The Dual Vulnerability of Transnational Science-Based Standards in the National Legal Order
Forthcoming in Transnational Legal Theory
35 Pages Posted: 7 Mar 2016 Last revised: 6 Jun 2016
Date Written: December 1, 2015
This paper highlights the scientific and political vulnerability of transnational science-based standards. Among them, this paper focuses on radiation standards formulated by the decentralised web of expert committees, international organisations, and inter-governmental forums. Transnational science-based standards are beset with scientific fragility, precisely because they provide certain regulatory stability in the scientifically uncertain areas. Their much-needed standard-setting role tends to destabilise the scientific trustworthiness of transnational standards. This scientific fragility is accompanied by political vulnerability. Transnational science-based standards are often formulated without the involvement of those private entities and individuals on whom the standards have visible consequences. To overlook the dual vulnerability is problematic, particularly when such standards are absorbed into the national legal order on the basis that they are scientifically authoritative with little need for political input. This paper exposes the domestic neglect of dual vulnerability by analysing the case of Japan. In the Japanese stories after Hiroshima-Nagasaki (1945) and Fukushima (2011), the government emphasised the scientific credibility of transnational bodies and simultaneously escaped domestic political deliberation, which, paradoxically, invited both scientific and political contestations. This paper has a specific focus; yet the issue of dual vulnerability would likely arise in many other science-based standards formulated transnationally and absorbed into the domestic legal order.
Keywords: Transnational standards, science-based regulation, radiation, domestic law, deference, International Commission on Radiological Protection, Japan, Fukushima
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