ADVERTISEMENTS

I want to thank everyone who gave such insightful and, in many cases, well-researched comments to my various posts (here, here, here, and here) about the legal dimension of the safety controversy regarding the Large Hadron Collider, the European super-sized particle smasher which detractors claim might spawn an Earth-ending black hole.

This is a case that poses a number of extremely interesting questions about the philosophy of law, legal epistemology, the intersection of the law and politics, the intersection of law and psychology, and other areas. Because I think the subject is so worthwhile, I plan on doing some additional posts on my own blog, Pixelization, about the matter, including responses to many of the comments I?ve received to the PrawfsBlawg posts.

Additionally, I?ve created a webpage where I will post court documents, links, and any follow-up work I do on the matter. I think this case could be fertile ground for classroom discussion in various classes, including Remedies, International Law, Jurisprudence, Civil Procedure, and Evidence. To the extent there are written opinions or other documents that could make good teaching materials, I will try to track them down and make them available.

For this post, I?d like follow up on something I wrote in my first post. I noted then that this is ?a case that highlights the trust modern civil society has vested in the institution of the law and courts.?

?A court of law,? I continued, ?wields enormous power. That power includes, ostensibly, the authority to shut down what is perhaps the most expensive scientific endeavor in history.?

Well, apparently not. As commenter ?martined? noted, it turns out there was an action in a Swiss court aimed at delaying LHC operations. But the case was rejected because CERN ? the intergovernmental organization operating the LHC facility ? has immunity. (When I can obtain the court documents for these proceedings, I will post them on the resource webpage.)

The issue of CERN?s immunity is a whole other area of this case that is highly intriguing. From my brief review of what documents I?ve been able to find so far, the following appears to be the case: The treaties establishing CERN have vested it with legal personality. The host countries, Switzerland and France, have given CERN and its employees broad immunity and protection against interference by the courts and host country laws and regulations. That immunity is preventing plaintiffs, who argue their lives are at stake, from being able to use judicial process to mount any kind of challenge to CERN?s planned undertakings.1

Immunity for intergovernmental organizations may, in general, be benign. Applied to CERN, however, I find it troubling. Unlike most intergovernmental organizations, CERN is engaged in a category of activities ? even putting black holes aside ? that clearly qualifies as ?abnormally dangerous? and ?ultrahazardous? under American common-law doctrine. Governed by a council of delegates from its 20 member countries, power over the organization, and responsibility for it, is diffuse. When it comes to safety, CERN appears to be entirely autonomous, making its own rules and deciding whether or not those rules are being obeyed. Moreover, where the alleged harm is a planet-ending catastrophe, there is no prospect of after-the-fact remediation by CERN?s state sponsors.

This results in a situation in which CERN has many of the characteristics of a sovereign nation, but, unlike a normal state, CERN has no system of courts. CERN also lacks any constituency within its population beside scientists and their close associates. As such, CERN ? and, perhaps, other intergovernmental organizations operating nuclear facilities ? poses some interesting questions in the field of international law. CERN?s quasi-sovereign nature means that it may constitute a ?scientocracy? in even a more palpable sense than I appreciated in my previous posts.

In view of CERN?s assertion of immunity from host-state courts, the failure of the European Court of Human Rights to deal with the case on its merits is even more unfortunate.

As a final note, to wrap up this series of PrawsBlawg posts, let me say that I do not want to stop the LHC. I have yet to be convinced of the experiment?s alleged hazards. In addition, I?m personally eager to see the theoretical advances in physics that the LHC promises to deliver. Nonetheless, I do think the LHC critics should get their day in court, and it should count. The case should be taken seriously, decided on the merits, and memorialized in a published opinion. Anything less would be very disappointing.

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Notes
1Since CERN's immunity does not apply to contracting entities doing business with CERN, it would seem that suing for an injunction to stop CERN's contractors or suppliers might be a way to get the case into court. I do not know if the LHC critics' lawyers have explored such a strategy. I also wonder if it would be possible to get an injunction in some non-CERN signatory country against resident CERN personnel or even against CERN itself, if CERN has some business in the jurisdiction.

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