CO537-3706 — Page 28

Heliga

It is clear from the Minister's telegram at 184 (see also the Foreign Office letter at 190, recording an interview with the Chinese Ambassador) that the Chinese will not accept this offer as set out, and continue to insist that Chinese jurisdiction in the Walled City should be recognised whatever the purpose to which the site is devoted in future. They are also claiming that the Chinese Special Commissioner for Breign Affairs. should occupy a part of the site.

The Chinese rejection of our proposal has already led the Governor of Hong Kong (see 187) to suggest that we should consider seeking international arbitration. We have previously been discussing here a suggestion that H.M.G. should take the matter to the International Court of Justice, and at No. 188 I submit a draft despatch prepared in consultation with Sir Sidney Abrahams, and to which the Foreign Office have agreed.

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This draft invites the Governor's comments on the courses now open to us, including a possible reference to the International Court.

It seems clear that whether we go on with a Garden of Remembrance or a Park, or whatever we do, we shall have nothing but trouble unless we can get the Chinese claims to jurisdiction out of the way.

There seems no prospect of this being achieved now otherwise than as the result of a judgment by the International Court. There are certain risks about such a course. It has not yet carried us much further in the case of the Guatemala claims to British Honduras, and there is, I suppose, always a risk that, unlikely though it may seem, the Court might decide that the Chinese claim to jurisdiction was a valid one. I hope, however, that we may go so far as to sound the Governor on the possibility as in the draft telegram. If it is agreed, the papers should be recirculated immediately to F. E. Dept. (B.) to consider, while awaiting the Governor's reply, what exactly would be the terms of any reference to the International Court. The substantial point at issue is pretty clear, namely whether or not Chinese officials still have the right to exercise jurisdiction within the Walled City under the Convention of 9th June, 1890. The draft telegram takes the line that it would be for the Chinese to submit a claim to the International Court, but presumably it would be open to us in suggesting to them that they should do so, to phrase the suggestion in what our Legal Advisers consider to be the appropriate language.

9/3

9th March, 1948.