The lion that didn't roar : can regulatory theory save the Kimberley process?
Creators: name: Davidson, Nigel Joseph
Publisher: name: The Australian National University
Year: 2011
Subjects: subject: HD9677.A2 D38 2011
subject: Diamond industry and trade Social aspects
subject: Conflict diamonds.
subject: Foreign trade regulation International cooperation.
subject: Diamond industry and trade Law and legislation

description: Diamonds are a symbol of love, purchased to celebrate marriage in many parts of the world. It is, therefore, a dark irony that the diamond trade has become linked with both warfare and human rights violations committed in African producer countries such as Sierra Leone and Angola. Graphic accounts of murder and mayhem, fuelled by the diamond black market, continue to emerge from the Democratic Republic of Congo, Cote d'Ivoire, Zimbabwe, and Angola, posing an existential threat to the multi-billion dollar industry. These human rights violations fall under the legal categories of war crimes, crimes against humanity and genocide, the most serious crimes under international law. In response to the grim reality of the blood diamonds trade, De Beers and other major corporate players joined with non-governmental organisations and national governments to create the Kimberley Process Certification Scheme in 2002. The objective of the Kimberley Process is to distinguish the legitimate rough diamond trade from the trade in diamonds linked to serious human rights abuses, known as 'conflict diamonds' or 'blood diamonds'. It involves a system of export and import certificates attesting to the 'clean' character of the rough diamonds traded, and is backed up by a peer review system to monitor compliance. The Kimberley Process has been supported through the regulatory action of national governments at the domestic level, as well as the United Nations Security Council and the International Criminal Court internationally. The first research question considered by this thesis is: (1) to what extent has the conflict diamonds governance system achieved its objectives? In response, it can be said that the conflict diamonds governance system has made significant progress in its core mandate. The quantity and value of the international legitimate diamond industry, once the very paradigm of secrecy, has become more transparent through publicly available Kimberley Process statistics. Based on these statistics, the Kimberley Process estimates that the blood diamond trade now constitutes less than one per cent of the world's rough diamond trade. However, it has not always been smooth sailing for the Kimberley Process, which has recently arrived in particularly stormy waters. The integrity of the system has been endangered by the seeming inability of the Kimberley Process to take appropriate action in the face of serious non-compliance by three important national government stakeholders, Venezuela, Zimbabwe and Angola. In short, commentators are asking whether the Kimberley Process 'lion' has forgotten how to 'roar'. The second research question is: (2) does an application of the networked pyramid regulatory model to the system provide descriptive or normative insights into its effectiveness? In considering both the relative success, and the current challenges facing the conflict diamonds governance system, important insights may be gained by looking at the system with reference to the networked pyramid regulatory model. Before applying the model the thesis suggests a modification, dubbed the 'dual' inetworked pyramid model', whereby the micro-regulatory system at the national level is seen as a networked pyramid within the greater networked pyramid of the international system. The relative success of Kimberley to date, when analysed against this theoretical hybrid of network and pyramid models, is largely linked to its self-conscious incorporation of insights from network theory. At the international level, the Kimberley Process can be seen as the central node, or command-centre, in which information is gathered, and regulatory action coordinated, from networks of corporations, national governments and non-government organisations. Its relative success to date can largely be attributed to a process of socialisation whereby big business as well as most national governments have become its key supporters. It is, however, in the theoretical domain of the regulatory pyramid that the Kimberley Process might find a way out of its current deadlock. Pyramid theory recognises the primacy of soft power, such as dialogue and socialisation, but demands escalation to more coercive measures where regulated parties are unresponsive or recalcitrant. It is suggested that improved procedures for managing 'serious non-compliance', combined with an agreed pathway to expulsion from the Kimberley Process in such cases, would bring the KP into better alignment with the pyramid model and help it to move out of the log jam in which it currently finds itself. Furthermore, a more defined pathway of escalation to the United Nations Security Council and the International Criminal Court would bolster the ongoing efficacy of the conflict diamonds governance system. A recommended mechanism for doing this would be to amend the Statute of the International Criminal Court to include a crime of trafficking in conflict diamonds, to be defined in terms of contravening a UNSC diamond embargo. Beyond breaking the current deadlock, the KP has an opportunity to reinvent itself by embracing the concept of 'development diamonds'. First suggested by NGOs, this label might be applied to diamonds from the informal sector which are not merely free from the taint of international crime, but also comply with other human rights standards, most notably freedom from child labour. A further modification to the 'dual networked pyramid model', assisted by insights from the 'pyramid of rewards' theoretical model, reveals that the KP has the chance to systematically ratchet up human rights, health, safety and environmental standards in the artisanal sector, thereby buttressing the industry against the return of blood diamonds.