TERRITORIALITY IN THE nineteenth century posed the question of exclusive state jurisdiction. In the Anglo-American world, legal positivists emphasized the sovereignty of the state in asserting the state's authority to create and to sanction law, and they correspondingly elevated the state in international law. Each state strove to assert its complete jurisdiction over the criminal and civil matters of persons within its territory; and this work was an effort to consolidate state authority over all aliens within its territory and over all its subjects at home and abroad and on its ships at sea. State control of territory came to mark a state's territorial sovereignty—its absolute jurisdiction within its own territory.

But the great powers produced new problems of jurisdiction as they created zones of ambiguity that followed from their aggressive colonialism in Asia and Africa. Places in Asia that could not be colonized— states with centralized governments such as the Chinese Empire and Japan—were instead subjected to arrangements of extraterritoriality. This was the exemption from local jurisdiction granted to subjects of the great powers when they sojourned in non-Christian lands. Such immunity to local jurisdiction was a condition of the unsolicited intercourse with Europe, imposed by Europe on “oriental” countries because of their insufficient degree of civilization.” On the one hand, the great powers insisted that religion and legal institutions in a place such as Japan so differed from those of the “civilized” great powers that the latter did not want their subjects answerable to “uncivilized” codes of law. On the other hand, the great powers argued that corollary to territorial sovereignty was “the duty to protect within the territory the rights of other states, together with the rights which each state may claim for its nationals in foreign territory.” This meant that a state was required to possess the civilization and political organization rendering it capable of fulfilling this set of duties.

As Gerrit Gong, Antony Anghie, and Turan Kayao ğlu have argued, the international law of the nineteenth century produced a sovereignty doctrine such that sovereign states enforced a standard of civilization in awarding membership within the international community to fellow states—that is, the recognition of fellow states as sovereign states.