Follow The Immunity - 3

That germ is back!

The issue of the various types of governmental immunity, commonly called sovereign immunity, is an old and persistent subject which we have been reviewing in this series.

The subject has some overlap with The Government of the Government as well as When Accountability Is A Plague, however, there have been notable failures that we need to be aware of.

That is what we are trying to do in this series.

We have noticed, in this series, that some nations are immune from being held accountable by other nations which they have wronged, for some strange reason, even though some of those harmed nations have implemented a governmental structure whereby the government is supposed to govern the government through the rule of law rather than through the rule of men (The Constitution Is Quite A Medicine).

The way that the founders structured the U.S. government, using the Constitution, evinces a belief or knowledge, probably based on their personal experiences in Europe during feudal times (American Feudalism), of the reality of civic dangers that lurk inside of power.

They had lived and observed that government did not have a sufficient immune system to "germs" associated with power (About Toxins of Power, The Germ Theory - of Government).

Scientists who study physical, microbial "germs" know that most of them are good, but the ones that are bad are "bad to the bone" (Some of My Best Friends Are Germs).

One of the "germs" our founders struggled against was "the king can do no wrong" meme, expressed by one of the kings who was known to our founders:

To whom are sovereigns accountable? In 1609 King James I offered Parliament his answer. Starting from the premise that the “[e]state of the monarchy is the supremest thing upon earth,” he equated kings to gods, because “they exercise a manner or resemblance of divine power upon earth.” Kings have absolute power and authority, “and yet accountable to none but God only.”

(EJIL). That germ activated antibodies within the people, and the antidote that began to form was "the government of the people, by the people, and for the people", which is at odds with the type of thinking that the king had expressed.

Continuing with that story flow, let's notice one reaction to the thinking of King James I, which came about a year after his pronouncement:

A year later, Sir Edward Coke, then the Chief Justice of the Court of Common Pleas, handed down two judgments that contested King James’s vision. In Coke’s view, “the King cannot change any part of the common law … without Parliament” (Case of Proclamations), and even Parliament is not supreme but “controlled” by the common law (Dr. Bonham’s Case). This debate about the internal accountability of governments has drawn the attention of political philosophers and marked the evolution of domestic constitutional and administrative law ever since.

(ibid, EJIL). Germs can go dormant, i.e. hide out, and return at a later time as that germ eventually did.

It was later rehashed and expressed in more recent times by President Nixon as "When the President does it, that means it is not illegal."

The "king can do no wrong" species of social germs has existed for a long time, and this particular form is beginning to morph or mutate to become part of a new type of epidemic in our international midst:

In Jones v. United Kingdom, a chamber of the European Court of Human Rights (ECtHR) held that the United Kingdom did not violate Article 6 of the European Convention on Human Rights, which guarantees a right of access to court, by dismissing civil suits alleging torture on grounds of immunity. Jones and others sued the Kingdom of Saudi Arabia and some of its officials in UK courts alleging torture in violation of international law. In 2006, the House of Lords held that both Saudi Arabia and its officials were immune from suit under the UK’s State Immunity Act.

The ECtHR’s decision with respect to Saudi Arabia is not remarkable. In Al-Adsani v. United Kingdom, the Grand Chamber of the ECtHR held by a closely divided vote that international law did not recognize an exception to state immunity from claims of torture.

(Opinio Juris). This modern form of "the king can do no wrong" bug is more robust than its ancient counterpart, because it is now becoming associated with "epigovernment" (Epigovernment: The New Model, MOMCOM: The Private Parts).

That is, it has jumped into the international arena to begin to run free without an antidote in terms of international law, leaving only the antidote of the government of the government within individual nations.

The king who can do no wrong will have to govern himself it would seem.

Not a good sign.

The previous post in this series is here.