urt can make international law by itself. Whilst up to the present
time custom and convention have been the two sources of the law of
nations, the Prize Court--so it is said--is now to be added as a third,
and the law made by it is to become international law without requiring
the assent of the several states. All this argument rests on a false
assumption. The article in question endues the Prize Court in certain
points with a law-making power which is simply a _delegated_ power. The
states which are concerned with the Prize Court desire, in the interests
of legal security, that the tribunal should not declare itself
incompetent by reason of want of existing rules on any given matter.
They accordingly delegate to this tribunal the power which lies in them
collectively of making rules of international law, and they
prospectively declare themselves at one with regard to the rules which
the tribunal shall declare to be binding in the name of justice and
equity. Now the Prize Court is not hereby made a special and independent
source of international law by the side of convention, but the law which
it declares is law resting on an agreement between states. Even in the
inner life of states we meet with delegation of legislative power to a
limited degree, and yet this does not mean that the authorities in
question are raised into special and independent sources of law side by
side with the government of the state. And just as in the inner life of
a state a delegation of legislative power does not involve an
infringement of sovereignty, so also the delegation of legislative power
to the Prize Court involves no infringement of the sovereignty of the
members of the international community of states.

[Sidenote: Difference between international courts of arbitration and
real international courts of justice.]

57. The step from the International Court of Arbitration to the erection
of a real international court is, on two grounds, a decided step onward.
In the first place, an arbitral tribunal is not a court in the real
sense of the word, for its decisions are not necessarily based on rules
of law, and it does not necessarily deal with legal matters. An arbiter,
unless the terms of the reference otherwise provide, decides _ex aequo
et bono_, whilst a judge founds his decision on rules of law and is only
applied to on legal issues. Valuable as it may be in many cases to
withdraw a matter from the courts and remit it to arbitration