Canute confronts the tide: states versus tribunals and the evolution of the minimum standard in customary international law

reisman, w. michael;

��Fair and equitable treatment�� and ��the minimum standard of treatment��, as quintessential ��evaluation rules��, require those who apply such rules to take account of changing cultural values. These values develop in a dynamic and increasingly democratic customary international law process, which now incorporates, in addition to States, many non-State actors. Once States insert an evaluation rule in a treaty with a jurisdictional clause, they must share custody of its evolution with arbitral tribunals, whose mandate includes customary international law. State efforts to recapture control of the evolving content of ��fair and equitable treatment�� and ��the minimum standard
of treatment�� have proved ineffective and will probably continue so.