Negligence on the part of Neutrals.
§ 363. Apart from intentional violations of neutrality, a neutral can be made responsible only for such acts favouring or damaging a belligerent as he could by due diligence have prevented, and which by culpable negligence he failed to prevent. It is by no means obligatory for a neutral to prevent such acts under all circumstances and conditions. This is in fact impossible, and it becomes more obviously so the larger a neutral State, and the longer its boundary lines. So long as a neutral exercises due diligence for the purpose of preventing such acts, he is not responsible in case they are nevertheless performed. However, the term due diligence has become controversial through the definition proffered by the United States of America in interpreting the Three Rules of Washington, and through the Geneva Court of Arbitration adopting such interpretation.[720] According to this interpretation the due diligence of a neutral must be in proportion to the risks to which either belligerent may be exposed from failure to fulfil the obligations of neutrality on his part. Had this interpretation been generally accepted, the most oppressive obligations would have become incumbent upon neutrals. But no such general acceptance has taken place. The fact is that due diligence in International Law can have no other meaning than it has in Municipal Law. It means such diligence as can reasonably be expected when all the circumstances and conditions of the case are taken into consideration.
Be that as it may, the Second Peace Conference has taken a step which certainly excludes for the future the continuation of the controversy regarding the interpretation of due diligence, for articles 8 and 25 of Convention XIII., instead of stipulating due diligence on the part of neutrals, stipulate the employment of the means at their disposal.
Laying of Submarine Contact Mines by Neutrals.
§ 363a. In order to defend themselves against possible violations of their neutral territory, neutrals may lay automatic contact mines off their coasts. If they do this, they must, according to article 4 of Convention VIII., observe the same rules and take the same precautions as are imposed upon belligerents, and as have been expounded above, § 182a. Moreover they must, according to paragraph 2 of article 4 of Convention VIII., give notice in advance to mariners of the place where automatic contact mines have been laid, and this notice must be communicated at once to the Governments through the diplomatic channels.
Convention VIII. is quite as unsatisfactory in its rules concerning mines laid by neutrals as in its rules concerning mines laid by belligerents, and the danger to neutral shipping created by mines laid by neutrals is very great, all the more as the laying of mines by neutrals is not restricted to their maritime belt. For article 4 of Convention VIII. speaks of the laying of contact mines on the part of neutral Powers off their coasts, without limiting the laying within the three-mile wide maritime belt as was proposed at the Second Peace Conference, and as article 6[721] of the Règlementation internationale de l'Usage des Mines sous-marines et torpilles of the Institute of International Law likewise proposes.
[721] See Annuaire, XXIV. (1911), p. 302.
IX RIGHT OF ANGARY
Hall, § 278—Lawrence, § 233—Westlake, II. p. 119—Phillimore, III. § 29—Halleck, I. p. 485—Taylor, § 641—Walker, § 69—Bluntschli, § 795A—Heffter, § 150—Bulmerincq in Holtzendorff, IV. pp. 98-103—Geffcken in Holtzendorff, IV. pp. 771-773—Ullmann, § 192—Bonfils, No. 1440—Despagnet, No. 494—Rivier, II. pp. 327-329—Kleen, II. §§ 165 and 230—Perels, § 40—Hautefeuille, III. pp. 416-426—Holland, War, Nos. 139-140—Land Warfare, §§ 507-510—Albrecht, Requisitionen von neutralem Privateigenthum, insbesondere von Schiffen (1912), pp. 24-66.