The (Almost) Fall of the Legal Fiction of Extraterritoriality in the Nineteenth Century

Abstract This article examines the near collapse of the legal fiction of extraterritoriality in nineteenth-century international law. Rather than treating extraterritoriality as a coherent doctrine or a straightforward instrument of imperial domination, it argues that the fiction functioned as a contested and unstable juridical device whose inadequacies exposed deeper tensions within international law. By distinguishing between two strands of critique—restrictive and reconstructive—the article reinterprets nineteenth-century debates as responses to the fiction’s conceptual failure rather than as efforts at technical refinement. Restrictive critiques, advanced primarily by Belgian and Italian jurists, rejected the fiction for legitimizing excessive jurisdictional privileges that conflicted with emerging principles of sovereignty, secularism, and constitutional equality in Europe. Reconstructive critiques, by contrast, abandoned the fiction while seeking to preserve immunity and consular jurisdiction by re-grounding them in treaties, capitulations, or functional necessity. This divergence explains why the decline of fiction did not entail the disappearance of privilege but rather its partial re-foundation on narrower, more positivist grounds. Finally, the article demonstrates how these European debates circulated transnationally, furnishing non-Western actors with conceptual resources to contest unequal treaty regimes. Extraterritoriality thus emerges not as a settled imperial doctrine but as a productive failure that illuminates the structural instability of nineteenth-century international law.