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.

Word(s) up

Those of us who've labored at international law learned long ago that the just about the last place to find the meaning of terms in our field was the standard domestic reference.
Not at any more: Black's Law Dictionary has gone global.
That's the takeaway from the Autumn 2009 edition of The Green Bag, now celebrating its 13th year as "an entertaining journal of law."* Adjudging the newest edition of Black's "a product of its time," an article entitled "Timely Definitions" cites 8 "new entries" as cases in point.
A definition in 1 of the 8 entries alludes to the globalized nature of contemporary practice, for it traces a term not obviously international -- "advance-fee fraud" -- to its "believed" origins in Nigeria.
Fully 4 of the remaining 7 terms deal specifically with matters of interest to specialists in international or foreign relations law. These indeed reflect our times, ranging from "conflict diamond" to "national-security letter" to "waterboarding."
The 4th term in this latter group?

complementarity principle. International law. The doctrine that a country with control of a person accused of violating international criminal law has the jurisdiction to charge and try a person. · Because the jurisdiction of the International Criminal Court is complementary to the criminal jurisdiction of countries, that tribunal can assert jurisdiction over the accused person only if the country is unable or unwilling to undertake a genuine investigation and prosecution. – Sometimes shortened to complementarity.

This new entry, in particular, underscores that lawyers need to know a lot about law's operation at inter- as well as -national levels.

* To which yours truly was pleased to have contributed "Under Deconstruction: International Criminal Law in a Postmodern World," 3 Green Bag 2d 369 (2000).

On March 7

On this day in ...
... 2001, the U.N. Security Council, acting pursuant to Chapter VII of the U.N. Charter, adopted Resolution 1343, in which it demanded that Liberia stop supporting rebels fighting the government in Sierra Leone, and imposed numerous sanctions aimed at limiting Liberia's trade in contraband; in particular, arms and diamonds.

(Prior March 7 posts are here, here, and here)

Corruption, Conflict and Oil

The United States has apparently agreed to assist Nigeria in criminalizing a practice known as “oil bunkering.” This assistance could create opportunities to interrupt the flow of funds that fuel rampant violence in the Niger Delta, where large amounts of oil are siphoned-off and sold illegally each day through well-established and corrupt channels. As part of this effort, Nigeria was recently charged with developing a chemical “tagging” mechanism which would identify oil sold by way of legitimate channels, such that all illicit oil – bunkered oil – would be readily identifiable (by the absence of the chemical tag) as having entered the commerce stream through illicit means. (credit for photo of Nigerian oil pipes; map credit)

While the prospects for such a tagging mechanism may seem extremely expensive and perhaps even far flung, the high costs resulting from current oil bunkering, corruption and violence funded by blood-oil, make even the high cost of developing such a chemical tag potentially very attractive. More to the point, oil companies already have tagging mechanisms that they use for other purposes. Also, the relative success of a similar tagging mechanism for blood diamonds, which formed part of the Kimberley Process Certification Scheme, provides ample optimism for the possibility of stemming the flow of blood oil.

Nigeria may thus serve as a test case for addressing the close ties between oil, corruption and conflict prevalent in other areas as well.

(Cross-posted at The Conglomerate, the business/law/economics/society site where I am currently guest blogging. And see IntLawGrrls' look back at oil history below.)