the same way as if the submission were made to some other tribunal. In the present case it would undoubtedly be the United Kingdom that would have to seek special terms of reference in order to safeguard the position of the United Kingdom so far as possible in advance, and there is no apparent reason why the Chinese should agree to prejudice their case in this manner. No doubt we would have an up-hill struggle in trying to secure acceptance by the Chinese of terms of reference favourable to the United Kingdom and the question posed would be in simplest terms asking for an interpretation of the relevant provision of the Convention of 1898.
6. On the point of publicity to be given to the military evidence, there would be some advantage in submitting the dispute to arbitration. An arbitration might attract less public attention than a hearing before the International Court, and it might be possible to agree that the military evidence should be heard in private and should not be published. In theory, even if the case were submitted to the International Court, it might be possible to secure the hearing of military evidence in private. The relevant provision of the statute of the Court is Article 46, which reads as follows;
"The hearing in Court shall be public unless the Court shall decide otherwise, or unless the parties demand that the public be not admitted".
However, a hearing of the International Court in camera would be likely to receive wide publicity in the press, and, unfortunately, there is a material risk that information received would be passed on by some of the judges of the Court to their Governments. It would not be possible, of course, under any procedure to prevent the Chinese from receiving the military evidence, and in any case there would normally be a Chinese judge on the bench. This no doubt is the point in which the Ministry of Defence are most interested.
7./...