This chapter examines the transformation of the concept of the ‘Minimum Standard of Treatment’ (MST) throughout the 20th century: its emergence, its subsequent decline and finally its recent ‘resurrection’. States now perceive the MST as ineffective in providing basic legal protection to foreign investors doing business abroad. It is in this historical context that these States began frenetically signing bilateral treaties for the promotion and protection of investments (‘BITs’) that provided clearer rules on investment protection. The vast majority of these BITs do not contain any reference to the MST. Instead, they include ‘Fair and Equitable Treatment’ (‘FET’) standard clauses. This chapter examines why States began using this expression instead of the MST. Many tribunals (notably in the context of NAFTA) interpreted FET clauses as providing investors with more extensive rights than the MST. This chapter examines States’ reaction to these awards and how the MST has been used by them to limit investors’ rights under FET clauses. In this respect, the most interesting and innovative FET clause is certainly Article 8.10 of the CETA which contains a closed list of elements which are considered by the Parties to embody the standard.

The first situation to be examined is when an insurrectional movement (or any other rebel group) does succeed in creating a new State. In such a case, a question arises as to whether or not the new State should be held responsible for obligations arising from internationally wrongful acts committed by the insurrectional movement against third States or other actors during the armed struggle for independence (Section 4.2). Another question is whether the new State should be held responsible for obligations arising from internationally wrongful acts committed by the predecessor State while fighting the rebels (which succeeded in creating that new State) (Section 4.3).

In the previous section, I have examined the situation where an insurrectional movement is successful in creating a new State. I will now analyse the opposite case where an insurrectional movement is unsuccessful in its struggle for power. Two principles will be examined in the next sections.

This Chapter focuses on the situation where acts by the rebels or the government are committed in the context of the insurgent’s struggle for the establishment of a new government. When the rebels are successful, the new government remains responsible for the acts committed by the previous government while fighting the rebels. Also, the acts committed by the rebels during the insurgency are attributable to the State after their victory. When the rebels are not successful, the acts committed by them are not attributable to the State once the insurgency has failed. There are two ‘exceptions’ to this principle involving lawful ‘routine activities’ performed by the rebels and expropriation act committed by them which results in some benefits for the State. The rebels are always responsible for their own wrongful acts. A State is always responsible for its own failure to exercise its due diligence obligation to protect third States and foreigners during the insurgency. Responsibility arises as a result of a State’s failure to discharge its due diligence obligation of vigilance, prevention and punishment in relation to the conduct of rebels.

Summary of findings regarding the 10 rules identified.

This Chapter examines the scope of this book and a number of essential definitions: rebellions and civil wars, ‘insurrectional movements’ and rebels, conduct (including wrongful acts) of rebels and governments, whether the outcome is the establishment of a new government or the creation of a new State, and the important distinction between Matters of ‘Attribution’ and ‘Responsibility’. This Chapter examines the structure of this book.

This Chapter focuses on the situation where acts by the rebels or the government are committed in the context of the insurgent’s struggle for the creation of a new State. When the rebels are successful, the new State is not responsible for the acts committed by the predecessor State while fighting the rebels. The rule is problematic is however when the predecessor State ceases to exist. Also, the acts committed by the rebels during the insurgency are attributable to the new State after their victory. The rule applies in situations of secession, dissolution and Newly independent States, but it is controversial regarding transfer of territories. When the rebels are not successful, the acts committed by them are not attributable to the State once the insurgency has failed. Responsibility arises as a result of a State’s failure to discharge its due diligence obligation of vigilance, prevention and punishment in relation to the conduct of rebels.