The Protection of General Interests in Contemporary International Law: A Theoretical and Empirical Inquiry Isn:9780192846501 Massimo Iovane (Editor)

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Contemporary International Law: A

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E U ROPEAN S O C IET Y OF INTE RNATIONAL
L AW SERIE S
The Protection of General Interests

in Contemporary International Law
E U ROPEAN S O C IET Y OF INTE RNATIONAL
L AW SERIE S
The ESIL Book Series publishes high-quality volumes on the themes of ESIL
Annual Conferences and ESIL joint events primarily. This volume includes
chapters that are based on selected papers presented at ESIL events, revised
to fit the theme and focus of the volume, and complemented by additional
chapters that address topics that were not fully explored at the events, but
that are essential for a full coverage of the theme.
The Protection
of General Interests
in Contemporary
International Law
A Theoretical and Empirical Inquiry
Edited by
M A S SI M O IOVA N E
F U LV IO M . PA L OM B I N O
DA N I E L E A M O R O S O
G IOVA N N I Z A R R A
1
3
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Table of Contents
Table o f Cases
Table o f Treaties
List o f Contributors
A. I N T R O D U C T I O N
1. The Protection of General Interests in Contemporary International

Law: Some Introductory Remarks
Massimo Iovane, Fulvio M. Palombino, D aniele Amoroso,
an d Giovanni Zarra
B. G E N E R A L N O T I O N S
2. The Global Commons and Common Interests: Is there

Common Ground?
Nilufer Oral
3. International Fundamental Values and Obligations Erga Omnes

Massimo Iovane and Pierfrancesco Rossi
4. Commons, Global (Economic) Governance, and Democracy:

Which Way Forward for International Law?
Samuel Cogolati and fan Wouters
C. GLOBAL P UBLIC G O OD S
5. A Global Public Good? An Empirical Perspective on International

Investment Law and Arbitration
Daniel Behn, Ole Kristian Fauchald, an d M alcolm Langford
6. Can Multilevel Trade Governance Protect Global Public Goods

without Constitutional Restraints?
Ernst-Ulrich Petersmann
7. Water as an Impure Global Public Good and the Impact

of Procedural Rights on its Protection
Fulvia Staiano
vi T A B L E OF C O N T E N T S
D. GLOBAL COMMONS
8. Protecting the Atmosphere as a ‘Global Common Good’: Challenges

and Constraints in Contemporary International Law 163
Christine B akker
9. The Cyberspace and the Common Heritage of Mankind 191

Antonio Segura Serrano
10. The International Criminal Law Aspects of the Protection

of Global Commons: The Case of Cultural Heritage 211
Francesca Capone
E. F U N D A M E N T A L V A L U E S
11. Enhancing ICJ Procedures in Order to Promote Fundamental

Values: Overcoming the Prevailing Tension between Bilateralism
and Community Interests 241
Paula W ojcikiewicz Alm eida
12. Community Interests in World Trade Law 264

Christian Tietje and Andrej Lang
13. Cultural Heritage and Common Heritage, The Changing Role of

States and International Organizations 293
Ana Filipa Vrdoljak
F. G L O B A L G O V E R N A N C E
14. A ‘New’ Law of Cooperation: Collective Action across Regimes for

the Promotion of Public Goods and Values versus Fragmentation 321
Peter-Tobias Stoll
15. The UN Sustainable Development Goals and the Governance of

Global Public Goods: The Quest for Legitimacy 344
W infried Huck
16. Fences, Fiction, and the Magic Mountain: Responsibility-sharing

for Refugees in Europe 363
D ana Schmalz
17. Disasters: An Additional (Legal) Dimension for the International

Protection of Cultural Heritage 385
Giulio Bartolini
Index 413
Table of Cases
For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear
on only one of those pages.
DOMESTIC AWARDS AND DECISIONS
Argentina
Camara de Apelaciones en lo Civil y Comercial (Corrientes) A I c/Aguas de
Corrientes SAS/medida autosatisfactiva (conocimiento), 13 August 2014,�� 156
Camara de Apelaciones en lo Civil y Comercial (Corrientes) Formichelli Maria
Alejandra c/Aguas de Corrientes SA s/sumarísimo, 8 May 2013,�� 156
Camara de Apelaciones en lo Civil y Comercial (Corrientes) Gallo Nelson Carlos c/
Aguas de Corrientes SA s/amparo, 19 June 2013,�� 156
Corte Suprema de Justicia de la Nación La Pampa, Provincia de c/Mendoza, Provincia
de s/uso de aguas, 1 December 2017,��157–58
Corte Suprema de Justicia de la Nación, Kersich, Juan Gabriel y otros c/Aguas
Bonaerenses S.A. y otros s/amparo, 2 December 2014, ��156–57
INTERNATIONAL
European Court of Human Rights

Al-Dulimi and Montana Management Inc. v Switzerland [GC], Application
No 5809/08, European Court of Human Rights, Judgment, 21 June 2016,�� 334n.66
Bosphorus Hava Yolları Turi̇zm ve Ti̇caret Anoni̇m Şirketi̇ v Ireland [GC],
Application No 45036/98, European Court of Human Rights, Judgment,
30 June 2005,�� 335n.69, 373
Demir and Baykara v Turkey [GC], Application No 34503/97, European Court
of Human Rights, Judgment, 12 November 2008,��333–34
Hirsi Jamaa et al v Italy [GC], Application No 27765/09, European Court of Human
Rights, Judgment, 23 February 2012),�� 368
K.R.S. v United Kingdom, Application No 32733/08, European Court of Human
Rights, Decision on Admissibility, 2 December 2008,�� 372–73, 374
M.S.S. et al v Belgium and Greece [GC], Application No 30696/09, European Court of
Human Rights, Judgment, 21 January 2011),�� 363–64, 367, 368,
373–75, 376–77, 379–80, 381
Matthews v UK, Application No 24833/94, European Court of Human Rights,
Judgment, 18 February 1999, �� 335n.69
Otgon v the Republic of Moldova, Application No 22743/07, European Court of
Human Rights, Judgment, 5 October 2016, ��143–44
Soering v United Kingdom, Application No 14038/88, European Court of Human
Rights, Judgment, 7 July 1989, �� 368
T.I. v United Kingdom, Application No 43844/98, European Court of Human Rights,
Decision as to Admissibility, 7 March 2000,�� 368
Tarakhel v Switzerland [GC], Application No 29217/12, European Court of Human
Rights, Judgment, 4 November 2014,��367, 375
viii Table of Cases
Waite and Kennedy v Germany, Application No 26083/94, European Court

of Human Rights, Judgment, 18 February 1999,�� 335n.69
Inter-American Court of Human Rights

Kawas-Fernández v Honduras [Judgment, Inter-American Court of Human Rights
Series C No 196 (3 April 2009)],�� 158
Sawhoyamaxa Indigenous Community v Paraguay [Judgment, Inter-American
Court of Human Rights Series C No 146 (29 March 2006)],��143–44
Yakye Axa Indigenous Community v Paraguay [Judgment, Inter-American
Court of Human Rights Series C No 125 (17 June 2005)],�� 143–44, 158
Court of Justice of the European Union

Case C-104/16, Front Polisario v Council [2016] ECLI:EU:T:2016:973,�� 140n.42
Case C-115/09, Bund für Umwelt und Naturschutz Deutschland,
Landesverband Nordrhein‑Westfalen eV v Bezirksregierung Arnsberg
[2011] ECR I-03673, ��153–54
Case C-155/15, George Karim v Migrationsverket [2016] ECLI:EU:C:2016:410,��380–81
Case C-263/08, Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms
kommun genom dess marknämnd [2009] ECR I-09967,��153–54
Case C-263/14, Parliament v Council [2016] ECLI:EU:C:2016,�� 128n.21
Case C-284/16, Slovak Republic v Achmea BV [2018] ECLI:EU:C:2018:158,��133, 138
Case C-394/12, Shamso Abdullahi v Bundesasylamt [2013]
ECLI:EU:C:2013:813,�� 367, 380–81
Case C-399/11, Stefano Melloni v Ministerio Fiscal [2013]
ECLI:EU:C:2013:107,�� 371n.38,
Case C-4/11, Bundesrepublik Deutschland v. Kaveh Puid [2013]
ECLI:EU:C:2013:740,��380–81
Case C-63/15, Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie
[2016] ECLI:EU:C:2016:409, ��380–81,
Case C-646/16, Khadija and Zainab Jafari v Bundesamt für Fremdenwesen
und Asyl [2017] ECLI:EU:C:2017:586,�� 379n.83
Case C‑670/16, Tsegezab Mengesteab v Bundesrepublik Deutschland [2017]
ECLI:EU:C:2017:587,��378–79, 380–81
Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al
Barakaat International Foundation v Council and Commission [2008]
ECR I-06351,��128n.20, 130, 334n.66
Joined Cases C-411/10 and C-493/10, N.S. v SSHD [2011]
ECLI:EU:C:2011:865,�� 367, 374–77, 380, 381
Joined Cases C-643/15 and C-647/15, Slovak Republic and Hungary v Council of the
European Union [2017] ECLI:EU:C:2017:631, �� 377
Opinion 1/2017, Opinion pursuant to Article 218(11) TFEU [2019]
ECLI:EU:C:2019:341,��129, 132, 134
Opinion 2/94, Opinion pursuant to Article 228(6) of the EC Treaty [1996]
ECLI:EU:C:1759,�� 128
International Court of Justice

Accordance with International Law of the Unilateral Declaration of Independence
by the Provisional Institutions of Self-Government of Kosovo (Order)
[2008] ICJ Rep 409, ��258–59
Table of Cases ix
Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Croatia v Serbia) (Merits) [2015] ICJ Rep 3, ��227–28, 243n.16, 259
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) [1996]
(Preliminary Objections: Judgment) ICJ Rep 595,�� 54, 243n.16, 259
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro)
(Merits)[2007] ICJ Rep 43,��227–28, 243n.16, 259
Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda) (Jurisdiction and
Admissibility) [2006] ICJ Rep 6,��54n.46
Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) (Judgment)
[1970] ICJ Rep 3,�� 38–39, 46–47, 54, 170, 241n.1, 265
Continental Shelf (Libyan Arab Jamahiriya v Malta) (Application to Intervene:
Judgment) [1984] ICJ Rep 3,��245–46
Continental Shelf (Tunisia v Libyan Jamahiriya) (Application to Intervene: Judgment)
[1981] ICJ Rep 3,��245–46, 247n.39, 257, 260n.135
Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4,��170–71
East Timor (Portugal v Australia) (Merits) [1995] ICJ Rep 90,��39n.165, 54, 242n.15
Fisheries Jurisdiction cases (United Kingdom v Iceland/Federal Republic
of Germany v Iceland) (Merits) [1974] ICJ Rep 3,��75–76
Gabcikovo-Nagymaros Project (Hungary v Slovakia) (Merits) [1997]
ICJ Rep 7,�� 257, 259, 261, 347–48
Haya de La Torre (Colombia v Peru) (Application to Intervene: Judgment)
[1951] ICJ Rep 71, �� 247, 248, 251n.68, 252n.78
International status of South West Africa (Advisory Opinion) [1950]
ICJ Rep 128,��258–59
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt
(Advisory Opinion) [1980] ICJ Rep 73:�� 334n.65
Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening)
(Merits) [2012] ICJ Rep 99,��51, 54, 242n.15, 245–46, 263n.159
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria)
(Application to Intervene: Order) [1999] ICJ Rep 1029,��245–46n.33
Land, Island and Maritime Frontier Dispute (El Salvador v Honduras)
(Application to Intervene: Judgment) [1990] ICJ Rep 92,��245–46n.33
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council resolution 276 1970
(Advisory Opinion) [1971] ICJ Rep 16,�� 259n.123, 263
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Order) [2003] ICJ Rep 428,�� 259n.122
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Advisory Opinion) [2004] ICJ Rep 136, ��39n.165, 54, 60–61
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in
1965 (Advisory Opinion) General List No 169 [2019] ICJ,��54, 60–61
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996]
ICJ Rep 226,�� 39–40, 170–71,
256n.101, 259n.122
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America) (Declaration of Intervention: Order) [1984]
ICJ Rep 215,��247, 248, 251
x Table of Cases
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United

States of America) (Jurisdiction and Admissibility: Judgment) [1984] ICJ Rep
392 [6],�� 251
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) (Merits) [1986] ICJ Rep 14,��63n.98
Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of
Great Britain and Northern Ireland and United States of America) (Preliminary
Question: Judgment) [1954] ICJ Rep 19,�� 242n.15
Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgment) [2010]
ICJ Rep 14,�� 170–71, 348
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal)
(Merits) [2012] ICJ Rep 422,�� 39n.165
Request for an Examination of the Situation in Accordance with Paragraph 63 of the
Court’s Judgment of 20 December 1974 in the Nuclear Tests (New
Zealand/France) Case (Declarations for Intervention by the Governments
of the Solomon Islands, the Federated States of Micronesia, Marshall
Islands, Samoa Islands and Australia: Order) [1995] ICJ Rep 288, ��245–46, 248–49
South West Africa (Ethiopia v South Africa; Liberia v South Africa) (Judgment)
[1966] ICJ Rep 6,�� 242n.13
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia)
(Application for Permission to Intervene by the Government of the Philippines)
General List No 102 [2001] ICJ,��245–46n.33
Territorial and Maritime Dispute (Nicaragua v Colombia) (Applications to Intervene:
Judgments) [2011] ICJ Rep 348 and 420,�� 245–46n.33, 247, 247n.39
Whaling in the Antarctic (Australia v Japan) (Declaration of Intervention:
Order) [2013] ICJ Rep 3,�� 244–45, 246n.34, 247, 248–50
Permanent Court of International Justice

Consistency of Certain Danzig Legislative Decrees with the Constitution
of the Free City [1935] PCIJ (ser. A/B) No. 65,�� 260n.130
SS ‘Wimbledon’ (United Kingdom and others v Germany, Poland intervening)
(Declaration for Intervention: Judgment) [1923] PCIJ Series A No. 1,�� 247n.39,
248, 252n.79
World Trade Organization –Dispute Settlement Body

Argentina –Financial Services, Panel Report, WT/DS453/R
(30 September 2015),��282–83
Brazil –Aircraft –Recourse to Art. 22(6), Panel Report, WT/DS46/R
(28 August 2000),�� 286n.152
Brazil –Measures Affecting Imports of Retreated Tyres, Report of the Appellate Body,
WT/DS332/AB/R (17 December 2007),��271–72
Canada – Autos, Appellate Body Report, WT/DS139/AB/R, WT/DS142/AB/R
(31 May 2000), ��275n.89, 277–78
Canada − Periodicals, Appellate Body Report WT/DS31/AB/R
(30 June 1997), �� 287n.160
EC –Measures Affecting Asbestos and Asbestos-Containing Products,
Report of the Appellate Body, WT/DS135/AB/R (12 March 2001),�� 272n.61
EC –Poultry, Appellate Body Report, WT/DS69/AB/R (13 July 1998), �� 277n.104
EC − Bananas III –Second Recourse to Article 21.5 of the DSU by Ecuador, Appellate
Body Report, WT/DS27/AB/RW2/ECU (11 December 2008),�� 284n.142
EC − Bananas III, Appellate Body Report, WT/DS27/AB/R (9 September 1997),�� 276
Table of Cases xi
EC − Tariff Preferences, Appellate Body Report, WT/DS246/AB/R

(20 April 2004),�� 270n.50, 274n.80, 275n.89, 278n.107
European Communities –Measures Affecting the Approval and Marketing
of Biotech Products, Report of the Panel, WT/DS292/R
(29 September 2006),��325, 333
European Communities − Customs Classification of Certain Computer Equipment,
Appellate Body Report, WT/DS62/AB/R (22 June 1998),��268–69
Japan − Taxes on Alcoholic Beverages II, Appellate Body Report, WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R (4 October 1996), �� 274n.83
Korea − Alcoholic Beverages, Appellate Body Report, WT/DS75/AB R, WT/DS84/
AB/R (18 January 1999),�� 277n.100, 287n.158
Korea − Alcoholic Beverages, Panel Report, WT/DS75/R, WT/DS84/R
(17 September 1998),�� 287
Korea − Beef, Appellate Body Report, WT/DS161/AB/R, WT/DS169/AB/R
(11 December 2000),�� 272n.62
Korea − Dairy, Appellate Body Report, WT/DS98/AB/R (12 January 2000),�� 270n.51
Peru − Agricultural Products, Appellate Body Report, DS/457/AB/R
(20 July 2015),�� 280
Turkey − Textiles, Panel Report, WT/DS34/R (31 May 1999),�� 284n.143
U.S. –Reformulated Gasoline, Appellate Body Report, WT/DS2/AB/R, 28
(29 April 1996),�� 277n.101
United States –Import Prohibition of Certain Shrimp and Shrimp Products,
Report of the Panel, WT/DS58/R (15 May 1998), ��271–72
United States –Import Prohibition of Certain Shrimp and Shrimp Products,
Report of the Appellate Body, WT/DS58/AB/R
(12 October 1998),�� 271–72, 332
United States − Transitional Safeguard Measure on Combed Cotton Yarn from
Pakistan, Appellate Body Report, WT/DS192/AB/R (8 October 2001),�� 274n.80
US –Sections 301–310, Panel Report, WT/DS152/R (22 December 1999),��287–88
US − FSC (Article 22.6 Arbitration, Panel Report, WT/DS108/ARB
(30 August 2002),�� 282
US − Section 211 Appropriations Act, Appellate Body Report, WT/DS176/AB/R
(2 January 2002),��275–76
US − Taxes on Petroleum and Certain Imported Substances, Report of the Panel,
L/6175 –BISD 34S/136 (17 June 1987),�� 284n.143
International Criminal Tribunals

Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence) [2016]
ICC-01/12-01/15,�� 212–38, 314
Prosecutor v Ahmad Al Faqi Al Mahdi (Reparations Order) [2017]
ICC-01/12-01/15,�� 213–14, 215, 234–36, 315–16
Prosecutor v Al Mahdi (Decision on the confirmation of charges against Ahmad
Al Faqi Al Mahdi) ICC-01/12-01/15 [2015]: ��233–34
Prosecutor v Blaškić (Judgment) IT-95-14-T (3 March 2000),�� 225n.90, 227
Prosecutor v Bosco Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda)
ICC-01/04-02/06 [2014],�� 230n.127
Prosecutor v Dario Kordić and Mario Cerdez (Appeal Judgment) IT-95-14/2-A
(17 December 2004),�� 224, 313n.127
Prosecutor v Dario Kordić and Mario Čerdez (Trial Judgment) IT-95-14/2-T
(26 February 2001),�� 313n.127
xii Table of Cases
Prosecutor v Furundžija (Judgment) ICTY-95-17/1

(10 December 1998),��39n.165, 54, 313n.126
Prosecutor v Furundžija (Judgment) IT-95-17/1-A (21 July 2000),�� 226n.97
Prosecutor v Hadžihasanović and Kubura (Judgment) IT-01-47-T
(15 March 2006), �� 225n.89, 226, 232
Prosecutor v Jokić (Sentencing Trial Judgment) IT-01-42/1-S
(18 March 2004), �� 224n.85, 225–26, 228, 231–32,
238n.183, 313n.127, 313–14
Prosecutor v Karadžić (Judgment) IT-95-5/18-T (24 March 2016), ��227–28
Prosecutor v Katanga (Order for Reparations pursuant to Article 75 of the
Statute) ICC-01/04-01/07 [2017], �� 234–35, 236
Prosecutor v Kordić and Čerkez (Judgment) IT-95-14/2-T,
(26 February 2001),��223–24
Prosecutor v Krajišnik (Judgment) IT-00-39-T (27 September 2006), �� 228n.117
Prosecutor v Krstić (Judgment) IT-98-33-T (2 August 2001), ��227–28
Prosecutor v Kupreškić et al (Judgment) IT-95-16-T (14 January 2000), �� 227
Prosecutor v Lubanga (Judgment on the Appeals Against the ‘Decision Establishing
the Principles and Procedures to Be Applied to Reparations of 7 August 2012)
ICC-01/04-01/06 A A 2 A 3 [2015],��234–35
Prosecutor v Milošević (Appeal Judgment) IT-98-29/1-A (12 November 2009), �� 225
Prosecutor v Pavle Strugar (Rule 98bis Motion) IT-01-42-T (21 June 2004),��231–32,
313n.127
Prosecutor v Strugar (Judgment) IT-01-42-T (31 January 2005),�� 224n.85, 225,
228n.117, 231–32, 313–14
Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction) IT-94-1-AR72 (2 October 1995),�� 225n.93
ITLOS
Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission
(Advisory Opinion, 2 April 2015), ITLOS Reports 2015,��16n.20
Responsibilities and Obligations of States Sponsoring Persons and Entities with
Respect to Activities in the Area (Advisory Opinion, 1 February 2011),
ITLOS Reports 2011,��40, 394–95
International Arbitral Awards and Decisions

Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and
Vivendi Universal, S.A. v The Argentine Republic (Order of 19 May 2005 in
Response of a Petition for Transparency and Participation as Amicus Curiae)
ICSID Case No ARB/03/19, ��150–52
Aguas Provinciales de Santa Fe S.A., Suez, Sociedad General de Aguas de Barcelona
S.A. and InterAguas Servicios Integrales del Agua S.A. v. the Argentine Republic
(Order of 17 March 2006 in Response to a Petition for Participation as Amicus
Curiae) ICSID Case No ARB/03/17, �� 151
Crystallex v Venezuela, ICSID Case No. ARB(AF)/11/2, Award, 4 April 2016,�� 110n.59
Hulley Enterprises v Russia, PCA, UNCITRAL, Award, 18 July 2014, �� 110n.59
Occidental II v Ecuador, ICSID Case No. ARB/06/11, Award, 5 October 2012,�� 110n.59
Salini Costruttori SpA and Italstrade SpA v Hashemite Kingdom of Jordan (Decision
of the Tribunal on Jurisdiction of 29 November 2004) ICSID Case No ARB/02/
13, (2005) 20 ICSID Rev/FILJ 148,��108–9
Southern Bluefin Tuna case (Australia and New Zealand v Japan) (Jurisdiction and
Admissibility), 23 RIAA 1-57 (4 August 2000), ��324–25
Table of Cases xiii
Suez, Sociedad General de Aguas de Barcelona, S.A., and Vivendi Universal S.A. v.
The Argentine Republic (Order of 12 February 2017 in Response to a Petition
by Five Non-Governmental Organizations for Permission to Make an Amicus
Curiae Submission) ICSID Case No ARB/03/19,�� 151
The South China Sea Arbitration (The Republic of Philippines v The People’s Republic
of China), Award (12 July 2016), PCA 2013-19 (Final Award), �� 16–17n.21
Venezuela Holdings v Venezuela, ICSID Case No. ARB/07/27) Award,
9 October 2014,�� 110n.59
Veteran Petroleum v Russia, PCA, UNCITRAL, Award, 18 July 2014, �� 110n.59
Yukos Universal v Russia, PCA, UNCITRAL, Award, 18 July 2014, �� 110n.59
Table of Treaties
For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on
occasion, appear on only one of those pages.
Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating

to the Protection of Victims of International Armed Conflicts (Additional
Protocol I) (1977), ��217–22, 224–25
Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts (Additional
Protocol II) (1977),��217, 218–22, 224–25
African Court on Human and Peoples’ Rights Rules of Court (2010),�� 149n.29
Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964),��22n.56
Agreement between Canada and the United States of America on Air
Quality (1991),�� 173n.42
Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Sea of 10 December 1982 relating to the
Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks (1995),��16n.19
Agreement for the Regulation of Whaling (1937),�� 15
Agreement Governing the Activities of States on the Moon and other Celestial Bodies
(1984) 1363 UNTS 3,�� 20–22, 23, 24, 25, 44, 167, 168,
Agreement on Agriculture (1995),�� 286n.154
Agreement on Technical Barriers to Trade (1994),�� 279n.117
Agreement on Trade in Civil Aircraft (1980),�� 286n.154
Agreement on Trade-Related Aspects of Intellectual Property
Rights (1995),�� 275n.88, 279n.117, 327, 337
Agreement relating to the Implementation of Part XI of the United Nations
Convention on the Law of the Sea of 10 December 1982 (1994),�� 19
Antarctic Treaty (1959),�� 22–23, 24–25, 40, 73n.17, 168–69, 201–2
ASEAN Agreement on Disaster Management and Emergency
Response (2005), �� 405n.99
ASEAN Comprehensive Investment Agreement (2009), ��99–100n.32
Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal (1989), �� 41
Bern Convention on the Conservation of European Wildlife and Natural
Habitats (1979), ��28–29n.103
Bonn Convention on the Conservation of Migratory Species of Wild
Animals (1979), ��28–29n.103
Cartagena Protocol on Biosafety to the Convention on Biological
Diversity (2000),�� 325, 326–27, 330, 333
Charter of the International Military Tribunal, Nuremberg (1945), �� 222n.71
Constitution of the International Labour Organisation (1919),�� 337n.76
Constitution of United Nations Educational, Scientific and Cultural Organisation
(1945),�� 305n.72
xvi Table of Treaties
Convention Concerning the Protection of the World Cultural and Natural

Heritage (1972),��29–30, 167, 171, 225–26, 310,
312, 385–87, 388–89, 390–98,
399, 403–4, 406–7, 411
Convention for Regulation of Whaling (1931), �� 15
Convention for the Conservation of Antarctic Seals (1972),��22n.56
Convention for the Protection of Cultural Property in the Event of Armed
Conflict (1954),�� 29n.106
Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR) (1950), ��123–24, 149, 255–56n.100, 363–64, 367–69,
372, 373–74, 375, 376–77, 379–80
Convention for the Protection of the Architectural Heritage of Europe (1985),��403–4
Convention for the Safeguarding of the Intangible Cultural Heritage (2003),�� 30–31, 400
Convention implementing the Schengen Agreement of 14 June 1985 (1990),�� 370n.27
Convention of International Trade in Endangered Species of Wild Fauna and
Flora (1973),�� 347
Convention on Access to Information, Public Participation in Decision-Making
and Access to Justice in Environmental Matters (1998),�� 152–53, 154
Convention on Biological Diversity (1992), ��14n.7, 26–27, 28–29,
33n.135, 36, 41, 43, 73n.21, 146–47,
169, 181–82, 326–27, 336–37
Convention on Fishing and Conservation of the Living Resources of the High
Seas (1958),�� 16
Convention on Long-Range Transboundary Air Pollution (1979),�� 31–32n.123, 173–74
Convention on Nuclear Safety (1994),�� 175
Convention on the Conservation of Antarctic Marine Living Resources (1980), ��22n.56
Convention on the High Seas (1958),�� 16
Convention on the Prevention and Punishment of the Crime of
Genocide (1948), �� 227, 306, 307–8
Convention on the Settlement of Investment Disputes between States and Nationals
of Other States (ICSID Convention) (1965),�� 94, 98–99, 150–51
Convention on Transparency in Treaty-based Investor-State
Arbitration (2014),��94, 98–99
Convention to Combat Desertification in Those Countries Experiencing Serious
Drought and/or Desertification, particularly in Africa (1994), ��28–29n.103
Dominican Republic–Central America Free Trade Agreement
(DR-CAFTA) (2004),�� 99–100n.32, 101n.35
Energy Charter Treaty (1994), �� 99–100n.32, 136–37
EU-Vietnam Free Trade Agreement (2016),�� 131n.30
First Protocol to the Convention for the Protection of Cultural Property
in the Event of Armed Conflict (1954),��306–7, 308
General Agreement on Tariffs and Trade (1948),��127, 132, 134–35, 136–37,
140–41, 271–72, 275n.88, 276–78, 279–80,
281–82, 283–84, 287–88, 290–92, 333–34
General Agreement on Trade in Services (1995),�� 275n.88, 279–80, 282–84, 290
Geneva Convention relating to the Status of Refugees (1951),��364n.3
Hague Convention for the Peaceful Settlement of International Disputes (1899),��252–53
Hague Convention for the Peaceful Settlement of International Dispute (1907), ��252–53
Hague II Convention with respect to the Laws and Customs of War on
Land (1899),��294n.4
Hague IV Convention respecting the Laws and Customs of War on
Land (1907),��224–25
Table of Treaties xvii
IBRD Articles of Agreement (1945), �� 337n.76

ICC Rules of Procedure and Evidence (2002), ��255–56n.100
ICSID Administrative and Financial Regulation,��98n.25
ICSID Rules of Procedure for Arbitration Proceedings (Arbitration
Rules) (1984),��98n.25, 150–51, 255–56n.100
ICTR Rules of Procedure and Evidence (1995),��255–56n.100
ICTY Rules of Procedure and Evidence (2015),��255–56n.100
ILC Draft Articles on Prevention of Transboundary Harm from Hazardous
Activities (2001), ��170–71
ILC Draft Articles on Responsibility of States for Internationally Wrongful
Acts (2001),�� 38–39, 170, 241n.5, 281n.129
International Convention for the Prevention of Pollution from Ships (1973),��176–77
International Convention for the Regulation of Whaling (1946), �� 15, 28, 249, 250n.59
International Treaty on Plant Genetic Resources for Food and
Agriculture (2001),��30–31, 35
Kyoto Protocol to UNFCCC (1997), �� 178
London Convention on the Regulation of Ocean Fertilization (2008),�� 181
Marrakesh Agreement establishing the World Trade Organization (1994),�� 271n.56
Minamata Convention on Mercury (2013), �� 174
Montreal Protocol on Substances that Deplete the Ozone Layer (1987),�� 31n.122, 38,
73–74, 177–78, 189
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable
Sharing of Benefits Arising from their Utilization to the Convention on
Biological Diversity (2010),��41–42
New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (1958),�� 94
North American Free Trade Agreement (1994),�� 99–100n.32, 101n.35
Paris Agreement (2015), ��28–29, 38, 43, 74n.22, 140, 163–64, 168, 169,
175–77, 178n.76, 179–80, 181–82, 189
Paris Convention for the Protection of the Marine Environment of the
North-East Atlantic (1992),��28–29n.103
Preliminary Draft International Convention for the Protection of Historic Buildings
and Works of Art in Time of War (OIM Draft) (1938),��300–1
Protocol on Environmental Protection to the Antarctic Treaty (1991),��22n.56
Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on the
Reduction of Sulphur Emissions or their Transboundary Fluxes by at Least 30
per Cent (1985),��31–32n.123
Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution
concerning the Control of Emissions of Nitrogen Oxides or their
Transboundary Fluxes (1988),��31–32n.123
Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution
concerning the Control of Emissions of Volatile Organic Compounds or their
Transboundary Fluxes (1991),��31–32n.123
Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on
Further Reduction of Sulphur Emissions (1994),��31–32n.123
Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on
Persistent Organic Pollutants (1998),��31–32n.123
Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution to
Abate Acidification, Eutrophication and Ground-level Ozone (1999),��31–32n.123
Protocol to the African Charter on Human and Peoples’ Rights on the Establishment
of the African Court on Human and Peoples’ Rights (1998),�� 149
Protocol to the Geneva Convention relating to the Status of Refugees (1967),��364n.3,
xviii Table of Treaties
Rome Statute of the International Criminal Court (ICC Statute) (1998),��212–13,

230, 312–13
Rotterdam Convention on the Prior Informed Consent Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade (1998), �� 330
Rules of Procedure of the Inter-American Court of Human Rights,�� 149n.29
Second Protocol to The Hague Convention of 1954 for the Protection of Cultural
Property in the Event of Armed Conflict (2003),��306–7, 308–10, 311
South Asian Association for Regional Cooperation Agreement on Rapid Response to
Natural Disasters (2011),�� 405n.99
Statute of the International Court of Justice Statute (1945), �� 243
Statute of the International Criminal Tribunal for the Former
Yugoslavia (1993), �� 223, 312–13
Statute of the International Tribunal for the Law of the Sea (1982),��255–56
Stockholm Convention on Persistent Organic Pollutants (2001), �� 330
Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and
under Water (1963),�� 175
Treaty on Principles governing the Activities of States in the Exploration and Use
of Outer Space, Including the Moon and other Celestial Bodies (1967),�� 20,
75n.32, 201–2
Treaty on the Functioning of the European Union,�� 128, 129, 133–34,
138, 140, 154, 337n.76
Treaty on the Protection of Artistic and Scientific Institutions and Historic
Monuments (1935),�� 299
United Nations Convention on the Law of the Sea (UNCLOS) (1982),�� 16, 17,
18–19, 20–22, 23–24, 25, 75n.31, 76n.35,
131–32, 136–37, 138–39, 167, 171,
181, 200–1, 202–4, 255–56n.100
United Nations Framework Convention on Climate Change (1992),�� 14n.6, 28–29,
33n.135, 36, 38, 41, 43, 74n.22, 163–64,
169, 178, 179, 181–82, 326–27, 338
US-Argentina BIT (1991),��101n.35, 108n.44
Vienna Convention for the Protection of the Ozone Layer (1982),�� 31n.122, 177–78, 189,
Vienna Convention on the Law of Treaties (1969), �� 46–47, 126–27, 131n.31,
252–53, 268–69, 279, 280,
323–24, 325, 333–34
Washington Convention on the International Trade of Endangered Species of Wild
Fauna and Flora (1973),��26n.82
Washington Convention on the Regulation of Antarctic Mineral Resource
Activities (1988), ��24n.74
WTO Agreement on the Application of Sanitary and Phytosanitary
Measures (1994), �� 338–40, 341
WTO Understanding on Rules and Procedures governing the Settlement
of Disputes (1994),��135–36, 270, 282–86, 288
List of Contributors
Paula Wojcikiewicz Almeida is a Associate Professor and Coordinator of Jean Monnet

Centre of Excellence on EU-South America Global Governance, sponsored by the European
Commission at the Getulio Vargas Foundation Law School in Rio de Janeiro.
Daniele Amoroso is a Professor of International Law at the University of Cagliari.
Christine Bakker is a Visiting Lecturer at Sant'Anna School of Advanced Studies, Pisa, Italy.
Giulio Bartolini is a Associate Professor of international law at Roma Tre University.
Daniel Behn is Senior Lecturer in International Dispute Resolution in the School of

International Arbitration at the Centre for Commercial Law Studies (CCLS), Queen Mary
University of London, School of Law.
Francesca Capone is a Associate Professor DIRPOLIS at Scuola Superiore Sant'Anna,

Pisa, Italy.
Samuel Cogolati is Member of Parliament at House of Representatives, Brussels, Belgium.
Ole Kristian Fauchald is a Professor of PluriCourts -Centre for the Study of the Legitimate
Roles of the Judiciary in the Global Order at University of Oslo.
Ana Filipa Vrdoljak is UNESCO Chair in International Law and Cultural Heritage and
Professor of Law at University of Technology Sydney.
Winfried Huck is a Professor of Brunswick European Law School at Hochschule

Braunschweig /Wolfenbuettel (Ostfalia).
Massimo Iovane is a Professor of International Law at Federico II University of Naples.
Andrej Lang is a Emile Noël Global Fellow at NYU School of Law and a senior researcher at
Professor Tietje’s Chair for Public Law, European Law and International Economic Law at
the Martin-Luther University Halle-Wittenberg.
Malcolm Langford is a Professor of PluriCourts Centre of Excellence, Department of Public

and International Law at University of Oslo.
Nilufer Oral is a Director of Centre for International Law at National University of

Singapore.
Fulvio M. Palombino is a Professor of International Law at Federico II University of Naples.
Ernst-Ulrich Petersmann is a emeritus professor of Law Department at European University

Institute Florence.
xx List of Contributors
Pierfrancesco Rossi Postdoctoral Fellow in International Law at Luiss University,

Rome, Italy.
Dana Schmalz Senior Research Fellow at Max Planck Institute for Comparative Public Law
and International Law Heidelberg, Berlin.
Antonio Segura Serrano is a Associate Professor Department of Public International Law

and International Relations at University of Granada.
Fulvia Staiano is a lecturer in International Law and European Union Law at the Giustino
Fortunato University.
Christian Tietje is Professor for Public Law at European Law and International Economic
Law, director of the Institute for Economic Law, and director of the Transnational Economic
Law Research Center (TELC) at the Faculty of Law, Economics and Business at the Martin
Luther University Halle-Wittenberg, Germany.
Peter-Tobias Stoll is a Director of Institute and Jean-Monnet-

Chair at Institute for
International Law and European Law University of Göttingen.
Jan Wouters is Full Professor of International Law and International Organizations, Jean
Monnet Chair ad personam European Union and Global Governance, Director of the
Institute for International Law and of the Leuven Centre for Global Governance Studies at
KU Leuven, and President of the University’s Board for International Policy.
Giovanni Zarra is a Adjunct Professor of International Law at Federico II University of

Naples.
1
The Protection of General Interests
in Contemporary International Law
Some Introductory Remarks
Massimo Iovane, Fulvio M. Palombino, Daniele Amoroso,
and Giovanni Zarra
The inquiry collectively carried out in this book moves from (and partly builds
on) the works of the Seventeenth Annual Conference of the European Society of
International Law, held in Naples in September 2017 and entitled ‘Global Public
Goods, Global Commons and Fundamental Values: The Responses of International
Law’. The Conference was a great success. In the short time span of three days, some
500 international law scholars and practitioners (including leading global experts)
gathered in six fora and 12 agorai, stirring a lively debate where the various facets of
the Conference theme were analysed in depth.
An underlying, but somehow unarticulated, assumption of the overall discus-
sion taking place in Naples was the characterization of the notions of global public
goods, global commons, and fundamental values as conceptual tools geared to-
wards the protection of the general interests of the international community. These
few introductory pages are thus intended to expand on this assumption, with a
view to providing a unifying perspective to read the (seemingly) diverging con-
tributions collected in this volume. Furthermore, an explanation will be offered as
to why we deemed it necessary to integrate the conceptual framework worked out
in 2017 by devoting a chapter to the notion of global governance –a notion that,
while not mentioned in the Conference’s title and description, was nevertheless
mirrored in many of the speeches delivered in Naples and is in fact essential for the
purposes of our inquiry.
The protection of general interests in international law has always been as much
a conceptual as a practical problem. To understand the practical relevance of the
topic, it is sufficient to reflect on the issues that the international community is
facing, as we write this introduction, in relation to the COVID-19 pandemic. The
world is facing a global crisis, threatening the right to health of the entire world
population, and the international community is still struggling to give a proper
legal and political answer.
Massimo Iovane, Fulvio M. Palombino, Daniele Amoroso, and Giovanni Zarra, The Protection of General Interests in
Contemporary International Law In: The Protection of General Interests in Contemporary International Law. Edited
by: Massimo Iovane, Fulvio M. Palombino, Daniele Amoroso, and Giovanni Zarra, Oxford University Press. © Massimo
Iovane, Fulvio M. Palombino, Daniele Amoroso, and Giovanni Zarra 2021. DOI: 10.1093/oso/9780192846501.003.0001
4 M. Iovane, F. M. Palombino, D. Amoroso, and G. Zarra
Possible reasons for the unsatisfactory development of international law in this

field (or the like) lie in the fact that traditional international regimes tend to pro-
tect the interests of individual states. Although this seems somehow belied by the
impressive growth of multilateral regimes aimed to protect interests that transcend
those of individual states (eg in the areas of human rights and environmental law)1,
one should not ignore the persistence of well-known structural problems in the
international legal order, namely the lack of a single lawmaker and of a centralized
enforcing power. A consolidated strategy to address these shortcomings, which is
pursued both in literature and international practice, is to ‘borrow’ principles and
legal categories from domestic law (erga omnes obligations, jus cogens and consti-
tutionalism), even though they are not always easily transposable onto the inter-
national legal order.
An alternative approach, which has become more and more popular in the
international legal discourse, is to look further afield, beyond the sphere of legal
disciplines, to areas such as economic theory, from which the doctrine of global
public goods has been drawn; political science, where the idea of global commons
originated; and normative ethics, to which one may trace the genesis of the concept
of fundamental values.
More specifically, the notion of global public goods (GPGs)2 is built upon that of
(national) public goods, that is, according to Samuelson’s well-known definition,3
goods whose consumption is ‘non-rivalrous’ (ie one person’s consumption of the
good does not deprive others of it) and ‘non-excludable’ (ie accessible to all). These
features make GPGs unsuitable for production and distribution according to free-
market logic (so-called ‘market failure’) and particularly prone to the ‘free-rider’
issue. The latter takes place whenever an individual takes advantage of natural re-
sources, without paying for them, laying the burden of their price on the rest of the
community.4 According to Inge Kaul, public goods are ‘global’ when their ‘benefits
affect all countries, people, and generations’.5 Unlike national public goods, in the
1 See, inter alia, Giorgio Gaja, ‘The Protection of General Interests in the International Community’
(2011) 364 Recueil des Cours de l’Académie de Droit International 19; Bruno Simma, ‘From
Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours de l’Académie
de Droit International 217, 234; Yoshifumi Tanaka, ‘Protection of Community Interests in International
Law: The Case of the Law of the Sea’ (2011) 15 Max Planck Yrbk UN L 329; Santiago Villalpando,
‘The Legal Dimension of the International Community: How Community Interests Are Protected in
International Law’ (2010) 21(2) EJIL 387.
2 Fabrizio Cafaggi, David Caron, ‘Global Public Goods amidst a Plurality of Legal Orders –
A Symposium’ (2012) 23(3) EJIL 643; Nico Krisch, ‘The Decay of Consent: International Law in an Age
of Global Public Goods’ (2014) 108(1) AJIL 1; Niels Petersen, ‘Customary International Law and Public
Goods’ in Curtis A Bradley (ed), Custom’s Future: International Law in a Changing World (CUP 2016);
William D Nordhaus, ‘Paul Samuelson and Global Public Goods’ in Michael Szenberg, Lall Ramrattan,
Aron A Gottesman (eds), Samuelsonian Economics and the Twenty-First Century (OUP 2006).
3 Paul Samuelson, ‘The Pure Theory of Public Expenditure’ (1954) 36(4) Rev of Economics and
Statistics 387.
4 Fulvio Maria Palombino, Il diritto all’acqua: una prospettiva internazionalistica (Le Monnier 2017).
5 Inge Kaul (ed), Global Public Goods (Elgar 2016); Inge Kaul and others (eds), Providing Global
Public Goods: Managing Globalization (OUP 2003); Inge Kaul, Isabelle Grunberg, Marc Stern (eds),
Global Public Goods: International Cooperation in the 21st Century (OUP 1999).
Introductory Remarks 5
international sphere the ‘failure’ concerns the inability of states to provide public
goods through unilateral, un-coordinated action. GPGs include inherently public
global goods, such as a stable climate, and domestic public goods whose global
regulation benefits everyone, such as public health.6
Global commons7 are resources, domains, or areas that lie outside political
reach –and jurisdiction –of any single nation state. Traditional examples are outer
space, the high seas, and Antarctica, but lately the concept tends to include intan-
gible global commons such as the human genome, immaterial cultural heritage, or
cyberspace. Global commons are normally subject to the regime of common heri-
tage of mankind, but not necessarily so. Although closely related, these two notions
must be kept distinct.
Fundamental values8 are values with a marked political and axiological conno-
tation that make a universal claim to be shared by all states and peoples across the
world. The consequence of this universality is that their respect is due to the inter-
national community as a whole and, in case of violation, the latter may act accord-
ingly, invoking the erga omnes character of the underlying obligation. Decisions
about what should be considered as fundamental values of international society are
never beyond controversy. The category of fundamental values certainly includes
the protection and promotion of human rights and the right to self-determination,
but some scholars would also include values such as human dignity, peace, the pro-
tection of the environment, and democracy.
It should be noted that the three notions may well overlap both conceptually and
in practice. This does not come as a surprise if we only consider that these concepts
were drawn from distinct disciplinary fields. Just to give an example, the conser-
vation of ‘common-pool resources’ (eg fisheries)9 may be conceptualized both as
6 In the latter regard, the recent characterization, among others by the World Health Assembly and
by the United Nations Secretary General, of COVID-19 vaccines as ‘global public goods’ is a remarkable
case in point.
7 Garrett Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243; Tine De Moor, ‘From
Common Pastures to Global Commons: A Historical Perspective on Interdisciplinary Approaches to

Commons’ (2011) 19 Natures Sciences Sociétés 422; Thomas Dietz, Elinor Ostrom, Paul C Stern, ‘The
Struggle to Govern the Commons’ (2003) 302 Science 1907; Paul C Stern, ‘Design Principles for Global
Commons’ (2011) 5 Intl J of the Commons 213; Rüdiger Wolfrum, ‘Common Heritage of Mankind’,
Max Planck Encyclopedia of Public International Law (2009); Surabhi Ranganathan, ‘Global Commons’
(2016) 27(3) EJIL 693; Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties
(CUP 2009); Nico Schrijver, ‘Managing the Global Commons: Common Good or Common Sink?’ in
Thomas G Weiss, Pallavi Roy (eds), The UN and the Global South, 1945 and 2015 (Routledge 2017)
106–121.
8 Gordon A Christenson, ‘Jus Cogens: Guarding Interests Fundamental to International Society’
(1988) 28 Virginia J Int’l L 585; Alexander Orakhelashvili, Peremptory Norms in International Law
(OUP 2006); Robert Kolb, Peremptory International Law—Jus Cogens: A General Inventory (Hart
2015); Riccardo Pisillo Mazzeschi, Pasquale De Sena (eds), Global Justice, Human Rights and the
Modernization of International Law (Springer 2018); Riccardo Pisillo Mazzeschi, ‘Responsabilité de
l’Etat pour violation des obligations positives relatives aux droits de l’homme’ (2008) 333 Recueil des
Cours de l’Académie de Droit International 175; Massimo Iovane, La tutela dei valori fondamentali nel
diritto internazionale (Editoriale Scientifica 2001).
9 Anne Van Aaken, ‘Behavioral Aspects of the International Law of Global Public Goods and
Common Pool Resources’ (2018) 112(1) AJIL 67.

a measure against the over-exploitation of a common good and as the provision of

particular GPGs. Moreover, some particular objectives (such as the protection of
the environment and the protection of health) are both a fundamental value and a
GPG, and so on. Global public goods, global commons, and fundamental values are
first and foremost interlinked by the fact that all states have (or should have) an
interest in their enjoyment, safeguard, and promotion.
But what makes them crucial also for the international community as a whole?
The reason is easier to grasp than it may appear: when a category of goods, re-
sources, or values is singularly perceived by individual states as essential for the
safeguard of their public interest, this category is likely to become a subject of
global interest whenever their long-term protection or regulation is –as a matter of
fact –beyond the ability of any single state.
The responses of international law to these phenomena are undergoing con-
tinuous transformation and appraisal: what was once a national public good may
become a global public good; what was initially a matter of national jurisdiction
may later be seen as a global common; and, what were thought of as purely do-
mestic values may transcend national boundaries. This is because, in the great
majority of cases, the characterization of certain goods, resources, and values as
global, public, and fundamental does not descend from their innate features but
represents a social construct, reflecting the geo-political balance, the state of
technological innovation, or the shifting needs of the international community in
a given historical moment.10
The conceptual difficulties related to the possible responses of international law
in dealing with the abovementioned concepts and in fostering general interests
bring us to the last concept of this book: global governance,11 to be intended as ‘the
framework of rules, institutions and established practices that set limits and give
incentives for the behaviour of individuals, organizations and firms’ on a global
basis,12 which are alternative to traditional law-making and law-enforcement
10 See, again, the case of COVID-19 vaccines. Their actual ‘rival’ and ‘excludable’ character –which
has been dramatically shown by the rise of so-called ‘vaccine nationalism’ –did not prevent the inter-
national community from characterizing them as ‘global public goods’.
11 Michael Barnett, Raymond Duvall (eds), Power in Global Governance (CUP 2004); Armin Von
Bogdandy, Philipp Dann, Matthias Goldmann, ‘Developing the Publicness of Public International
Law: Towards a Legal Framework for Global Governance Activities’ in Armin von Bogdandy and others
(eds), The Exercise of Public Authority by International Institutions (Springer 2010) 3ff; Nico Krisch,
Benedict Kingsbury, ‘Global Governance and Global Administrative Law in the International Legal
Order’ (2006) 17(1) EJIL 1; Karsten Nowrot, ‘Global Governance and International Law’ (Studies
published by Halle –Wittenberg University, 2004) <www.wirtschaftsrecht.uni-halle.de/sites/default/
files/altbestand/Heft33.pdf> accessed 5 March 2020; Walter F Baber, Robert V Bartlett, ‘The Role of
International Law in Global Governance’ in John S Dryzek, Richard B Norgaard, David Schlosberg
(eds), The Oxford Handbook of Climate Change and Society (OUP 2011); Martti Koskenniemi,
‘International Law as Global Governance’ in Justin Desautels-Stein, Christopher Tomlins (eds),
Searching for Contemporary Legal Thought (CUP 2017); Martti Koskenniemi, ‘Global Governance and
Public International Law’ (2004) 37(3) Kritische Justiz 241.
12 See United Nations Development Programme, Human Development Report 1999 (OUP 1999) 8.
processes. Broadly speaking, global governance is characterized by an increasing

involvement of non-state actors; widespread reliance on soft law, self-regulation,
and incentive-based compliance mechanisms, and the blurring of the distinction
between national, regional, and international legal orders. This innovative and in
many respects unorthodox approach to global cooperation appears particularly fit
for a conceptualization of the pursuit of general interests by the international com-
munity through the (likewise unorthodox) categories of GPGs, global commons
and –to a minor extent –fundamental values. It is no coincidence, indeed, that
most authors relying on the mentioned notions make the case for an overall re-
thinking of the international institutional architecture inspired by global govern-
ance theory.
The challenges posed by the definition and effective regulation of GPGs, global
commons, and fundamental values remain formidable. The interplay between na-
tional and general interests leads to yet further uncertainties as to where the cur-
rent regime of international cooperation on these questions really stands. To add
another layer of complexity, multiple non-state actors (individuals, multinational
corporations, transnational NGOs, hybrid public-private entities and so on) have
entered the scene by vindicating and actually playing an ever increasing role in the
production, exploitation, and promotion of GPGs, global commons, and funda-
mental values or have otherwise impacted their enjoyment.13
Against this background, the book aims to explore how international law has
responded, or can or should respond, to the fundamental challenge of defining and
regulating general interests of the international community as a whole, through
the prism of the categories of GPGs, global commons, fundamental values, and
global governance. This choice of perspective does not mean to overlook the fact
that these interests, individually and in their interrelationship, present ongoing
challenges for an international legal system that, despite all its transformations
in recent decades, essentially remains a pluralistic system organized around the
principle of state sovereignty. Nor should it be understood as aimed at entirely
replacing the time-honoured concepts, structures, and categories of ‘traditional’
international law. On the contrary, the viability and utility of the recourse to these
notions will be critically evaluated, with an awareness of the risk that they may be
over-relied upon, therefore creating theoretical confusion and providing no verifi-
able improvement on the state of the art.
The inquiry carried out in this book, therefore, attempts to offer fresh insights
on the following research problems:
13 Markus Wagner, ‘Non State Actors’, Max Planck Encyclopedia of Public International Law (2013);
Math Noortmann, August Reinisch, Cedric Ryngaert, Non-State Actors in International Law (Hart
2015); Massimo Iovane, ‘La participation de la société civile à l’élaboration et à l’application du droit
international de l’environnement’ (2008) 112(3) RGDIP 465.
1. In what cases it is theoretically and practically sound to use the categories of

global public goods, global commons, fundamental values, and global govern-
ance as an analytical and/or normative tool for coping with the challenge of
defining and regulating general interests of the international community?
2. When it is so, to what extent and in what ways can these categories contribute
to a better understanding and/or pursuit of these general interests?
3. What is, may, or should be their relationship with traditional international
legal concepts and structures?
These questions are explored through the analysis of representative samples of

the areas of intersection between the pursuit of general interest and the aforemen-
tioned categories. As will be shown momentarily, the subjects analysed in the book
have been selected for being highly topical and/or intellectually stimulating and
for including issues pertaining to global economy (financial stability, trade liber-
alization, investment protection); human rights (including refugee protection, the
right to water); environmental protection (including biological diversity); cultural
heritage; new technologies (cyberspace); and international peace and security (in-
cluding the peaceful settlement of disputes).
This book is organized into six parts (A to F). The first of them sets the stage for
the ensuing inquiry, by providing the readers with a general overview of the con-
cepts analysed in the volume, while Parts B to F analyse, respectively, the notions
of GPGs, global commons, fundamental values, and global governance. Overall,
different authors have examined how international law has responded to what
qualifies as GPGs, global commons, and fundamental values in a wide range of
fields. Others have investigated how global governance has improved (or wors-
ened) this response. They have discussed which general interests have or have not
been deemed to deserve the protection of international law in one or more of these
categories, and why; they have also explored the legal foundation of such inter-
ests in international law. In addition, they have focused on whether and how it
is appropriate that international law intervenes to regulate such interests, taking
into account the interplay between the multiple actors of international law, ranging
from states, international, and regional organizations and non-state actors. They
have further explored how states and other actors have used international law to
protect general interests, what lessons can be learned from these efforts, and what
main challenges still need to be addressed. Looking at international law through
the prism of GPGs, global commons, and fundamental values has also implied an
in-depth examination of different substantive regimes, such as those regulating
human rights, the protection of the environment, international economic law,
and so on.
Part B (General Notions) opens with the contribution by Nilufer Oral, who
offers some basic insights on the concept of ‘global commons’. She also dwells on
the relationships between that notion and those of common heritage and common
concern of humankind, by adopting the protection of the ocean commons as a case

study. A further key concept of the book, that of fundamental values, is introduced
by Massimo Iovane and Pierfrancesco Rossi, who particularly focus on open-
ended legal clauses, such as human dignity or erga omnes obligations, serving as
channels of communication between positive law and the underlying ethical con-
victions of the international community. The last contribution of Part B concerns
global governance and is authored by Samuel Cogolati and Jan Wouters, who delve
into the triangular relationship between commons, democracy, and global eco-
nomic governance.
Part C is specifically concerned with the international regime of global public
goods. The study of this category is carried out through the analysis of three case
studies: investment regime (Daniel Behn, Ole Kristian Fauchald, and Malcolm
Langford), democracy (Ernst-Ulrich Petersmann), and water (Fulvia Staiano).
Despite the variety of the topics addressed, these chapters have in common an ef-
fort to establish whether these regimes and goods present (some of) the features of
global public good, with a view to determining what added normative and prac-
tical value may ensue from such characterization.
Part D focuses on the international regimes governing the use and the protec-
tion of global commons, be them physical (such as the atmosphere, analysed in
the contribution by Christine Bakker), virtual (ie cyberspace, which is the sub-
ject of the chapter by Antonio Segura Serrano), or cultural (an issue examined by
Francesca Capone). Crucially enough, the inquiries carried out by these authors
seem to concur on the need to endorse –to a more or less wide extent –a ‘global
commons’ approach in coping with these issues, having particular regard to the
application of the related principles of non-appropriation, common management,
peaceful use, and preservation.
The protection of fundamental values in contemporary international law is the
subject of Part E. The topic is studied from different perspectives: international
judicial procedures (Paula Almeida), world trade (Christian Tietje and Andrej
Lang), and cultural heritage (Ana Filipa Vrdoljak). Chapters from this part show
how the growing convergence of the international community on the need to pro-
mote certain fundamental values triggers a normative tension between bilateral
and communal elements within multilateral legal regimes, which affect both their
substantive and procedural aspects.
The book concludes with Part F, which zooms in on the institutional aspects
of the protection of general interests within the international community, offering
precious insights into the pros and cons of the global governance approach, even
in comparison with traditional legal structures. Part F features, in the first place,
two contributions of general purport engaging with two somewhat symmetrical
trends in the institutional protection and regulation of GPGs, global commons,
and fundamental values, namely a tendency for fragmentation, which results in
an increased diversity of involved norms and institutions (Peter-Tobias Stoll),
and, on the other hand, the unifying ‘governance by indicators’ embodied in the
17 Sustainable Development Goals set out in the Agenda 2030 and related tar-
gets (Winfried Huck). The remaining two contributions focus on the ability of the
international community (or part thereof, as in the case of Europe) to craft proper
common responses to current challenges, either by way of global governance or
through more traditional institutional channels, having particular regard to re-
sponsibility sharing for refugees (Dana Schmalz) and risk reduction strategies in
case of disasters (Giulio Bartolini).
***
To conclude this introduction, we would like to thank the people who actively
contributed to the success of this volume, by means of significant editorial work,
and without whom this project would have never seen the light of day: they are
Dr Pierfrancesco Rossi, Ms Giuliana Lampo, Ms Caterina Milo, and Mr Gustavo
Minervini. Their support has been, as usual, beyond precious.
2
The Global Commons and Common
Interests: Is there Common Ground?
Nilufer Oral*
1. Introduction
The global commons have been part of the global discourse of international
law since the historic Grotian defence for freedom of the seas, if not longer.
When Grotius wrote his famous treatise that laid the foundation for the open
access regime of freedom of the high seas, it was a very different world. In the
sixteenth century, Grotius, understandably, viewed the ocean as an infinite
source of natural resources free to be exploited by all. But in the twenty-f irst
century the scenario has changed dramatically, and with serious implications
for those areas recognized as forming part of the global commons. Human ac-
tivities are having unprecedented harmful impacts on natural resources, in-
cluding those of the global commons. The first IPBES Global Assessment on
Biodiversity and Ecosystem Services released in 2019 presented the world with
a sobering, if not dire, report on the state of biological diversity and the rate of
species extinction.1 The 2015 First World Ocean Assessment had also revealed
the extent of the risk of human activities on the health and well-being of the
ocean.2 Even outer space has not escaped the polluting impacts of human ac-
tivities with space debris.3
The global commons are those areas that lie beyond the national jurisdiction
and control of states.4 In other words, they belong to no state; a res communis,
* The author thanks Tejas Rao for his assistance.

1 Sandra Díaz and others (eds), Summary for Policymakers of the Global Assessment Report on
Biodiversity and Ecosystem Services of the Intergovernmental Science-Policy Platform on Biodiversity and
Ecosystem Services (IPBES 2019).
2 The First Global Integrated Marine Assessment: World Ocean Assessment (UN 2015).
3 Maureen Williams, ‘2. Outer Space’ (2017) 28 Yrbk Intl Env L 175, discussing also the work of the
ILA Space Committee on space debris.

4 Ved P Nanda, George W Pring, International Environmental Law and Policy for the 21st Century,
vol 2 (Brill Nijhoff 2013) 37; Hanqin Xue, James Crawford, John Bell, Transboundary Damage
in International Law (CUP 2003) 191. According to the authors there is no agreed definition or
Nilufer Oral, The Global Commons and Common Interests: Is there Common Ground? In: The Protection of General Interests
in Contemporary International Law. Edited by: Massimo Iovane, Fulvio M. Palombino, Daniele Amoroso, and Giovanni Zarra,
Oxford University Press. © Nilufer Oral 2021. DOI: 10.1093/oso/9780192846501.003.0002
Another random document with
no related content on Scribd:
§ 12
George was distressed.
He and Catherine were slowly walking to Bishop’s Stortford
railway station. The Viking expression had left his features; the
motor-cap and goggles and overalls and gloves were tied up in a
brown-paper parcel which he carried under his arm. Also, his face
was very dirty.
Terrible things had happened to him.
A couple of policemen had taken his full name and address, and
made copious entries in notebooks.
Mr. H. Bullock had sworn vividly. In trying to estimate the extent
of damage to his front wheel George had tactlessly turned the full
glare of the acetylene lamp upon the horse’s eye. The horse had
hitherto been uncertain whether the situation justified panic flight or
not; now he decided swiftly in the affirmative. He rushed forward
precipitately, and in less than a dozen yards had smashed off the
wheel of the cart against a pillar-box. The cart sagged despairingly,
and streams of bilious lemonade poured through the flooring. Mr.
Bullock’s language became terrific.
And then one of the policemen had said: “By the way, got your
licence?”
George had blushed (though the fact that he was already a deep
red disguised the phenomenon).
“I’m afraid—I—I must have left it at home,” he stammered weakly,
diving into his inside pocket and fishing amongst letters and papers.
Yet both Catherine and the policeman knew in that moment that
he had not got a licence at all. Something in his voice told them.
And what is more, George knew that both the policeman and
Catherine were aware that he had not got a licence at all. Something
in their eyes told him.
And then George had wilted under the vivid abuse of Mr. H.
Bullock. Spectators called out monotonously: “You were on the
wrong side of ’im.” “You was goin’ too fast.” “You didn’t orter ’ave
come nippin’ in like thet.” “On the kerb ’e was, a minute before—
don’t know ’ow to drive, ’e don’t.” “Didn’t orter be trusted, them soit of
cheps.” “Swervin’ abart like anythink: shouldn’ be surprised if he’s
drunk.”
And a fierce clergyman in a three-inch collar floored George with
the remark: “You ought to be in jail, my man. You are a pest to
society.”
And then George had to push the battered machine into a garage
(which was fortunately at hand), and pay exorbitantly for leaving it
there. The garage proprietor was subtly sarcastic to George.
Then George came back to parley with the policemen. The crowd
became hostile. George rather unwisely began to divest himself of
his motoring garments. Facetiousness prevailed. Catherine was the
subject of much speculation.
“I wouldn’t trust myself to ’im no more,” remarked a bystander.
And another wanted to know if her mother knew she was out. (It was
in the days of that popular song.)
“’E’s a-tryin’ to murder you, that’s wot ’e is,” said a sour-faced
spectator. “’E’s found another gal, an’ wants ter git rid of you.”
And an elderly man with a bizarre sense of humour said: “You
look out for yerself, my gal; ’e won’t ’ave no money ter marry you on
w’en ’e’s pide ’is fines.”
George caught the sally, and the whole phantasmagoria of the
police-court flashed across his mind. Also the fact that this trip to
Cambridge was likely to leave him with very little, if any money at
all....
§ 13
And now, on the slope leading up to the railway station, George
was distressed. He was physically and mentally unmanned. He
could not speak without a tremor. He seemed so physically
enfeebled that she took his arm and asked him to lean on her. All at
once she realized the extraordinary fact that of the two she was
infinitely the stronger. With all his self-confidence and arrogance and
aplomb, he was nothing but a pathetic weakling.
The hostility of the crowd had made her vaguely sympathetic with
him. She had watched him being browbeaten by policemen and by
the owner of the cart, and a strange protective instinct surged up in
her. She wanted to stick up for him, to plant herself definitely on his
side. She felt she was bound to champion him in adversity. She
thought: “I’m with him, and I must look after him. He’s my man, and
I’ve got to protect him.”
All the long walk to the station was saturated in this atmosphere
of tense sympathy and anxious protection.
“We shall catch the 10.20,” he said. “There’s heaps of time. We
shall have over an hour to wait.”
“That’ll be all right,” she said comprehensively.
On the station platform they paced up and down many times in
absolute silence. The moon was gorgeously radiant, flinging the
goods yard opposite into blotches of light and shadow. The red
lamps of the signals quavered ineffectually.
“You know it’s awfully lucky you weren’t hurt,” he said at last.
She nodded. Pause.
Then he broke out: “You know, really, I’m most awfully sorry——”
“Oh, don’t bother about that,” she said lightly. “It wasn’t your fault.
You couldn’t help it.”
(Yet she knew it was his fault, and that he could have helped it.
She also knew that he had no licence.)
And then a strange thing happened.
They were in the shadow of a doorway. He suddenly put his two
arms on her shoulders and kissed her passionately on the lips. Her
hair was blowing behind her like a trail of flame. He kissed her again
with deepening intensity. And then her face, upturned to his, dropped
convulsively forward. Her eyes were closed with a great mist, and
her hair fell over his hands and hid them from view. There was
something terrible in the fierceness with which he bent down and,
because he could not kiss her face, kissed her fire-burnished hair.
And as he did so again and again she began to cry very softly. His
hands could feel the sobs which shook her frame. And he was
thrilled, electrified....
“My God!” he whispered....
... Then with a quick movement she drew back. The tears in her
eyes were shining like pearls, and her face was white—quite white.
Passion was in every limb of her.
“That’s enough,” she said almost curtly, but it was all that she
could trust herself to say. For she was overwhelmed, swept out of
her depth by this sudden tide.
And all the way to Liverpool Street, with George sitting in the
corner opposite to her, her mind and soul were running mad riot....
“Good-bye,” he said later, at the gate of No. 14, Gifford Road,
and from the inflexion of his voice she perceived that their relations
had undergone a subtle change....
She watched him as he disappeared round the corner. On a
sudden impulse she raced after him and caught him up.
“George!” she said.
“Yes?”
“Will you be summoned, d’you think?”
“Oh, certainly.”
“Well—I thought I’d tell you ... if you’re short of money through it
... I’ve got some.... I can lend it to you ... if you’re short, that is....”
“It’s awfully good of you,” he replied. Yet she knew he was
thinking of something else.... Her running back to him had reopened
the problem of farewell. He was debating: “Shall I kiss her again?”
And she was wondering if he would. In a way she hoped not. There
would be something cold-blooded in it if he did it too frequently. It
would lack the fire, the spontaneity, the glorious impulse of that
moment at Bishop’s Stortford railway station. It would assuredly be
banal after what had happened. She was slightly afraid. She wished
she had not run back to him. Nervousness assailed her.
“Good-night!” she cried, and fled back along Gifford Road.
Behind her she heard his voice echoing her farewell and the sound
of his footsteps beginning along the deserted highway. It was nearly
two a.m....
Undressing in the tiny attic bedroom she discovered a dark bruise
on her right shoulder. It must have been where he lurched sideways
against her just after the collision. She had not felt it. She had not
known anything about it....
CHAPTER XI
THE SECOND TRANT EPISODE
§1
IT was November.
They had been engaged three months. Three months it was
since a certain winedark evening when, in the shadows of the heavy
trees on the Ridgeway, he had suddenly said:
“I suppose we are engaged?”
“Are we?”
“Well, I think it’ll be all right.... I told my father, and he didn’t
object.... Will you come to tea on Sunday?”
She perceived that their relations had entered on a new phase.
“If you like,” she said.
And he had kissed her good-bye that evening.
The Sunday had been nerve-racking. She felt she was on show.
Many years it was since she had entered the Trants’ house. In those
early days she had come in as Helen’s school friend, and nobody
had taken much notice of her. Mr. Trant had chattered amiable
trivialities and chaffed her about her red hair. Now all was immensely
different. She was George’s fiancée. She had to be treated with
deference. Mr. Trant discussed the weather and gardening and (to
the utmost extent of his capabilities) music. Mrs. Trant was effusively
embarrassed. Helen was rather frigid. After tea they went into the
drawing-room. Catherine and Mrs. Trant sat for some time together
on the couch turning over the pages of a photograph album with
careful enthusiasm. In it were portrayed the Trant family in various
stages of development—the Trant family when it had anybody
distinguished to stay with it for the week-end; the Trant family at the
door of its house, on Llandudno Pier, at Chamounix, on the
promenade deck of a P. and O. liner, and in other less idyllic
positions; the Trant family taking tea on the lawn, picnicking in
Epping Forest, about to set out for a motor spin, skating on the
Connaught Waters at Chingford, playing tennis (a) on its own grass
court, (b) on its own rubble court; the Trant family in fancy dress,
evening dress, riding dress, Alpine dress, and every other kind of
dress—in short, the Trant family in every conceivable phase of its
existence. Also the Trant family individually, collectively, and in
permutations and combinations. With studious politeness Catherine
enquired from time to time as to the identity of the various strangers
who obtruded themselves upon the Trant arena. Here were Sir Miles
Coppull (the American camphor king, holding a tennis-racket
jauntily); the Rev. R. P. Cole (President of the Baptist Association);
the Rev. St. Eves Bruce, M.A., D.D. (headmaster of George’s old
public school), beaming on Helen, by the way; not to mention groups
of fierce old gentlemen whom Mrs. Trant lumped collectively as
“some of Dad’s directors.” ...
Catherine thought: “Some day I shall be amongst all that lot...”
George suggested she should play a piano solo, and she tried a
Beethoven symphony movement. But she was unaccountably
nervous, and a valuable but rather gimcrack china and ivory model
of the Taj Mahal at Agra which was placed on top of the closed
sound-board would rattle whenever she played the chord of E flat or
its inversions.
When she stopped playing Mr. Trant said: “Let me see, is that
Beethoven?” (He pronounced the first syllable to rhyme with “see”
and the second with “grove.”)
“Yes.”
“Charming little thing,” he said vaguely....
Catherine was glad when the advent of chapel time brought the
business to a conclusion. For it was business. She could see that.
She was being sized up. When she had gone they would discuss
her. They were reckoning her up. They were not surprised at her
nervousness. They expected it. They were speculating upon her
possibilities as a daughter-in-law....
There was only one thing perhaps which did not occur to them, or
which, if it did, received less attention than it deserved.
Catherine was reckoning them up. She was keenly critical of
everything they said and did. And when Mr. Trant, shaking hands
with her at the door, said: “You must come again for a musical
evening some time, and give us some more Beethoven,” Catherine
replied:
“Oh yes, I should be delighted. I’m awfully fond of Beethoven,
aren’t you?”
But she pronounced it “Bait-hoaffen.”
There was just the merest possible suggestion of rebuke, of self-
assurance, of superiority in that....
§2
And now all these things were stale by three months.
By this time she had got used to having tea on Sundays at the
Trants’ house. She was so much at home there that she could say:
“Oh, do you mind if I shift this Taj Mahal thing while I play? It rattles
so.” After a little while they learned her fancies, and had it always
removed when she came.
And she was used to George. Everything of him she now knew.
His hopes, his dreams, his peculiarities, his vices and virtues, the
colours of all his neckties—all had been exhaustively explored during
the course of many a hundred hours together. He kissed her now
every time they met—he expended much ingenuity in arranging
times and places suitable for the ritual. Sometimes, after he had
seen her home from the theatre, his kisses were hurried,
stereotyped, perfunctory, as purely a matter of routine as putting two
pennies into the machine and drawing out a tube ticket. On other
occasions, as for instance when they strolled through country lanes
at dusk, she could sense the imminence of his kisses long before
they came. When they turned down Cubitt Lane towards the Forest
at twilight it was tacitly comprehended between them: “We are going
in here to be sentimental....” When they returned the mutual
understanding was: “We have been sentimental. That ought to last
us for some time....”
People deliberately left them alone together. They looked at the
two of them as if they were or ought to be bliss personified. They
seemed to assume that an engaged couple desires every available
moment for love-making. At meal times, for example, it was always
contrived that George should be next to Catherine. Once when Mr.
and Mrs. Trant had made the excuse that they would stroll round the
garden, Catherine, noticing that Helen was about to follow
unobtrusively, said sharply:
“Please don’t go, Helen. I want you to try over a few songs.”
Catherine wondered if Helen understood.
The fact was, being engaged was deadly monotonous. It had no
excitement, no novelty. Everything was known, expected, unravelled.
When she met George at a concert she did not think: “I wonder if he
has come here on my account.” She knew beyond all question that
he had. When at some social function she saw him chatting amongst
his male friends she did not think: “Will he come up and speak to me
or not?” She knew that his very presence there was probably on her
account, and that he would leave his male friends at the first
available opportunity. And when they had ices at a tiny table in some
retiring alcove it was not possible to think: “How funny we should
both have met like this! How curious that we should be alone here!”
For she knew that the whole thing had been premeditated, that the
alcove itself had probably been left attractively vacant for their
especial benefit. There was no point, no thrill, no expectancy in
asking the question: “Is it really me he comes to all these places
for?”
He had declared his passion in unequivocal terms that left
nothing to be desired. That was just it: there was nothing left to be
desired. She would rather he had been ambiguous about it. And
occasionally the awful thought came to her: “If this is being engaged,
what must it be like to be married? ...”
Life was so placid, so wearyingly similar day after day, evening
after evening. Every night he met her at the stage-door of the theatre
and escorted her home. Every night he raised his hat and said
“Good evening!” Every night he took her music-case off her, and they
walked arm-in-arm down the High Street. Their conversation was
always either woefully sterile or spuriously brilliant. On the rare
occasions when they had anything particular to talk about they
lingered at the corner of Gifford Road. But she could not confide in
him. To tell him of her dreams and ambitions would be like asking for
a pomegranate and being given a gaudily decorated cabbage. Their
conversations were therefore excessively trivial: she retailed
theatrical and musical gossip, or, if the hour were very late and she
were tired, as frequently happened, she replied in weary
monosyllables to his enquiries. She found her mind becoming
obsessed with hundreds of insignificant facts which by dint of
constant repetition he had impressed upon her. She knew the
names, histories, characters, and family particulars of all the men
who worked with him in the stuffy little basement of the accountant’s
office in Leadenhall Street. She knew the complicated tangle of
rivalries and jealousies that went on there—how Mr. Smallwood did
this and Mr. Teake did that, and how Mr. Mainwaring (pronounced
Mannering) frequently lost his temper. She knew all the minutiae of
George’s daily work and existence, the restaurant he frequented for
lunch, the train he caught on the way home, the men he met day
after day in the restaurant and on the trains. Nothing of him was
there which she did not know....
Yet it was all so terribly, so tragically dull. Even his brilliance
palled. His brilliance was simply an extensive repertoire of smart
sayings culled from the works of Ibsen, Shaw, Chesterton, etc. In
three months she had heard them all. Moreover, he had begun to
repeat some of them.
Out of a forlorn craving for incident she quarrelled with him from
time to time. His genuine sorrow at the estrangement and his
passionate reconciliation afterwards thrilled her once or twice, but
after a few repetitions became stale like the rest. Undoubtedly he
was in love with her.
And she?
§3
Doubtless one of the reasons why George’s engagement to
Catherine was not opposed very vigorously by the Trants was
Catherine’s startlingly rapid musical development, which seemed to
prophesy a future in which anything might be expected. Ever since
that Conservative Club concert Catherine had been playing regularly
in public and acquiring a considerable local reputation. Occasional
guineas and two guineas came her way, and at the opening of the
winter season she found herself with as many engagements as she
could manage. And at a local musical festival she had come out on
top in the professional pianoforte entries. A gold medal and a good
deal of newspaper prominence were the visible and immediate
results of this. Afterwards came the welcome discovery that she was
in demand. A concert organizer offered her five pounds for a couple
of solos. An enterprising and newly established photographer
photographed her gratis and exhibited a much embellished side view
(with a rather fine hair exhibition) in his window. And she ceased to
play at church socials....
Every Saturday afternoon she went to Verreker for lessons.
Though she disliked him personally, she was compelled to admit the
excellence of his teaching. He spared her no criticism, however
severe, and when he commended her work, which was rare, she
knew he meant it. If a good teacher, he was also an irritating one. He
selected her pieces, insisted on her learning those and no others,
expected from her a good deal more than it seemed possible for her
to give, and treated her generally as a rebellious child. He was
always asking her when she was going to resign her position at the
theatre. She would never be even a moderate pianist as long as she
was there, he said.
The time came when it was of financial benefit to her to resign.
She did so, and expected him to be very pleased with her. But he
merely said:
“H’m! I suppose you waited till it paid you to.”
This was so true that she had no reply ready.
He never disguised from her the fact that, however seemingly
she might be advancing on the road to fame and success, she would
never become more than a second-rate virtuoso.
“The front rank of the second-raters is as high as you’ll ever get,”
he said. But that did not hurt her now.
What did hurt her was once when he said: “You have one
abominable habit. You pose with your hair. I should recommend you
to have it cut off, then you won’t have it to think about so much.”
“Oh, should you?” she replied angrily. “I should be sensible to cut
it off, shouldn’t I, seeing it’s the only good-looking part of me!”
She hadn’t meant to say that. It slipped out.
“Is it?” he said, and for a single fatuous second she had a wild
idea that he was going to pay her a magnificent compliment. But he
added: “I mean—it never struck me as particularly good-looking. But
then I’m no judge of hair—only of music.”
She could discern in every inflection of his voice latent hostility.
There was no doubt he disliked her intensely. Latterly, too, she had
become increasingly conscious of a mysteriously antagonistic
atmosphere when he was with her. It reacted on her playing, causing
her at times to give deplorable exhibitions. It was not nervousness. It
was something in him that was always mutely hostile to something in
her. The sensation, at first interesting, became extraordinarily
irksome after a while. Once, when a poor performance of one of
Chopin’s Ballades had evoked sarcasm and abuse almost beyond
endurance, she suddenly left the music-stool and stood facing him
with her back to the instrument.
“It’s no good,” she cried vehemently. “It’s not my fault. I’ve never
played as bad as that in my life. It’s you. I can’t play when you’re
present. Don’t know—can’t explain it, but it is so.”
He looked surprised.
“Very strange,” he said reflectively—“and unfortunate.”
She had expected him to be witheringly sarcastic. But he took it
with urbane philosophy.
“Well,” he said, “I suppose if you feel like that it can’t be helped.
We shall simply have to make the best of it.”
Which was irritatingly logical....
§4
In the Trant household the musical evening was an institution.
Rarely a month passed by unhonoured by one of these functions.
Commencing at seven or thereabouts on a Saturday evening, they
lasted till past midnight. They possessed a regular clientele of
attenders, as well as a floating population of outsiders who had
never been before and who (from more reasons, perhaps, than one)
might never come again. The drawing-room at “Highfield” was large,
but it never comfortably held the miscellaneous crowd that
assembled in it on the occasion of these musical evenings. In winter
you were either unbearably hot (near the fire) or unbearably cold
(near the window), and in summer, without exception, you were
always unbearably hot. Moreover, you were so close to your
neighbour on the overcrowded settee that you could see the
perspiration draining into her eyebrows. From a dim vista obscured
by cigarette smoke there came the sound of something or other,
indescribably vague and futile, a drawing-room ballad sung by a
squeaky contralto, a violin solo by Dvořák, or a pompous Beethovian
hum on the piano. However beautiful and forceful might be the
music, it was always vague and futile to you, because you were
watching your neighbour’s eyebrows act as a sponge to the down-
trickling perspiration.... Always in these musical evenings there was
banality. Always beauty was obscured by bathos. And could you
ever forget the gymnastic evolutions of a settleful of musical
enthusiasts balancing cups of steaming hot coffee on their knees? ...
The day before Christmas Day was a Saturday. For Christmas
Eve a musical evening had been arranged—a musical evening that,
out of deference to the season, was to surpass all previous
undertakings of the kind. Catherine was invited, and would, of
course, be one of the principal performers. In virtue of her intimate
relation to George she had come early in the afternoon and stayed to
tea. Her usual weekly lesson from Verreker was cancelled for this
particular week, probably owing to Christmas. So she would be able
to spend the entire evening at “Highfield.” She was in buoyant spirits,
chiefly owing to her rapidly advancing fame as a pianist. She had the
feeling that her presence at the Trants’ musical evening was an act
almost of condescension on her part, and it pleased her that the
Trants treated her as if this were so. She would undoubtedly be, in
music-hall parlance, the star turn of the evening. People, unknown
aspirants after musical fame, would point her out as one who had
already arrived at the sacred portals. She knew also that Mrs. Trant
had been sending round messages to friends that ran more or less
after this style: “You simply must come to our musical evening on
Christmas Eve! It is going to be an awfully big affair, and we have got
Cathie Weston coming down to play—you know, the girl who——”
The whole business tickled Catherine’s vanity.
In the interval between tea and seven o’clock she superintended
the arrangement of the piano in the drawing-room, taking care that
the light from an electric hand-lamp close by should shine
advantageously on her hair while she was playing. She decided that
she would play one of the Chopin Etudes....
§5
At a quarter past seven the room was full. According to custom
visitors introduced themselves to one another, the crowd being
altogether too large for ceremonious introductions. Late-comers
came in quietly and unostentatiously, sitting down where they could
and nodding casually to people they knew. The lighting was
æsthetically dim, being afforded by a few heavily-shaded electric
hand-lamps scattered promiscuously on tables and book-cases.
Every available corner was occupied by extra chairs brought in from
other parts of the house, and the central arena in front of the
fireplace was a dumping-ground for music-cases, ’cellos, violins, etc.
Catherine occupied a roomy arm-chair next to the fire, and was
conscious that she was being looked at attentively. A red-shaded
lamp on the end of the mantel-piece threw her hair into soft radiance,
but its effect on her eyes was so dazzling as to throw all around her
into an impenetrable dimness in which she could discern nothing but
the vague suggestion of persons and things. George sat next to her,
and from time to time passed remarks to which she replied
vivaciously, conscious that every movement of her head brought into
prominence the splendour of her hair. (Of late she had been paying
considerable attention to her hair: a visit to a West End coiffurist had
produced startling results.)
The evening crawled monotonously on. Log after log of crackling
pine was placed on the open fire-grate; song followed song, violin,
’cello, mandoline each had its turn; a girl recited “The Dandy Fifth” in
a way that was neither better nor worse than what Catherine felt she
could have done herself, and Mr. Trant’s deep voice could be heard
constantly above the periodic applause: “Charming little thing that.”
“Is that one of Bach’s?” (pronounced “Back’s”). “Very pretty, isn’t it?
Rather nice words, don’t you think?”
The order of performance was not definite. Catherine did not
know when she might be asked. Of course, she had not a trace of
nervousness. She had lost that completely now after constant
appearances on public concert platforms. And this was only a
drawing-room affair: there were no musical critics frowning in the
front row, there was probably nobody in the room who would know if
she played a false note. Besides, she would not play a false note,
She smiled contemptuously as she heard the applause evoked by a
timid rendering of a drawing-room ballad. She had an unmitigated
contempt for these drawing-room ballads. Her theatrical experience
had given her an intense hatred of cheap sentimental music of the
kind sold in music shops at one-and-sixpence a copy. The particular
song that had just been sung was of this class: its title was
monosyllabic, and its music composed with an eye to vamping the
accompaniment....
“That’s a nice little thing,” said Mr. Trant. “I don’t believe I’ve
heard it before, either.... Reminds me of something, though ... I can’t
think what....” Then in the blurred distance she could discern Mrs.
Trant’s white frocked form travelling swiftly across the room and
engaging in conversation with somebody unseen.
“Oh, please,” she heard, “please do! Everybody would be so
glad. Helen, do persuade him. Really——”
The rest was drowned in the tuning of a violin.
Then Mrs. Trant, returning to her seat, whispering to her
husband, getting up, standing with her back to the corner of the
piano, and announcing:
“We are now to have a pianoforte solo”—impressive pause;
Catherine guessed what was coming—“by Mr. Ray Verreker!”
Catherine had guessed wrong....
§6
But it was his presence there which startled her. Why was he at
such a gathering? She knew his stormy contempt for the kind of
musical suburbinanity that flourished in Upton Rising: it was his
boast that he never attended a local concert and never would.
“Suburbinanity”—that was his own word for it. She knew his fierce
hatred of the kind of things that had been going on for over an hour
—that particular violin piece by Dvořák, for instance, was anathema
to him. She knew also his passionate intolerance of mediocrity of
any kind. She could imagine his sensations when listening to that
girl’s rendering of “The Dandy Fifth.” The puzzle was, why had he
come? He knew the kind of thing it would be. He must have known
the inevitable ingredients of a suburban musical evening. And yet he
had come. He had conquered his detestation for social gatherings of
this kind so far as to come. It was rather extraordinary, completely
uncharacteristic of him.
To Catherine, always the egoist, came the thought: “Has he come
here because he knew I should be here?” Yet even a second thought
dismissed that idea as unwarrantly absurd. That would be rather an
additional reason for his staying away. For every Saturday that she
visited him convinced her more and more that he despised her and
her ways.
And she also thought: “Will the effect of his being present make
me play badly?” She did not know in the least whether it would or
not, for the circumstances were so completely different from what
they were at “Claremont.” Here she might possibly be able to forget
he was in the same room with her. Certainly he would not be at her
elbow, turning over the music pages with gestures that conveyed to
her perfectly the sensations of disgust that he was experiencing....
But he was playing. Her surprised speculations were immediately
cut short by the sound of the piano. She could see his fingers
travelling magically over the keys and his strange, grotesque face
looking vacantly over the top of the instrument. He looked different
from usual. It was probably the unaccustomed angle from which she
was watching him, for his features, perfectly unsymmetrical,
presented an astonishing variety of aspects.... She suddenly forgot
to look at him. Something that he played had thrilled her. A swift
chord, passing into a strange, uncouth melody set all her nerves
tingling. What was this piece? ... He went on through swirling
cascades of arpeggios in the right hand, falling octaves, crashing
chords, and then, once again, this strange uncouth melody, the
same, but subtly altered. Tremendous, passionately barbaric, was
this thing that he was playing. It seized hold of her as if it had
suddenly given the answer to all her wants and desires: it stretched
out clear and limitless over the furthest horizon she had ever
glimpsed; it held all the magic of the stars. And far ahead, further
than she had ever dared to look before, lay the long reaches of
boundless, illimitable passion ... passion ... passion ... that was what
it was.... Her hands twitched convulsively on the sides of the chair.
She was caught in a great tide; it was sweeping her further and
further outward and onward; she wanted to cry out but could not.
Tears were in her eyes, but they would not fall. And for the first time
that evening she forgot the pose of her head and hair....
Applause was to her the waking from a dream. They were
applauding. A fierce storm of contempt for them overtook her,
because she knew they had not heard and seen and felt what she
had heard and seen and felt. Their applause was banal, atrociously
common-place. Even in mere volume it did not exceed that which
had been accorded to the song with the monosyllabic title or to “The
Dandy Fifth.” And Catherine, vaguely annoyed that there was any
applause at all, was also vaguely angry that it had been so
indiscriminating. She did not applaud herself, but she heard George
clapping almost in her left ear, and she shot a curious glance at him.
She was thinking: “How much of it has meant anything at all to you?”
And then she heard Mr. Trant’s deep, suave voice: “What did you
say that was? Peculiar piece, but awfully pretty.”
Verreker mentioned a title she could not hear. George had
apparently caught something. He whispered to her in spasms:
“Jeux—something or other, I think he said. French, I suppose.
Modern French. Debussy school, you know. Oh, it’s ‘Jeux d’Eaux.’ I
heard him say it again. ‘Jeux d’Eaux,’ that’s what it is.... One of
Ravel’s things, you know.” ...
§7
Verreker returned to his seat. There followed a baritone song of
the rollicking variety, a ’cello solo, and then Mrs. Trant called for a
“pianoforte solo by Miss Catherine Weston.”
Catherine rose languidly, and picked her way amongst the violins
and music-stands to the piano. She screwed the stool an inch or so
higher (it being a point of honour with her always to make some
alteration, however slight, in the seating accommodation provided for
her), then she lowered the music-rest and slid it back as far as it
would go. Her first piece was to be the “Butterfly” Study in G flat
(Chopin), so she gently ran her hands arpeggio-wise along the tonic
and inversions of G flat. Having done this she paused, chafed her
fingers delicately, and tossed her head. The lamp at her side shone
on her magnificent hair, throwing her face and bust into severe
profile. It was then that she noticed a slight commotion in the far
corner of the room. A man was disengaging himself from the closely-
wedged throng and proceeding to the doorway. As he passed the
fireplace the flames flickered brightly round a log of wood just placed
on the fire. Catherine in a swift glance saw that it was Verreker....
Carefully he wound his way to the door and passed out.
Catherine flushed Her hands commenced to play, but her whole
being was tingling with anger. She was conscious that everybody in
the room had noticed his ostentatious withdrawal and was drawing
conclusions from it. Everybody knew she took lessons from him. His
going out of the room at that moment was nothing less than a
deliberate insult offered to her in front of everybody. In the half-
shadows round the piano she could see the faces of Mr. and Mrs.
Trant, both rather bewildered.... Her fingers were moving
automatically; before she properly realized she was playing a solo
they had stopped. Cloudily she grasped the fact that the “Butterfly”
Study had come to an end. Applause floated in, and she found
herself walking back to her seat. Applause thinned and subsided;
Mrs. Trant said something, and there began the tuning of a couple of
violins with much unnecessary prodding of notes on the piano.
George was saying something to her, but she was not listening. The
door opened and Verreker re-entered. He sat down unostentatiously
in a chair close by and his face was hidden by shadows. The piano
tinkled into the opening of a Haydn Concerto.... And Catherine
thought: “That was really a horrid thing to do. I believe it is the
nastiest trick I ever saw. I expected rudeness, but somehow not that
—at any rate, not in public.” She was primarily angry, but in her
anger there was more than a tinge of disappointment....
She hated him. The fact that it was his teaching that had brought
her success was swamped utterly in this petty insult he had seen fit
to offer her in public. Once the idea did strike her: perhaps it was just
coincidence that he went out while I was playing. But instinct told her
that his withdrawal was deliberate, part of a planned scheme to
humiliate her. And she kept piercing the shadows where he sat with
a venomous greenish glint in her eyes, until she reflected that even if
she could not see him, he could very likely see her. At this she
flushed hotly and turned away. The evening crept towards midnight.
Coffee was handed round. There was a momentary respite from
music after the conclusion of the Hadyn Concerto, and conversation
swelled into a murmurous hum all over the room. She lit a cigarette
and puffed out smoke languidly. George went to the music cabinet
and brought out some Ravel music. She scanned it perfunctorily; as
a matter of fact she had but a vague idea of what it was like by
looking at it. “Pavane pour un Enfant Défunt,” it was called; the first
few pages looked charmingly simple. George could not find “Jeux
d’Eaux.” Possibly he had not got a copy. But all this modern music
was frightfully interesting. Had she heard César Franck’s Violin
Sonata—the famous one? Or Scriabin’s Eleven Preludes? Or
Debussy’s “L’Après-midi d’une Faune”? Of course, futurist music
was merely the development of what other composers had led the
way to. Some of Chopin’s Ballades and Preludes, for instance, gave
one the impression that if he had lived a century later he might have
been furiously modern. And of course Tchaikovsky. In fact——
Catherine listened patiently, putting in an occasional “Yes” and
“Of course” and “I daresay.” Her one thought was: “I have been
publicly insulted.” And George did not pass even the frontiers of her
mind save when she reflected casually: “Considering what a lot
George knows, it’s rather queer he should be so remarkably
uninteresting at times....”
§8
It was nearly one on Christmas morning when the party broke up.
Catherine was waiting in the hall for George. He had gone to help
somebody to find his or her music-case. Most of the company had
gone; some were going, with much loud chattering on the doorstep

The Protection of General Interests in Contemporary International Law: A Theoretical and Empirical Inquiry Isn:9780192846501 Massimo Iovane (Editor)

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The Protection of General Interests in

Contemporary International Law: A

The Protection of General Interests

1. The Protection of General Interests in Contemporary International

2. The Global Commons and Common Interests: Is there

3. International Fundamental Values and Obligations Erga Omnes

4. Commons, Global (Economic) Governance, and Democracy:

5. A Global Public Good? An Empirical Perspective on International

6. Can Multilevel Trade Governance Protect Global Public Goods

7. Water as an Impure Global Public Good and the Impact

8. Protecting the Atmosphere as a ‘Global Common Good’: Challenges

9. The Cyberspace and the Common Heritage of Mankind 191

10. The International Criminal Law Aspects of the Protection

11. Enhancing ICJ Procedures in Order to Promote Fundamental

12. Community Interests in World Trade Law 264

13. Cultural Heritage and Common Heritage, The Changing Role of

14. A ‘New’ Law of Cooperation: Collective Action across Regimes for

15. The UN Sustainable Development Goals and the Governance of

16. Fences, Fiction, and the Magic Mountain: Responsibility-sharing

17. Disasters: An Additional (Legal) Dimension for the International

DOMESTIC AWARDS AND DECISIONS

European Court of Human Rights

Waite and Kennedy v Germany, Application No 26083/​94, European Court

Inter-​American Court of Human Rights

Court of Justice of the European Union

International Court of Justice

Application of the Convention on the Prevention and Punishment of the Crime of

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United

Permanent Court of International Justice

World Trade Organization –​Dispute Settlement Body

EC − Tariff Preferences, Appellate Body Report, WT/​DS246/​AB/​R

International Criminal Tribunals

Prosecutor v Furundžija (Judgment) ICTY-​95-​17/​1

International Arbitral Awards and Decisions

Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating

Convention Concerning the Protection of the World Cultural and Natural

IBRD Articles of Agreement (1945), ������������������������������������������������������������������������������� 337n.76

Rome Statute of the International Criminal Court (ICC Statute) (1998),��������������������212–​13,

Paula Wojcikiewicz Almeida is a Associate Professor and Coordinator of Jean Monnet

Daniele Amoroso is a Professor of International Law at the University of Cagliari.

Giulio Bartolini is a Associate Professor of international law at Roma Tre University.

Daniel Behn is Senior Lecturer in International Dispute Resolution in the School of

Francesca Capone is a Associate Professor DIRPOLIS at Scuola Superiore Sant'Anna,

Samuel Cogolati is Member of Parliament at House of Representatives, Brussels, Belgium.

Winfried Huck is a Professor of Brunswick European Law School at Hochschule

Massimo Iovane is a Professor of International Law at Federico II University of Naples.

Malcolm Langford is a Professor of PluriCourts Centre of Excellence, Department of Public

Nilufer Oral is a Director of Centre for International Law at National University of

Fulvio M. Palombino is a Professor of International Law at Federico II University of Naples.

Ernst-Ulrich Petersmann is a emeritus professor of Law Department at European University

Pierfrancesco Rossi Postdoctoral Fellow in International Law at Luiss University,

Antonio Segura Serrano is a Associate Professor Department of Public International Law

Peter-Tobias Stoll is a Director of Institute and Jean-​Monnet-​

Giovanni Zarra is a Adjunct Professor of International Law at Federico II University of

Possible reasons for the unsatisfactory development of international law in this

Common Pastures to Global Commons: A Historical Perspective on Interdisciplinary Approaches to

Common Pool Resources’ (2018) 112(1) AJIL 67.

a measure against the over-​exploitation of a common good and as the provision of

processes. Broadly speaking, global governance is characterized by an increasing

1. In what cases it is theoretically and practically sound to use the categories of

These questions are explored through the analysis of representative samples of

concern of humankind, by adopting the protection of the ocean commons as a case

* The author thanks Tejas Rao for his assistance.

Waite and Kennedy v Germany, Application No 26083/94, European Court

Inter-American Court of Human Rights

World Trade Organization –Dispute Settlement Body

EC − Tariff Preferences, Appellate Body Report, WT/DS246/AB/R

Prosecutor v Furundžija (Judgment) ICTY-95-17/1

IBRD Articles of Agreement (1945), �� 337n.76

Rome Statute of the International Criminal Court (ICC Statute) (1998),��212–13,

Peter-Tobias Stoll is a Director of Institute and Jean-Monnet-

a measure against the over-exploitation of a common good and as the provision of