Law Is Outdated: Late Lessons From Asbestos

Guilty "but not punishable." A recent sentence of the Italian Supreme Court on asbestos crimes stimulates a reflection on the state of the law in our technological era, with implications well beyond the tragedy of asbestos.

In 2012 the Swiss industrialist Stephan Schmidheiny was sentenced in Italy to 16 years imprisonment for having culpably caused sickness or death of hundreds of persons between 1966 and 1986 through easily preventable exposure to asbestos, within and outside his Eternit factory in Casale Monferrato, Italy. Following an appeal in 2013, his sentence was extended to 18 years. Yet on November 21st 2014 the Italian Supreme Court ruled that Mr. Schmidheiny is guilty but not punishable, because the Eternit factory in Casale Monferrato was closed in 1986 and those crimes are subject to a twelve-year statute of limitation. This is a very short term especially considering, that the frequency of illnesses and deaths caused by Eternit in Casale is still increasing and is expected to do so for a long time.

The Supreme Court sentence illustrates that the Italian legal system - together with many others - have no eyes and no hands to deal with long-term health damage, and more broadly that industrial civilisation is unable to deal with the long-term adverse effects of its technologies. Quite often novel technologies were applied for short-term benefit, without ability or concern for examining the health risks they may pose. A common sequence in the recent history of technology development and product responsibility goes: don't know, deny the new knowledge, deny responsibility, fight in the court - and succeed.

The harm of asbestos has been known at least since 1924. We knew that deadly diseases caused by asbestos only come to light decades after exposure. Thence there are no "victims of asbestos," only victims of asbestos producers. Yet, for many of the 100,000 deaths every year that are traceable to asbestos, nobody is formally guilty. Even when declared guilty, most offenders are not prosecutable. Furthermore, quite often in cases of long-term health risks, dishonest behaviour delays action: manufacturers successfully use all means to delay by decades any restriction, prohibition or prosecution of their harmful activities. This is a common pattern in many similar industrial interests, including tobacco, fossil fuels, and pharmaceuticals such as thalidomide, the sleeping pill that caused the births of 100,000 deformed babies and 5000 to 7000 deaths during the 1950s.

Our culture applauds and thirsts for scientific discoveries that foster an ever-faster transformation into new products and profits. Yet, on the other side of that coin, when new scientific discoveries of risks demand the urgent restriction or ban of a product or technology, decades pass before meaningful action. In the case of asbestos this negligent delay has caused and continues to cause millions of easily avoidable deaths. Though asbestos has been banned by several governments, 2 millions tons were still mined 2009 in Russia (50%), China (14%), Brazil (13%), Kazakhstan (11%), Canada (9%).

Among long-term health damage, asbestos-related crimes are a rare case in which prosecution is even possible, because the deadly mesothelioma tumour, a virtual "fingerprint of the killer," is almost exclusively traced to asbestos. With most other technologies, the relationship between cause and noxious effect is established on statistical basis, thence not always incontrovertible in court - especially if one can pay the best lawyers.

Many cases similar to that of asbestos are described in Late lessons from early warnings, two reports issued by the European Environment Agency in 2001 and 2013. The same factors always emerge: unwillingness or incapability to prevent, along with culpable delay of action.

But what if this same pattern will apply also to the new man-made global risks? Humankind has always altered the local environment. But only recently has the reach of adverse effects caused by certain human activities been traceable across the entirety of humankind and the planet. Paul Crutzen, winner of the 1995 Nobel prize for chemistry, coined the term anthropocene for the novel geological era in which actions of humans transform the face of the Earth as significantly as its natural geological and biological forces.

Good luck and a lengthy international consensus-building allowed the restriction or ban of a few globally noxious substances and activities, such as some ozone-layer-depleting chemicals (e.g. CFCs), some chlorinated pesticides (e.g. DDT) and few industrial chemicals (e.g. PCB). Yet, this did not happen with other harmful activities. The emission of greenhouse gases - mostly CO2 and methane - continues unrestrained with expectable dramatic negative effects. Likewise, each year we disperse 10 million of tons of plastics into the sea. In the middle of the oceans, floating islands of plastic waste were discovered covering millions of square kilometres. The pulverised portion of these plastics is already diffused throughout the oceans, with unknown consequences. This cannot be undone. We cannot filter the entire ocean.
This new human condition needs a new ethics of responsibility towards the future generations, as argued by the philosopher Hans Jonas in his book The Responsibility Principle - Ethics for the technical society in 1979. The same holds for the law. For thousands of years, law has penalised offences committed by the few individuals harming those mostly physically close to them, with evidence of immediate detriment. Yet, present laws are not sufficient to address long-term risks from new technologies. Our capacity to foresee is less than our novel capacity of doing, argued philosopher Günther Anders in The Outdatedness of Human Beings. On the Soul in the Era of the Second Industrial Revolution (1956). This is why 'law is out-dated' as well. The recent Eternit finding by the Supreme Court in Italy confirms this. Ironically, the honorary deputy presidents of this court, Judge Amedeo Postiglione, is the founder of the International Court of the Environment Foundation, which promotes an extension into time and space for the prosecution of offences against the environment. Yet the court found as it did, not because they failed to understand the issue, but because the law prevented any other finding.

The abhorrence for the lack of punishment of the Eternit crimes in Casale Monferrato should stimulate us to learn the bitter lesson of asbestos and to urgently apply this lesson to the legal treatment of long-term effects of noxious technologies. This is the best way to honour the past and future millions of victims of asbestos and of other fully preventable disasters, perpetrated by producers who technically and legally avoid justice.