The Architecture of Globalized Governance
Forms and Processes of
Regulation in the Diamond and Forestry Industry
D.A. Wegen S1468677 +31 (0)6 53968268 Dijkstraat 24 9724 KX Groningen The Netherlands University of Groningen Faculty of Arts
International Relations and International Organisation Master’s Thesis
Supervisor: mr. dr. H.H. Voogsgeerd
Acknowledgement
I am ever grateful for my fantastic parents, who have supported me in every way in the completion of this thesis and this degree. I also thank my supervisor, Mr. Voogsgeerd, for his time and his valuable ideas.
Abstract
The ‘Architecture of Globalized Governance’ is addressed in this thesis, both conceptually and empirically. Various processes of globalization have had significant impact on the way that global issues emerge and are, or are not governed. This has been the topic of much academic debate both in the field of international law and in international relations. This thesis combines some elements and insights from both debates. From the legal perspective, the notion of ‘soft law’ is used to explain the governance systems in two case studies; the Kimberley Process Certification Scheme for the trade in rough diamonds, and the Forestry Stewardship Council and some similar initiatives that relate to sustainable forestry management. From the international relations perspective, the notion of ‘global governance’ is used as a starting point for analyzing the process through which these governance systems emerged.
The ‘soft law’ approach steps beyond the question of whether an agreement is formally law, but considers the aspects of legality, substance, and structure as three features that define the governance system. The ‘global governance’ approach, similarly, steps beyond the notion that political authority is a defining feature of governance processes, and focuses on various state and non-state actors, issue-characteristics, and the way that strategic mechanisms of framing, agenda-setting, and norm-convergence influence the capacity of these various actors to affect the outcome.
Content
Acknowledgements 2
Abstract 3
1. Introduction 6
2. Globalization and Governance: how has globalization impacted governance? 9 2.1 The current ‘epoch of history’………. 10
2.2 Globalized Modes of Governance………... 14
2.3 Conclusion………... 18
3. Analysing globalized governance through form and process 19 4. An analytical framework for forms of globalized governance 22 4.1 Legality: contract or pledges.………... 22
4.2 Substance: deep or shallow……….. ………23
4.3 Structure: strong or weak………. ………25
4.4 The analytical framework for form……….. ………27
5. Case IA: Governing ‘blood diamonds’ globally 28
5.1 Background to the issue of conflict diamonds………. 28
5.2 The form of the Kimberley Process Certification Scheme………... 32
5.2.1 Legality.………32
5.2.2 Substance………. 35
5.2.3 Structure………... 37
5.3 Conclusion………... 42
6. Case IIA: The form of sustainable forestry certification 42 6.1 Background……….. 43
6.2 The Global Governance of Forestry……… 47
6.2.1 Legality……… 48
6.2.2 Substance………. 51
6.2.3 Structure………... 55
6.3 Conclusion………... 61
7. The other side of the medallion: the process of globalized governance 62 7.1 Same,same but different?... 62
7.2 The element of Process……… 62
7.2.1 Characterising Process………. 63
7.2.3 Mechanisms affecting the capacity to influence process…………. 66
7.2.4 Conditions affecting the capacity to influence process……… 67
7.2.5 The Analytical Framework for process……… 68
7.3 Analysing the process of the KPCS and FSC………. 69
8. Case IB: Analysing the process of the KPCS 71 8.1 Who are the main actors?...………... 71
8.2 Mechanisms affecting the capacity to influence process…….……… 73
8.3. Conditions affecting the capacity to influence process….……….. 80
8.4 Conclusion……….……….. 81
9. Case IIB: Analysing the process of sustainable forestry certification 82 9.1 Who are the main actors?...………... 82
9.2 Mechanisms affecting the capacity to influence process…….……… 84
9.3. Conditions affecting the capacity to influence process….……….. 89
9.4 Conclusion……….………. 92
10. Certification as a mode of globalized governance? 95
1. Introduction
“We say ‘governance’ because we don’t really know what to call what is going on”1
The contemporary international system is characterized by an increase of issues, actors, and governance mechanisms. The time when states were the only real significant actors capable of governing international issues, it seems, is in the past. Is this so? How are international, global, and transnational issues governed? What rules apply, who makes them, and who enforces them? And can we speak of other governance mechanisms beyond international law? There is currently vast debate on the effects and consequences of globalization, on the capacity or incapacity of states to tackle global issues, and on the emergence and potential power of non-state actors in international affairs.2 This debate, or rather, these debates, are extremely multifaceted and complex, and they touch upon a wide range of disciplines beyond law and politics.
Without going so far as to suggest that the importance of nation-states and the traditional international legal system as a whole is in decline, as some do, this thesis does share the presumption that the relative importance of non-state actors and ‘new’ systems of governance has increased.3 The starting point of this view is the observation that governance in the contemporary international system involves a broad range of governing mechanisms that do not necessarily relate to the authority of governments or international law in a traditional sense. Processes of globalization lie at the basis of this development. In light of the diversification of actors involved in global issues, a question that arises is how governance takes shape in these new circumstances. In other words: how globalized governance takes shape?4
1
L. Finkelstein, quoted in Dingwerth and Pattberg, ‘Global Governance as a Perspective on World Politics’
Global Governance 12 (2006) 185-203, 187.
2
See: G. Teubner, ed., Global Law without a State, Dartmouth, Ashgate Publishing, 1997, Introduction; Paul Shiff Berman, ‘From International Law to Law and Globalization’, Columbia Journal of Transnational Law 43, 2005, pp.485-556.
3
See: Christian Brutsch and Dirk Lehmkuhl, Law and Legalization in Transnational Relations, London and New York, Routledge, 2007, 20 for the related argument that the contributions of non-state actors to framing, implementation and monitoring international legal and law-like arrangements can be explained within the limits of an essentially state-centred approach to international relations. See also: Teubner, Foreword and Chapter 1, suggesting that it is not a replacement or transformation of state-centric law, but that there is new, non-state-centric law that increasingly applies and is developing.
4
This broad research agenda is at the centre of much recent research in the context of international relations and international law and it is a very relevant question for a wide range of political, economic, social, environmental, scientific, and many more areas of life that have an increasingly international and global character. Within the context of this broader research agenda, this thesis aims to analyse and explain the ‘architecture’ of the globalized governance schemes in the cases of rough diamond trade regulation and sustainable forestry management regulation, specifically the Kimberley Process Certification Scheme (KPCS) and the Forestry Stewardship Council (FSC). This architecture entails the form of the governance scheme as well as the process from which it resulted. The aim of this thesis is to identify and explain those elements of form and process which are most important to the effectiveness of the governance schemes. The central research question that guides this thesis thus reads: through what form does governance of the rough diamond industry and the sustainable forest management take place, and how did the processes from which the KPCS and FSC emerged determine their effectiveness?
level, thus also bypassing the notion that nation-states and their various institutions are the primary mechanisms on the international level.
This thesis addresses both form and process because it views them as two sides of the same medallion, this is based on the basic assumption that both aspects are important in order to understand not only how globalized forms of governance work, but also why they do or do not work. This assumption is based on a tentative comparison of the KPCS and FSC, which seems to indicate that the KPCS is more effective than the FSC, even though both constitute fairly rigid certification schemes. This suggests that not only form, but also process contributes to the effectiveness of the scheme. A first glance suggests that conditions such as broad participation and the specificity of the problem explain the greater effectiveness of the KPCS, but further study reveals that these conditions were by no means pre-existent conditions that automatically contributed to the development of an effective KPCS or a less effective FSC. Rather, not only the issue characteristics but also the various actors and their strategic activities contribute to the effectiveness of governance structures.
These preliminary observations warrant a structured analysis of both sides of the medallion, through which more specific conclusions can be drawn about which aspects of form and process contribute to the effectiveness of a governance scheme. Following background discussions of globalization and governance and the notions of form and process in the next two chapters, this thesis elaborates on the framework for analysing form and applies this to both cases (case IA and IIA). This framework builds upon an analytical approach suggested by Kal Raustiala, who is critical of the term ‘soft law’ and suggests it should be analysed according to the dimensions of legality, substance, and structure.5
Subsequently the model for analysing process is discussed an applied to the cases (IB and IIB). Two approaches are combined to construct this analytical framework. Firstly, the mechanisms of framing, agenda-setting, and norm-convergence, which are derived from Margaret Keck and Kathryn Sikkink’s analysis of transnational advocacy coalitions, are used to analyse the various stages and dynamics of the process, including the role of specific actors.6 This analysis is substantiated and complemented with an analysis of a wide range of micro- and macro-level conditions that characterize the case and that influence the ability of
5
Kal Raustiala, ‘Form and Substance in International Agreements’, The American Journal of International Law 99, 2005, pp.581-614.
6
actors to influence each other and the process of the case. This second aspect of the analytical framework is based broadly on elements of regime theory, as discussed by Philipp Pattberg.7
The penultimate chapter ‘zooms back out’ to discuss more generally, but on basis of the analyses, the role of certification as a mode of globalized governance and the role of non-state actors therein. Finally some concluding remarks are offered.
2. Globalization and Governance
In the best-selling book ‘The World is Flat’ Thomas Friedman argues that various processes of globalization have ‘flattened’ the world since the discovery of the new world by Columbus in 1492. Globalization 1.0, as Friedman calls the first era, was about countries and governments extending beyond their borders and entering ‘global’ competition, opportunities, and collaboration. Globalization 2.0 took place between 1800 and 2000, and the dynamic forces of this era are seen to be multinational companies that were increasingly empowered internationally; first by lower transportation costs, and later by decreasing communication costs. Currently, Friedman argues, globalization 3.0 is emerging and it symbolizes not only an even smaller world, but more importantly, a flatter world. This flat world is characterized by “the newfound power for individuals to collaborate and compete globally.”8 Although much may be said in support and in critique of this particular view of modern history, the general notion of globalization seems to have gained general acceptance as term describing the contemporary era, as is reflected in the broad political and academic attention for the nature, causes, and consequences of the phenomenon of globalization.9
While Friedman focuses primarily on the globalized economy and the position of firms and individuals, these same globalizing forces have inevitably also had profound bearing on international politics, international law, and the position of states therein. It seems that scholars of international relations as well as international law increasingly recognize and address the pluriform nature of international relations in their research, taking account of actors on other levels, actors with different interests and constituencies, and actors that act
7
Philipp Pattberg, ‘The Institutionalization of Private Governance: How business and Nonprofit Organizations Agree on Transnational Rules’, Governance: An International Journal of Policy, Administration, and
Institutions 18 (2005) 589-610.
8
Thomas Friedman, The World is Flat: the Globalized World in the Twenty-First Century, London, Penguin Books, 2005, 11.
9
through different means and mechanisms.10 Whereas Friedman primarily describes the empowerment of firms and individuals, such scholars also address the question of the unempowerment of states11, and the appropriate form that governance could or should take as a result.12
Gunther Teubner provides an apt characterization of these developments when stating that “the difference between a highly globalized economy and a weakly globalized politics is pressing for the emergence of a global law.”13 Or, as professor Oppenheim wrote on a slightly more abstract level some 80 years earlier: “wherever a demand for law and order imperiously asserts itself, rules of law arise there.” Oppenheim continues: “every epoch of history produces alike that mode of legal development which it needs and that theoretical basis therefore which corresponds to its own interpretation of the nature of things.”14 This remark is particularly salient in the current debate because, firstly, it requires a characterization of this ‘epoch of history’, on the basis of which, secondly, the mode of legal development in that system can be better understood. The following sections address both questions, inevitably in a non-comprehensive manner, and by doing so provides a background to the analysis of the more specific governance ‘systems’ of the conflict diamond trade and the trade of timber.
2.1 The current ‘epoch of history’
Traditionally, the international system was defined in terms of sovereign and independent states that were the core units of political authority and which acted as gatekeepers to their domestic societies.15 Within this state-centric system it was the public sector that had the task to govern the state and regulate market failures and other negative externalities, and there was a clear distinction between domestic and international issues.16 Insofar as such issues were
10
For instance: Susan Strange, The Retreat of the State: The Diffusion of Power in the World Economy, Cambridge, Cambridge University Press, 1996; Thomas Risse-Kappen, ed., Bringing Transnational Relations
back in: non-state actors, domestic structures and international institutions, Cambridge, Cambridge University
Press, 1995. See for more legal perspectives: John Kirton and Michael Trebilcock, eds., Hard Choices, Soft Law:
Voluntary Standards in Global Trade, Environment and Social Governance, Burlington and Hants, Ashgate
Publishing, 2004; Dinah Shelton, ed., Commitment and Compliance, the role of non-binding norms in the
international system, Oxford, Oxford University Press, 2003; Kenneth Abbot and Duncan Snidal, ‘Hard and Soft
Law in International Governance’, International Organization 54, 2000, pp. 432-456. 11
Strange, The Retreat of the State. 12
Bob Woodward, ‘Global Civil Society and International Law in Global Governance: Some contemporary issues’, International Community Law Review 8, 2006, pp. 247-355; Berman.
13
Teubner, xiv. 14
Lassa Oppenheim, The future of international law, Cambridge, Clarendon Press, 1921, 3. 15
David Cox and Andrew O’Neil, ‘The unhappy marriage between international relations theory and international law’, Global Change, Peace & Security 20, 2008, pp. 201-215, 201-202.
governed by international legal agreements, such agreements applied only to states.17 Problems and issues that existed beyond the borders of an individual state were generally addressed through bilateral, multilateral, and eventually, international forms of cooperation. During the nineteenth and 20th century the demand for such inter-national cooperation increased, and the second half of the 20th century in particular witnessed two developments that may be seen as having partially undermined the Westphalian notions that lay at the foundation of the international and legal system.
The first of these developments was that international cooperation became increasingly international, that it was increasingly institutionalised through the establishment of intergovernmental organisations (IGOs), and that the number of non-governmental organizations (NGOs) increased dramatically. Although traditional international relations theory viewed such IGOs as mere tools or mechanisms through which states chose to act, for instance for reasons of lower transaction costs, institutional- and regime theories challenged this assumption by recognizing an increased autonomous role and influence of IGOs; thus undermining the notion that that states were the only relevant entities on the international level.18 To some extent these developments were mirrored in international legal context. To name but two examples, the Reparations for Injuries case of the International Court of Justice in 1949 was important because it recognized the legal personality of the UN, an IGO; and the 1986 Convention on Treaties between States and International Organisations, which can be seen as a supplement to the 1969 Convention on the Law of Treaties that was necessitated by the increase of cooperation with and among IGOs and NGOs worldwide.
A second but related development in the second half of the 20th century that appears to undermine the Westphalian notion of the international system was the broadening scope of the functions and competences of these various international organisations.19 As regards IGOs, this can be explained in part with reference to the aforementioned theoretical perspectives of institutionalism and regime theory. These perspectives recognize that institutions are often created by actors with certain interests in mind, but they also emphasize that norms, objectives, interests, and (perceived) gains of individual actors tend to converge within such institutions. This creates an increased unity of purpose and functional autonomy of the organisation – or ‘institutional momentum’ – as opposed to the notion that an IGO
17
Malcolm Shaw, International Law, Cambridge, Cambridge University Press, 2003, 44-45. 18
Berman, 487. 19
Kiki Brohlman, The Institutional Veil in Public International Law: International Organizations and the Law
merely constitutes a forum through which individual interests could be realized at lower cost.20
A second explanation for the broadening scope and functions of IGOs and NGOs can be found closer to Friedman’s explanation, namely a number of mutually reinforcing processes of globalization.21 Technological advances in telecommunication and transport, in particular the IT-revolution22, enabled especially NGOs (which often possess relatively limited means) to operate worldwide and, often, with higher levels of expertise than government agencies due to their increased specialization.23 This also closely relates to the widespread liberalization of markets and the emergence of companies that not only operate internationally, as they have done for several centuries, but companies that are multi-national. Such multinational corporations (MNCs) are widespread and consist of complex transnational networks, providing them with significant local and international power, and with the ability to evade, if necessary, national jurisdictions by moving their business, or threatening to do so.24 This broadened scope non-state actors is reflected in the observation that of the 100 most powerful economic entities in the world, 49 are states and 51 are corporations.25 In this context it is interesting to note that various legal and other scholars debate the desirability and logic of endowing such MNCs with international legal personality, or at least with specific international obligations.26 Such arguments are based on the logic that these entities operate internationally, and thus should also carry international duties and rights as states and IGOs
20
See generally: Paul Viotti and Mark Kauppi, eds., International Relations Theory: Realism, Pluralism,
Globalism, and Beyond, Boston etc., Allyn and Bacon, 1999 (3rd ed.). 21
Regarding mutually reinforcing developments, Brunssen et al. suggest that “the activities of non-state actors such as international standard-based organizations are not merely a response to increasing globalization, but a globalization process in itself.” Nils Brunsson, Bengt Jacobsson et al., A World of Standards, New York etc., Oxford University Press, 2000, 69 in: Bridget Hutter, ‘The Role of Non-State Actors in Regulation’, CARR
Discussion Paper 37, 2006, 11.
22
“The revolution in telecommunications and information technologies … are by many scholars considered to be the ‘basis of globalization’ and made possible a permanent worldwide dialogue and exchange of information between people who share the same interests – whether benign or not”, Karsten Nowrot, ‘Global Governance and International Law’, Beiträge zum Transnationalen Wirtschafsrecht 33, 2004, 13.
23
Kirton and Trebilcock also state that – given the complexity of managing the globalized economy – “technical experts acquire a greater power through their monopoly of knowledge”, Kirton and Trebilcock, 348.
24
Nowrot, 13. 25
UNDP, Human Development Report 2000, 2002, S. Anderson and J. Cavanagh, ‘Top 200: The Rise of Corporate Global Power’, Institute for Policy Studies, December 2000. In: Kuper, 227.
26
Andrew Kuper, ‘Reconstructing Global Governance: eight innovations’, in: Held, D., McGrew, A.,
Globalization Theory: Approaches and Controversies, Cambridge and Malden, Polity Press, 2007. pp.225-240,
do.27 As Nowrot notes, “The international legal order needs to set the relations between all the
de facto powerful entities in the international system on a legal basis…”28
A third facet of globalization is often characterized as the limitation or decrease of state power; but this should not be seen as a limitation of state capabilities per se, but rather in light of increased complexity of problems and issues due to the interconnectedness of markets and societies.29 Because various actors can act beyond borders and beyond national jurisdictions, they are capable of producing problems (environmental, human rights, corruption) that cannot be solved by single states, or even, it seems, through cooperation between states. As also appears from the cases of diamonds and timber, such transnational problems also require action from the MNCs that play a role in creating them.
These various aspects of globalization are mutually reinforcing,30 and indeed seem to be flattening the playing-field, thereby undermining the position of states as the dominant international actors. An illustrative example in this regard is the development of the human rights regime. Although this had traditionally been a matter regulated by domestic legislation (if at all), it was raised to the international level through amongst others the UN Charter and the Universal Declaration of Human Rights.31 Subsequently, NGOs have played an important part in the promotion of acceptance and enforcement of these norms. A key instrument of NGOs in this regard has been the mass media, through which reports of violations could be effectively distributed around the world.32 The current debate regarding ‘responsibility to protect’ is in many regards an extension of this development.33 Furthermore, international companies can decide (or be pressured by NGOs) to withdraw their business or investment, putting considerable pressure on governments. However, as is also clear in the example of human rights, there are limits to what non-state actors can achieve and often decisive state action remains necessary. Unfortunately, this last remedy is often unavailable or ineffective.
It should thus be noted that globalization processes by no means entail a flattening ‘across the board’; as there are many issue areas in which states remain the dominant or only
27
Nowrot, 13-18; see also: Brohlman, which presents an interesting discussion of the concept of legal personality in the context of international organizations and other non-state organizations.
28
Nowrot, 18. 29
Strange addresses this issue extensively in The Retreat of the State. 30
Hutter argues that the activities of non-state actors such as international standard-based organisations are “not merely a response to increasing globalization, but a globalization process in itself.” Hutter, 11.
31
Henry Schermers, ‘International Humanitarian Intervention’, in: European Law Students’ Association,
International Law as we enter the 21st Century, Berlin, Berlin Verlag, 2001.
32
Ingrid Detter, The International Legal Order, Hants, Dartmouth Publishing, 1994, 125. 33
significant actors. It is still a central feature of state actors to hold the monopoly over the use of force,34 and the recent financial crisis has also shown that states can and do assert themselves powerfully even in global sectors that are considered by some to be beyond the regulatory grasp of states. It is nonetheless a significant development that non-state actors (of which NGOs and MNCs are only two examples, others are religious groups, professional networks, crime syndicates, etc.) have been enabled through various globalization processes, to assert themselves internationally and transnationally. As also appears in the cases of conflict diamonds and forestry, this tendency is stronger still in areas where domestic rule of law is lacking and where the government apparatus is deficient. In view of this diversification of internationally relevant actors, but also in recognition of the retained dominance of state-entities in certain sectors, it may yet be premature to speak of a new epoch of history – as it, arguably, always is. A more appropriate appreciation of the challenge that globalization poses for the traditional state-centric model of governance would therefore be that globalization is causing a shift “from territorial to functional differentiation on the world level.”35 As is seen in the next section, the notion of functional differentiation is central to various globalized modes of governance.
2.2 Globalized Modes of Governance
“…independent states, nay, independent tribes too, cannot have more or less frequent dealings with each other without developing definite forms therefore.” 36
In the globalized international system, Oppenheim’s observations, despite the 80 years that have passed, have lost no relevance. The section above explained a number of apparent changes in the international system. In it, more actors seem to be gaining the status of ‘international actors’ – whether by virtue of recognition or by virtue of capacity – and they have some degree of autonomy. Simultaneously, these actors are more interdependent. In line with Oppenheim’s remark, thus, it may be said that states and non-state entities – whether they be tribes, MNCs, NGOs, crime syndicates, professional networks or religious
34
Following the neoliberal argument of Keohane and Nye, however, it would be necessary to point out that in their view, ‘complex interdependence’ that characterizes the international system, entails a decreasing utility of military force. Robert Keohane and Joseph Nye, ‘Realism and Complex Interdependence’ in: Viotti and Kauppi, 307-318. More applicable as regards the issue of conflict diamonds is Strange’s argument that power held by non-state groups and private security arrangements is a further factor in the demise of state authority and power. 35
Teubner, 23 36
organizations – are active internationally and thus have ‘more or less frequent dealings with each other’. Although many scholars of both of the legal and the political tradition may disagree on the extent to which non-state actors play a role and the relative importance of their respective roles, literature on the subject indicates that there is agreement on the need to study and understand the mode of 'legal' development in this globalized context, in other words, forms in which ´governance´ take shape, and the processes through which it emerges.37
The term governance has been used so far in a general sense to denote “the processes through which rules evolve, develop, and are implemented.”38 This is a very broad definition. The same notion is also reflected in the report of the UN Commission on Global Governance, ‘Our Global Neighbourhood’, which describes global governance as:
“…[T]he sum of the many ways individuals and institutions, public and private, manage their common affairs. It is a continuing process through which conflicting of diverse interests may be accommodated and co-operative action may be taken. It includes the formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interests. […] At the global level, governance has been viewed primarily as intergovernmental relationships, but it must now be understood as also involving non-governmental organizations, citizens’ movements, multinational corporations and the global capital market. […] There is no single model or form of global governance, nor is there a single structure or set of structures. It is a broad, dynamic, complex process of interactive decision-making that is constantly evolving and responding to changing circumstances.”39
This depiction of governance is underlined by various scholars who refer to the increasing variety of governance mechanisms. For instance, Levi-Faur speaks of a ‘regulatory explosion’ which is seen as ‘the proliferation of different mechanisms of control at both the national and global level’,40 and Kirton and Trebilcock describe the ‘richly kaleidoscopic variety of forms’ of soft law solutions that are emerging. In their view, two mechanisms stand at the basis of this spectrum of forms: the mechanism of voluntary standards, which are seen as an equivalent to formally legislated and ratified government law; secondly, the voluntarily
37
Report of the Commission on Global Governance, supra note 9 38
Dirk Lehmkuhl, ‘Control Modes in the Age of Transnational Governance’, Law and Policy 30, 2008, pp. 336-362, 337.
39
Commission on Global Governance, 2. 40
David Levi-Faur, ‘Regulatory Architecture For a Global Democracy: On Democratic Varieties of Regulatory Capitalism’, in: Tony Porter and Ronit Karsten, eds., The Challenges of Global Business Authority: Democratic
as opposed to mandated participation and involvement in governance regimes.41 Abbot and Snidal have sought to illustrate this rise of various governance schemes in a ‘governance triangle’, which reflects the relative roles of states, NGOs, and MNCs in a number of governance initiatives and organisations. To name just the two relevant cases, the KPCS is indicated as ‘KIMB’ in the centre of the triangle, and the Forest Stewardship Council is indicated as ‘FSC’ towards the middle of the base of the triangle.
Figure 1. A Governance Triangle42
As a first glance of this ‘governance triangle’ makes abundantly clear, the question of how governance takes form in the globalized world is too broad and too complex for a single answer or a clear-cut categorisation. A further observation that can be made on basis of this triangle is that the numbering of the zones also constitutes more or less the chronological order in which various regulatory forms began to emerge.43 In general terms, but regarding in
41
Kirton and Trebilcock, 4. 42
Kenneth Abbot and Duncan Snidal, ‘Strengthening International Regulation Through Transnational New Governance: Overcoming the Orchestration Deficit’, Vanderbilt Journal of Transnational Law 42, 2009, pp.501-578, 513.
43
particular western countries, it can be said that intergovernmental use of soft-law flourished in the third quarter of the 20th century.44 This is reflected in area one. The 1980s saw a trend of privatisation, liberalisation, and de-regulation which constituted a movement away from post-war Keynesian interventionalist policies45 – a development that has also been described as the “rolling back” or “dismantling” of the state.46 But de-regulation can be a misleading term because the development was not necessarily one towards laissez-faire, but rather one towards a “re-regulation” at different levels of governance.47 This is illustrated by Majone with reference to the privatization of public utilities that were, to some degree, subsequently re-regulated in the form of price controls.48
Nonetheless, in response to these more liberal policies of western states, but also precipitated by enabling effects of globalization such as the IT-revolution and increased transnational activity, and the often lacking governmental regulation in developing countries, there was an increase of corporate self-regulation in the early 1990s.49 Such self-regulation is depicted in area two. In line with Friedman, this period may be seen as the apex of
globalization 2.0. Going a step further, it can be said that the increased international activity
of NGOs reflects the dawn globalization 3.0 and is portrayed in area three, and in fact, areas four to seven as well. Generally speaking, these NGOs focus on global issues, such as human rights and environment, and in doing so not only seek to influence states and IGOs, but also closely scrutinize the (self-regulated) conduct of MNCs.50 In many regards, the vast attention given to notions of ‘corporate social responsibility’ is a consequence of this.51 Furthermore, the position of individuals cannot be disregarded in this equation, as influencing the ‘consumer’s credit card’ is a key mechanism of influence for NGOs. As shall be seen, this is particularly true in the case of conflict diamonds.
Despite all the variations in form, structure and source discussed above, some common characteristics of globalized governance forms can be discerned, and they form the basis for a definition of governance. First, an increasing diversity of law-making processes can be recognized; second, there is a growing variety of law-enforcement processes, and third, the
44
Kirton and Trebilcock, 5-6. 45
Giandomenico Majone, ‘From the Positive to the Regulatory State: Causes and Consequences of Changes in the Mode of Governance’, Journal for Public Policy 17, 1997, pp 139-167; Rhys Jenkins, ‘Corporate Codes of Conduct: Self Regulation in a Global Economy’, UN Research Institute for Social Development, Technology,
Business and Society Programme, Paper 2, 2001, www.unrisd.org.
importance of non-state actors is growing.52 These three elements are central to the question of how governance takes shape in a globalized world. In this regard, it is useful to turn to Julia Black’s definition of ‘regulation’: “the sustained and focused attempt to alter the behaviour of others according to defined standards or purposes with the intention of producing a broadly identified outcome or outcomes, which may involve mechanisms of standard-setting, information-gathering and behaviour-modification.”53
Although regulation is often understood to refer to a specific mechanism, i.e., ‘a regulation’ issued by a government, Blacks definition is broader and allows for flexibility with regard to form, purpose, and source of regulation, but meanwhile it also establishes defining functional characteristics such as intentionality and goal-orientation. As such, this definition can incorporate the aforementioned characteristics of diversity of law-making processes and law-enforcement processes, and the role of non-state actors. These same characteristics lie at the basis of the analytical approaches to the form and process of governance.
2.3 Conclusion
What began as increased internationalization has resulted in globalization, the difference being that there is not only more interaction on the international level, but that actors from ‘sub-national’ levels have become able to act and interact on the international level, not only with each other, but also with actors on other levels. Although the distinction between states, IGOs, NGOs and MNCs remain clear, their capacity to affect change or influence each other has changed in important ways. These changes have resulted in new methods of governance in which actors such as NGOs and MNCs play a role. In this regard it is important to define and approach governance according to the ‘new division of power’. As appears from the governance triangle however, there is no single new division of power; rather, such a division is determined by the characteristics of specific issues. In some cases military force can provide an outcome, in others corporate self-restraint can, in others non-governmental publicity can, and often, a combination of these is required.
The resulting ‘modes of governance’ may employ various mechanisms and instruments, and actors. Although there are various concepts through which these globalized modes of governance are addressed, two common concepts are 'soft law' and 'global
52
Nowrot, 6-12. 53
governance'. Against the background established in this chapter, the rest of this thesis identifies the global diamond and forestry sectors two case-studies which represent such globalized forms of governance. In these cases, 'new division of power' has impacted the resulting governance systems. In order to explain the various mechanisms, instruments, and actors at work in these governance systems, the cases are first analysed with regard to the specific form of the governance system, and subsequently with regard to the process by which, and the broader context within which they were established.
3. Analysing globalized governance through form and process
As appears from the preceding, the phenomenon of globalization and the resulting modes of governance cannot be explained by or confined to specific mechanisms or systems. This variation requires a broad analytical approach that can encompass these variations while still maintaining a focus on the main elements that define globalized governance systems. This chapter discusses a number of approaches to the notion of soft law, on basis of which the argument is made that the analysis of globalized governance requires an analysis of both the form and the process.
In the article Form and Substance in International Agreements Raustiala54 begins with a number of observations about the nature of international agreements, on basis of which she subsequently proposes that three distinct elements should be considered in the analysis of international agreements. These are: legality: whether an agreement is legally binding or not; substance: the degree to which the agreement demands deviation from the status quo; and third, structure: the provisions included for monitoring and penalizing violators.55 Raustiala strongly states that it is a conceptual and analytical error to employ the term ‘soft law’ to refer to agreements that can be placed on an alleged continuum between non-law and law, and in doing so she seems to take an opposing position to the more ‘conventional’ view among scholars of globalization and global forms of governance.56 As this section shows, however, the contrast is smaller than would initially be presumed. In what follows, Raustiala’s
54
Kal Raustiala was at the time of writing (2005) a Visiting Professor at the Columbia University School of Law.
55
Raustiala, pp. 583-586. 56
approach is briefly compared and contrasted with the main analytical features of approaches taken by Abbot and Snidal, Michael Reisman, and Dinah Shelton, who have framed analytical elements which gravitate towards the more conventional, non-binary view of soft and hard law.57
Abbot and Snidal, to whom reference was also made in regard of the governance triangle, have proposed the analytical elements of obligation, precision, and delegation in a conceptual perspective that sees international politics and governance as becoming increasingly legalized.58 Obligation refers to how binding requirements of a regime are; precision refers to the level of detail in which the obligations are prescribed; and delegation relates to the extent in which implementation and compliance assurance authority is delegated to inter- or supranational bodies.59 Michael Reisman’s analytical elements focus more on the law-making process, and constitute the elements of policy content, authority of prescriber, and the controlling ability of the prescriptions. The first relates to whether the action required is clear or open to interpretation and discretion, the second is whether the authority of the prescriber is (perceived to be) high or low, and the third is whether the prescriptions can be made sufficiently controlling to ensure compliance.60 Dinah Shelton discusses a set of elements that contribute to the effectiveness of soft law: content, process, and institutions. Within each category some factors are listed: regarding content: specific obligations, attempting to regulate state as opposed to non-state actors, explicit links between soft and hard law, embedded reciprocal obligations, and potential for retaliation; regarding process: a well established norm, strong leadership, participation of ‘target’ actors, and transparency. Institution, lastly, entails aspects of monitoring and follow-up, and regional mechanisms are preferred to global mechanisms.61
The extent to which a qualitative comparison can be made of these approaches is limited, as the above constitutes a very broad and superficial overview. However, it suffices to illustrate two observations, namely that Raustiala’s framework is in fact quite similar to
57
For a useful introduction to soft law, see: Kirton and Trebilcock, introduction/ 58
Kenneth Abbot, Robert Keohane et al., ‘The Concept of Legalization’, International Organization 54, 2000, pp. 401-419; Abbot and Snidal, ‘Hard and Soft Law’; Kenneth Abbot, ‘The Many Faces of International Legalization’, Proceedings American Society of International Law 92, 1998, p. 57.
59 Idem. 60
Michael Reisman, ‘The Concept and Functions of Soft Law in International Politics’ in: E. Bello and B. Ajibola, eds., Essays in Honor of Judge Taslim Olawale Elias, Dordrecht, Martinus Nijhof, 1992; Steven Ratner, ‘Minority Disputes in Europe: Towards New Roles for International Law: Does International Law Matter In Preventing Ethnic Conflict’, New York University Journal of International Law and Politics 32, 2000, pp. 591- 698, pp. 612-617.
61
other approaches, and that ‘process’ refers to an important set of factors and considerations that is lacking from the other approaches.
Figure 2. Comparison of approaches to Soft Law analysis
As is illustrated in the above table, close parallels can be seen among the various notions. Although Raustiala expressly cautions against viewing non-law and law as two sides of the same continuum, it can also be argued that the notion of ‘obligation’ does not necessarily preclude such a distinction; as legal bindingness can be viewed as one of various factors affecting bindingness. In the same way, ‘authority of the prescriber’ can also be seen as a variable (albeit a considerably more narrow one) of bindingness. Thus, these elements can be grouped together as pertaining to the notion of ‘bindingness’, in which ‘legality’ and ‘authority of prescriber’ are viewed as two variables. In similar fashion, ‘substance’, ‘precision’ and ‘policy content’ can be grouped, with the two latter elements constituting the more specific variables within the broader notion of ‘substance’. Lastly, ‘delegation’, ‘controlling ability’, and ‘structure’ can be grouped, with delegation in particular relating to the specific aspect of delegating authority and control to other actors, and ‘controlling ability’ also being an aspect of the broader notion of ‘structure’.
Although these scholars emphasize different aspects of each element, there is a large degree of overlap between their approaches. The same is true of Shelton’s approach, but it has thus far been excluded from this comparison for two reasons. The first is that ‘process’ is an element that does not feature in the other approaches. Secondly, the argument can be made that ‘bindingness’ can also be seen as something that is determined by the combination of ‘substance’ and ‘structure’, rather than an element of its own. It can be said that legality in itself is not an objective, but rather a tool for achieving an optimal interplay between substance and structure, and this interplay is explained in the element of ‘process’. However, this is not to say that legality as a tool cannot be an objective.
Raustiala Legality Substance Structure
Abbot/Snidal Obligation Precision Delegation
Reisman Policy content Authority of prescriber Controlling ability
Thus, while the element of ‘bindingness’ that is missing from Shelton’s approach seems to be accounted for through the substance and structure (or content and institutions), Shelton’s aspect of ‘process’ is not accounted for in the other models. This can be explained by the fact that the first three approaches pertain to the analysis of individual governance systems, whilst Shelton is concerned with the more general issue of effectiveness of soft law. In this thesis both objectives are central as it aims to not only explain the form of the governance systems in the diamond and forestry industry, but also aims to explain the effectiveness of these schemes in their in their broader context. For this reason, both avenues are taken. Informed by the notions proposed by Abbot and Snidal and Reisman, Raustiala’s elements of legality, substance and structure will be the starting points for the first analysis regarding form. The element of process will then be discussed and analysed further in the second part of the thesis.
4. An analytical framework for forms of globalized governance
4.1 Legality: contract or pledges
“half rights and obligations, which seem so natural in common life […] are perfect absurdities […] when it comes to the law” 62
The term ‘soft law’ features prominently in much recent literature on international law in the context of globalization.63 However, Raustiala argues that “there is no such thing as soft law.”64 In her view, speaking of soft law amounts to a confusion between different elements of an agreement, and thus she also disagrees with the notion that there is a spectrum of intermediary forms between ‘soft law’ and ‘hard law.’65 Her argument is not that agreements do not differ in degree of bindingness or effectiveness, but that calling something soft law is a conflation of the elements of form, substance, and structure of agreements. It is ‘obfuscating rather than illuminating’ to call international legal commitments 'soft law' simply because
62
David Hume, quoted in Jan Klabbers, ‘The Redundancy of Soft Law’, Nordic Journal of International Law 65, 1996, pp.167-182, 167.
63
Pattberg, Commission on Global Governance, supra notes 7 and 9, and: Kirton and Trebilcock. 64
Raustiala, 586. 65
they are weak or imprecise because the weakness or imprecision does not affect the legality of the agreement.66
To avoid such obfuscation, Raustiala distinguishes between ‘pledges’ and ‘contracts’. Contracts are seen as agreements that are legally binding, and pledges refer to non-legally binding agreements. The governance triangle above represents a large number of agreements that Raustiala would characterize as pledges. Importantly, a treaty, i.e., a contract, between states is not directly applicable to non-state actors, but through pledges all parties can agree to be bound. An early example of this is the International Labour Organizations ‘Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy’.
It is important to emphasize that international agreements, in particular norms of more general nature, are not static. One development that, according to some, would be a good illustration of soft law is that forms may become intertwined or transform. This happens for instance when an international treaty or legal regime incorporates non-legal agreements, such as the ‘flexible mechanisms’ included in the Kyoto Protocol of the UNFCCC.67 A different example of this dynamism is the evolution of non-legally binding pledges into legal obligations. Resolutions or declarations of the UNGA are often referred to as examples of soft law, but regardless of their normative obligatory effect, they remain pledges. This can change when a norm develops so as to become customary.68 In such cases, Raustiala would argue, a norm that was a pledge becomes a contract, but there is no intermediary form. In the former example, the inclusion of non-legal provisions into a legal regime does not change the legal nature of the agreement, although it may change its effectiveness.
In this regard Raustiala argues that international law – legality – should be seen as an independent variable, separate from the actual behaviour of actors and the effectiveness of the agreement. As will be discussed in the following sections the strength or weakness, or the hard or softness, depends as much if not more on provisions relating to the substance and structure of the agreement.
4.2 Substance: deep or shallow
It is clear that the term ‘soft law’ is often not primarily intended as a statement on the legality of an agreement, but rather as a statement on its effect or on the level of obligation it imposes.
66
Raustiala, pp. 583-591. Citation at 588. 67
Example from Nowrot, 9. 68
Non-legal agreements may have strong obligatory bearing due to the authority of the source, in others due to the relevance or quality of the agreement itself, or in others, due to the consequences that may result from rejection. Often, these three work in combination.
The substance of an agreement relates to the substantive commitments it contains.69 Raustiala acknowledges that substance is multifaceted, but nonetheless stipulates one dimension through which substance may be analysed; this is the dimension of ‘depth’. With reference to another scholar, Raustiala defines depth as: “the extent to which [an agreement] requires states to depart from what they would have done in its absence.”70 The emphasis placed on ‘depth’ can be justified because it is more or less the only distinction that can be made on such a level of abstraction so as to be applicable to all types of agreements, whether they relate to human rights, trade, production techniques or forest management. Furthermore, this emphasis relates closely to the aforementioned definition of governance in which there is an attempt to “alter the behaviour of others.” However, this paper adds an important consideration to this conception of depth, namely that the relevant question is not necessarily
how deep an agreement is, but whether it is sufficiently deep in relation to the stated objective
of that agreement.
Another consideration in this analysis is that depth of an agreement is difficult to quantify, in particular as it must be taken into consideration that a specific agreement will not be of the same depth for all actors party to it due to their respective positions and interests. Furthermore, some provisions of an agreement may be deep, whilst others are shallow. Another caveat to consider in this regard is that it is not uncommon for states to ‘opt out’ of certain provisions. This practice not only makes ‘depth’ a variable characteristic, but it also constitutes a trade-off between form and substance, i.e., allowing states (parties) to opt out of certain provisions may ensure a broader base of support for the agreement, but it may also entail a weakening of its substantive effect. Although this trade-off aspect is of less relevance to the analysis of this thesis, the question of how, why, and when such trade-offs take place is central to Raustiala’s article.71
Due to these factors it is an unavoidable simplification to generalize the ‘depth’ of an agreement, but the alternative of individualized assessments for all the parties, Raustiala
69
Raustiala, 584-585. 70
George W. Downs et al., ‘Is the good news about compliance good news about cooperation?’, International
Organization 50, 1996, pp. 379-406, 383. In: Raustiala, 584.
71
rightly comments, would make analysis almost impossible.72 However, because the present cases include not only states but also NGOs and corporate actors, it is feasible and illuminating to distinguish between different types of actors, making ‘group assessments’ of the depth of the agreement.
4.3 Structure: strong or weak
The third element through which to analyse and assess international agreements is the structure. The term ‘structure’ refers to “rules, procedures and institutional bodies for the collective monitoring and enforcement of parties’ performance.”73 This again closely correlates with the aforementioned definition of governance, the last sentence of which states that governance “[…] may involve mechanisms of standard-setting, information-gathering and behaviour modification.”74 It is important to recognize that ‘structure’ refers to the mechanisms embedded in the agreement, and must thus be distinguished from outcome. As Raustiala notes, whether actors comply or whether agreements are effectively enforced is an outcome, and outcomes are often also subject to a variety of other factors.75 This is not to say that the structure of an agreement can not significantly enhance or weaken its effectiveness by making non-compliance harder or making enforcement easier.
‘Standard setting’, ‘information-gathering’, and ‘behaviour modification’ are listed above as three possible mechanisms of governance. These three mechanisms can be seen in isolation, but when seen in sequence they reveal the central logic behind the element of structure. In this logic, standards are set in accordance with the objective of the agreement. On the basis of information gathered about the conduct of actors, it can be determined whether or not that actor complies with the set standards. Subsequently, through more or less coercive mechanisms, actors may be compelled to alter their behaviour. In accordance with this rationale, ‘structure’ can be divided into two main categories affecting its ‘strength’ or ‘weakness’: the mechanism of obtaining information and the mechanism of utilizing the obtained information. Although Raustiala does not elaborate on variables determining the first
72 Raustiala, 584. 73 Raustiala, 605. 74
Black, supra note 48. 75
category of obtaining information, two important variables are whether information gathering is collective or individualized, and whether it is ad hoc76 or more structural.
Structural forms of information-gathering can be found with regard to, for instance, yearly assessments. Comparable to financial reporting, an agreement may require regular assessments of compliance. How such assessment is carried out – i.e. through self-reporting or third-party assessment – further determines the strength of the structure. In this regard it is interesting to note the development of CSR-reporting in the corporate sector, which is becoming an increasingly important supplement to traditional financial reporting.77 Although CSR often does not involve independent external auditing in the way financial reporting does, there are various initiatives, such as the the Global Reporting Initiative (GRI) or the UN Global Compact (UNGC), which provide authoritative guidelines according to which companies can conduct self-reporting in a meaningful way.78
The second category determining the strength or weakness of an agreements’ structure is the component of utilizing the information. In other words, whether there are mechanisms to impose tangible consequences on actors; whether in the form of incentives or sanctions. Courts and other forms of arbitration are examples of structures that are generally able to impose sanctions, even though they often have limited or no means to enforce their judgments. This is seen as relating to the normative authority of courts (or the validity of a contract in the case of private adjudication), but undoubtedly also relates to reputational aspects associated with disregarding principles of cooperation.79
This reputational aspect is the cornerstone of a very different type of governance mechanism which, some argue, is witnessing a revival in the current global ‘networked’ global economy – the medieval merchant law or lex mercatoria.80 In this system of governance, which governed European trade in the politically fragmented medieval Europe there was no central authority or codified set of standards. Through various informal and overlapping networks of merchants and traders covering large parts of the continent, information could be exchanged. This meant that each actor determined for himself how to act on basis of certain information obtained. In this context, a bad reputation could result in
76
Kuper notes that international courts are unlikely to constitute effective accountablity structures, as courts generally respond to cases, but many cases never ‘get their day in court’ due to the fact that they lack a chamption, or due to realpolitik reasons. Kuper, 232.
77
See generally: Jenkins 78
See: GRI: http://www.globalreporting.org/Home and: UNGC: http://www.unglobalcompact.org/ and see generally: Jenkins.
79
Indeed, the principle of pacta sunt servanda is a cornerstone of the entire international legal system, which, despite frequent incursions and violations, is based on the common interest of adherence to its principles. 80
large-scale exclusion from the market through a completely informal mechanism, without any involvement by a central authority. However, despite the appeal of the functional efficiency, it can also be argued that such a system would only serve to maintain and strengthen the self-interest of actors, and not the global public goods.
Mechanisms such as certification schemes, or global administrative law, as Meidinger views the forest certification system81, occupy a middle ground between the highly formalized and authoritative international courts and the informal and non-authoritative lex mercatoria. In particular because at some point, like courts, certification schemes involve a formal assessment of the obtained information against an explicit set of standards; but they do not necessarily have to involve states or international law, much like informal networks. For this reason, governance through certification forms an interesting case study.
4.4 The analytical framework for form
Raustiala provides a description of these three elements, but does not elaborate on specific analytical variables that can be used to assess them. In order to construct an analytical framework, this thesis has formulated a number of such variables. These are based on Raustiala’s approach, but they have also been broadened to some extent. Specifically, Raustiala’s approach focuses on agreements between states, whereas the current framework is aimed to be applicable to agreements between all types of actors. Also, Raustiala’s element of legality focuses solely on discerning whether an agreement is a contract or a pledge. This is a narrow approach, and in view of the notions proposed by Abbot and Snidal and by Reisman, the current framework includes the question of formal legality, but also includes considerations of ‘bindingness’ in a broader sense.
While the broad definition of a number of the variables below constitutes a strength as regards the application of this framework to different cases, it also entails a weakness, because broadly defined variables also broaden the margin for interpretation and discretion in analysis. Furthermore, whilst the elements are neatly separated on paper and conceptually, it can be expected that they are more intertwined in practice. These shortcomings of the framework require the analysis to be inclusive and descriptive, in which the central elements and variables of the framework are employed to structure and direct the analysis, but in which they do not unnecessarily restrict the scope of the analysis.
81
Errol Meidinger, ‘The Administrative Law of Global Public-Private Regulation: the case of Forestry’,
LEGALITY: Contract – Pledge - Is it legally binding under international law? - Is it legally binding under domestic laws? - Does it provide for a mix of legal and non‐legal elements? - Does the agreement include non‐legally binding elements? - Whom does the agreement bind? And on what grounds (legal/non‐legal)? SUBSTANCE: Deep – Shallow - What standards are set? Are they precise? Margin for interpretation? - Which parts are deep, which parts are shallow, and for whom? - To what extent does agreement require alteration of behaviour of actors? - Do waivers or opt‐out provisions exist for certain parties? STRUCTURE Strong ‐‐ Weak Information gathering - Collective or individualized? - Ad hoc or structural? - Self‐reporting or (independent) external assessment? Information utilization - Method of review of information against standards? - Available sanctions/ coercive means?
Figure 3. An analytical framework for analysing form
5. Case IA: Governing ‘blood diamonds’ globally
5.1 Background to the issue of conflict diamonds
Being the most concentrated form of wealth on the planet, and often stemming from large, alluvial mine fields,82 diamond mining and distribution is hard to regulate and, as such, a susceptible target for rebel movements.83 In the Angolan Civil War, which lasted from 1975-2002, the primary source of income of the rebel group UNITA84 was diamond export, which competed with the oil revenues which the government used to support their forces. Similarly, diamond revenues funded Sierra Leone’s rebel movement, Revolutionary United Front (RUF), in the 1990s.85 Is has been estimated that in the mid to late 1990s, some $300-$450 million worth of diamonds were illegally smuggled out of Sierra Leone, most of these revenues going to the RUF, and in roughly the same period, UNITA amassed $3,7 billion in diamond revenues.86 It was these enormous sources of income that largely financed the violent civil wars which ravaged the country and lives of many millions.87
In 1998 Global Witness, a London based NGO, published a report that marked the starting point for a series of public awareness campaigns regarding conflict diamonds.88 Though earlier in that same year the UN Security Council passed numerous resolutions prohibiting arms sales and diamond transactions lacking official documentation,89 conflict diamonds continued to find their way to the main trading centres in Antwerp and London.90 In 2000, a report of the UN Angola Sanctions Committee described that greater implementation of the embargo was needed,91 in particular because the embargo could be circumvented through corrupt and inconsistent usage of certificates of origin by officials in Zambia, the Democratic Republic of Congo, the Republic of Congo, Rwanda, and Burkina Faso.92
82
In alluvial mine fields the diamonds are located near the surface. Such surface mining fields, as opposed to deep-mines, usually cover large areas and are hard to secure and regulate.
83
Barak Richman, ‘Ethnic Networks, Extralegal Certainty, and Globalization: Peering into the Diamond Industry’, in: Gessner and Volkmar, Legal Certainty Beyond the State, Oxford, Hart Publishing, forthcoming, 8. Available at SSRN: http://ssrn.com/abstract=949467.
84
União Nacional para a Independência Total de Angola – National Union for the Total Independence of Angola.
85
Matthew Hart, Diamond: the History of a Cold Blooded Love Affair, USA, Plume Publishing, 2002, 182-183. 86 Global Witness, ‘A Rough Trade: the role of Companies and Governments in the Angolan Conflict’, 1998. http://www.globalwitness.org/media_library_detail.php/90/en/a_rough_trade, 3.
87
It is estimated that the Angolan conflict caused 500 000 deaths, and 50 000 in Sierra Leone. 88
Global Witness, A rough trade. 89
Regarding Sierra Leone: SC Res 1171 and 1181; regarding Angola SC Res 1164, 1176 and 1173. www.un.org 90
Andrew Grant and Ian Taylor, ‘Global Governance and conflict diamonds: the Kimberley Process and the quest for clean gems’, The Round Table 93, pp.385-401, 389.
91
UN Angola Sanctions Committee, Report of the Panel of Experts on Violations of the Security Council
Sanctions against UNITA, 10/03/2000, paragraphs 105 and 182-184,
http://www.un.org/News/dh/latest/angolareport_eng.htm. 92
However, the Belgian government was also blamed for not providing sufficient regulation to counter “…the ease with which illegal diamonds can be sold and traded on major diamond markets, particularly in the largest diamond market – Antwerp.”93
Witnessing the ineffectiveness of the UN embargo and the continued conflict in western Africa, a coalition of NGOs named ‘Fatal Transactions’ launched an extensive public awareness campaign.94 Unlike the Committee’s report, the NGOs primarily pointed the finger of blame at the diamond industry for knowingly trading conflict diamonds. One element of the campaign was to send fake diamond rings in jewelers’ boxes to editors of newspapers around the world, accompanied with information regarding the role of the diamond trade in the African conflicts and the negligence of diamond traders in this respect. Another aspect of the campaign was the distribution of posters and leaflets which contained powerful statements that targeted the general public.95 The lack of transparent and accountable standards which facilitated the easy entry of conflict diamonds to legal markets had for a long time been accepted in the largely self-regulated diamond industry.96 The campaign, however, put these practices in the international spotlight, and perhaps more importantly, under consumer scrutiny.97
The diamond industry’s leader, De Beers, realized that this issue would not simply disappear and that it was already becoming a serious problem.98 Holly Burkhalter, of the NGO ‘Physicians for Human Rights’ explains: “The whole industry is peculiarly vulnerable to public opinion because the stone is absolutely without value but for its sentimental associations, and it doesn’t take much to damage sentimental associations.”99
An example is that diamonds, as a symbol of love and romance, were increasingly being associated with the “…abuses that the RUF had made its signature – rape and amputation.”100 De Beers’ initial reaction was one of damage control in which it tried to
93
UN Angola Sanctions Committee, paragraphs 106 and 108. 94
The coalition included Global Witness, Medico International (Germany), the Netherlands Institute for Southern Africa, and Novib (Netherlands Organization for International Development Coordination). 95
Grant and Taylor, 390. 96
Carola Kantz, ‘Black Gold and Precious Stones: Explaining the Institutional Design of the Regulation of the Extractive Industries in Developing Countries’, Paper presented at the 48th Convention of the International Studies Association, Chicago, 2007.
http://www.allacademic.com/meta/p_mla_apa_research_citation/1/8/1/3/7/p181373_index.html 97
Grant and Taylor, 391. 98
De Beers has maintained a strong cartel since the late 1800s, has at times controlled up to 80% of the rough diamond market, and has only recently, since the late 1990s, lost some market share to new players. Carola Kantz, ‘The Power of Socialization: Engaging the Diamond Industry in the Kimberley Process’, Business and
Politics 9, 2007, 1-20, 4.
99
Holly Burkhalter in ‘Diamond Trade’s Tragic Flaw’, Washington Post, 29/04/2001,
http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=world&contentId=A17778-2001Apr28 100
