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Regulating Resource Curses: Institutional Design and Evolution of the Blood Diamond Regime

49 Pages Posted: 23 Nov 2009 Last revised: 16 Dec 2009

Lesley Wexler

University of Illinois College of Law

Date Written: November 23, 2009

Abstract

The opening and expansion of global markets has created and exacerbated resource curses, the phenomenon in which natural resource abundance creates governance problems. Yet international legal scholarship has been slow to recognize the relationship between freer trade and the financing of internal conflicts. While legal academics have long debated law’s role in addressing conflict generally, few have systematically addressed the intersection of trade regulation and prevention or abatement of internal conflict. This article looks closely at a recent regulatory effort to address the global trade in so-called blood diamonds which are a particularly destructive example of a resource curse. As many are seeking an appropriate model for resource curses generally, I develop a case study of blood diamonds and the Kimberley Process, an international commodity tracking regime. This article investigates both the scope of the Kimberley Process’s regulatory reach as well as the mechanisms by which those regulations are promulgated and enforced.

This article focuses on the unique coalition of NGOs, corporations, and states and the unusual international arrangement upon which they agreed. Evidence from the evolution of that institution suggests that although designers may indeed seek to maximize their own interests - the legalization elements of that international institution such as the obligations the regime creates, the precision with which those obligations are defined, and the possible delegation of interpretive and enforcement efforts determine whether an institution can regulate effectively and when it may move beyond the designers’ original interests. In accumulating and assessing this evidence, this article contends that although skeptics may correctly identify the Kimberley Process’s initial alignment with state and corporate interests, this lightly legalized regime provides an opportunity for substantial progress on human rights. Although the Kimberley Process might appear as an attempt to whitewash state and corporate abuses, over time, the institution can, though need not necessarily, evolve over time to address both the rebel induced and state inflicted human rights violations related to the diamond trade. In so doing, this article acknowledges the importance and potential stickiness of initial design choices and that institutional evolution in favor of issue expansion and greater enforcement is merely feasible rather than inevitable. Thus, this article demonstrates some of the possibilities and limitations of looking to the Kimberley Process as a model for resource curses, and more generally for other areas in which NGOs seek to align state, corporate, and human rights interests.

Suggested Citation

Wexler, Lesley, Regulating Resource Curses: Institutional Design and Evolution of the Blood Diamond Regime (November 23, 2009). FSU College of Law, Public Law Research Paper No. 408. Available at SSRN: https://ssrn.com/abstract=1511767 or http://dx.doi.org/10.2139/ssrn.1511767

Lesley M. Wexler (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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