Jurisdiction to Prevent the End of the World
Which court has jurisdiction to prevent the end of the world? Any, one would think: after all, the end of the world is likely to have serious consequences pretty much everywhere.
Is that why an American retired radiation safety officer and a Spanish science writer decided to initiate proceedings in Hawaï to stop the running of the new Large Hadron Collider, a giant particle accelerator operating on the Swiss-French border near Geneva? The plaintiffs fear that the Collider might create a black hole which would spell the end of the Earth. No doubt, that would have an impact even in Hawaï.
The defendants were the European Center for Nuclear Research (CERN), the U.S. Department of Energy, the U.S. National Science Foundation and the U.S. Fermi National Accelerator Laboratory (Fermilab). In an interview to the New York Times, one of the plaintiffs revealed that his strategy focused on American parties. He did not know whether CERN would show up, but he had added it as a party to save expenses. In any case, part of the project was funded by the Department of Energy and the National Science Foundation, and the magnets of the Collider are supplied and maintained by Fermilab.
The complaint argued that the defendants had failed to comply with American legislation, namely the National Environmental Policy Act (NEPA), and also with the European precautionary principle.
As the New York Times reported, on September 26, 2008, the Hawaï District Court declined jurisdiction.
The order of the Court, which can be found here, is disappointing from a conflict’s perspective. This is because Judge Gillmor was able to dismiss the action solely on domestic grounds. In other words, she held that the court lacked jurisdiction within the American legal system, as a federal court, which is not to say that an American state court would have lacked jurisdiction.
American federal courts are courts of limited jurisdiction. This means that this is for plaintiffs to demonstrate that the court has subject matter jurisdiction. Here, the plaintiffs solely argued that the court had federal question jurisdiction, i.e. that this was an action “arising under” U.S. federal law. The federal law that they put forward was NEPA. However, NEPA requires that there be a “major federal action significantly affecting the quality of the human environment” (42 USC §4332 (c)). The court finds that there was no such major federal action in that case. As a consequence, it rules that there is no federal question, and that it lacks jurisdiction on this ground as a U.S. federal court.
The court further rules that no other ground for subject matter jurisdiction were put forward by the plaintiffs and that they had the burden of doing so. Thus, there might have been other grounds to found the subject matter jurisdiction of the court. For instance, neither federal party jurisdiction, nor diversity jurisdiction are discussed.
Finally, the court rules that it does not need to address the issue of whether the plaintiffs had standing, given that their allegation of an injury was arguably “conjectural and hypothetical”.
Meanwhile, a suit was also filed before the European Court of Human Rights (see the report of the Telegraph here). I don’t know whether this action is more likely to be successful, but Strasbourg is certainly closer to Geneva than Honolulu.
If an action were to be brought in a Member State court, would the destruction of the planet in the cause of science be a civil and commercial matter?
If so, presumably the court would after 11 January 2009 be required to apply the law of every nation on a distributive basis in accordance with Art. 4(1) of the Rome II Regulation, subject to the claimant’s right to elect that the law of Switzerland (or is it Switzerland and France) should be applied under Art. 7? Arguably, the most extreme example imaginable of the mosaic view (Mosaikbetrachtung).
Or could this be categorised as “nuclear damage” within Art. 1(2)(f) of that Regulation?
One for the ECJ, I think …
Well, one of the plaintiffs is a Spanish science writer, so it may be next on their agenda to come and entertain us in Europe.
To apply to the ECHR I understand that “You must be a victim of a violation of one or more of the articles of the Convention. Generally, this means you must be directly affected by a breach of the Convention.” It may be too late to stop anything from happening by that time. Plus, “Before you make an application to the ECHR you must pursue any proceedings that you could take in the UK that are capable of providing you with an adequate remedy for the breach of your Convention rights.” so once more it may be too late.
To Andrew’s, ‘One for the ECJ’, Would it really be any quicker?
Anne,
I think Andrew was thinking of the jurisdiction of the ECJ to interpret the Brussels Regulation for novel issues. He was not referring to the ECHR, which is a different court, with indeed different jurisdiction rules.
In any case, for the moment, there is indeed an action pending before the ECHR, while as far as I know, there are none before the ECJ.
The last paragraph states, “A spokesman for the European Court of Human Rights confirmed the lawsuit had been lodged and the petition to obtain an emergency injunction against CERN was rejected. She said: “There will therefore be no bar to CERN carrying out these experiments but the applicants can continue with this case here at the ECHR.”
Now, just suppose there was a risk that something dreadful would happen, and according to the reports, no one seems to know exactly what ‘may’ of ‘may not’ happen. So, just supposing it was all designed (where did the money come from?) to see if indeed it could destroy the planet earth by a mad scientist from the comic books. Are we being told that NO ONE would prevent the experiment.
We cannot prevent the war of all wars from happening, and no one seemed to learn from the ending of the Japanese war, but surely there is some one that could decide this experiment was a tad risky, especially as it did not after all allegedly run as expected. (Or was it stopped after-all?)
Anne,
you are safe for a while: the Collider has mysteriously broken.
http://www.lemonde.fr/archives/article/2008/10/04/panne-mysterieuse-au-royaume-des-particules-fantomes_1103051_0.html
These people,experts allegedly just have’t a clue.
We have Phantom Particles?
They think there has not been a Black Hole in the making. Most important is that they keep a sense of humour.
The cannot know the origin of the incident until they open and inspect the machinery in the vicinity of the affected area. They are not too happy about what has happened and no doubt it took them all by surprise. But it seems they are determined to carry on and fix it to have another “go”. Their Engineers can only begin to GUESS at what happened.
Like I thought. They know not what they do. They really have’t a clue.