the international organization and on the other hand on the rank of the person concerned and mostly follows comparable positions at embassies, Switzerland sometimes does not grant any violations in road traffic, even if they occur on the basis of an official performance Member of the Immunity Organization. The idea behind this is a lack of reciprocity : The members of international organizations are not accredited by the host state and have no legal relationship with it. Under general international law, the host state has no right to declare a member of an international organization persona non grata if it violates the laws of the host state (see the main article on accreditation ). The host state therefore has an interest in limiting the privileges of the employees of international organizations to a minimum. In addition, the international organization often does not have its own punitive power against its employees. For this reason, members of an international organization do not have to answer without further ado for their offenses at the headquarters of the international organization, not even before the state authority of their home country, against which they can often challenge the immunity of the international organization and its employees.

International Tribunal for the Law of the Sea in Hamburg

An example from international law practice is the status of the International Tribunal for the Law of the Sea in Hamburg . Privileges and Immunities of the Court, in the in on 23 May 1997 New York closed Convention on the fundamental privileges and immunities of the International Tribunal was established. It not only regulates the status of the site, the inviolability of property and the exemption of the Court of Justice from taxes and duties of the host country (Art. 3 to 12), but also the special rights of its members, such as judges, necessary to ensure its independence from the host country (Art . 13), Chancellor and administrative staff (Art. 14). In addition, those involved in the proceedings, namely experts (Art. 15), legal advisers and lawyers (Art. 16) as well as witnesses (Art. 17), are granted immunities and facilities for the duration of their assignments, including travel related to these assignments.

The fact that a private person (e.g. a lawyer ) can also be the holder of immunity is a manifestation of the functional theory that is expressly emphasized in Art. 19: The privileges are not granted for personal benefit, but serve to ensure the independent exercise of the tasks related to the Court of Justice. All beneficiaries are obliged to observe the laws and other regulations of the country of residence, regardless of immunity. The court of justice or the state which the person represents in proceedings as legal counsel have to decide on the waiver of immunity in the event of abuse (Art. 20).

In a further agreement between the Federal Republic of Germany and the International Tribunal of the Sea of 14 November 2004 on the seat of the Tribunal , the 1997 agreement is specified: Both the status of the property of the Tribunal for the Sea (Articles 3 to 16) and the scope of its immunities Members and those involved in the proceedings (Articles 17 to 26) are precisely regulated there. The supplementary agreement takes precedence over the general agreement of 1997 in the event of contradiction (Art. 32).

Insofar as the additional agreement does not grant the Court of Justice any special rights, German laws and regulations apply on the premises (Art. 4 (4) of the agreement). In this respect, German authorities and courts exercise sovereignty with regard to the acts and legal transactions carried out on the premises (Article 4 (5) of the Agreement). According to Art. 5 Para. 1 of the agreement, the premises are inviolable and may therefore only be entered by German authorities in order to perform an official duty with the express consent of the Chancellor. Article 5 (3), however, determines the right of access of the German authorities in the event of fire and other accidents. Art. 5 para. 5 obliges the Tribunal for the Law of the Sea not to grant refuge to criminals or persons who are to be deported from Germany. The Court of Justice must refer such persons to the German authorities.

Individual cases

Enclaves

In the case of states enclosed by another state (e.g. San Marino or Vatican City ) and in the case of exclaves of a state enclosed by another state (e.g. Büsingen am Hochrhein as a German exclave surrounded by Swiss territory) or in the case of the in Land of the Vennbahn located in Germany is only a pseudo-extraterritoriality , which results from the island existence and the complete enclosure of a national territory by another state. From the perspective of the surrounding state, such areas ( enclaves ) are as little or as much extraterritorial as any other neighboring state.

Foreign armed forces on their own national territory

The properties of foreign armed forces are not extraterritorial, but part of the sovereign territory in which they are located. However, the foreign armed forces often have a contractually guaranteed exclusive right of use, on which the use of firearms is similar to the use of land owned by the national military. The immunity of soldiers stationed on foreign territory and their properties is based on international treaty law , in Germany mainly on the NATO troop statute and the supplementary agreement to the NATO troop statute .

Exceptions are the British military bases Akrotiri and Dekelia in Cyprus , which actually became part of the territory of the United Kingdom through the Zurich and London agreements . This, however, applies z. B. (contrary to popular belief) not for the US Guantanamo Bay Naval Base in Cuba , which is only leased.

Joint and advanced border clearing

Agreements on joint or advanced border clearance (e.g. between Great Britain and France via the border control at the Channel Tunnel on the territory of the other country) do not usually lead to an extra-territorial special status of the site. The territory of the border inspection post remains on the territory of the country in which it is located. Which sovereign powers the foreign border control authorities have on this site results from the concluded intergovernmental agreements.

Church land

Church properties belong to the national territory on which they are located and are not extraterritorial. State agencies have unrestricted territorial sovereignty over church properties. In Germany the large regional churches are corporations under public law and are organizationally integrated into the state administration ( Art. 137 (5) Weimar Constitution [WRV] in conjunction with Art. 140 GG). However, their internal affairs are not subject to state supervision (Art. 137 para. 3 WRV in conjunction with Art. 140 GG).

The Vatican is a special case : This is a separate state, whose territory consists only of the 0.44 km² Vatican Hill . In addition, according to the Lateran Treaties, several properties of the Holy See inside and outside Rome enjoy a special status, which is sometimes referred to as extraterritorial status . These properties belong to the Italian national territory, but have the status of the residences of the diplomatic representatives of foreign states, which are specially protected under international law (cf. Art. 1 lit. i WÜD).

Ships and aircraft

The immunity protection of warships in foreign waters or ports is recognized under international law. In the case of merchant ships and aircraft, it depends on whether they serve sovereign functions (then immunity) or economic interests (then no immunity). They are not regarded as the “floating national territory” ( French territoire flottant ) of the flag state. Warships have to observe the legal order of the coastal state; However, sovereign measures by the coastal state on the warship, such as entering, searching and arresting, are not permitted. In the event of violations of the legal system, the ship can be expelled from the waters of the coastal state ( Art. 29 and Art. 30 UN Convention on the Law of the Sea). Submarines and other underwater vehicles must drive over water in the territorial sea and display their flag ( Art. 20 UN Convention on the Law of the Sea); then they enjoy immunity like an ordinary warship.

literature

Individual evidence

  1. ^ The new Brockhaus , Lexicon and Dictionary, 4th revised edition 1971.
  2. ↑ See also Jürgen Simon, Legal Foreign Words and Abbreviations, Flensburg 1981, keyword “Exterritoriality”: “Freedom of foreign heads of state, diplomats etc. from the territorial sovereignty of the state of residence”.
  3. ↑ Ipsen, Völkerrecht, § 35 marginal no. 34; v. Arnauld, Völkerrecht, § 8 marginal no. 559 (p. 229).
  4. ↑ Wolfrum in Dahm / Delbrück / Wolfrum, Völkerrecht, Vol. I / 1, p. 287.
  5. ↑ Ipsen, Völkerrecht, § 35 marginal no. 34; v. Arnauld, Völkerrecht, § 8 marginal no. 559 (p. 229).
  6. ↑ See in the chapter "State immunity and diplomatic law" in Stein / v. Buttlar, international law.
  7. ↑ Art. 105 of the UN Charter , accessed on November 22, 2014.
  8. ↑ So the fourth recital in the preamble of the VCD.
  9. ↑ Circular from the Federal Foreign Office, p. 1157.
  10. ↑ Circular from the Foreign Office, pp. 1157, 1171.
  11. ↑ Wolfrum in Dahm / Delbrück / Wolfrum, Völkerrecht, Vol. I / 1, p. 281.
  12. ↑ See House of Representatives since Monday extra-territorial area , report from the Bonner Generalanzeiger from July 16, 2013; Cardinals of Money , news from the Tagesspiegel from September 5, 2010.
  13. ↑ A relic from earlier times is still today the heading and wording of § 15 ZPO ("General place of jurisdiction for extraterritorial Germans"), which reflect the historical point of view. The official heading is from 2002; the regulation itself goes back to the year 1877 (see § 16 of the original version ) and is obsolete today.
  14. ↑ Doehring, Völkerrecht, § 12 marginal no. 676 (p. 293).
  15. ↑ Stein / v. Buttlar, Völkerrecht, § 2 marginal no. 736 (p. 259); v. Arnauld, Völkerrecht, § 2 No. 72 (p. 27).
  16. ^ So explicitly Wolfrum in Dahm / Delbrück / Wolfrum, Völkerrecht, Vol. I / 1, p. 281.
  17. ↑ Herdegen, Völkerrecht, § 38 marginal no. 1 (p. 281); v. Arnauld, Völkerrecht, § 2 No. 72 (p. 27).
  18. ↑ Reichsgericht, ruling v. November 8, 1934 - 2 D 1204/34 -, RGSt 69, 54 (55/56), quoted and discussed in the report on decisions by national courts in questions of international law, ZaöRV 1936, p. 404 , here p. 408/409 ( PDF; 1.7 MB).
  19. ↑ Wolfrum in Dahm / Delbrück / Wolfrum, Völkerrecht, Vol. I / 1, p. 288.
  20. ↑ See in detail Stein / v. Buttlar, Völkerrecht, § 2 marginal no. 739 ff. (Pp. 260 f.); Federal Foreign Office circular, p. 1165.
  21. ↑ Doehring, Völkerrecht, § 12 marginal no. 676 (p. 293).
  22. ↑ Doehring, Völkerrecht, § 12 marginal no. 676 (p. 293).
  23. ↑ Cf. the fictitious example of the ambassador who keeps underage girls prisoner in his private rooms for his satisfaction, in v. Arnauld, Völkerrecht, § 8 marginal no. 562 (p. 230), who in this case affirms that the authorities of the receiving state have a right of access to rescue the girls.
  24. ↑ Stein / v. Buttlar, Völkerrecht, § 2 marginal no. 738 (p. 260).
  25. ↑ With regard to the members of the Bank for International Settlements in Basel : Art. 17 of the agreement between the Swiss Federal Council and the Bank for International Settlements to regulate the legal position of the bank in Switzerland of February 10, 1987; According to this, there is no immunity from damage caused by a vehicle belonging to or driven by a bank employee, from a liability suit brought against him or from violation of federal road traffic regulations, provided this can be punished with a fine.
  26. ↑ Cf. on the liability of the international organization: Stein / von Buttlar, Völkerrecht, § 2 marginal no. 388 (p. 123).
  27. ↑ Convention on the Privileges and Immunities of the International Tribunal for the Sea of ​​May 23, 1997 ( Federal Law Gazette 2007 II pp. 143 , 145), (PDF; 231 kB), accessed on February 8, 2015.
  28. ↑ Agreement between the Federal Republic of Germany and the International Tribunal for the Law of the Sea on the seat of the Court of Justice of November 14, 2004 ( Federal Law Gazette 2007 II pp. 143 , 159), (PDF; 231 kB), accessed on February 8, 2015.
  29. ↑ Stein / von Buttlar, § 2 marginal no. 728 (p. 257); Doehring, Völkerrecht, § 12 No. 692 (p. 299).
  30. ↑ Holy See / Vatican - Two special subjects of international law , information from the Austrian Foreign Ministry (Austrian Embassy to the Holy See), accessed on March 15, 2015.
  31. ↑ For ships: Articles 17 to 32 UN Convention on the Law of the Sea of ​​December 10, 1982 ( Federal Law Gazette 1994 II p. 1798 ); Stein / von Buttlar, § 2 marginal no. 728 (p. 257).
  32. ↑ von Arnauld, Völkerrecht, § 10 marginal no. 791 (p. 331).
  33. ↑ Doehring, Völkerrecht, § 12 marginal no. 694 (p. 300).

See also