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traced in a straight line to a point which constitutes the middle point of a straight line, connecting the northernmost reef of the Röskären. belonging to the Koster Islands, that is to say, the reef indicated on table 5 of the report of 1906 as being surrounded with depths 9, 10, and 10, and the southernmost reef of the Svartskjär, belonging to the Tisler Islands, and which is furnished with a beacon, which point is indicated on the same table 5 as the point XIX.
2. May it please the Tribunal further to take account of the circumstances of fact and the principles of the law of nations and establish the rest of the disputed boundary in such a manner that –
a. Starting from the point fixed according to the conclusions of paragraph 1 and designated as point XIX, the boundary line shall be traced in a straight line to a point situated midway on a straight line connect ing the northernmost of the reefs indicated under the name of Stora Drammen, on the Swedish side and the Hejeknub rock, situated to the southeast of Heja Island, on the Norwegian side, which point is indicated on the said table 5 as point XX; and
b. Starting from the point last mentioned, the boundary shall be traced in a straight line due west as far into the sea as the maritime territories of the two nations are supposed to extend. And
Whereas, the line mentioned in the conclusions of the Norwegian agent is traced as follows:
From point XVIII as indicated on the map of the Commissioners of 1897, in a straight line to point XIX situated midway on a line drawn between the southernmost reef of the Svartskjär (the reef which is furnished with a beacon) and the northernmost reef of the Röskären.
From this point XIX in a straight line to point XX, situated midway on a line drawn between the southernmost reef of the Heiefluer (söndre Heieflu) and the northernmost of the reefs comprised under the name of Stora Drammen.
From this point XX to point XXa, following a perpendicular drawn from the middle of the last mentioned line.
From this point XXa to point XXb, following a perpendicular drawn from the middle of the line connecting the said southernmost reef of the Heieflu with the southernmost of the reefs comprised under the name of Stora Drammen.
From this point XXb to point XXc, following a perpendicular drawn from the middle of a line connecting the Söndre Heiefluer with the small reef situated to the north of Klöfningen islet near Mörholmen.
From this point XXe to point XXd, following a perpendicular drawn from the middle of a line connecting the Midtre Heieflu with the said reef to the north of Klöfningen islet.
From this point XXd, following a perpendicular drawn from the middle of the line connecting the Midtre Heieflu with a small reef situated west of the said Klöfningen to point XXI, where the circles cross which are drawn around said reefs with a radius of 4 nautical miles (60 to a degree). And
Whereas, after the Tribunal had visited the disputed zone, examined the documents and maps which had been presented to it, and heard the pleas and replies as well as the explanations furnished it at its request, the discussion was declared terminated at the session of October 18, 1909. And
Whereas, as regards the interpretation of certain expressions used in the convention and regarding which the two parties expressed different opinions during the course of the discussion
In the first place the Tribunal is of opinion that the clause in accordance with which it is to determine the boundary line in the sea as far as the limit of the territorial waters has no other purpose than to exclude the possibility of an incomplete determination, which might give rise to a new boundary dispute in future. And
It was obviously not the intention of the parties to fix in advance the terminal point of the boundary, so that the Tribunal would have only to determine the direction between two given points. And
In the second place, the clause in accordance with which the lines bounding the zone which may be the subject of dispute in consequence of the conclusions of the parties must not be traced in such a manner as to comprise either islands, islets, or reefs which are not constantly under water can not be interpreted so as to imply that the islands, islets, and reefs aforementioned ought necessarily to be taken as points of departure in the determination of the boundary. And
Whereas, therefore, in the two respects aforementioned, the Tribunal preserves full freedom to pass on the boundary within the limits of the respective contentions. And
Whereas, under the terms of the Convention, the task of the Tribunal consists in determining the boundary line in the water from the point indicated as XVIII on the map annexed to the project of the Norwegian and Swedish Commissioners of August 18, 1897, in the sea as far as the limit of the territorial waters. And
Whereas, as regards the question “Whether the boundary line should be considered, either wholly or in part, as being fixed by the boundary treaty of 1661 and the map thereto annexed,” the answer to this question should be negative, at least as regards the boundary line beyond point A on the aforementioned map. And
Whereas, the exact situation of point A on this map can not be determined with absolute precision, but at all events it is a point situated between points XIX and XX, as these points will be determined hereinafter. And
Whereas, the parties in litigation agree as regards the boundary line from point XVIII on the map of August 18, 1897, to point XIX as indicated in the Swedish conclusions, and
Whereas, as regards the boundary line from the said point XIX to a point indicated by XX on the maps annexed to the memorials, the parties likewise agree, except that they differ with regard to whether, in determining point XX, the Heiefluer or the Heieknub should be taken as a starting point from the Norwegian side. And
Whereas, in this connection, the parties have adopted, at least in practice, the rule of making the division along the median line drawn between the islands, islets, and reefs situated on both sides and not constantly submerged, as having been in their opinion the rule which was applied on this side of point A by the treaty of 1661; and
The adoption of a rule on such grounds should, without regard to the question whether the rule invoked was really applied by said treaty, have as a logical consequence, in applying it at the present time, that one should take into account at the same time the circumstances of fact which existed at the time of the treaty. And
Whereas, the Heiefluer are reefs which, it may be asserted with sufficient certainty, did not immerge from the water at the time of the boundary treaty of 1661 and consequently they could not have served as a starting point in defining a boundary. And
Whereas, therefore, from the above mentioned standpoint the Heieknub should be preferred to the Heiefluer. And
Whereas, point XX being fixed, there remains to be determined the boundary from this point XX to the limit of the territorial waters. And
Whereas, point XX is situated, without any doubt, beyond point A as indicated on the map annexed to the boundary treaty of 1661. And
Whereas, Norway has held the contention, which for that matter has not been rejected by Sweden, that from the sole fact of the Peace of
Roskilde in 1658 the maritime territory in question was divided automatically between her and Sweden. And
Whereas, the Tribunal fully endorses this opinion. And
Whereas, this opinion is in conformity with the fundamental principles of the law of nations, both ancient and modern, in accordance with which the maritime territory is an essential appurtenance of land territory, whence it follows that at the time when, in 1658, the land territory called The Bohuslan was ceded to Sweden, the radius of maritime territory constituting an inseparable appurtenance of this land territory must have automatically formed a part of this cession. And
Whereas, it follows from this line of argument that in order to ascertain which may have been the automatic dividing line of 1658 we must have recourse to the principles of law in force at that time. And
Whereas, Norway claims that, inside (on this side) of the KosterTisler line, the rule of the boundary documents of 1661 having been that the boundary ought to follow the median line between the islands, islets, and reefs on both sides, the same principle should be applied with regard to the boundary beyond this line. And
Whereas, it is not demonstrated that the boundary line fixed by the treaty and traced on the boundary map was based on this rule, and there are some details and peculiarities in the line traced which even give rise to serious doubts in this regard, and even if one admitted the existence of this rule in connection with the boundary line fixed by the treaty, it would not necessarily follow that the same rule ought to have been applied in determining the boundary in the exterior territory. And
Whereas, in this connection,
The boundary treaty of 1661 and the map thereto annexed make the boundary line begin between Koster and Tisler Islands; and
In determining the boundary line they went in a direction from the sea toward the coast and not from the coast toward the sea; and
It is out of the question to say that there might have been a continuation of this boundary line in a seaward direction; and
Consequently, the connecting link is lacking in order to enable us to presume, without decisive evidence, that the same rule was applied simultaneously to the territories situated this side and to those situated that side of the Koster-Tisler line. And
Whereas, moreover, neither the boundary treaty nor the map appertaining thereto mentioned any islands, islets, or reefs situated beyond the Koster-Tisler line, and therefore, in order to keep within the probable intent of these documents we must disregard such islands, islets, and reefs. And
Whereas, again, the maritime territory belonging to a zone of a certain width presents numerous peculiarities which distinguish it from the land territory and from the maritime spaces more or less completely surrounded by these territories. And
Whereas, furthermore, in the same connection, the rules regarding maritime territory can not serve as a guide in determining the boundary between two contiguous countries, especially as, in the present case, we have to determine a boundary which is said to have been automatically traced in 1658, whereas the rules invoked date from subsequent centuries;
And it is the same way with the rules of Norwegian municipal law concerning the definition of boundaries between private properties or between administrative districts. And
Whereas, for all these reasons, one can not adopt the method by which Norway has proposed to define the boundary from point XX to the territorial limit. And
Whereas, the rule of drawing a median line midway between the inhabited lands does not find sufficient support in the law of nations in force in the seventeenth century. And
Whereas, it is the same way with the rule of the thalweg or the most important channel, inasmuch as the documents invoked for the purpose do not demonstrate that this rule was followed in the present case. And
Whereas, we shall be acting much more in accord with the ideas of the seventeenth century and with the notions of law prevailing at that time if we admit that the automatic division of the territory in quesion must have taken place according to the general direction of the land territory of which the maritime territory constituted an appurtenance, and if we consequently apply this same rule at the present time in order to arrive at a just and lawful determination of the boundary. And
Whereas, consequently, the automatic dividing line of 1658 should be determined (or, what is exactly the same thing expressed in other words) the delimitation should be made today by tracing a line perpendicularly to the general direction of the coast, while taking into account the necessity of indicating the boundary in a clear and unmistakable manner, thus facilitating its observation by the interested parties as far as possible. And
Whereas, in order to ascertain what is this direction we must tako equally into account the direction of the coast situated on both sides of the boundary. And