When does it start?
There are very few starts. Oh, some things seem to be beginnings. The curtain goes up, the first pawn moves, the first shot is fired (probably at the first pawn) – but that’s not the start. The play, the game, the war is just a little window on a ribbon of events that may extend back thousands of years. The point is, there’s always something before. It’s always a case of Now Read On.
Much Human ingenuity has gone into finding the ultimate Before. The current state of knowledge can be summarized thus:
In the Beginning, there was nothing, which exploded.
(Terry Pratchett, Lords and ladies (1993) p. 7)
Picture the scene: a group of shadowy individuals hollow a huge underground chamber beneath the Swiss Alps, and within its depths construct a machine capable of smashing particles together at unfathomable speeds (a machine, incidentally, that, as the second picture clearly demonstrates, bears an uncanny resemblance to the big laser in the Death Star). They proudly display a statue of the Hindu deity Shiva, the destroyer of worlds, doing an end-of-the-universe dance (as seen in the first picture); proving that, whatever else, at least someone involved has a sense of humour.
Their stated goal is to reconstruct the conditions existing at the time of the mother of all explosions - the Big Bang itself. Their ends are benevolent - unsatisfied with he current state of scientific knowledge on the subject (as unforgettably described by Pratchett above), they seek only (but nothing less than) enlightenment on the beginning of all things; however, the lust for knowledge that drives them has led them to the conclusion that the risks inherent in their project - the danger that their machine will create black holes that will devour the entire planet and everything on it - are risks worth running. They are beyond the reach of the courts. The day is rapidly approaching when they will press the big red button that may signal the End of history (really, though, this time)...
Science fiction or science fact? Almost entirely the former, it seems (although some director will doubtless try to pass it off as "based on a true story" at some point). For anyone who doesn't already know, the situation sketched above is the doomsday scenario portrayed by a number of critics of the Large Hadron Collider at the European Organization for Nuclear Research (CERN). Firstly, CERN isn't particularly shadowy; indeed, you can even take a tour of their facility just outside
The Large Hadron Collider (LHC) is a gigantic scientific instrument near
Two beams of subatomic particles called 'hadrons' – either protons or lead ions – will travel in opposite directions inside the circular accelerator, gaining energy with every lap. Physicists will use the LHC to recreate the conditions just after the Big Bang, by colliding the two beams head-on at very high energy. Teams of physicists from around the world will analyse the particles created in the collisions using special detectors in a number of experiments dedicated to the LHC.
A number of critics - including some scientists - have raised a variety of concerns over the safety of the project, prime among which is indeed - believe it or not - the possibility that the LHC will create miniature black holes that will sink to the Earth's core and eventually devour the entire planet and everything on it. Everyone seems to accept that the first part of this - the creation of little black holes - is a theoretical possibility. Almost everyone - and everyone qualified in the field of particle physics itself - appears to agree that even if this does occur, however, the black holes would be unstable and would evaporate, due to "Hawking radiation", which explains why the planet hasn't yet been devoured by the black holes that are theoretically created by the cosmic rays that frequently strike the earth at the same velocity that will be generated by the LHC.
Apologies in advance to those to whom my inevitably simplistic, doubtlessly reductive and quite possibly inaccurate account of the scientific issues above will have caused offence. There are (a few) actual scientists in the critics' camp, but they appear to have no formal training in the relevant field. This page is a good resource for those interested in taking reading on the issue further, including the papers in which the concerns are raised and those containing expert rebuttals of the points made. The science is, of course, entirely beyond me; but falling back instead on lawyerly instincts and arguments, it is worth making the point that the overwhelming weight of authority insists that there is absolutely no cause for concern. To give one example, here are some of the comments made by Prof. Dr. Hermann Nicolai, Director of the Max Planck-Institut für Gravitationsphysik, on speculations raised by Professor Otto Rössler about the production of black holes at the LHC:
…[T]here is also not the slightest reason from the point of view of a theorist specialized in relativity to take these considerations seriously, since - in my view - they are based on an elementary misunderstanding of the theory of general relativity.
To conclude: this text would not pass the referee process in a serious journal.
This is a topic I have been meaning to post on for a while now, after having read an excellent five-part analysis of the legal issues to which it gives rise over at PrawfsBlawg by Eric Johnson (part 1, part 2, part 3, part 4, part 5). Each part is worth reading in full,(comments included), providing a reflection upon a different aspect of the (largely hypothetical) case. Johnson also makes some extremely interesting suggestions, to which I will return briefly below. However, one thing that struck me while reading his posts was the lack of any general conceptual structure within which to frame the issues that he identifies, or the recommendations that he makes. Another thing that struck me was how well-calibrated global administrative law appears to precisely this task.
There have, as far as I can tell, been 2 legal challenges to date, seeking an injunction against the operation of the LHC. Both were, it seems, dismissed for a lack of jurisdiction: one in the US (Sancho v. DOE), dismissed because the US Government's contribution of over $500 million dollars was not sufficient, and did not buy sufficient control, to qualify as a "major Federal action" under the National Environmental Policy Act; and a European Court of Human Rights preliminary judgment that appears to have disappeared without a trace (the complaint, in German, is here; it seems that the complainants were arguing that an earlier case, in which a contractual dispute against CERN was rejected on the grounds of the Organization's immunity from suit before the domestic tribunals of Member States, meant that the requirement to "exhaust domestic remedies" had effectively been obviated).
There are three aspects of Johnson's analysis that I want to look at here from a GAL perspective (contained in parts 4, 3, and 5 respectively; part 2 offers a more detailed outline of the science involved than I have above): technocracy and review, procedure, and immunity. and jurisdiction I'll deal with each briefly in turn.
Technocracy and review
One of the key arguments against any form of legal evaluation of profoundly complex scientific issues is, of course, that few if any judges or lawyers can understand them well enough to formulate any sort of well-informed judgment upon the substance of such debates. This leads easily to the view that courts and lawyers simply shouldn't be involved in scientific debates, creating a kind of "scientocracy" in which majority views of scientists are placed beyond the scope of judicial review. Of course, within the broader field of GAL, it is often simply impossible for them not to be so involved - as the recent EU-Hormones decision of the WTO's Appellate Body amply demonstrates, there are very often occasions in which science and regulation are so inextricably interlinked that a reviewing tribunal cannot but consider scientific issues if it is to be able to perform its functions at all.
This is not true, however, in the case of the LHC; here, lawyers and judges could simply leave CERN and its activities to the scientists (which is, in fact, what it does at present). Given what is at stake in this and other cases - public interest issues par excellence, usually also involving the commitment of vast amounts of public funds - can we really rely on what is effectively an exclusively technocratic mode of governance and be sure that all of the relevant issues are being satisfactorily addressed? Martin Shapiro - amongst many others - has cast doubt on the asumptions underlying the preference for technocratic deliberation:
There are a number of reasons to be agnostic if not atheistic about deliberation. Most fundamentally, there is little reason to believe that people with substantial, long-term, material interests in achieving a particular outcome are going to abandon those interests and their dedication to those outcomes as sweet reason emerges from the talk fest.
It may be argued that science is different: the pursuit of truth can be distinguished clearly from the pursuit of interest; and the relative strength of a proposition can be evaluated in its own terms, divorced from the preferences and politics of those involved. This may be true - to an extent at least - in certain areas of science and with regard to certain issues (although again, as the Hormones saga has shown, where science isn't certain, politics can and should begin to colour the concept of "precaution"). Perhaps most importantly, however, it should be pointed out that the review mechanism upon which most scientists rely when faced with questions such as these - peer review - is often, even in the most respected of journals - much less of a profound and in-depth affair than most lay people suspect. Again, it is reasonable to ask whether, when the science involved speaks to the great political issues of our time or impacts upon matters of profound public interest, whether this type of essentially self-regulation is sufficiently robust.
Johnson puts the matter succinctly, noting that current discourse within the scientific community
... would seem to indicate a pervasive belief among high-energy physicists that lawyers and judges have no proper place in investigating and reviewing their experimental undertakings. If that is true, such a standpoint constitutes a substantial and direct threat to a cherished bedrock concept of modern society, the rule of law.
When it comes to a question such as whether the LHC might plausibly create a black hole, particle physicists can easily claim that no one, other than one of their own, has the depth of understanding required to weigh in....[But] the argument that no one but scientists can understand science, so no one but scientists should exercise control over experimentation, is not only an easy argument to make, it is too easy. Acceptance of such a view effectively vitiates the rule of law for a category of human activity which is potentially of ultimate importance. Thus, this ground should not be conceded. While the knowledge gap provides a tremendous challenge to providing meaningful and fair judicial review of leading-edge scientific research, it should not be permitted to bar the involvement of the courts.
This argument strikes me as persuasive; and nor is it difficult to see how it dovetails with the agenda of the GAL project more generally. In many ways, the essence of GAL is obviated if exclusively "technocratic" governance modes are adopted. As it becomes increasingly accepted, however, the discourse of global administrative law will provide both a language and a framework within which demands for this type of review of important scientific activities - not to mention contribute greatly to the creation of a culture in which they are likely to be successful.
We are still, however, left with a significant problem - the undeniable fact that, in many if not most cases, judges and lawyers are singularly ill-equipped to pronounce on the validity of one scientific proposition over another. Moreover, the normal lawyerly response to this - expert testimony - may be unsatisfactory in a number of circumstances: for example, where the science is hotly contested among experts; or, as arguably is the case with the LHC, where the community of experts capable of understanding and evaluating the issues is so small that we cannot be sure that a consensus has been achieved in a genuinely independent and autonomous manner.
Johnson's suggestion for overcoming this issue is essentially procedural (broadly understood) in nature, again dovetailing nicely with the GAL project (in its current form, at least):
While courts are not well equipped to evaluate theoretical science, they certainly are adequate to the task to investigating social dynamics, psychological factors, political influences, and organizational cultures. In evaluating a preliminary injunction request regarding the Large Hadron Collider, a court should scrutinize the culture of CERN and the particle-physics community, as well the political, social, and psychological context in which their decisions are made. Having done so, the court should then determine, with reference to those gathered facts, whether “serious questions” exist, and, thus, whether the case for a preliminary injunction has been made.
As I said, this passage is talking about an investigation into the "procedures" rather than the substance of scientific agreement in the broadest sense of the former term; and yet Johnson seems correct in his suggestion that there is nothing per se unreasonable about the idea of a court examining and evaluating such "psycho-social" processes in order to reassure itself that they were not subject to any pathologies or perversions that could have distorted the outcome. Any causes for concern could lead to a preliminary injunction against the activity in question, until they had been satisfactorily addressed.
We might even go further than this, and suggest that a more mature global administrative law would be able to develop and insist upon broad sets of procedural guarantees designed to weed out such pathologies ex ante, thus obviating the need for a reviewing judge to resort to ad hoc categories and tests in evaluating the ways in which agreement has been generated. The idea of a "global administrative law of science" is, of course, far from being realised, and would present a huge challenge to our collective institutional imagination, and yet it strikes me that it is one area that may well be interesting to pursue. I'll return to it in a later post.
For the moment, it is worth noting that, in the case in question the issue of the safety of CERN's activities appears to be left almost entirely for CERN itself to investigate and decide upon. I do not, of course, mean to imply by this that they have not done a full and thorough job in their investigations; to the contrary, as far as I can tell (not, admittedly, very far), the two recent safety reviews (the first in 2003, by a broup of independent scientists at the LHC Safety Study Group, then updated in 2008 by the LHC Safety Assessment Group to take account of new criticisms that had been raised) seem to be detailed and thorough, and at least confront head-on the concerns of critics with an impressive array of authority.
What is striking about CERN's activity in this regard, however, is the almost complete absence of any sense that procedural guarantees might be useful in securing and enhancing the legitimacy of conclusions. The reports have been reviewed and endorsed by The LSAG report has been reviewed and endorsed by CERN’s Scientific Policy Committee, a group of external scientists that advises CERN’s governing body, the Council. The Terms of Reference for the Committee, however, again give no real sense that processes are of any great import:
9. Except in the cases specified in paragraphs 5 (d) and 6 above, the SPC shall take its decisions by simple majority of its members present and voting (abstentions not counted). Consensus is desirable.
It is certainly arguable that in failing to set and keep to a more robustly-formulated set of procedural guarantees, CERN is missing a trick - and this on a number of levels. Firstly, it is losing a key opportunity to present itself as a transparent and accountable organization - two claims that would certainly increase its general legitimacy - and perhaps decrease some of the hysteria that has been generated over the LHC - without any real apparent risk of any adverse outcome for the project. Secondly, it loses the chance that any court that did agree to a review of the processes through which the scientific consensus had been reached will defer to its own procedural setup, thus potentially missing out on an opportunity to control the direction of judicial review. And thirdly, relatedly, it risks that an unsympathetic judge will create ad-hoc categories that fail to capture the degree to which the science really is settled, and undermine a consensus that had in fact been genuine and sound. Even if such a judgment would be extremely difficult to enforce, it could put significant pressure on CERN and the LHC, giving critics unwarranted ammunition in the process. If, on the other hand, CERN had in place a robust set of procedural guarantees ensuring transparency, participation and a genuinely independent process, then these risks woudl all be greatly reduced - particularly if they could point to the standards that they were applying as part of a more mature and generally accepted global administrative law of science.
Immunity and Jurisdiction
This brings us on nicely to last point that I wanted to discuss arising from Johnson's excellent blogs on the LHC: the related questions of immunity and jurisdiction. From a global administrative law perspective, there are two main possibilities for judicial review of the activities of an international organizations such as CERN: either by national courts or by an international body. The former appears certainly the most likely; indeed, Johnson's posts are mostly framed in terms of a hypothetical challenge before a
Firstly, as noted above, the challenge before the Swiss courts failed because of the Protocol on the Privileges and Immunities of the European Organization for Nuclear Research of March 2004, which provides in Article 5(1) that, excluding a few narrowly-defined exceptions, "in the exercise of its official activities, the Organization shall enjoy immunity from legal process" before the courts and tribunals of CERN Member States. This is a very common obstacle to the review of the activities of international organizations by domestic courts. Although there have been recent moves by a number of domestic and regional courts to discard this immunity should there not be a substantially equivalent access to justice mechanism available at the international level (see this paper by August Reinisch for more detail), these have to date been confined to staff disputes within international organizations. While the explicitly human rights rationale relied upon in many of these cases might lead us to expect that such an approach to immunity might be extended to the vexed issue of the impact of the activities of international organizations on third party rights, I am as yet unaware of any decision in which this has occurred. It is hard to imagine a more profound potential impact on third party rights than the destruction of the planet and all life on it; it would be interesting indeed to see whether a Swiss court would be as absolutist on the issue of immunity in this context as it was in the earlier contractual dispute.
Even if a domestic court did decide, however, to issue an injunction against the operation of the LHC, there would still be - as Johnson fully acknowledges - almost insurmountable problems of enforcement; indeed, it seems likely that only a Swiss court could make such an order effective. Certainly, courts may be able to stem the flow of funding from national sources, but would in all likelihood be insufficient to stop the machine being switched on at this stage. Short of military action (and Marko Milanovic over at ESIL:Talk! has sketched for us the entertaining - if probably exaggerated - argument that the way in which the US Government's legal advisors had framed the idea of "preventive self-defence", with the amount of "imminence" of a threat required inversely proportional to its "magnitude", would in fact entitle it to bomb Switzerland if it refused to turn off the LHC...), it is difficult to see what steps a foreign court could take to have its judgment enforced. CERN activities are different from many of those of other international organizations in this regard, in that they do not themselves require the mediation of national actors in order to be effective.
Unless, of course, the tribunal is as unnerved as I am by the Death Star thing...
Disputes of a private nature
a) disputes arising from contracts to which the Organization is a party;
the Organization shall include, in all written contracts into which it enters, other than those referred to in paragraph 1 d) of this Article, an arbitration clause under which any disputes arising out of the interpretation or execution of the contract shall, at the request of either party, be submitted to arbitration or, if so agreed by the parties, to another appropriate mode of settlement;
b) disputes arising out of damages caused by the Organization or involving any other non-contractual liability of the Organization;
c) disputes involving an official of the Organization who enjoys immunity from legal process, if such immunity has not been waived in accordance with the provisions of Article 5 of this Protocol;
d) disputes arising between the Organization and its officials;
the Organization shall submit all disputes arising from the application and interpretation of contracts concluded with officials of the Organization on the basis of the Staff Rules and Regulations of the Organization to the jurisdiction of the International Labour Organization Administrative Tribunal (ILOAT) or to any other appropriate international administrative tribunal to the jurisdiction of which the Organization is submitted following a decision by the Council.
2. For disputes for which no particular mode of settlement is specified in paragraph 1 of this Article, the Organization may resort to any mode of settlement it deems appropriate, in particular to arbitration or to referral to a national tribunal.
3. Any mode of settlement selected under this Article shall be based on the principles of due process of law, with a view to the timely, fair, impartial and binding settlement of the dispute.
Make of that what you will. On one hand, it seems to create a massive amount of wiggle-room for the Organization, in particular in relation to non-contractual damages and liability, where it doesn't even refer necessarily to third-party or judicial dispute settlement, but only what the Organization deems appropriate. On the other hand, it does seem to create some obligations, particular to settle disputes in a manner "based on the principles of due process of law"; it is certainly arguable that the "dispute settlement" measures taken by CERN to date - the commissioning of independent reports on the safety of the LHC - does not fulfil this. Of course, how one (and, indeed, who) might go about enforcing such an "obligation" in the face of CERN's recalcitrance remains an open question.
Here, incidentally, is CERN's own take on its own immunities, why they are there, how they came about, and what the new Protocol obliges them to do in terms of dispute settlement. Worth a read.