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Cardozo Law Review

Abstract

The opening and expansion of global markets creates and exacerbates resource curses, or 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 the role of law in addressing conflict generally, few have systematically addressed the intersection of trade regulation and the prevention or abatement of internal conflict. This Article looks closely at a recent regulatory effort to address the global trade in "blood diamonds," which are a particularly destructive example of a resource curse. In response to the demand for an appropriate model for resource curses, 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 their unusual international arrangement. 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 - for example, the obligations that 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 whether its reach extends beyond the drafters' original interests. Using evidence on this issue as support, 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 it need not necessarily - evolve to address both the rebel-induced and state-inflicted human rights violations relating to the diamond trade. In so doing, this Article acknowledges the importance and potential stickiness of initial design choices and institutional evolution in favor of issue expansion. It also recognizes that 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.

Disciplines

Human Rights Law | Law | Law of the Sea | Oil, Gas, and Mineral Law

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