Capitulation (treaty)
Encyclopedia
A capitulation or ahidnâme, is a treaty
or unilateral contract
by which a sovereign state
relinquishes jurisdiction within its borders over the subjects of a foreign state. As a result, the foreign subjects are immune, for most civil and criminal purposes, from actions by courts and other governmental institutions in the state that makes the capitulation.
arrangements termed capitilations, and treaties confirmatory of them, have been made between the Porte and other states by which foreigners resident in Turkey are subject to the laws of their respective countries.
In the 9th century, the caliph
Harun al-Rashid
to granted guarantees and commercial facilities to such Franks
, subjects of the emperor Charlemagne
, as should visit the East with the authorization of their emperor. After the break-up of the Frank empire, similar concessions were made to some of the practically independent Italian
city states that grew up on its ruins. Thus, in 1098, the prince of Antioch
granted a charter of this nature to the city of Genoa
; the king of Jerusalem extended the same privilege to Venice
in 1123 and to Marseilles in 1136. Salah ud-Din
(Saladin), sultan of Babylon
(Cairo
), granted a charter to the town of Pisa
in 1173. The Byzantine Emperors followed this example, and Genoa, Pisa and Venice all obtained capitulations.
The explanation of the practice is to be found in the fact that the sovereignty of the state was held in those ages to apply only to its subjects; foreigners were excluded from its rights and obligations. The privilege of citizenship
was considered too precious to be extended to the alien, who was long practically an outlaw. But when the numbers, wealth and power of foreigners residing within the state became too great, it was found to be politic to subject them to some law, and it was held that this law should be their own. When the Turkish rule was substituted for that of the Byzantine emperors, the system already in existence was continued; the various non-Muslim
peoples were allowed their semi-autonomy in matters affecting their personal status, and, the Genoese of Galata
were confirmed in their privileges.
The treaty of 1641 between the Netherlands
and Portugal
contains the first European formula. Cromwell
continued the commercial treaty policy partly in order to obtain a formal recognition of the Commonwealth from foreign powers. His treaty of 1654 with Sweden
contains the first reciprocal most favored nation clause: Article IV provides that the people, subjects and inhabitants of either confederate shall have and possess in the countries, lands, dominions and kingdoms of the other as full and ample privileges, and as many exemptions, immunities and liberties, as any foreigner doth or shall possess in the dominions and kingdoms of the said confederate. The government of the Restoration replaced and enlarged the Protectorate arrangements by fresh agreements. The general policy of the Commonwealth was maintained, with further provisions on behalf of colonial trade. In the new treaty of 1661 with Sweden the privileges secured were those that any foreigner should enjoy in the dominions and kingdoms on both sides.
The English
capitulations date from 1569, and then secured the same treatment as the Venetians, French
, Poles
and the subjects of the emperor of Germany
; they were revised in 1675, and as then settled were confirmed by treaties of subsequent date now and for ever.
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
or unilateral contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
by which a sovereign state
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
relinquishes jurisdiction within its borders over the subjects of a foreign state. As a result, the foreign subjects are immune, for most civil and criminal purposes, from actions by courts and other governmental institutions in the state that makes the capitulation.
Historical examples
In TurkeyTurkey
Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
arrangements termed capitilations, and treaties confirmatory of them, have been made between the Porte and other states by which foreigners resident in Turkey are subject to the laws of their respective countries.
In the 9th century, the caliph
Caliph
The Caliph is the head of state in a Caliphate, and the title for the ruler of the Islamic Ummah, an Islamic community ruled by the Shari'ah. It is a transcribed version of the Arabic word which means "successor" or "representative"...
Harun al-Rashid
Harun al-Rashid
Hārūn al-Rashīd was the fifth Arab Abbasid Caliph in Iraq. He was born in Rey, Iran, close to modern Tehran. His birth date remains a point of discussion, though, as various sources give the dates from 763 to 766)....
to granted guarantees and commercial facilities to such Franks
Franks
The Franks were a confederation of Germanic tribes first attested in the third century AD as living north and east of the Lower Rhine River. From the third to fifth centuries some Franks raided Roman territory while other Franks joined the Roman troops in Gaul. Only the Salian Franks formed a...
, subjects of the emperor Charlemagne
Charlemagne
Charlemagne was King of the Franks from 768 and Emperor of the Romans from 800 to his death in 814. He expanded the Frankish kingdom into an empire that incorporated much of Western and Central Europe. During his reign, he conquered Italy and was crowned by Pope Leo III on 25 December 800...
, as should visit the East with the authorization of their emperor. After the break-up of the Frank empire, similar concessions were made to some of the practically independent Italian
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
city states that grew up on its ruins. Thus, in 1098, the prince of Antioch
Antioch
Antioch on the Orontes was an ancient city on the eastern side of the Orontes River. It is near the modern city of Antakya, Turkey.Founded near the end of the 4th century BC by Seleucus I Nicator, one of Alexander the Great's generals, Antioch eventually rivaled Alexandria as the chief city of the...
granted a charter of this nature to the city of Genoa
Genoa
Genoa |Ligurian]] Zena ; Latin and, archaically, English Genua) is a city and an important seaport in northern Italy, the capital of the Province of Genoa and of the region of Liguria....
; the king of Jerusalem extended the same privilege to Venice
Venice
Venice is a city in northern Italy which is renowned for the beauty of its setting, its architecture and its artworks. It is the capital of the Veneto region...
in 1123 and to Marseilles in 1136. Salah ud-Din
Saladin
Ṣalāḥ ad-Dīn Yūsuf ibn Ayyūb , better known in the Western world as Saladin, was an Arabized Kurdish Muslim, who became the first Sultan of Egypt and Syria, and founded the Ayyubid dynasty. He led Muslim and Arab opposition to the Franks and other European Crusaders in the Levant...
(Saladin), sultan of Babylon
Babylon
Babylon was an Akkadian city-state of ancient Mesopotamia, the remains of which are found in present-day Al Hillah, Babil Province, Iraq, about 85 kilometers south of Baghdad...
(Cairo
Cairo
Cairo , is the capital of Egypt and the largest city in the Arab world and Africa, and the 16th largest metropolitan area in the world. Nicknamed "The City of a Thousand Minarets" for its preponderance of Islamic architecture, Cairo has long been a centre of the region's political and cultural life...
), granted a charter to the town of Pisa
Pisa
Pisa is a city in Tuscany, Central Italy, on the right bank of the mouth of the River Arno on the Tyrrhenian Sea. It is the capital city of the Province of Pisa...
in 1173. The Byzantine Emperors followed this example, and Genoa, Pisa and Venice all obtained capitulations.
The explanation of the practice is to be found in the fact that the sovereignty of the state was held in those ages to apply only to its subjects; foreigners were excluded from its rights and obligations. The privilege of citizenship
Citizenship
Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...
was considered too precious to be extended to the alien, who was long practically an outlaw. But when the numbers, wealth and power of foreigners residing within the state became too great, it was found to be politic to subject them to some law, and it was held that this law should be their own. When the Turkish rule was substituted for that of the Byzantine emperors, the system already in existence was continued; the various non-Muslim
Muslim
A Muslim, also spelled Moslem, is an adherent of Islam, a monotheistic, Abrahamic religion based on the Quran, which Muslims consider the verbatim word of God as revealed to prophet Muhammad. "Muslim" is the Arabic term for "submitter" .Muslims believe that God is one and incomparable...
peoples were allowed their semi-autonomy in matters affecting their personal status, and, the Genoese of Galata
Galata
Galata or Galatae is a neighbourhood in the Beyoğlu district on the European side of Istanbul, the largest city of Turkey. Galata is located at the northern shore of the Golden Horn, the inlet which separates it from the historic peninsula of old Constantinople. The Golden Horn is crossed by...
were confirmed in their privileges.
The treaty of 1641 between the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
and Portugal
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
contains the first European formula. Cromwell
Oliver Cromwell
Oliver Cromwell was an English military and political leader who overthrew the English monarchy and temporarily turned England into a republican Commonwealth, and served as Lord Protector of England, Scotland, and Ireland....
continued the commercial treaty policy partly in order to obtain a formal recognition of the Commonwealth from foreign powers. His treaty of 1654 with Sweden
Sweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
contains the first reciprocal most favored nation clause: Article IV provides that the people, subjects and inhabitants of either confederate shall have and possess in the countries, lands, dominions and kingdoms of the other as full and ample privileges, and as many exemptions, immunities and liberties, as any foreigner doth or shall possess in the dominions and kingdoms of the said confederate. The government of the Restoration replaced and enlarged the Protectorate arrangements by fresh agreements. The general policy of the Commonwealth was maintained, with further provisions on behalf of colonial trade. In the new treaty of 1661 with Sweden the privileges secured were those that any foreigner should enjoy in the dominions and kingdoms on both sides.
The English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
capitulations date from 1569, and then secured the same treatment as the Venetians, French
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Poles
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
and the subjects of the emperor of Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
; they were revised in 1675, and as then settled were confirmed by treaties of subsequent date now and for ever.