The legal aspects of the Kimberley Process

A report concerning the legal aspects of the Kimberley Process Certification Scheme (KPCS). The juridical meanders that led up to the KPCS, might prove to constitute an instructive precedent.

A meeting between governments, NGOs and diamond industry representatives in May 2000 in Kimberley, South Africa, was the start of a 3-year negotiating process that led to the establishment of the Kimberley Process Certification Scheme (KPCS).1 The KPCS is an international diamond certification scheme aimed at preventing the trade in so-called 'conflict diamonds' whilst protecting the legitimate diamond trade. It was put into practice in January 2003 and has been endorsed by the United Nations General Assembly and the United Nations Security Council. Participants in the Kimberley Process are required to pass national laws establishing import and export control regimes to keep conflict diamonds out of the legitimate 'diamond pipeline'.

The approach that has been given to the problem of conflict diamonds presents an interesting example of political, economic and social developments in a globalising world. The Kimberley Process is a noteworthy multilateral endeavour seeking an economic-political solution to break the link between the trade in diamonds and gruesome wars in parts of Africa.

Given the interesting features of the Scheme's creation and its potential role in stopping and preventing both current and future conflict, it is worthwile to investigate its legal foundations, the issues of its implementation in national legislation, and its relation to existing international trade law. Such an analysis might indeed prove its particular worth in the wake of current efforts to devise a certification scheme for other resources than diamonds. As a recent proof that such an essentially political project is, perhaps still very tentatively, starting to occupy a place in the minds of key stakeholders, one can refer to Article 9 of the Pact on Security, Stability and Development in the Great Lakes Region, signed on 15 December 2006 by all members of the International Conference of the Great Lakes Region. The said article, titled 'Protocol Against the Illegal Exploitation of Natural Resources', states that "The Member States agree, in accordance with the Protocol Against the Illegal Exploitation of Natural Resources, to put in place regional rules and mechanisms for combating the illegal exploitation of natural resources which constitute a violation of the States' right of permanent sovereignty over their natural resources and which represent a serious source of insecurity, instability, tension and conflicts, and in particular: (...) c) To put in place a regional certification mechanism for the exploitation, monitoring and verification of natural resources within the Great Lakes Region."

The extent to which the KPCS can and will serve as a model for any such future certification mechanism, is a technical matter that will, for the most part, depend on the nature of the commodities that will be envisaged. But concerning the legal aspects of any commodity certification scheme to be created, the juridical meanders that led up to the KPCS, might prove to constitute an instructive precedent.

This paper will start with a discussion regarding the legal qualification of the KPCS as an instrument of international law. Chapter II subsequently treats the implementation process of legal instruments to stop the trade of conflict diamonds -UN sanctions and the KPCS- in the European Union (EU) and the Netherlands. The ensuing chapter contains an in-depth analysis of whether the diamond trade rules, stemming from the KPCS, can be found compatible with the rules of international trade as set by the World Trade Organisation (WTO).2 Finally, the conclusion presents a summary of the (legal) issues pertaining to the Kimberley Process and discusses the possibilities to use the KPCS as a model for other international schemes to counter the illicit trade in conflict fuelling or illegally exploited commodities.

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