Sunday, November 16, 2008
Black Holes and the Law: This is the End
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.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.
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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Re: Hindu deity Shiva, “the destroyer of worlds,” doing his cosmic dance that ends the universe---
At the risk of resurrecting a previous discussion (http://lawprofessors.typepad.com/legal_profession/2008/03/michael-clayt-1.html), it is best not to characterize this particular depiction of Shiva (Nataraja, the Lord of the [cosmic] Dance) as simply "the destroyer of worlds" for, to cite just one authority (Gavin Flood), Shiva Nataraja (as one of several and different iconographic representations of Shiva) is seen here "in his awe-inspiring dance which expresses his boundless energy, [as] he creates, maintains and destroys the cosmos." The fact that he is dancing on the dwarf of ignorance should not go unnoticed as well. It is true that in the so-called Hindu trinity (trimurti) a division of labor finds Brahma the creator deity, Vishnu the sustainer god, and Shiva the destroyer, but Shaivism in both theory (i.e., mythology and doctrine) and practice (among Shaivites, i.e., bhakti devotees of Shiva or his various consorts) views Shiva as "a god of ambiguity and paradox. He has been described by Wendy Doniger O'Flaherty as the 'erotic ascetic,' the ithyphallic and promiscuous god, who is also the celibate yogin, practicing austerities in the Himalayas. He is the three-eyed god who has burned Desire with his third eye, who dances in the cremation ground and yet who seduces the sages' wives in the pine forest. He is the wild matted-haired ascetic, yet he is also the ideal family man and householder with a wife, Parvati, and their two sons, Ganesha and Skanda. He contains all opposites within him and is even described as half male and half female." There are iconographic depictions of these forms of the deity as well. One of the more popular representations, and perhaps the earliest, is the Shiva linga, which represents a phallus within a vulva, symbolic of the union of Shiva with his dynamic (feminine) energy or shakti. This icon alone should make it clear that Shiva is not fairly described as simply the "destroyer of worlds."
And if it is true that the Vedic deity Rudra is a precursor to the post-Vedic Shiva, the case is yet stronger still. The earliest known Shaivites worshipped him as Lord of the Animals. The Vedic Sanskrit "shiva" means benevolent, gracious.
I suspect the appellation "destroyer of worlds" has caught on owing to the subconscious (or unconscious) influence of recurring apocalyptic visions (or nightmares) in Judeo-Christian traditions (in other words, in our first encounters with 'the Oriental/Eastern Other,' we see what we want to see). The complexity of Shiva as a deity is further reinforced when one considers the philosophical sophistication of Kashmir Shaivism, which in many respects is the intellectual equal of Advaita Vedanta (no small achievement). In short, the complex mythology and iconography of Shiva is perhaps better suited to your series of posts on the Large Hadron Collider, rather than the above caption for the CERN-campus Nataraja statue.
Posted by: Patrick S. O'Donnell | Nov 17, 2008 2:17:06 AM
It seems the Nataraja statue was donated by the government of India "to celebrate the research center's long association with India." On the the possible symbolism, see Fritjof Capra's self-serving take on the matter here: http://www.fritjofcapra.net/shiva.html
Incidentally, the aforementioned "destroyer of worlds" appellation is, it seems, intended to call to mind Oppenheimer's comment from the Bhagavad Gita upon witnessing the first atomic bomb explosion: "Now, I am become Death, the destroyer of worlds." But if one looks to the source of this quote, one learns he quoted only the first half of the first verse from 10.34, which continues, "...and the origin of those things that are yet to be." And the speaker is not, strictly speaking, a deity (let alone Shiva), but "the source of the gods" (nirguna Brahman, in Advaita Vedanta terms).
Posted by: Patrick S. O'Donnell | Nov 17, 2008 3:21:15 AM
Thanks for your (per usual) thoughtful and information-packed comments. I am aware of the origin of the CERN's Nataraja statue, and I'm aware of the explanation for why its complex symbolism is apropos for CERN. Nonetheless, "destroyer of worlds" is one appellation associated with Shiva, particularly in the context of nuclear technologies in the wake of Oppenheimer's famous remembrance. Moreover, Shiva's Cosmic Dance, depicted in the Nataraja image, indeed does involve the destruction of worlds. So I think it's fair for me to point out the irony here as an interesting sidenote to the LHC-safety controversy.
I appreciate all of your comments, Patrick. And I especially thank you for your reference-packed comments to this series of posts about the LHC.
Posted by: Eric E. Johnson | Nov 17, 2008 8:30:28 AM
Pardon my persistent hardheadedness, but I rather thought the complex symbolism was apropos your posts, not CERN. And "destroyer of worlds" is an incomplete appellation without its complement, "creator of worlds." Lastly, even a cursory reading of the Bhagavad Gita reveals the quote from Oppenheimer is not attributable to Shiva but Vishnu-Narayana-Krishna (Krishna being the eighth avatara of Vishnu), which is saguna Brahman, that is, the One or Absolute Reality (NOT 'God' or a god of any sort) viewed with the attributes or qualities intrinsic to propositional language (or 'knowledge that'), while in the end Brahman is attributeless, without qualities or characteristics, that is, nirguna Brahman (hence must be understood in non-propositional terms, and the knowledge of which is said to be a kind of non-Russellian 'knowledge by acquaintance' or 'knowledge by presence,' a rarefied form of spiritual intuition attained by the jnana-yogi). (Brahman as Vishnu-Krishna will do for most religious purposes and for most devotees, but the goal, at least for the jnana yogi, is come to a spiritual understanding of this Supreme Reality beyond cognitive conceptualization and rational apprehension, which are thought to be unjustifiable limitations on Brahman.)
So the real irony may be that the Nataraja image simultaneously connotes the "creator of worlds" (something Capra at least appreciates). Again, I think our penchant for constricting the complex symbolism speaks more to "our" peculiar proclivities and inability to appreciate otherwise complex if not ambiguous and non- or supra-rational (or, if you prefer, irrational) myth(ology) and symbolism than it does to CERN. 'Nuff said.
In any case, thanks for your provocative posts and kind words.
Posted by: Patrick S. O'Donnell | Nov 17, 2008 9:26:37 AM
The universe was created 13.7 billion years ago in an explosion. How it will end, with infinite expansion or collapse, depends on an understanding of matter, gravity, dark matter, and dark energy that the LHC is designed to explore. Today, we are in the middle of the dance somewhere between the creation and destruction of everything.
This planet, however, will not last as long as the universe. It will be destroyed in 5 billion years when the sun burns out, or in the chaos 2 billion years from now when our galaxy crashes into another galaxy now heading toward us, or at any random time when a supernova explodes in our vicinity, or we move into the X Ray beam generated by a nearby astronomical black hole. North America will be destroyed when the supervolcano under Yellowstone blows up (it has been 600,000 years since the last explosion so the time is about right). The East coast will be destroyed by the tidal wave when part of the la Palma volcano slides into the Atlantic. At any time the Earth could be hit by a comet or large asteroid. If we don't find better sources of energy, global warming could destroy the planet in this century.
While the probability that the LHC will cause trouble is not zero, it is still vastly smaller than the probability of any of these other catastrophes. What we learn about space and time and matter may give us clean energy sources or a way to avoid some other more realistic threat. We are in the dance. There is no way out of the dance. Ignorance is not the best strategy.
Posted by: Howard Gilbert | Nov 17, 2008 7:31:20 PM
Well, obviously we are faced with a quasi-state, which already started acivities of which it itself can not proof that they are harmless (see circularity argument, among others), where no jurisdiction is in place, which lacks any constituency beside the scientific one (establishing a major naturalists fallacy). In some way we are thus also faced with a quasi-declaration of war, enacted by a highly undemocratic construct.
The CERN, mainly due to its LHC, is a giant (the worlds largest notabene) naturalistic fallacy, unfortunately.
As you write, it is a highly interesting subject to study, not only the CERN as an institution, but also the "community" of physicists so eagerly defending their believes (a least the vast majority of them). We observe highly elitary knowledge, thus power, and the orchestration of
believes around a vastly overfitted theory (too many free variables). according to Michel Serres, French philosopher of science in Stanford, the roles of religion and science completely interchanged since the beginnings of the 19th century. Physics, in the wording of the next CERN director RD Heuer, will then by the results of the LHC explain all the world surrounding us. What a reductionist hybris! It is just the same fundamentalism as we kow from theocratic states. Serres is completely right, theocracy and scientocracy being very close siblings.
Even in the case there will be no accident, the CERN and its socio-political behavior is a legal subject in itself, due to this blatant discrepancy to common insight about the political way of living in the 21st century (which is not tribal any more, hopefully, at least in the post-Bush era).
Posted by: nico martirelli, Switzerland | Nov 17, 2008 9:53:58 PM
Outstanding work Dr. Johnson,
It is not reasonable to expect that CERN would delay the LHC experiment unless proof of danger was undeniable.
(Unfortunately similar flawed risk analysis used by NASA/Morton Thiokol management who grossly undervalued concerns of engineers as noted by physicist Dr. Richard Feynman).
The most reasonable and practical compromise appears to be to proceed cautiously as Dr. Plaga argues with his proposal for feasible risk mitigation measures.
It disturbs me that CERN's management is in complete denial of any potential for danger, a recipe for greatly increased risk of catastrophic accident.
 http://science.ksc.nasa.gov/shuttle/missions/51-l/docs/rogers-commission/Appendix-F.txt Appendix F - Personal observations on the reliability of the Shuttle (3 Feb 1986)
 arxiv.org/abs/0808.1415v2 On the potential catastrophic risk from metastable quantum-black holes produced at particle colliders, Dr. Habil. Rainer Plaga (26 Sep 2008)
 www.lhcfacts.org/?cat=136 CERN’s Dr. Ellis tells only half of the story (Aug 2008)
Posted by: JTankers | Nov 17, 2008 10:11:05 PM
Dear Prof. Johnson,
You might have already recognized that Your profound analyzes and even multidisciplinary approach is now discussed by Euan MacDonald at a blog of the 'Institute for International Law and Justice', New York University, School of Law, to the question of Global Administrative Law:
There is also a new study of the quite reknowned physicists Roberto Casadio, Sergio Fabi and Benjamin Harms, just submitted on 19 Jan 2009: "On the Possibility of Catastrophic Black Hole Growth in the Warped Brane-World Scenario at the LHC”, stating: “We conclude that, for the RS scenario and black holes described by the metric (6), the growth of black holes to catastrophic size does not seem possible. Nonetheless, it remains true that the expected decay times are much longer (and possibly >> 1 sec) than is typically predicted by other models, as was first shown in Ref. ."
Rainer Plaga, who developed a prominent and alarming risk-scenario with semi-stable Black Holes (arxiv.org/abs/0808.1415v2) refers a lot to Casadio and others. Beside CERN’s Giddings, Plaga is also mentioned in the acknowledgments of this new paper:
Current article at Fox News:
Link to the ‘Physics arXiv blog’, where the study is discussed:
Also see a very interesting article by the physicist and author Mark Buchanan in the 'New Scientist': “How do we know the LHC really is safe?” 21 January 2009 by Mark Buchanan:
It is about a quite new study of the Future of Humanity Institute, University of Oxford, developing integrated methods of risk-evaluation: "While the arguments for the safety of the LHC are commendable for their thoroughness, they are not infallible. Although the report considered several possible physical theories, it is eminently possible that these are all inadequate representations of the underlying physical reality. It is also possible that the models of processes in the LHC or the astronomical processes appealed to in the cosmic ray argument are flawed in an important way. Finally, it is possible that there is a calculation error in the report.
However, our analysis implies that the current safety report should not be the final word in the safety assessment of the LHC."
Mark Buchanan in the 'New Scientist': "Ord and his colleagues rightly stress that further elaboration of the arguments for the safety of the LHC might well reduce the chance of the overall argument for its safety being wrong. But until this kind of work has been done, they suggest, the current safety report cannot be seen as the final word, which seems entirely reasonable to me.
This is an area where it is crucial to focus on the logic, because our intuitions are no help. Most of us, I suspect, have a gut feeling that certain things 'could never happen' and that 'people who worry about this are crazy'. Sadly, the fact that we haven’t destroyed ourselves yet is no guarantee that we never will.
It’s easy for any of us to be seduced by the nature of logical thinking and its illusion of certainty. We generally strive to become aware of what former US defense secretary Donald Rumsfeld famously called the 'known knowns' and the 'known unknowns', but are perilously ignorant of the 'unknown unknowns', and, worse, blithely unaware of our own ignorance. This becomes particularly dangerous when it hides flaws in an argument we are relying on for reassurance that potentially catastrophic events are virtually impossible.
It’s easy to be seduced by the nature of logical thinking and its illusion of certainty.'
By the way, also Prof. Otto Rossler has just published a newly revised study about the stability of Micro Black Holes and the great 'philosopher of speed', Paul Virilio has just strongly criticized the LHC (see on our website).
We don't know what else would be needed to initiate a broad multidisciplinary and external risk-evaluation of the LHC.
Concerning the question of jurisdiction: We filed our complaint at the European Court of Human Rights because of this reasons: As You probably know, a complaint at a Swiss court was didmissed, referring to the extraterritorial status of CERN.
The highest authority of CERN is the CERN-council. This consists of representatives of the 20 member states. So the ECHR must have jurisdiction for the 20 member-states (art. 2 about human life and art. 8 about nature). The ECTR dismissed our petition for interim measures last year after three days only - as it is usual without giving any reasons. Now the 'rest' of our complaint - with two additions meanwhile – is still in the 'waiting cue'... (In case another petition for interim measures could be necessary.)
Dr. Richard Webb, an expert on reactor-safety and another critique of CERN's 'big-bang-machine' (he even cannot exclude a disastrous nuclear fusion following a possible 'loss' of the high-energy-beam) found out that Switzerland does actually have the right to intervene if dangers for the country arise. In the contract between Switzerland and CERN from 11 June 1955 (http://www.admin.ch/ch/d/sr/c0_192_122_42.html) it says (translated by myself from German, it seems like there is NO English contract, though UK is a CERN member as well.):
Article 26 Security of Switzerland
1. The present agreement does not affect the right of the Swiss Federal Council, to take appropriate precautions in the interest of safety of Switzerland.
2. If it is considered necessary by the Swiss Federal Council to apply the first section of this article, the Swiss Federal Council will contact the organization [CERN] as soon as circumstances allow, to adopt measures together with the organization to protect it's interests.
3. The organization will work together with the Swiss authorities in order to avoid any disadvantages resulting from their work for the security of Switzerland.
Finally, high-energy and nuclear experiments of this increasing magnitude and potential should generally become an issue for some kind of global regulation, for example by the IAEA of the UN or a new UN-organization, to be created.
Posted by: Markus Goritschnig | Feb 1, 2009 12:30:14 PM
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