CO537-3707 — Page 173

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acceptance of the Court's jurisdiction.

us

We accordingly proceed to answer the questions put to

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 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

Government 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/