Did the WHO "Cry Wolf" Over Swine Flu?

The World Health Organization (WHO) is fast becoming one of the more controversial international organizations within the UN family, with a number of allegations (or, depending on your viewpoint, commendations) that it has developed a penchant for operating ultra vires, or beyond its mandate. The most striking (but by no means the only) example of this was in relation to the SARS crisis, where the WHO took certain steps to control the disease - such as the issuance of travel advisory warnings in relation to affected States - which had a significant impact on the economies of the States in question, but for which the Organization had no explicit mandate.

While the WHO actions with regard to SARS was not without its critics, it has been largely viewed as a good example of a global administrative body asserting its independence and acting rapidly to avert a global crisis. That, however, may be changing: following the prominent role played by the WHO in the swine flu scare, and the low levels of infection that have since been observed, the behaviour - and processes - of the Organization in this and other putative health crises is being revisited. (See here for the Daily Mash's inimitable take on WHO and the swine flu pandemic).

Via the Guardian, we learn that a draft report being prepared for the Parliamentary Assembly of the Council of Europe (PACE), by UK Labour MP Paul Flynn, is very critical of the WHO's handling of the swine flu outbreak, effectively accusing the Organization of "crying wolf" over the issue, and thus risking public confidence in future cases:

In the United Kingdom, the Department of Health initially announced that around 65,000 deaths were to be expected. In the meantime, by the start of 2010, this estimate was downgraded to only 1,000 fatalities. By January 2010, fewer than 5,000 persons had been registered as having caught the disease and about 360 deaths had been noted...

This decline in confidence could be risky in the future... When the next pandemic arises many persons may not give full credibility to recommendations put forward by WHO and other bodies. They may refuse to be vaccinated and may put their own health and lives at risk.

Interestingly, at a public hearing of PACE's Committee on Social, Health and Family Affairs, Flynn has expanded his comments to previous actions taken by the WHO:

The world has been frightened by a serious of health scares – SARS, Avian 'Flu and now Swine 'Flu. We now know, in hindsight, that the fears that were aroused do not appear to be justified. So we want to know how decisions on pandemics are taken – are they taken on the best scientific, epidemiological evidence, or are they influenced by other interests? That is the basis of this complaint. With H1N1, did the WHO, once again, frighten the world without any substantial evidence?

It is, of course, this focus on decision-making procedures that is of most interest to us from a GAL perspective; as the Guardian article notes,

Flynn's draft accuses the WHO of a lack of transparency. Some members of its advisory groups are flu experts who have also received funding, especially for research projects, from pharmaceutical companies making drugs and vaccines against flu.

This ties in to claims that are being made in other fields, most notably that of climate change and the recent travails of the IPCC (on which more soon): given that the production of scientific knowledge is now such a crucial part of global governance in a number of very high-profile fields, are we to see the traditional models of academic scientific accountability (most notably peer review) make way for more robust provisions modelled on - indeed, representing a discrete branch of - administrative law?

A little more on GAL and science...

Just a quick post to highlight an interesting paper just published my Bruce McCullough and Ross McKittrick entitled "Check the Numbers: The Case for Due Diligence in Policy Formation" (hat tip to Steve McIntyre over at Climate Audit). The paper focuses on an issue that I have mentioned once or twice in the past - the transparency of the scientific work upon which major public policy decisions are taken (it is worth noting that one of the authors, McKitrick, was also a co-author with McIntyre on a number of papers critical of the "hockey stick" graph relied upon by the Intergovernmental Panel on Climate Change). Here's the blurb:

Empirical research in academic journals is often cited as the basis for public policy decisions, in part because people think that the journals have checked the accuracy of the research. Yet such work is rarely subjected to independent checks for accuracy during the peer review process, and the data and computational methods are so seldom disclosed that post-publication verification is equally rare. This study argues that researchers and journals have allowed habits of secrecy to persist that severely inhibit independent replication. Non-disclosure of essential research materials may have deleterious scientific consequences, but our concern herein is something different: the possible negative effects on public policy formation. When a piece of academic research takes on a public role, such as becoming the basis for public policy decisions, practices that obstruct independent replication, such as refusal to disclose data, or the concealment of details about computational methods, prevent the proper functioning of the scientific process and can lead to poor public decision making. This study shows that such practices are surprisingly common, and that researchers, users of research, and the public need to consider ways to address the situation. We offer suggestions that journals, funding agencies, and policy makers can implement to improve the transparency of the publication process and enhance the replicability of the research that is published.

The paper discusses a number of cases in which science has formed the basis for important policy decisions and in which, in the authors' view, significant questions have emerged over the full disclosure and transparency of the data and methods used in generating the results. Firstly, and in many ways most strikingly, the authors insist that the pre-publication "peer-review" process, often presented as the arbiter of sound science, is - or should be - only in fact the beginning of the results verification and replication process. They quote the editor of the prestigious journal Science as saying

What we can’t do is ask our peer reviewers to go into the laboratories of the submitting authors and demand their lab notebooks. Were we to do that, we would create a huge administrative cost, and we would in some sense dishonor and rob the entire scientific enterprise of the integrity that 99.9 percent of it has ... it all depends on trust at the end, and the journal has to trust its reviewers; it has to trust the source. It can’t go in and demand the data books.

The most important part begins, then, when articles are published, and other scientists begin to try to replicate the results. It is in order to facilitate this crucial part of the process that, the authors argue, full disclosure of all data, code and methods used is needed to make the replication process as straightforward as possible. Whatever one thinks of the scientific issues raised by the author - and here, as ever, I plead straightforward ignorance - I find it difficult to come up with reasonable counter-arguments against this claim.

From a global administration perspective, there are two points of particular interest: firstly, the authors outline the "hockey stick" controversy, in which the IPCC was a significant player; and secondly, they refer to another case involving climate science relied upon by an international organisation, in a passage worth quoting at some length:

In late 2004, a summary report entitled the Arctic Climate Impact Assessment (ACIA) was released by the Arctic Council, an intergovernmental organization formed to discuss policy issues related to the Arctic region. The council had convened a team of scientists to survey available scientific information related to climate change and the Arctic. Impacts of a Warming Arctic: Highlights (Arctic Council, 2004) was released to considerable international media fanfare, and prompted hearings before a US Senate committee on November 16, 2004 (the full report did not appear until August 2005). Among other things, the Highlights document stated that the Arctic region was warming faster than the rest of the world, that the Arctic was now warmer than at any time since the late 19th century, that sea-ice extent had declined 15 to 20 percent over the past 30 years and that the area of Greenland susceptible to melting had increased by 16 percent in the past 30 years.

Shortly after its publication, critics started noting on web sites that the main summary graph (Arctic Council, 2004, Highlights: 4) showing unprecedented warmth in the Arctic had never appeared in a peer-reviewed journal (Taylor, 2004; Soon, Baliunas, Legates, and Taylor, 2004), and the claims of unprecedented warming were at odds with numerous published Arctic climate histories in the peer-reviewed literature (Michaels, 2004). Neither the data used nor an explanation of the graph’s methodology were made available (Taylor, 2004; Soon, Baliunas, Legates, and Taylor, 2004). When the final report was released eight months later, it explained that they had used only land-based weather stations, even though the region is two-thirds ocean, and had re-defined the boundaries of the Arctic southwards to 60N, thereby including some regions of Siberia with poor quality data and anomalously strong warming trends. Other recently published climatology papers that used land- and ocean-based data had concluded that the Arctic was, on average, cooler than it had been in the late 1930s (Polyakov et al., 2002). But while these studies were cited in the full report, their findings were not mentioned as caveats against the dramatic conclusions of the ACIA summary, nor were their data sets presented graphically.

This example indicates that empirical claims in assessment reports may need to be audited if they present new data or calculations; or to ensure that the findings are based on published, peer-reviewed journal articles (which themselves can be audited) if the mandate of the panel doing the report is confined to citing only published research. It also highlights the importance of timeliness. If a summary document is released to great fanfare, and contradictory information is quietly disclosed eight months later, the later information may not affect the way the issue was framed by the summary.

Of course, it might be argued that even if the presentation of science, or even the science itself, is in specific instances not ideal, this can be overlooked where that science lends support to an overwhelming need to act quickly to avert catastrophe. However plausible this might seem in the realm of climate change (and I leave that an open question), it is open to a very familiar criticism: how can we, in the absence of properly enforced procedural guarantees, ensure that such examples of less-than-desirable method and practice are limited to those that lend their supprot to an overwhelming public policy objective? My suspicion is that this would be well-nigh impossible. Moreover, and more basically, I can't imagine that any scientist would find this type of pragmatic subversion of the scientific method to be an intellectually satisfying solution.

The authors conclude with a number of recommendations designed to increase "due dilligence" (transparency of data, method and code), aimed at journals, researchers, funding bodies, and policy-makers. There seems to me to be no reason that these recommendations could not be framed as requirements where public authorities rely on scientific work in taking important policy decisions, as part of a administrative law of science (indeed, it is worth noting that McIntyre is no stranger to the use of US Freedom of Information Act in order to get access to the data he desires). It may even be that we are beginning to see the emergence of this type of thing globally, as rules are developed on the legitimate use of science by administrative authorities (particularly here by the WTO, and the scientific evidence required to justify the adoption of trade-restrictive measures under either Article XX GATT, or the provisions fo the SPS and TBT agreements). This would be an interesting article, that I hope to have time to write one day...

***DISCLAIMER***
As always, when writing blogs that refer to the Climate Audit site and to other works that might be seen as challenging the broad scientific consensus on climate change, I feel that a short disclaimer might serve to prevent misunderstanding of my position: I have no grasp whatsoever of the science involved in climate change - as discussed on either the Climate Audit or Real Climate sites, for example - and thus rely exclusively upon the weight of scientific authority. Here, it seems clear: that global warning is 1) happening; 2) our fault; and 3) very scary (although it might be worth mentioning in passing that I have never seen McIntyre "deny" any of these points). This is therefore not the place to discuss such issues; and I am not the person to discuss them with.

My interest in the Climate Audit site comes exclusively from the fact that regardless of the science, I find McIntyre's "due diligence" arguments to be compelling, due to a mixture of my interest in global administrative law, which I think could have an important role to play in ensuring that global public policy is based upon sound science; and my increasing amateur interest in what constitutes "good science" in general (which I owe almost entirely to this man).

Easterly on What the Poor Would Say...

I was lucky enough to be able to attend the conference held last Friday by NYU's Development Research Institute entitled "What Would The Poor Say: Debates In Aid Evaluation". I had one or two grumbles about the format - as so often happens at these things, the way in which the presentations were structured meant that there was relatively little actual "conferring" - just a set of fairly heavily truncated Q&A sessions that were too short to develop into exchanges of real interest. This notwithstanding, I found the event - as a series of extremely interesting lectures - to be very worthwhile; perhaps particularly so from the perspective of those who, like me, were not overly familiar with the issues involved from an economics/social science perspective.

In this post, I wanted to discuss Professor Easterly's talk, "The Big Picture on Aid Accountability", and in particular to frame it within a global administrative law perspective (not a particularly difficult task). In it, he confronted squarely the question posed in the title of the conference, although was at pains to stress at the outset that he was in no position to offer a substantive response to "What the Poor Would Say". Rather, he was interested in how the institutional mechanisms of development aid could be recalibrated in order to ensure that this question was both regularly asked and effectively answered; insisting that the question itself was the "basic question" upon which aid should be judged.

Easterly argued that there were three basic components of any effective mechanism of this sort: transparency, feedback (or "voice") and accountability (see, I wasn't lying when I said that it wouldn't take much work to frame this from a GAL perspective...). The basic evidence for his claim was offered in the form of a series of structural analogues drawn from other (relatively) effective institutional frameworks for regulating and directing human endeavour: the provision of private goods (the market); the provision of public goods (democratic governance); and the production of knowledge (the scientific method and community).

Easterly's fundamental argument was that the success of each of these governance frameworks was dependent upon its being able to furnish an answer to the question of "What would people say"? - which in turn is clearly related to the issue of accountability, which he styled as the most important of the three components outlined above. (It should be noted that Easterly is using a farily broad understanding of "accountability" - many examples of such mechanisms that he cites have been rejected by those who have sought to take a more systematic approach to the concept - see e.g. here for Richard Stewart's approach, and here for Grant and Keohane). he then proceeded to give an outline of how each of the components cashes out in the effective frameworks, and contrasted each of these to the world of development aid.

In private markets, for example, Easterly argued that "transparency" was ensured by the fact that businesses advertise what they are selling, and so customers know what their buying options are. Feedback is ensured, inter alia, by the copious amounts of market research that companies do, by consumer choices themselves, and by the emergence of a decentralised form of review through customer opinion pages on a vast range of websites. Accountability is ensured by the fact businesses go bust if they fail to be sufficiently transparent, or to respond to consumer voice. According to Easterly, however, aid agencies have none of these characteristics: there is very scant information on what services are being provided by whom to whom; feedback is limited as target audiences rarely if ever get to choose with what they will be aided or how they are to be developed, and there are no equivalents of the decentralised "customer satusfaction" reports that we find on the internet; and the big aid agencies are never threatened with extinction.

It is worth pausing at this point to head off one potentially important objection that could be made (and I'm grateful to my colleague at the IILJ, Sarah Dadush, for making it). It is of course true that businesses are rarely if ever as transparent as consumers would want them to be; certainly, it is in their interest to advertise their own products, but it may well be equally so to suppress other relevant information. Very frequently, indeed, product advertisements contain entirely misleading claims, to say nothing of the potential presence of unethical business practices, etc. Moreover, do we really want to transfer the logic of the market to the provision of aid? Two quick points to make in this regard, on my own reading at least: firstly, Easterly was not seeking to suggest that the market was in any sense perfect, but rather that it was relatively effective at delivering private goods for consumption, and the existence of transparency, feedback and accountability mechanisms were vital to that. Secondly, and perhaps more importantly, his point was not to argue that market logics of transparency, feedback and accountability should rule supreme in the global governance of aid; but rather that these constitute basic principles of effectiveness that find expression in structurally analogous but substantively different ways within different governance frameworks. While market logics may well have an important role to play, these will have to be sometimes complemented, sometimes contradicted, by other competing logics. It is also worth noting in this regard that his basic contention - that "the poor" and their wants/needs are the relevant constituency for feedback and accountability - is a judgement that will have to be made and defended prior to discussions about institutional developments.

The point about structural analogues was confirmed by the fact that Easterly made a similar comparative analysis for the other two relatively effective governance frameworks that he discussed - for the provision of public goods, and the production of knowlegde. In terms of the former, he focused on democracy, arguing that transparency was provided by laws such as the US Freedom of Information Act; that feedback comes from many sources, such as elections, polls, an independent media, and opposition politicians; and that accountability is ensured by the prospect that unpopular politicians will be removed from power. Again, he argued that the governance of aid was lacking many of the mechanisms that render democracy an effective provider of public goods: indeed, he went so far as to argue that the "Aid State" was effectively totalitarian in nature, never sharing its operational documents with interested parties, and sticking rigidly to a dogmatic consensus that is extremely resistant to conflict and change (thus lacking "opposition politicians"). I have not the experience to know whether this is an accurate reflection of how these agencies operate, but it's a powerful metaphor - and one that cries out for a GAL perspective.

Lastly, Easterly also argued that structural analogues of these successful transparency, feedback and accountability mechanisms are to be found in the production of knowledge. Transparency is ensured through the "centralised" promulgation of regular textbooks, and through the "decentralised" existence of many independent journals. Feedback is ensured through fostering debate on published works, through the mechanism of peer review, and through the fact that anyone - regardless of qualification - can disprove orthodoxy by following the established (scientific) method. Accountability is largely reputational in form; yet not unimportant for that. Again, Easterly found aid agencies wanting in terms of the basic elements of good governance that enable knowledge to be effectively produced: there are only centralised and very partial databases of statistics in aid; there is a lack of scientific freedom of research within aid agencies, and little if any peer review; and there appear to be no penalties for refusal to provide data or other accoutnability mechanisms (including an interesting story about USAID, which I will blog on shortly).

I should note that I have altered the ordering of Easterly's talk a little here in seeking to frame these issues from within a global administrative law perspective. The GAL-relevance of the first two governance frameworks should be clear: GAL rules are very often enforced to ensure that the market is allowed to operate free from governmental distortions: very many administrative law provisions of the WTO agreements - and the TRIPS agreement in particular - are, indeed, explicitly aimed at this objective. Nor is it news that administrative law can be used to entrench democratic protections - or at least "surrogates" - for those individuals upon whose interests the activities of administrative bodies impact. Indeed, these in some ways map fairly neatly onto the different ("efficiency" and "justice") governance logics that I outlined here (although it is worth noting in this regard that Easterly's take on "democratic" governance was itself here largely framed in terms of its "efficiency" in the provision of public goods. While there may well be something to this, my own view is that reliance on this alone can only provide a distinctly impoverished, and deeply inadequate, account of what democracy brings to the legitimacy table).

As I suggested in an earlier post, however, there may be another logic that is based neither upon markets or morals (to use Benedict Kingsbury's formulation), but rather on the technocratic production of knowledge - a "global administrative law of science". This would seek to regulate not any particular substantive outcome, but would rather ensure the the basic elements of the scientific method - its own transparency, feedback and accountability mechanisms included - are enforceable by law. As science becomes increasingly important to policy decisions, and to global administrative action more generally, it seems reasonable to suggest that it to should be subject to some of the "requirements of publicness" (to steal from Kingsbury again) to which we routinely subject our administrative agencies.

As I noted in a previous post, this is one type of reading that can be made of the - hugely controversial - Wegman Report that was critical of some of the science used in one of the IPCC's reports on climate change; and it is a claim that has been made repeatedly by the - equally controversial - critic of much of the "hockey stick" climate science, Steve McIntyre, over on his Climate Audit blog. Indeed, McIntyre was kind enough to link to my previous post, including some thoughtful reflections of his own on the possibility and desirability of applying GAL to the works of global bodies such as the IPCC. Whatever the truth behind the science here(and, like all good lawyers - if not good scientists - I rely exclusively on the "argument from authority" here, placing me firmly behind the weight of scientific opinion that global warming is both real and terrifying), I'd reckon that it must be difficult for lawyers in general, and administrative lawyers in particular, not to feel sympathetic towards McIntyre's "due diligence" arguments relating to full transparency on data and code used in climate reconstructions. Clearly, however, the role of science in global administration - and hence the potential need for a global administrative law of science - goes far beyond the realm of climate change: it is implicated in a great many WTO controversies, for example (see e.g. Chapter 6.3 of the GAL casebook, for example, or the more recent EC-Hormones decision of the Appellate Body); and lies behind some recent concerns over CERN's activities with the LHC.

My key point here is that, although it exhausts none of them, GAL cuts across all three of the relatively effective governance frameworks identified by Easterly, serving to entrench many of the requirements of transparency, feedback and accountability not merely as governance desiderata but as legal obligation. In a field such as the provision of aid - which, in ideal form at least, provides a public good through the provision of private goods based upon robust knowledge of what works and what doesn't - it is clear that different measures of each is required, calibrated differently to each concrete context in which they are to be applied. Global administrative law thus provides an extremely useful framework and vocabulary for discussing the ways in which the law can be implicated, and can assist, in the good global governance of the provision of aid. One way of capturing this may be to acknowledge a third, "technocratic" governance logic to sit alongside the "efficacy" and "justice" logics that I outlined previously.

Easterly's point can thus, I think, be framed in this way, at a very general level: for any governance activity, first decide upon who the relevant "publics" or "constituencies" are, and then determine and apply the appropriate mixture of different transparency, feedback and accountability mechanisms - drawn from the structural analogues to be found in relatively successful public, private and technocratic governance logics - to ensure the effectiveness of the governance in question. Clearly, this does not provide us with a solution to any concrete governance problem; it may well, however, provide us with the outlines of a framework within which effective solutions can be conceived, developed and implemented. And, as I hope this post has shown, GAL can and should play an absolutely central role in this process.

GAL - and The End Of The World As We Know It

Now read on...

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 Geneva (which, incidentally, comes highly recommended). And the existence of the "big red button" for turning the machine on appears, amusingly, to be rather the creation of the media's willful ignorance of the science on which they report. However, the scale and ambition of the project is indeed breathtaking:

The Large Hadron Collider (LHC) is a gigantic scientific instrument near Geneva, where it spans the border between Switzerland and France about 100 m underground. It is a particle accelerator used by physicists to study the smallest known particles – the fundamental building blocks of all things. It will revolutionise our understanding, from the minuscule world deep within atoms to the vastness of the Universe.

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.

Procedure
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:

Decision-making processes

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 US court. There are, however, two main difficulties with this route in the context of the LHC.

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.

These issues combine to create the impression that, in this regard at least, national courts would not be the best fora in which to review the CERN's evaluation of the safety of its own operations. Of course, the other option - the creation of a supranational body with jurisdiction to do so - would solve all of these problems; it has the significant drawback, however, of not actually existing. To my mind, however, again here it is arguable that CERN is missing a trick, and again it is the general GAL framework that enables us to see clearly why this is so. Firstly, it would an independent review body would further strengthen the Organization's claims to accountability, thus increasing its legitimacy and decreasing the strength of opposition it faces. Perhaps most importantly, however, the creation of such a body would make it extremely unlikely that any domestic court would look to waive CERN's immunity and review its activities. This would result in more benefits along the lines suggested above - reducing the risk of unsympathetic judges giving unwarranted ammunition to critics, increasing skepticism among publics and perhaps even impeding the flow of funding. On the other hand, if the science is a clear as it seems to be, then CERN has little to fear from a genuinely independent and impartial scrutiny by a single international body of the ways in which that consensus has come about .

Unless, of course, the tribunal is as unnerved as I am by the Death Star thing...

*** POSTSCRIPT***

My wife, who has much more practical experience with the mysterious functionings of IOs than I do, has pointed out that most privileges and immunities protocols also make specific provision for the settlement of private disputes. I went back to the CERN Protocol, and sure enough:

ARTICLE 16

Disputes of a private nature

1. The Organization shall make provision for appropriate modes of settlement of:

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.

GAL and the Intergovernmental Panel on Climate Change.

A couple of interesting posts from the Global Governance Watch website, noting some heavy criticism of the opinion of the Intergovernmental Panel on Climate Change (IPCC) that global warming is a man-made crisis, and rejection of the IPCC's recommendation that CO2 emissions should be drastically cut to combat this. (Where did I leave that salt? Ah yes...)

The first is on the release of the recent Manhattan Declaration on Climate Change, in which around 500 "climate change experts and scientists" who have decided that "human- caused climate change is not a global crisis". (I do not have any of the necessary expertise to evaluate these claims - I just want here, however, to note two points: firstly, in terms of a fairly crude scientist and expert "head count", the 500 or so that signed this declaration seems a pretty paltry figure compared to that marshalled on the other side of the debate; and secondly, that the Declaration was issued by the International Climate Science Coalition, "an organization of scientists, energy and policy experts, and economists seeking to provide an alternative to the IPCC by promoting a "better public understanding of climate change science and policy'".)

More interesting, from a GAL perspective at least, is the earlier post on the results of an independent analysis commissioned by the US Congress to look into alleged inaccuracies in the climate predictions developed by the IPCC, particularly with regard to its earlier report entitled Climate Change 2001: The Scientific Basis. The independent analysis criticised the methodology of some of the research on the basis of which the IPCC reached its conclusions, making a number of recommendations. Three of these are - at least analogically - of interest from a GAL perspective.

The IPCC is an intergovernmental body, set up by the World Meteorological Organization (WMO) and by the United Nations Environment Programme (UNEP), and

established to provide the decision-makers and others interested in climate change with an objective source of information about climate change. The IPCC does not conduct any research nor does it monitor climate related data or parameters. Its role is to assess on a comprehensive, objective, open and transparent basis the latest scientific, technical and socio-economic literature produced worldwide relevant to the understanding of the risk of human-induced climate change, its observed and projected impacts and options for adaptation and mitigation.

It is thus a public body, whose output is intended, indeed expected, to have a significant impact on legislative and policy choices taken at the national, regional and global levels. It is not, therefore, much of a stretch to characterise its activity as fundamentally public/administrative in character. The independent analysis, which focuses largely on the standards that should apply when a public body relies on academic scientific research, makes a number of interesting administrative law-type recommendations:

Transparency
The independent analysis found that in many cases in which scientific papers are used as a basis for highly controversial policy documents, "the supplementary material [such as code and data] for academic work is often poorly documented and archived and is not sufficiently robust to withstand intense public debate"; and, moreover, that "[s]haring of research materials, data, and results is haphazard and often grudgingly done", noting in particular that one of the leading academics in the field, upon whose work the IPCC relied heavily, viewed the code that he developed as his own intellectual property, that he was under no obligation to disclose to peers.

The independent analysis recommended that, where academic work is to be used for controversial policy papers, it must be subjected to a much more intense level of scrutiny, involving, inter alia, more disclosure of codes, data, and funding sources.

Participation
One of the central criticisms of the independent analysis is that the academic work upon which the conclusions of the IPCC were based, although relying heavily upon statistical analyses, did not interact with the mainstream statistical community in order to test and validate those analyses. It recommends that, where bodies such as the IPCC are reveiwing academic work with a view to basing their conclusions thereupon, they should ensure the participations of specialist, expert statisticians in that process. Clearly, this kind of participatory requirement is intended to increase the "output legitimacy" (i.e. the quality of the results) of the administrative process in question (in this case, the production of the IPCC's report and findings).

Review
Lastly, and perhaps most tenuously, the independent analysis raised issues that can perhaps be read as a form of accountability: recommendations for strengthening the ex post review process. In this case, however, it is not the review of the administrative activity of global body (the IPCC) itself that is in question, but rather a requirement that it act as a reviewer of the academic work upon which it will base its findings. In this regard, the analysis notes simply that "[e]specially when massive amounts of public monies and human lives are at stake", standard peer review mechanisms are likely to be inadequate; therefore, where it is to be used in service of a political goal, "academic work should have a more intense level of scrutiny and review". Indeed, the previous two issues, relating to transparency and participation, are in many ways simply complementary to this basic strengthening of ex post review. The report suggests, at least implicitly, that where the global body in question fails to discharge this more intensive review function, its own administrative output (the publication of findings and recommendations intended to influence legislative and policy programmes on climate change) should itself be regarded as lacking legitimacy.

As noted above, then, we find in the independent analysis recommendations that bear more than a passing resemblance to certain administrative-law type requirements relating to transparency, participation and review, tailored to meet the specific context of the use of academic work by public administrative bodies in formulating reports and recommendations on matters of political controversy. Are these part of global administrative law? Obviously not yet; however, if they were to be taken on board by bodies such as the IPCC, either formally through the adoption of binding internal procedures, or informally through consistent usage leading to the generation of legitimate expectations, then an argument could certainly be made that they have become rules of GAL. In any event, at the very least, this independent analysis provides us with an interesting example of the ways in which administrative law mechanisms and their analogues are beginning to penetrate the institutions of global regulatory governance, even in highly specific, technical fields.