Volume 11, Issue 2 (Fall 2006)

This volume contains two articles and two comments on current international and comparative law issues. Available online at HeinOnline, Westlaw, or LexisNexis.

Costs and Benefits of Adding a Private Right of Action to the World Trade Organization and the Montreal Protocol Dispute Resolution Systems. 11 UCLA J. Int’l L. & For. Aff. 189.

One way to increase the enforcement of international agreements may be to allow private parties to bring claims to enforce the rules of those agreements before an international forum. But, even if effective, when is private enforcement advantageous? This article seeks to provide a partial answer to this question by assessing, as a thought experiment, the effect of adding a private right of action (PRA) to two existing enforcement mechanisms: the World Trade Organization (WTO) dispute settlement mechanism and the Montreal Protocol Non-Compliance Procedure. The costs of adding PRAs to the WTO or to the Montreal Protocol would most likely outweigh the benefits, but for different reasons. In the case of the WTO, the most significant reason is that the WTO dispute resolution system is already comparatively legalized. The greater legalism, constraint, and rigidity provided by PRAs could render the system brittle, resulting in non-compliance and gradual defection. The Montreal Protocol system, on the other hand, relies on cooperative behavior and political pressure-an adversarial PRA could undermine the cooperative aspects of this approach.

Linking Natural Resource Exploitation and Primary Health Care in Developing Countries. 11 UCLA J. Int’l L. & For. Aff. 227.

In exchange for loans from international financial institutions, natural resources companies should be made contractually responsible for achieving specific primary health care targets in certain developing countries in which they invest. Primary health care is crucial for social and economic development, but many developing countries’ governments fail in its provision. Any effort to make natural re- sources companies responsible for primary health care would need to focus on goal setting, monitoring and legal enforcement. The latter would include both monetary sanctions and incentives tied to specific targets. The challenges facing this project are significant, but none is problematic enough to defeat the rationale for implementing the program; instead, challenges can effectively be addressed at the goal-setting stage, where targets and incentives would be structured to maximize effectiveness and accountability.

COMMENT: Acts of Theft and Concealment: Arguments Against the Application of the Act of State Doctrine in Cases of Nazi-Looted Art. 11 UCLA J. Int’l L. & For. Aff. 281.

Many procedural barriers exist to litigating the recent wave of claims in American courts regarding the ownership of Nazi-looted art. Along with the requirements of personal jurisdiction, statute of limitations and forum non conveniens, the act of state doctrine re- mains a hurdle for litigators when the looted property remains in the hands of a foreign sovereign. This comment gives an updated status on the judicial maze that is the act of state doctrine and at- tempts to answer the question of whether it should protect foreign sovereigns from having to litigate claims in American courts over Nazi-looted art. By examining the policies behind the act of state doctrine, recent act of state jurisprudence, and relevant exceptions to the doctrine, this comment concludes that the act of state doctrine is inapplicable in most looted art cases, where the international law consensus through treaties and public policy prompts the return of Nazi-looted art to its original owner.

COMMENT: Devolution or Evolution? The Increasing Role of the State in Immigration Law Enforcement. 11 UCLA J. Int’l L. & For. Aff. 307.

Immigration reform emerged as a hot topic of contemporary political discourse following the terrorist attacks of September 11, 2001. This debate has often centered on addressing the perceived lack of man- power in the enforcement of federal immigration laws. Recent bills, including the Clear Law Enforcement for Criminal Alien Removal Act (CLEAR Act) and the Homeland Security Enhancement Act (HSEA), include provisions that would authorize state and local officials to arrest, investigate, and participate in the detection and removal of unlawfully present non-citizens. This comment addresses the transitional state of U.S. immigration policy as it shifts from being the exclusive domain of the federal government to a collaborative effort among federal, state, and local po- lice authorities. The historical background of federal power over immigration law under the plenary power doctrine is discussed, followed by an analysis of the recent expansion of state roles in immigration law enforcement. In addition, this paper includes a brief analysis of various proposals, such as the CLEAR Act and the HSEA, that would expand the role of state and local police in the enforcement of immigration law.

Available online at HeinOnline, Westlaw, or LexisNexis.

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