The Law and Conflict Minerals: The precedent

By Funmi Ogunlusi

The precedent for regulations of some sort guiding the extraction and sale of so-called “conflict minerals” can be seen to be the Kimberly Process. Fully known as the Kimberly Process Certification Scheme (KPCS), this is an international agreement enacted by the UN General Assembly in 2003. It’s purpose was to tackle the issue of “blood diamonds”- a similar problem whereby the sale of diamonds extracted from countries like the Congo and Sierra Leone was used to fund inhuman and despicable torture and suffering. The Kimberly process requires that member countries agree to certain regulations that ensure that diamonds are properly sourced, taking into full account the humanitarian ramifications of such efforts. On passing these criteria, the diamonds are then certified to be conflict-free and can therefore be traded in the international market.

The process, ideally, was a breakthrough. It was an attempt to finally address a disaster that many consumers in the developed world were unwittingly complicit in. However, unfortunately, these ideals did not automatically translate into reality. I will categorise the reasons for this as institutional and intentional respectively.

Institutional short-comings: 

The major problem of the Kimberly Process which is inherent within the certification scheme itself is that of enforcement (or the lack thereof). For instance, some member countries still fall short of criteria they previously agreed to. As there is no concrete means of enforcement, these countries are only nominal participants of the accord. They include Venezuela, Ivory Coast and Zimbabwe. In fact, Venezuela withdrew itself from the process on purpose at a point in time because it could not make required efforts to regulate its diamond industry. Mugabe’s Zimbabwe also threatened to do the same. Such behaviour suggests that the process is like a toothless bulldog- one which can be flouted without consideration of consequences. In fact, the process stipulates that member countries which are fully certified can only trade with one another. Thus, “rogue” nations like Zimbabwe may even use this as a bargaining chip- threatening to renege on the agreement and cut of supply from member countries.

Moreover, institutional deficiencies within member countries themselves led one of the founding members of the Kimberly process to be disillusioned with the entire system. Ian Smiley quit his job working for the KPCS and is quoted as claiming that he “could no longer, in good faith, contribute to pretence that failure is success”, bitterly complaining that “the government in Congo has no idea where 40% of its diamonds come from – they could be coming from Angola or Zimbabwe or even from Mars”. Thus, it appears that short-comings in the set-up of the process itself as well as lacking support mechanisms in member countries serve as a serious obstacle to its effective functioning.

Intentional short-comings

By intentional short-comings, I refer to deliberate contraventions or circumventions of the process by illegal means such as smuggling. Both institutional and intentional drawbacks of the process are interconnected as the former makes the latter more possible. For instance, the lack of information alluded to by Mr Smiley above makes it easier for diamonds to be smuggled outside the country since proper tabs are not kept on what is manufactured and where it is transported. This creates a serious problem as the further these diamonds go from the source, the harder they are to trace. The supply chain gets more and more blurry as the stones are mixed with legally sourced ones and sent abroad to be processed.

It can therefore be seen that the Kimberly process set a standard for the importance of humanitarian concerns in the procurement of precious stones and minerals. My next article will assess the situation today in light of this precedent.

References
BBC News (2010) Diamonds: Does the Kimberly Process work? Available at http://www.bbc.co.uk/news/10307046 [Accessed 17 April, 2011]
Kimberly Process website. Available at http://www.kimberleyprocess.com/home/index_en.html [Accessed 17 April, 2011]
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