Guest Blogger: Lesley Wexler

It's IntLawGrrls' great pleasure to welcome Lesley Wexler (right) as today's guest blogger.
Lesley's an Associate Professor of Law at the University of Illinois College of Law, Urbana-Champaign, also the home institution of IntLawGrrls guest/alumna Jacqueline Ross. Lesley joined the Illinois faculty this year from Florida State University College of Law. She also has taught at the University of Chicago Law School, as a Harry A. Bigelow Law Fellow. Her courses include Torts, Laws of War, and International Environmental Law.
Lesley earned her B.A. with honors from the University of Michigan and her J.D. with honors from the University of Chicago. She was an Articles Editor for the University of Chicago Legal Forum and an Associate Editor of the Chicago Journal of International Law. She clerked for Judges William Wayne Justice, U.S. District Court for the Eastern District of Texas, and Thomas Reavley, U.S. Court of Appeals for the 5th Circuit.
The subject of a prior post by IntLawGrrl Jaya Ramji-Nogales, Lesley focuses her scholarship on the intersection of social norms with the areas of international human rights, the law of war, and anti-discrimination law. The focus is evident in this list of publications and works in progress.
In her guest post below, Lesley uses her recent article on "Resource Curses" as the basis for analysis of recent efforts to put an end to human rights violations in diamond fields in Zimbabwe.
Heartfelt welcome!

Kimberley Process & Zimbabwe diamonds

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

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. My recent article, "Regulating Resource Curses: Institutional Design and Evolution of the Blood Diamond Regime," published earlier this year in the Cardozo Law Review, looks closely at a recent effort to address the global trade in so-called blood diamonds as a potential model for resource curses more generally.
I develop a case study of the Kimberley Process, an international diamond tracking regime (prior IntLawGrrls post), by investigating both the scope of the institution’s regulatory reach as well as the mechanisms by which members promulgate and enforce those regulations. The article focuses on the unique coalition of nongovernmental organizations, corporations, and states, and on 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, what determines whether an institution can regulate effectively, and when it may move beyond the designers’ original interests, are legalization elements of that international institution. These include:
► The obligations the regime creates;
► The precision with which those obligations are defined; and
► The possible delegation of interpretive and enforcement efforts.
In accumulating and assessing this evidence, my article contends that while 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 -- even though it need not necessarily -- evolve to address both the rebel-induced and state-inflicted human rights violations related to the diamond trade.
The article acknowledges 2 factors:
► The importance and potential stickiness of initial design choices; and
► The fact 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.
Developments which occurred after my article went to press suggest that the Kimberley Process has in fact tried to address state-initiated human rights abuses. In so doing, it is facing some substantial state resistance:
► In 2009, the Kimberley Process sanctioned Zimbabwe for bad behavior in the newly discovered Marange diamond fields. Rather than expel Zimbabwe, members suspended its exports. By November 2009, Zimbabwe agreed to a joint work plan to restore compliance by eliminating smuggling, allowing greater monitoring, and reducing military abuses against civilian miners. Despite these promises, Human Rights Watch reported that as late as September of 2010, soldiers still control large portions of these Zimbabwe fields and continue to violate the human rights of the local miners. (credit for 2006 photo by Tsvangiray Mukwazhi/Associated Press of women and men miners at Marange)
► A November 2010 Kimberley Process meeting failed to reach agreement on whether to lift all export limitations, and thus kept the suspension in place. Zimbabwe’s monitor responded by unilaterally certifying millions of diamonds which are already beginning to make their way to market.
►Many speculate that a December 2010 WikiLeaks posting will influence an ongoing Kimberley Process meeting on the Zimbabwe export question. The 2008 U.S. government cable states:

'In a country filled with corrupt schemes, the diamond business in Zimbawbe is one of the dirtiest.'

► Meanwhile, NGOs such as Global Witness and World Vision have stopped short of calling a boycott, but asked consumers and retailers to act more vigilantly in ensuring that diamonds purchased over the holiday season have not funded violence.
If Zimbabwe continues on its current path of non-compliance, or pulls out of the process entirely, many fear the diamond industry will return to the bad practices of the 1990s, in which widespread human rights abuses were common.
Others suggest, however, that targeted pressure campaigns could convince industry networks to reject working with those that trade in these blood diamonds and persuade individual consumers not to purchase them.
Only time will tell. But this article illuminates the institutional mechanisms that will facilitate success or failure on the Zimbabwe problem.

The Limits of Human Rights Law

As a nursing mother, the story in Sunday's NY Times of an undocumented immigrant who, nine months pregnant, was jailed after a traffic stop, nearly brought me to tears. For those who didn't see the article, Juana Villegas went into labor in jail, was taken to the hospital in handcuffs, and was cuffed to the bed by one foot until the final stages of her labor. County officers prohibited Ms. Villegas from seeing or speaking with her husband during childbirth, and a sheriff's officer stood guard in her hospital room throughout her labor. She was shackled again six hours after giving birth, compromising her efforts to perform the basic hygiene necessary after childbirth. Two days later, she was sent back to jail without her newborn son; her husband was allowed to pick up the baby but not to speak to or see his wife. A nurse at the hospital tried to give Ms. Villegas a breast pump to take to jail with her, but a sheriff's deputy prohibited her from taking it. Her breasts became infected and her infant developed jaundice. Her crime? None; she was driving without a license and had returned to the United States after a prior deportation.
When I told my husband, a Latino immigrant, this story, he looked visibly shaken and asked me not to share my human rights stories with him right before bedtime. A powerful article by Jane Guskin describes how the nurses at Ms. Villegas' bedside cried when the sheriff's deputy refused to remove her shackles, and lists other tales of tears shed over the treatment of immigrants in the United States, from the separation of families (described here) to

strip searches and genital and anal cavity inspections following meetings with attorneys; detainees affected by an outbreak of food poisoning were denied medical treatment for many hours; a group of detainees transferred out of the facility by plane to Alabama -- to clear room there for workers arrested in a raid -- were refused access to the bathroom and were forced to sit in their own
excrement for the duration of the flight.

What is your gut reaction to these descriptions? Most readers, I would imagine, respond compassionately, as me, my husband, nurses, community leaders, attorneys, church staff and volunteers have done in the face of these human rights abuses. Viewing immigrants as humans, as one of us, we tear up with empathy at these depictions of human suffering. My burning question of the day, then, is to understand the mental gymnastics that enable officials to justify such mistreatment of those who have committed no crime. What allows someone to coolly stand guard while a nursing mother is separated from her newborn? To watch indifferently as other humans sit in their own excrement? It is only by understanding this mindset that we will be able to change it -- but is human rights law up to the task? In my most recent article, I argue that human rights law should be used in immigration enforcement agencies to create an institutional culture that values individual rights. Can law create compassion? Perhaps, as Lesley Wexler argues, it can simply humanize immigrants in the eyes of officials, which may be the first step. We can only hope.