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The Chinese on the other hand would be recognising that we have some right to be there. Again therefore the option conflicts with the basic position of both sides.
5. Before either of these options could be achieved they would have to be discussed with the Chinese. The suggestion of either of them by us, without some kind of qualification, could be damaging to our legal position. Agreement by the Chinese to discuss them could be damaging to theirs. The first priority to my mind therefore is to ensure so far as possible, and in the interests of both sides, that even the initial discussions by the Prime Minister in September are at the outset agreed, preferably in writing, to be exploratory and without prejudice to the positions of either side with regard to sovereignty over the territory. In the absence of such agreement the talks could result in either a sterile state- ment of two diametrically opposed positions, or a discussion of options which by their very terms could in varying degrees damage the legal position of either side, and could subsequently be embarrassing, especially if the negotiations later broke down, or if offers by either side were quoted selectively and out of context. I imagine they could also cause some political embarrassment.
6.
This problem of opening up discussions and agreeing practical forms of cooperation when the basic underlying difficulty is a dispute as to sovereignty has of course arisen before. In Antarctica real progress was achieved because all the claimants agreed to incorporate Article IV into the Antarctic Treaty, preserving all legal claims to sovereignty. In our own negotiations with Argentina over the Falklands my first task in the opening round was to negotiate an Exchange of Notes, preserving the legal position of the two sides (Treaty series No 64 of 1962 Cmnd 5000). Under cover of this agreement each felt able to discuss possibilities which it would not otherwise have dared to mention. It was the legal foundation on which all negotiations, and all the communications arrangements, were subsequently based.
7. It would not be necessary to negotiate anything so formal before the Prime Minister's talks begin. A simple written record of the kind referred to in paragraph 5 above would suffice (eg in the shape of an agreed agenda, or letters exchanged between the two sides). But if the negotiations bore fruit, and some sort of modus vivendi could be agreed, a rather more formal agrée- ment reserving the legal position of each of them could be useful, particularly if, as I expect, none of the options survive in exactly their present form. This device could be used to avoid
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