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It is argued that the State has been guilty of laches. We deem it unnecessary to consider how far such a defence would be available in a suit of this sort, since, in our opinion, due diligence has been shown. The conditions have been different until recent years. After the evil had grown greater in 1904 the State brought a bill in this court. The defendants, however, already were abandoning the old method of roasting ore in open heaps and it was hoped that the change would stop the trouble. They were ready to agree not to return to that method, and upon such an agreement being made the bill was dismissed without prejudice. But the plaintiff now finds, or thinks that it finds, that the tall chimneys in present use cause the poisonous gases to be carried to greater distances than ever before and that the evil has not been helped. If the State of Georgia adheres to its determination, there is no alternative to issuing an injunction, after allowing a reasonable time to the defendants to complete the structures that they are now building, and the efforts that they are making to stop the fumes. The plaintiff may submit a form of decree on the coming in of this court in October next.

MR. JUSTICE HARLAN, concurring.

Injunction to issue.

The State of Georgia is, in my opinion, entitled to a general relief sought by its bill, and, therefore, I concur in the result. With some things, however, contained in the opinion, or to be implied from its language, I do not concur. When the Constitution gave this court original jurisdiction in cases "in which a State shall be a party," it was not intended, I think, to authorize the court to apply in its behalf, any principle or rule of equity that would not be applied, under the same facts, in suits wholly between private parties. If this was a suit between private parties, and if under the evidence, a court of equity would not give the plaintiff an injunction, then it ought not to grant relief, under like circumstances, to the plaintiff, because it happens to be a State possessing some powers of sovereignty. Georgia is entitled to the relief sought, not because it is a State, but because it is a party which has established its right to such relief by proof. The opinion, if I do not mistake its scope, proceeds largely upon the ground that this court, sitting in this case as a court of equity, owes some special duty to Georgia as a State, although it is a party, while under the same facts, it would not owe any such duty to the plaintiff, if an individual.

DECISION OF THE PERMANENT COURT OF ARBITRATION IN THE MATTER OF THE MARITIME BOUNDARY DISPUTE BETWEEN NORWAY AND SWEDEN

Whereas, by Convention under date of March 14, 1908, Norway and Sweden agreed to submit to the final decision of a Tribunal of Arbitration, comprised of a president who shall neither be a subject of either of the contracting parties nor domiciled in either of the two countries. and of two other Members of whom one shall be a Norwegian and the other a Swede, the question of the maritime boundary between Norway and Sweden as far as this boundary has not been determined by the royal resolution of March 15, 1904; and

Whereas, in pursuance to said convention, the two Governments have appointed respectively as president and arbitrators:

Mr. J. A. Loeff, Doctor of Law and Political Sciences, former Minister of Justice, Member of the Second Chamber of the States-General of the Netherlands;

Mr. F. V. N. Beichmann, President of the Court of Appeals of Trondhjem, and

Mr. K. Hj. L. de Hammarskjöld, Doctor of Law, former Minister of Justice, former Minister of Public Worship and Public Construction, former Envoy Extraordinary and Minister Plenipotentiary to Copenhagen, former President of the Court of Appeals of Jönköping, former Professor in the Faculty of Law of Upsal, Governor of the Province of Upsal, Member of the Permanent Court of Arbitration; and

Whereas, in accordance with the provisions of the Convention, the memorials, counter memorials, and replications have been duly exchanged between the parties and communicated to the arbitrators within the periods fixed by the President of the Court; and

Whereas, the two Governments have respectively appointed as agents, to wit:

The Government of Norway, Mr. Kristen Johanssen, attorney at the Supreme Court of Norway; and the Government of Sweden, Mr. C. O. Montan, former member of the Court of Appeals of Svea, Judge in the Mixed Court of Alexandria; and

Whereas, it has been agreed by Article II of the Convention:

1. That the Court of Arbitration shall determine the boundary line in the waters from the point indicated by 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;

2. That the lines, limiting the zone which may be the subject of litigation in consequence of the conclusions of the parties and within which the boundary line shall consequently be established, must not be traced in such a way as to comprise either islands, islets, or reefs which are not constantly under water; and

Whereas, it has likewise been agreed by Article III of the said Convention:

1. That the Tribunal of Arbitration must decide whether the boundary line is to be considered, either wholly or in part, as being fixed by the boundary treaty of 1661 together with the map thereto annexed, and in what manner the line thus established should be placed.

2. That, as far as the boundary line shall not be considered as fixed by said treaty and said map, the Tribunal shall fix this boundary line, taking into account the circumstances of fact and the principles of international law; and

Whereas, the agents of the parties have presented the following conclusions to the Tribunal:

The agent of the Norwegian Government:

That the boundary between Norway and Sweden within the zone which constitutes the object of the arbitral decision, shall be determined in accordance with the line indicated on the map annexed, under No. 35, to the memorial presented in behalf of the Norwegian Government. And the agent of the Swedish Government:

I. As regards the preliminary questions:

May it please the Tribunal of Arbitration to declare that the boundary line in dispute, as regards the space between point XVIII as already fixed on the map of the Commissioners of 1897, and point A on the map of the boundary treaty of 1661, is but incompletely established by the said treaty and the map annexed thereto, for the reason that the exact situation of this point is not shown clearly therein, and, as regards the rest of the space, extending westward from the same point A to the territorial boundary, that the boundary line was not established at all by these documents.

II. As regards these main questions:

1. May it please the Tribunal to be guided by the treaty and map of 1661, to take into account the circumstances of fact and the principles of the law of nations, and to determine the maritime boundary line in dispute between Sweden and Norway from point XVIII as already fixed, in such a manner that in the first place the boundary line shall be

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 connecting 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

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