By Thomas W. Welch, J.D., American International Regulatory Coherence Institute
“…I will…first, do no harm…”
Part of the Hippocratic Oath
A dirty little secret hidden by the medical profession up until the 1970s was that medical practice was mostly based on “anecdotal” evidence of efficacy, and that many common medical practices were actually ineffectual, or even counter productive and dangerous.
This is why the primary ethical rule was primum non nocere: “…first, do no harm…”
In many countries, some of this misconduct continues. A recent study in India, for example, found that unnecessary or harmful treatment was prescribed or dispensed 42% of the time. Only one-third of providers articulated a diagnosis, correct or incorrect. When a diagnosis was issued, close to half were wrong, and only 12% were fully correct.
In 1967, however, the American physician and mathematician Alvan R. Feinstein published his groundbreaking work Clinical Judgment, which together with Archie Cochrane’s famous book Effectiveness and Efficiency (1972) led to an increasing acceptance of clinical epidemiology and controlled studies during the 1970s and 1980s. Their work, and technological developments paved the way for the revolutionary institutional development of “Evidence Based Medicine.” Today, with the benefit of the internet and new databases, modern medical procedures can be supported by evidence that is non-biased, representative, and peer reviewed, via scientific methods, including recording and published clinical data for external review and replication. In order to protect patients and taxpayers, these requirements have now become a new ethical medical precept of their own.
In the U.S., these evidentiary techniques are now also being applied to law. Although evidentiary rules have always been applied in U.S. Courts, they are now also being applied to the development and refinement of laws themselves. New data capabilities, for example, have enabled more scientific, ‘evidence-based’ approaches to sexual offender legislation. New “smart statistics“ and data mining techniques are now fighting crimes, are catching unregistered lobbyists, and monitoring conflicts of interest. Advancements in estimating the anticipated benefits and costs of regulatory initiatives and reforms are now being required at the federal level, and new efforts to perform retrospective analyses of laws and regulations are (finally) being undertaken. Shouldn’t scientific evidence of efficacy actually inform the development of international law too?
Unfortunately, in addition to being highly fragmented, international law is now in a period that some have characterized as “Experimentalist Governance.” Like medicine in the last Century, it is only loosely governed by a still ill-defined, “Global Administrative Law,” without any legally defined evidentiary codes. Moreover, evidence quality and sufficiency is typically judged by International Organizations via a bewildering variety of incoherent voting rules—with different thresholds, weighting systems, veto points, and other rules that seek to distribute influence– not value objectivity. As a result, despite the introduction of some modern statistical analyses, most international law decision-making is still based on mostly anecdotal or inconclusive evidence.
For example, even though many lives hang in the balance, many United Nations (UN) aid agencies have been criticized (regularly) for ineffectiveness, but still are reportedly unable to assemble and regularly produce employment numbers, budgetary data, and overhead costs. Despite decades of reform attempts, a recent UN inspection report noted, for example, that “…monitoring, evaluation and reporting of the financing instruments present a mixed picture of accountability among the agencies; reporting is often done piece-meal..[and] key recommendations from previous audits and evaluations…have yet to be implemented.” Similarly, essential UN internal complaint systems still reportedly lack necessary procedures to adequately protect whistleblowing. Without enforced data transparency, independent auditors and peer reviewers cannot monitor effectiveness, and scientific, retrospective analysis is nearly impossible.
UN Millennium Goal Indicators are another example. Survey data is notoriously biased and incomplete, and national surveys are rarely scientifically validated. [ Although 77 organizations have recently asked the UN to make access to information central to the post-2015 Development Agenda.] Other UN data, such as in the trade of narcotic drugs, or the enforcement of economic and other sanctions, has been criticized as either incomplete, problematic, or self-serving, because of reliance on non-transparent national data sources.
The World Bank also collects survey evidence on corruption covering 73,108 companies across 123 countries. (Many survey respondents report paying bribes for government services or in order to get contracts, and in 22 countries, the average respondent suggests the size of such bribes is more than 5 percent of the value of the contract.) While interesting, such surveys are unable to accurately measure the effectiveness of various (expensive) initiatives intended to counter corruption.
The World Bank Group’s (“Bank”) Integrity Vice Presidency (“INT”) is the unit within the Bank actually charged with investigating corruption against the bank itself. According to a recent report:
…In FY2013 (ending June 30), INT evaluated 449 complaints from 90 countries and opened 89 as new cases, some of which are ongoing. The top three regions with the highest number of new cases were Africa, South Asia, and East Asia Pacific, respectively. Agriculture, healthcare, transport, and water were the most commonly targeted sectors.
INT has five administrative sanctions at its disposal: public letter of reprimand; debarment; conditional non-debarment; debarment with conditional release; and, restitution. In FY2013, however, INT imposed only debarments and conditional nondebarments on sanctioned entities. In total, INT debarred 44 entities in FY2013, with all of the matters involving fraudulent or collusive practices…
In other words, the World Bank only investigates and prosecutes a small fraction of reported crimes against it, and does not even seek restitution from those companies that defraud it!
Similar complaints have been leveled at the work of the World Trade Organization (WTO). While the WTO produces long and detailed reports and decisions (that sometime take decades to resolve), experienced practitioners, like Clyde Prestowitz, still note that a lack of investigatory powers, and the many ambiguities in the underlying agreements have not yet prevented rampant gaming and evasion in the critical trade realm.
In sum, much of the well-intentioned work of thousands of international NGOs and expert committees has been handicapped, in part, because there are no standardized rules of evidence, and little scientifically derived data to present for rigorous re-examination. There is also a dearth of local enforcement resources. In my view, it is time for the development and adoption of mandatory international evidentiary standards and rules to solve these problems. With improved coordination and standardized rules, new automatic monitoring and reporting capabilities, mined via quantum computing, computerized data analysis and machine learning, will soon enable more effective and accountable governance, particularly at the fragmented, international levels. Will more standardized transparency and evidentiary science be quickly embraced by the IOs and Member States, or will the problems of the world continue to be treated with more spin and snake oil?