No. 3/0 220 (327/1080/48)
No.
Copied to:-
Mr. McDougall Hong Kong No. 103
F6504/134/10
BRITISH EMBASSY,
NANKING,
15th April, 1948.
copy to co.
((Mr. WX Wallace).
!
RESTRICTED
(My dear peter)
There is a small legal point in connexion with the Kowloon City incident which in view of the possibility that the matter may be taken to the Hague Court I feel I ought to mention.
During my frequent arguments with Dr. Yin the Head of the European Department on this matter, this official has sooner or later invariably made the point that whereas the Chinese Government recognise the validity of the Peking Convention of 1898 as being an agreement freely entered into by two parties they are quite unable to admit the validity of our Order in Council of 1899 terminating Chinese jurisdiction in Kowloon City since this action on our part was unilateral. The last time this was said to me I countered with the argument that if the Chinese Government had on Dr. Yin's own showing freely entered into an agreement a clause in which enabled us to dispense with Chinese jurisdiction if this was inconsistent with British military requirements, he could hardly complain if we had taken advantage of this clause. I then leaned back in my chair feeling that I had gained at least a technical knock- out. The Chinese are not however so easily defeated and Dr. Yin quickly revived to expound the following thesis. It was true that a clause appeared in the 1898 Convention which we maintained allowed the Chinese officials then 1.e. in 1898 functioning to continue in their jurisdiction provided that such jurisdiction was not inconsistent with British military requirements. We (the British) interpreted this as meaning that if at any time in the future the situation brought about by the exercise of Chinese jurisdiction was inconsistent with British military requirements then we should be entitled to terminate this situation by prohibiting any further exercise of this jurisdiction. This was not however the way the Chinese interpreted the clause in question. To begin with the Chinese text made no mention of the * now" before the words Chinese officials. Secondly they interpreted the clause generally as meaning that if in specific cases Chinese jurisdiction should be found to be inconsistent with British military requirements then Chinese jurisdiction would have to give way. Such an interpretation did not give us the right at any time to terminate Chinese jurisdiction generally.
My purpose in writing this letter is therefore to warn you that this point is likely to be trotted out by the Chinese if the matter is taken to international arbitration. I have consulted the Chinese Secretariat and they tell me that although there is no doubt that the word "now" appears in the original Chinese there is also no doubt that the rest of the text could be interpreted in the manner contended by the Chinese. For purposes of easy reference I enclose the Chinese text and English translation of the controversial clause.
I am sending a copy of this letter which has been read by the Ambassador to McDougall.
.W.S.Y.Scarlett, Esq.,
China nenartment,
(signed) 0..
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LABULOMURZ