Chapter 5 commences by retracing how, beginning in Nuremberg, the reasonable person entered the battlefield in the form of the reasonable military commander. Subsequently the chapter explores two challenges that confront the concept of the reasonable person on the battlefield and beyond. The first challenge consists in the fact that it is easier to empathise with people who are close to us. In the theatre of war, this raises the question whether the reasonable person, when acting as the reasonable military commander, can meaningfully balance the interests of civilians on opposite sides. The second challenge relates to the fact that it is more difficult for powerful people such as military commanders (or judges) to take the perspective of others and to empathise with them.

This chapter analyses the legal framework for the use of facial recognition technology (FRT) in the public sector in Germany, with a particular emphasis on the pertinent German data protection and police laws. Under German law, a legal basis is required for these real-world applications of FRT. The article discusses whether the pertinent laws provide such legal basis and what limits they impose.

Chapter 4 examines the wave of cases before international courts and tribunals (ICTs) against the most innovative tobacco control measures, focusing in particular on Philip Morris v Uruguay (ICSID) and Australia – Plain Packaging (WTO). It contends that the alleged ineffectiveness of the tobacco control measures was one of the key arguments of the claimants, who supported their claims by submitting a hefty amount of evidence. These evidentiary challenges presented novel and demanding tasks for adjudicators of ICTs. Against this backdrop, this chapter first analyses the nature and features of the evidentiary challenges to tobacco control measures (Section 4.2). Second, it reviews how the ICTs have assessed them, zooming in on the interpretation of flexibilities and the use of different sources of evidence (Section 4.3). The picture that emerges from this chapter is that of unnecessary, manufactured complexity. Shifting the discussions on tobacco control measures from the WHO/FCTC to trade and investment ICTs, the tobacco industry has effectively managed to masterfully use international law to its own advantage. It has reframed the debate, all while starting expensive and lengthy judicial proceedings that have taken almost a decade to be concluded.

This chapter addresses the tensions between the high level of independence granted to the European Central Bank (ECB) under the Treaties and its accountability. In a first step, it sets out the legal framework of monetary policy within the system of the European System of Central Banks and explains in more detail the quantitative easing programmes of the ECB. It goes on to provide a summary of the back-and-forth litigation on the scope of monetary policy between the Court of Justice and the Bundesverfassungsgericht in Gauweiler and Weiss. Next, the chapter focuses on the judicial review of the monetary policy decisions by the Court of Justice and the national courts. Both these sections follow the same structure: first, they analyse access to courts and remedies; and second, they show how the courts under analysis approached the principles of equality and solidarity, for the purposes of achieving the common interest. The chapter closes with an examination of judicial interactions between EU and national courts and the role these play in the legal accountability of the ECB.

This chapter considers the criteria for collective self-defence that are shared with individual self-defence. It is uncontentious to say that the same criteria that apply to individual self-defence – armed attack, necessity, proportionality, the reporting requirement, and the ‘until clause’ – also apply to collective self-defence. Indeed, this is an inevitable consequence of the way the concepts appear in Article 51 of the UN Charter. The nature and application of these criteria in the context of individual self-defence have been examined at great length in the existing literature. This chapter therefore does not provide in-depth analysis of all of their aspects. That said, it does provide a brief overview of these requirements to ensure that this book presents a comprehensive picture of the operation of collective self-defence today. The chapter’s main focus, though, is to examine how the operation of these criteria works specifically in the context of collective self-defence actions, which is something that has been largely overlooked in scholarship.

This chapter examines the external affairs power. Section 51(xxix) of the Australian Constitution grants the Commonwealth Parliament power to make laws with respect to ‘external affairs’. The external affairs power has three key components and is both a subject-matter and purpose power. The external affairs power empowers the Commonwealth to make laws with respect to the subject-matters of: (1) international relations; and (2) matters geographically external to Australia. The external affairs power also empowers the Commonwealth to make laws for the purpose of: (3) implementing Australia’s international legal obligations. The power has enabled the Commonwealth to regulate matters as diverse as aviation safety standards, racial discrimination and terrorist activity.

This chapter examines the guarantee section 92 provides for freedom of inter-State trade, commerce and intercourse. While the High Court previously interpreted section 92 as providing for two separate guarantees (one guaranteeing freedom of inter-State trade and commerce, and one guaranteeing freedom of inter-State intercourse) with different analytical frameworks, section 92 is now understood as being a composite provision having two limbs – the inter-State trade and commerce limb and the inter-State intercourse limb – with a common analytical framework for determining whether a law contravenes the provision. The guarantee of freedom of inter-State trade and commerce ensures free trade within Australia. It operates to invalidate discriminatory burdens of a protectionist kind imposed on inter-State trade and commerce. The guarantee of freedom of inter-State intercourse ensures freedom of movement from one State to another. It operates to invalidate all discriminatory burdens on inter-State intercourse. It also operates to invalidate disproportionate incidental burdens on inter-State intercourse.

Equality and equal treatment are the principal purpose of WTO law. However, that purpose is accomplished in varying conditions, which make it difficult to regularly attain the consistency and coherence that an egalitarian and obligatory conception of the law assumes. Consequently, this chapter proceeds to demonstrate how WTO law is focused secondarily on fairness and corrective justice and how this focus begets a subordinate emphasis in law on rights, which in turn gives rise to a contractual structure that is retrospectively oriented and reasoned inductively. It also demonstrates how various features of WTO law like the non-violation cause of action and implementation are consistent with such a rights-based ethos.

This chapter investigates legal accountability of financial assistance from the perspective of borrower countries. It adopts an empirical approach taking the Portuguese case to test how accountability of the financial assistance programme, on the one hand, and of the national measures implementing conditionality, on the other, was exercised. The investigation focuses on the judicial review of austerity measures in different institutional contexts comprising the domestic constitutional court, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights. It aims at assessing in how far these judicial fora have delivered the accountability goods identified in the introductory chapter, particularly publicness, as the good oriented towards ensuring that public action is guided by common goods, namely that it respects the constitutional principles of equality and proportionality.

This chapter focuses on transnational solidarity conflicts, that is, a new type of distributional conflict which encompasses both quarrels about the adaptation of domestic welfare systems to EMU requirements and the distribution of costs and benefits between Member States. It seeks to understand how constitutional accountability may contribute to constructive management of such conflicts. In addressing this question, the chapter focuses specifically on the accountability goods of openness and publicness. It analyses the case law of the German and the Portuguese constitutional court as well as of the Court of Justice of the EU (CJEU) following the Eurozone crisis. Domestic courts applied mostly a deductive approach to accountability in the EMU and thereby also tended to ‘nationalise’ transnational solidarity conflicts rather than acknowledge their European dimension. By contrast, the CJEU made the European constitutional dimension visible, thereby contributing more to openness. However, by focusing mostly on economic constitutional values, while only hesitantly applying other constitutional values such as social rights as a benchmark for substantive accountability it ensured publicness only to a limited extent. In conclusion, both domestic and European constitutional accountability mechanisms did not ensure meaningful accountability in the sense of concretizing and re-negotiating constitutional common goods.

The transformation of the ECB powers in the past decade opened fundamental questions pertaining to the judicial review of monetary policy decisions and, more deeply, to the role of law in the government of money. Underlying those questions is the inadequacy of categories of public law we use to understand the power of administrative and executive institutions when acting in instances of uncertainty, technical complexity, and high political stakes. Against this background, this chapter characterizes the powers of the ECB as constitutive. It argues that this constitutive nature explains the difficulties of judicial review over monetary policy decisions, and, furthermore, that constitutive powers justify a shift in understanding the role of law in relation to the action of executive bodies. Law can and must operate in the absence (or irrespective) of judicial review, and support accountability outside of the courtroom. This last point will be demonstrated through the analysis of the legal and constitutional scope of the duty to give reasons in EU law.

Chapter 3 focuses on the ECtHRs general principles concerning ECHR Article 9 in its jurisprudence. It contends that the ECtHR recognises the forum internum and forum externum relationship, intuitively understanding that, because actions flow from the forum internum, the forum internum is always relevant to some degree in Article 9 cases. As such, this chapter recommends conceptualising the forum internum and forum externum aspects of the right on a continuum. Whilst, this chapter argues, forum internum relevance is the principal factor weighing in favour of the applicant, it contends that it is not the only factor the ECtHR takes into consideration in Article 9 cases; the ECtHR balances in all Article 9 cases, weighing up factors pointing to a violation of Article 9 (primarily, but not forum internum relevance) with countervailing factors pointing away from a violation, to reach its decision. Given the ECtHR offers a range of protection as a result, this chapter suggests that a useful way of grouping Article 9 cases for analysis is a loose concentric circles model, comprising three circles, as this better reflects the ECtHR jurisprudence than a binary and hierarchical framework.

Chapter 6 provides an overview of the general aspects of the right of self-defence. It first examines the concept of an ‘armed attack’ as found in Article 51, with the aim of shedding some light on the difficult issues and questions raised by this prerequisite for the invocation of the right of self-defence. It then goes on to provide an examination of the twin customary principles of necessity and proportionality, including a specific look at the controversial concept of armed reprisals, before moving on to examining military action for the protection of nationals who are located abroad. The right of self-defence exists in both individual and collective forms, and the chapter takes a specific look at the right of collective self-defence. Finally, it examines the role of the UN Security Council in the invocation and implementation of the right of self-defence, an aspect of the right which is prominent throughout Article 51.