190 EMPLOYMENT OF THE PLEBISCITE ^488 



When uncivilized peoples are by our international jurists 

 and by the statesmen of colonizing powers considered as 

 deserving of humane and con?iderate treatment, when it is 

 held proper to make treaties with the chiefs and leaders of 

 uncivilized races, when an understanding completed with 

 them seems a better basis for mutual relations than sheer 

 force, when all this is conceded, then the question seems to 

 be pertinent why civilized peoples, whose territories are to 

 be transferred from one state to another, should be shown 

 less consideration than that accorded to the Bushmen or 

 Kaffirs ? Considered from a purely humane and moral point 

 of view the logic of the question seems to be unassailable. 

 However, international law was not originally humane or 

 moral. Humanitarian and moral principles were first intro- 

 duced into the rules of making and conducting war and 

 concluding peace under the influence of the mediaeval 

 Christian writers and in a systematic attempt by Hugo 

 Grotius to mitigate the prevailing cruelty and selfishness in 

 both war and peace." But until now there has come into 

 existence no international agreement on the nature and ex- 

 tent of the basic laws of humanity and ethics to apply in the 

 relations of states. 



By universal or general international agreement existing 

 rules for the conduct of nations may be altered to suit new 

 situations. However, where the required minimum of gen- 

 eral consent is not ascertainable and the opposition of the 

 dissenting states is not overcome by force of arms, a pend- 

 ing case must be and is decided on the basis of past practice. 

 Under these conditions international jurists and statesmen 

 can be of real and effective service to humanity and morals 

 only where and when international law supplies no rule or 

 precedent for a concrete case, and where, by deciding a new 

 issue in accordance with recognized principles of right and 

 wrong, they introduce into international practice a prece- 

 dent established not on an unmoral, but on a moral basis. 



»5 Dunning, A History of Political Theories, From Luther to 

 Montesquieu, p. 132 ff. 



