In today’s National Review Online, Mario Loyola argues that conservative esteem for the rule of law should extend to a refined understanding of international law, backed up with consistent enforcement of its principles (in other words, either both Kosovo and Iraq, or neither). Too late. That issue was settled over 60 years ago.
Here is how the Economist defines regulatory capture:
Gamekeeper turns poacher or, at least, helps poacher. The theory of regulatory capture was set out by Richard Posner, an economist and lawyer at the University of Chicago, who argued that “REGULATION is not about the public interest at all, but is a process, by which interest groups seek to promote their private interest … Over time, regulatory agencies come to be dominated by the industries regulated.” Most economists are less extreme, arguing that regulation often does good but is always at RISK of being captured by the regulated firms.
Familiar examples of regulatory capture in the US would include those agencies charged with setting rates, fees, and prices. The ICC, originally meant to keep railroads from overcharging farmers with no other means of shipping their commodities, eventually became a means by which trucking companies and interstate bus lines set prices, limited competition, and allocated routes. The FAA, until deregulation in 1978, assured airlines of an orderly and profitable division of routes, without the prospect of interlopers disrupting the arrangement. Similarly, the United Nations, formed in the very act of destroying a murderous tyranny, came to become a system for regulating tyranny and allocating the areas in which tyrants might operate without interference.
The immediate predecessor of the United Nations was actually not the League of Nations, but the Atlantic Charter between the United States and Great Britain. This was purely an Anglo-American document in terms of its principles as well as its origin. The two signatory nations disavowed any territorial claims, embraced consensual sovereignty and self-determination for all people, and stated their support for international economic cooperation, freedom of the seas, and eventual worldwide demilitarization. Even though the US had not yet entered the war, the treaty embraced the destruction of the Nazi regime as a common foreign policy objective. It also contemplated, but did not establish, “a wider and permanent system of general security.” The original agreement between the two countries was signed August 14, 1941. On January 1, 1942, the representatives of 26 governments, including some governments in exile, signed the “Declaration by United Nations, Subscribing to the Principles of the Atlantic Charter.” The United Nations then became the formal name of the anti-Nazi allies.
The signatories included the USSR. Stalin’s government had no intention of following most of the principles set forth in the treaty; its signing was a transparent fraud. The Atlantic Charter and the United Nations were designed to restrain the practices of aggression, brutality, dictatorship, and government-sanctioned murder, yet the United Nations brought in one of the most brutal and murderous dictatorships as a founding member. Stalin’s USSR set a precedent which is followed to this day.
The contradiction was present from the beginning in the UN Charter:
The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.
These ends were not and could not be harmonized. They were in fact placed in opposition:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
Note the contrasting strength of the language in these two provisions (“nothing …shall authorize” and “shall promote”). If human rights are truly universal, the interposition of national boundaries must be irrelevant, since they exist everywhere. As a practical matter, Violations of human rights were defined as outside of the scope of the UN, as long as they took place within a country’s borders. It is as though there had been no reason to fight Hitler except for his invasion of Poland.
We cannot defeat tyranny by leaving tyrants safe and secure, as long as they stay close to home. The rights to life, liberty, and property are not just local customs. Either human rights are universal, or they are nothing.