Analytic-Deliberative (AD) Risk Paradigm and the Transformation Model

There is one major problem with the subjective-participatory paradigm: it seems entirely indif-ferent to the outcome and would be non-directive: whether the IA process works and leads to more environmental-friendly (or human rights compatible) decisions would be pure luck and left to how the bargaining process and accumulation of preferences go.⁸⁸⁸ Applying such an approach to human rights impact assessments would run the risk of ignoring the role of rights and the counter-majoritarian difficulty. The very goal of impact assessments to advance broad substantive human rights objectives would be undermined. Insofar as the critical approach is based on skeptical theories, any analysis deduced from observation would be potentially irrelevant as “[b]y definition, the logic of skeptical argument defeats by definition any amount of evidence”,⁸⁸⁹ and even critics who argue that risks are socially constructed cannot convincingly deny that certain dangers exist in reality.⁸⁹⁰ Consequently, risk theories must face the challenge to connect socially mediated perceptions of the world which are subject to distorted and false interpretation on the one hand with the reality of danger in social life.⁸⁹¹ So a third model to deal

884 Sarfaty, Values in Translation (above, n. 13), p. 95.

885 On the contribution of NGOs to the design of HRIA see chapter 1.

886 Koskenniemi, ‘Human Rights Mainstreaming as a Strategy for Institutional Power’ (above, n. 202);

AnnJanette Rosga and Margaret L. Satterthwaie, ‘The Trust in Indicators: Measuring Human Rights’, Berke-ley Journal of International Law. 253, 27 (2009), 253-315, p. 305.

887 E.g.: Community-Based Human Rights Impact Assessment Initiative:

https://policy-practice.oxfamamerica.org/work/private-sector-engagement/community-based-human-rights-impact-assessment-initiative/ (last visited: June 2020).

888 Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 40.

889 Harry Collins, ‘We cannot live by scepticism alone’, Nature, 458 (March 2009), pp. 30–31, p. 31.

890 Rosa, Renn and McCright, The Risk Society Revisited (above, n. 425), p. 16.

891 Ibid., p. 15.

with risk is based on the assumption that some “degree” of science, expertise and technical anysis is unavoidable – but so, too, are deliberation and discourse as claims to knowledge are al-ways subjective and therefore fallible.⁸⁹² The analytic-deliberative paradigm therefore seeks to overcome the realist vs. constructivist or scientists vs. laypersons dichotomy and looks at how individuals and institutions can take decisions based on both technical analysis and participa-tory deliberation. In contrast with Kelvin to whom real knowledge without measurement ap-pears impossible, Laurence Tribe warns that “measurement can anaesthetize moral feeling”.⁸⁹³ In risk theory, calls for “humility” ⁸⁹⁴ and an “attitude of openness”⁸⁹⁵ in order to enable the con-sideration of non-scientific knowledge emerged in response to the science-based approach re-flected in the objective-managerial paradigm. Risk is often multi-dimensional, and some poten-tial impacts are not recognized by or recognizable for scientists, experts and decision-makers. So decision-makers might fail to consider other problems that, from an affected person’s perspec-tive, should have been addressed.⁸⁹⁶ In consequence, broader and more integrated impact as-sessments become necessary.⁸⁹⁷ The role of science and expertise would be to inform discourse about risks and impacts by providing information about “the likely consequences of each deci-sion option, the opportunity cost for choosing one option over the other, and the potential viola-tions of interests and values connected to each decision option”,⁸⁹⁸ but at the same time such a model would recognize that knowledge which experts and regulators possess is vulnerable to deconstruction.⁸⁹⁹ To illustrate this point with regard to the analysis of human rights impacts of trade or investment agreements: due to the complexities of modern and global economies, it is often difficult to establish causal links between a trade agreement and the enjoyment of specific human rights. However, this observation is not per se true. Obligations to reduce customs duties will most likely affect a country’s budget and would result in spending cuts that can also affect the enjoyment of human rights. Similarly, new patent protection will most likely raise prices for medicines, at least in the near future.⁹⁰⁰ In other cases, where causal links cannot be clearly es-tablished, HRIAs nevertheless provide a platform for deliberation⁹⁰¹ and could, ideally, identify how to best respond to uncertainties and risks that might occur in the future.

New approaches to administrative law have equally shifted from a technocratic model that is aimed at identifying one single-best option based on a scientific assessment to a model that fo-cuses on comprehensively informed decision-making, that recognizes that the idea to find a sin-gle-best solution is illusionary and that consequently provides for administrative discretion,

892 Ibid., p. 17.

893 Tribe, ‘Policy Science: Analysis or Ideology?’ (above, n. 317), p. 97.

894 Faber, Manstetten and Proops, ‘Humankind and Environment: An Anatomy of Surprise and Ignorance’

(above, n. 835), p. 238.

895 Ibid., p. 239.

896 Fisher, Risk Regulation and Administrative Constitutionalism (above, n. 68), p. 10.

897 For a literature overview Wiener and Ribeiro, ‘Impact Assessment: Diffusion and Integration’ (above, n.

72).

898 Rosa, Renn and McCright, The Risk Society Revisited (above, n. 425), p. 177.

899 Jasanoff, Science and Public Reason (above, n. 848), p. 137.

900 Zerk, ‘Human Rights Impact Assessment of Trade Agreements’ (above, n. 30), p. 19; see also: ECORYS,

‘Trade Sustainability Impact Assessment in support of negotiations of a DCFTA between the EU and Jor-dan: Final Report’ (above, n. 3), p. 152.

901 Zerk, ‘Human Rights Impact Assessment of Trade Agreements’ (above, n. 30), p. 21.

provided certain standards are respected.⁹⁰² Not only may inclusive impact assessments be bet-ter able to address all relevant impacts. In addition, critics of the objective-managerial paradigm also question the underlying assumption that scientific assessment and political or moral judg-ments can be clearly separated. Even scientific risk research is not free from value judgjudg-ments which are inevitable when deciding “which outcomes to measure and how to measure them”.⁹⁰³ This also means that the apparently strict line between the “scientific” risk assessment and “po-litical” risk management blurs.⁹⁰⁴ In line with the analytic-deliberative paradigm, normative el-ements may become part of the risk evaluation, including aspects such as “acceptable risk”, “fair risk distribution”, or the “adequate extent of precautionary measures”.⁹⁰⁵

Such an analytic-deliberative paradigm overcomes the assumption that layperson and experts are generally in opposition.⁹⁰⁶ It incorporates democratic principles and cultural values without denying the value of scientific knowledge: “Discourse without a systematic scientific basis is nothing but an empty vessel while, by contrast, a discourse that disregards the moral aspects of available options will aid and abet amoral actions”.⁹⁰⁷ Science and deliberation each have an important part to play in the decision-making process.⁹⁰⁸ Calling simply for “more” participation would reveal a simplified understanding of both democracy⁹⁰⁹ and the challenges of complex decisions under uncertainty and risk. Rather, participants in discourses often require to get expert judgments before making a decision⁹¹⁰, and the role for science is to provide systematic and reproducible knowledge,⁹¹¹ while deliberation can combine expert knowledge with “anecdo-tal and experiential knowledge that non-experts have accumulated over time”.⁹¹² Scientific and other types of knowledge are not per se in conflict with each other. While public discourse can be irrational, the analytic-deliberative paradigm does not presume an assumption of rationality for scientific knowledge. An important consequence for public decision-making is that, after a thorough examination of scientific results, it must be decided in political and legal discourse how many risks are appropriate.⁹¹³

One particular reason why scientists and other experts sometimes get things wrong roots in the way they work: “being an expert entails using schemas, selective attention, chunking infor-mation, automaticity and more reliance on top-down inforinfor-mation, all of which allows experts to perform quickly and efficiently; however, these very mechanisms restrict flexibility and control, may cause the experts to miss and ignore important information, introduce tunnel vision and bias and can cause other effects that degrade performance. Such phenomena are apparent in a

902 Fehling distinguishes between what he calls a technical „machine model“ and the „comprehensively informed“ model: Michael Fehling, Verwaltung zwischen Unparteilichkeit und Gestaltungsaufgabe (Tübin-gen: Mohr Siebeck, 2001), 150 ff.

903 Fischhoff and Kadvany, Risk (above, n. 825), p. 139.

904 Jasanoff, Science and Public Reason (above, n. 848), p. 133 argues that risk assessment is not the mo-nopoly of technical experts. Similarly, the call for a “concern assessment” (see section 6.2.2.7) can equally be an attempt to make public concerns part of a scientific evaluation.

905 Rosa, Renn and McCright, The Risk Society Revisited (above, n. 425), p. 173.

906 Ibid., p. 170.

907 Ibid., p. 172.

908 Brownsword and Goodwin, Law and the Technologies of the Twenty-First Century (above, n. 56), p. 151.

909 Nida-Rümelin, Schulenburg and Rath, Risikoethik (above, n. 824), p. 57.

910 Rosa, Renn and McCright, The Risk Society Revisited (above, n. 425), p. 171.

911 Ibid., p. 179.

912 Ibid.

913 Bryde, ‘Recht der Risikogesellschaft’ (above, n. 2), p. 82.

wide range of expert domains, from medical professionals and forensic examiners, to military fighter pilots and financial traders.”⁹¹⁴ If this is true, then deliberative processes which include laypersons – many of whom are experts in other related areas though! - are important to com-pensate for these deficits.

Based on these considerations, it is necessary to ask what the legal implications are, in particular how laws enable both analysis and deliberation during the IA-process. Impact assessment would, in light of the analytic-deliberative paradigm, institutionalize the interplay between dif-ferent actors.⁹¹⁵ The function of IAs would be different than in the previous model: not only to inform decision-makers about facts (“information model”), and not only to provide a platform for bargaining about individual preferences (“preference-accumulation model”). The goal would be to bring analytical and deliberative process together and thus, ideally, change the culture of decision-making⁹¹⁶ and transform the decision-making process accordingly. Opinions and interests are not fixed, but they can still change and develop during the IA-process.⁹¹⁷ Under English law, the objective of EIAs has been described as one that strongly reflects such a transformative model. According to the House of Lords, an EIA is “not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to ex-press its opinion on the environmental issues.”⁹¹⁸

In order to enable meaningful discourse, scientific assessments must be clear about the limits of knowledge, especially about secondary and tertiary impacts.⁹¹⁹ Impact assessments based on the analytic-deliberative paradigm may move beyond disciplines, move beyond the rather artificial separation between environmental, social and human rights impacts.⁹²⁰ The central challenges are to overcome the mutual mistrust between “experts/technocrats” and “lay-persons” and to meaningfully engage the broader public without sacrificing scientific accuracy.⁹²¹ Risk and im-pact assessments are based on the assumption that even the technical parts of the assessment are not value-free. This is in particular a major challenge for international impact assessments, as it is more difficult to recognize a foreign culture’s “sacred values” which can be different from what strategic planers would regard as “rational” values. ⁹²²

The goal and function of the corresponding IA-model would be one that aims at the transfor-mation of the decision-making process and the decision-making culture through scientific

914 Itiel Dror, ‘The paradox of human expertise: why experts get it wrong’, in: Narinder Kapur (ed.), The paradoxical brain, pp. 177–188, p. 177; Beutin, Die Rationalität der Risikoentscheidung (above, n. 345), p.

209.

915 Lau and Böschen, ‘Möglichkeiten und Grenzen der Wissenschaftsfolgenabschätzung’ (above, n. 261), p.

128.

916 Janette Hartz-Karp and Jenny Pope, ‘Enhancing effectiveness through deliberative democracy’, in:

Frank Vanclay and Ana Maria Esteves (eds.), New Directions in Social Impact Assessment, pp. 253–272, 258 f.; Holder, Environmental Assessment (above, n. 27), p. 27.

917 Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 175.

918 House of Lords, Berkeley vs. Secretary of State for the Environment and others (2000).

919 Rosa, Renn and McCright, The Risk Society Revisited (above, n. 425), p. 171.

920 Hartz-Karp and Pope, ‘Enhancing effectiveness through deliberative democracy’ (above, n. 916), p. 265.

921 Ibid., p. 266.

922 Scott Atran, Robert Axelrod, and Richard Davis, ‘Sacred Barriers to Conflict Resolution’, Science, 317 (August 2007), pp. 1039–1040, p. 1039.

sis and informed rational deliberation.⁹²³ IA regimes would provide a platform that actually in-corporates different knowledge-claims, ranging from systematic and scientific knowledge via experiential knowledge to local and folklore wisdom.⁹²⁴ IAs following such a model would struc-ture discourse in order to arrive at universally accepted solutions, which is only possible if fair procedural rules and principles exist to get involved in rational discourse. Such a view can be found in the following evaluation of IAs:

“Impact assessments offer private actors the possibility to intervene very ear-ly in the decision-making process. They create a new arena for policy deliber-ation, where the power of the better argument might influence the shaping.

Early consultation can improve the available knowledge, help to identify prob-lems such as unintended side effects and thus strengthen the overall quality of regulation. But it can also change the character of policy-formulation within the European Commission from technocratic problem-solving of Commission officials to either political bargaining with Member States or argumentative deliberation with stakeholders.”⁹²⁵

In a best-case scenario, impact assessments could lead to individual empowerment: if they are transparent and follow a fair procedure, they could indeed empower marginalized groups to participate in the decision about a project or policy design and implementation.⁹²⁶ These func-tions of IAs and their ability to influence the decision-making process through information, par-ticipation or transformation will be resumed in the final chapters when discussing the relevance of HRIAs for decision-making.