Precaution is an essential element of the social contract between the State and the individual.
by Ruwantissa Abeyratne
Precaution is better than cure. ~ Johann Wolfgang von Goethe
The Incident
On 5 January 2024 an Alaska Airlines Boeing 737 MAX 9 full of passengers was being operated on a flight to Ontario near Los Angeles, when it suffered immediate depressurisation and declared an emergency after a mid-air cabin panel blowout forced the flight crew to make an emergency landing. Thankfully, the aircraft was only 20 minutes after take of at 16,000 ft. altitude and there was no immediate apprehension of a life threatening lack of oxygen. All 177 passengers and crew breathed normally and were safe when the aircraft landed back at Portland.
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| Passenger oxygen masks hang from the roof next to a missing window and a portion of a side wall of an Alaska Airlines Flight 1282, which had been bound for Ontario, California and suffered depressurization soon after departing, in Portland, Oregon, U.S., January 5, 2024 [Instagram/@strawberrvy] |
There was some ambivalence in the identification of the portion of the fuselage that detached, where some thought it was a window and others thought it was a door that blew open. It was neither.
Aviation expert John Ostrower of The Air Current offered clarification regarding the part of the fuselage in question by explaining that the missing emergency exit in question was a “deactivated” door with no distinction from inside the cabin. Ostrower explained: “It’s the mid-aft door that is missing. That door, for carriers like Alaska, is deactivated in the factory by Boeing before delivery…Passengers don’t even know it’s a door because it’s just a normal sidewall and window in the 737 Max 9 cabin.”
The Response
Alaska Airlines immediately grounded dozens of Boeing 737 MAX 9 jets for safety checks. The CEO of the airline Ben Minicucci is reported to have said in a statement that its fleet of 65 similar planes would be returned to service only after precautionary maintenance and safety inspections, which he expected to be completed in the “next few days”. This measure is indeed prudent and can be seen in contrast to the earlier anomaly pertaining to the accidents of two Boeing 737 Max 8 (a different model) aircraft which caused 346 deaths when the aircraft’s avionics system (again, nothing to do with the incident of Alaska Airlines) failed in flights operated in 2018 and 2019. The perceived blunder there was the absence of the precautionary principle where the B737MAX 8 was allowed to fly after the first disaster, ending in the tragedy of the second.
Just to recap the two accidents, on October 29, 2018, a malfunctioning sensor called MCAS (Maneuvering Characteristics Augmentation System) activated an anti-stall system, leading to the crash of Lion Air flight 610 shortly after departing from Jakarta. Tragically, all 189 passengers and crew onboard lost their lives. In a span of less than six months, a parallel scenario unfolded with Ethiopian Airlines flight 302 en route from Addis Ababa to Nairobi, resulting in the loss of 157 lives. Subsequently, the aircraft was globally suspended. Following a thorough redesign and certification process, it has now resumed operations (from late 2022), and is being utilized by major carriers such as Ryanair, Europe’s largest budget airline.
The Precautionary Principle
Until the exact cause is determined by the National Transportation Safety Board and the manufacturer Boeing which is collaborating with the NTSB, the aircraft may not be released back into service and it is envisioned that this would not be a long drawn out process. What is important in this process is the precautionary approach that is taken by the airline, which may even prompt other airlines using the aircraft to be circumspect.
The precautionary principle is an epistemological legal principle entrenched in common law and asserts that the absence of empirical or scientific evidence should not preclude States from taking action to prevent a harm before it occurs.The evolution of the principle in international law, began in the early 1980s although there is evidence that it was domestically popular in Europe in the 1930s in the German socio-legal tradition, centering on the concept of good household management. In German the concept is Vorsorgeprinzip, which translates into English as precaution principle.
One commentator has added the thought-provoking comment that in today’s political sphere, the precautionary principle enjoys a wide, unprecedented recognition. He opines that “the precautionary principle has become of such tremendous importance because in many cases, the scientific establishment of cause and effect is a difficult task sometimes approaching a fruitless investigation of infinite series of events.
For the precautionary principle to apply, States must take measures according to their capabilities and they must be cost effective. Also, threats that are responded to must be both serious and irreversible. The precautionary principle is usually applied through a structured approach to the analysis of risk, which comprises three elements: risk assessment; risk management; and risk communication. The principle is particularly relevant to the management of risk. It is based on the presupposition that potentially dangerous effects from a particular process or phenomenon have been identified and that scientific evaluation does not guarantee that the risk could be averted.
There are instances where a State can be defended for invoking preventive action based on the overarching principle of social contract by which the citizens charge the State with the responsibility of ensuring their safety and security. Social Contract describes a broad class of philosophical theories whose subject is the implied agreements by which people form nations and maintain social order. The social contract theory provides the rationale behind the historically important notion that legitimate state authority must be derived from the consent of the governed, which, in other words means that a democratic State is precluded from enacting draconian laws against the civil liberty of citizens and ignoring potential threats unless with the consent of the people.
The precautionary principle is also a moral and political concept in that if an action or policy might cause severe or irreversible harm to the public, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action. The precautionary principle is most often applied in the context of the impact of human actions on the environment and human health where the consequences of actions may be unpredictable.
The 2006 Australian case of Telstra Corporation Limited v Hornsby Shire Council involved the invocation of the precautionary principle. This case concerned the emission of radiofrequency electromagnetic energy. Telstra, a telecommunications carrier, sought to address insufficient mobile telephone coverage in the Cheltenham community by proposing the construction of a mobile telephone base station. However, this proposal raised significant concerns among a portion of the Cheltenham community and Hornsby Shire Council.
The primary apprehension was related to the potential harm posed by the electromagnetic energy emitted by the proposed facility to the health and safety of Cheltenham residents. In response to these concerns, Hornsby Shire Council rejected the development application for the proposed base station. Subsequently, Telstra appealed to the court, seeking approval for the project.
The court was tasked with addressing crucial questions: What is the precautionary principle, and how should it be applied when considering public health, safety, and environmental concerns? Additionally, how can it be utilized to address public apprehension?
The court held inter alia that the application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds which are cumulative: a threat of serious or irreversible damage and scientific uncertainty as to the damage.
My Take
In essence, the precautionary principle revolves round the overarching concepts of preemption (effectively avoiding a disaster that is imminent) and prevention (avoiding a disaster that is inevitable) and falls in-between the two. The precautionary principle has been actively employed (to considerable success) in various instances: the stringent security measures at airports post 9/11; the enforcement of Air Defense Identification Zones; precautions applicable to public health such as vaccinations; sterilization of surgical instruments, just to name a few.
Precaution is an essential element of the social contract between the State and the individual. Alan Dershowitz, Professor of Law at Harvard University, asserts that “There is a desperate need in the world for a coherent and widely accepted jurisprudence of preemption and prevention, in the context of both self-defense and defense of others ” . Of course, here Dershowitz is referring to the international scene, but it would not be wrong to ascribe this principle to the national level when there is a dire need to control anarchy and insecurity of a nation as well as harm caused by defective products . However, the bottom line for any preventive jurisprudence in the domestic context is the social contract theory where State authority must be derived from the people. There must be a preventive jurisprudence in place governing the acts of the private sector, the executive and law enforcement officers. Preventive acts must never be ad hoc, or decided at the whim of any of them.
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