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CHINA
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Kowloon City and terminate the exercise of their jurisdiction. This, however, is a matter involving technical military considerations about which we are of course not competent to express an opinion.
In the event of the dispute between Great Britain and China coming before the International Court, if it were sought to justify British jurisdiction in Kowloon City on the ground that Chinese jurisdiction would be inconsistent with military requirements, it would be for the Court to decide whether in fact military requirements for the defence of Hong Kong made it necessary that jurisdiction in Kowloon City should not be exercised by the Chinese authorities. The view of the British military authorities would not determine the matter; the opinions which they expressed would be evidence before the Court upon which the Court itself would pronounce in deciding whether the case of military requirements was adequately made out by Great Britain. We would have thought that to litigate this matter before the International Court and support it by evidence consisting of the opinions of British military experts which would be subjected to cross-examination at the instance of the Chinese would involve considerable disadvantages from the point of view of security and similar considerations.
We are asked whether, if it were desired to bring the matter before the International Court, Great Britain should follow the course adopted in the case of British Honduras by depositing an acceptance of the Court's jurisdiction in relation to the present dispute. In view of the fact that the United Kingdom Declaration made on 28th February, 1940, applies only to disputes arising after 5th February, 1930, we think that it would be desirable to file such a further acceptance of the Court's jurisdiction.
We accordingly proceed to answer the questions put to us as follows:-
1. We think that the Chinese case would succeed unless the British refusal to allow resumption of Chinese jurisdiction could be justified on the ground of military requirement. For the reasons given we think that it would be inconvenient to litigate this latter question before the Court, since it would be for the Court to pronounce upon evidence of military experts on each side subjected to cross-examination by the other, whether or not the defence of military requirement had been made out. It is, of course, possible that the British authorities would not object to such a course, but we would have thought it unlikely, and accordingly draw attention to this aspect of the matter.
2. If it were desired to initiate proceedings, we think a special declaration under the optional clause should be made. If this were done we think that it would be unnecessary to negotiate a special agreement for submission to the International Court.
3. We refer to our answer to 1. We do not think His Majesty's Govern- ment could successfully resist the Chinese claim unless upon the ground of military requirement. As stated, we doubt whether it would be desirable to litigate this question, but if it were litigated, it would be necessary to establish that there was some present or apprehended contingency of a military character which, from a military point of view, rendered it impossible to agree to a resumption of Chinese jurisdiction.
4. Generally, our preference would be that negotiations should be continued upon the lines on which they are at present proceeding. We think that any compromise which included some acceptance by the Chinese of the position that any concession the British Government might make was not to be construed as an admission of the Chinese rights to resume jurisdiction would be desirable in British interests. We say this because, in general, we do not feel that the British case really is in any sense impregnable. Apart from the defence of military requirement we think that the British case is weak, and we feel a little uncertainty-although on a technical military question of this sort we speak with great reserve and hesitation whether, even if Great Britain were prepared to litigate the matter, it could be affirmatively established that there was some actual military situation at present subsisting or likely to develop in the foreseeable future which made it impossible to concede the Chinese claim to resume jurisdiction."
We have the honour to be,
Gentlemen,
Your most obedient Servants,
HARTLEY SHAWCROSS. FRANK SOSKICE.
Law Officers' Department,
24th June, 1948.
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