This chapter addresses the suggestion that for a special regime to exist, community members must be engaged in a joint enterprise. In the context of international law, to claim that a group of international law specialists is engaged in a joint enterprise is to assert that they do what they do based on the idea that some certain state of affairs is desirable. As Chapter 4 argues, in the context of international law, the existence of such a presupposition can be inferred from the actual pursuit of those specialists of a distinct state of affairs, and the way in which they perform assignments.

This chapter refines the concept of constitutional symmetry and anticipates some potential objections. Contrary to what skeptics might assert, judges can reliably assess whether particular constitutional understandings are symmetric or not. In addition, favoring symmetry is valuable even though political alignments may shift in the future, and arguable asymmetries in the Constitution itself are not a reason to disfavor symmetric interpretations of provisions whose meaning is debatable. Symmetric interpretation also addresses contemporary challenges better than competing proposals to embrace “proportionality” in rights adjudication, give greater weight to existing precedent, or pursue one contemporary constitutional vision or another in no-holds-barred fashion. For judges who embrace an ethic of symmetric interpretation, a preference for symmetry should hold the greatest purchase in crafting general understandings of discrete constitutional provisions rather than overall interpretive theories or case-specific results, and judges should favor symmetric understandings even if their colleagues do not.

I argue that in some circumstances the capacity for voluntary agreement making can be an adequate realization of the All-Affected principle. The basic idea is that one can, with this capacity, attempt to advance one’s interests by entering into voluntary agreements with others. The All-Affected Principle can be satisfied if persons are able to enter into agreements with those whose actions affect them or with those who can advance their interests. Persons should have an equal say or a say proportionate to their legitimate interests and this can be realized in voluntary agreement making, or so I shall argue. I draw an analogy between democratic decision making traditionally conceived and voluntary agreement making. This helps us see how we can define appropriate procedural norms for the evaluation of processes of voluntary agreement making in both market and international contexts. I argue that fair voluntary agreement in markets and international decision-making is a realization of the same principle as fair collective decision-making in democracy only one is for decentralized decision making and the other is for centralized decision making.

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.

Chapter 2 outlines the contemporary legal framework of IHL, examining the treaty and customary laws that govern conduct in armed conflict, and exploring the fundamental principles of the law. The distinction between the jus in bello and the jus ad bellum is explained, as well as some of the different terms used in IHL (Hague Law, Geneva Law, war vs armed conflict, etc). The main sources of IHL are explained – treaties and customary international humanitarian law. The chapter then explains the main principles governing IHL – distinction, discrimination, military necessity, proportionality, prohibition on unnecessary suffering, neutrality and humanity.

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.