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12 February 2012

For the first time in the history of the Kimberley Process Certification Scheme (KP), the rough diamond regulatory scheme is headed by a full-time chair that is assisted by a staff fully dedicated to carrying out a very ambitious KP reform agenda.  All previous chairs led the KP as a kind of "additional job," an activity temporarily added to other responsibilities. This year's KP chairwoman, American Ambassador Gillian Milovanovic, is different, and the KP participants and industry better get ready for her.

2012 Agenda

When assuming the chair's position, the State Department clarified to member countries that the full diplomatic clout of the United States will be applied to ensure accomplishing the chair's 2012 ambitious agenda. In announcing Ambassador Milovanovic's appointment, Assistant Secretary of State for Economic and Business Affairs Jose W. Fernandez wrote that "our aim for this year is to nurture a culture of consultation, collaboration, and transparency in the KP as we tackle challenging issues. In the coming weeks, U.S. embassies will visit the national focal point in each KP Participant country to review priorities, provide a copy of a questionnaire from the Committee on KPCS Review, and discuss working with you to organize KP ‘round tables' in your countries during February and March on strengthening and reforming the KP." None of this has ever been done before by any previous KP chair.

Meetings with the World Diamond Council and the KP Civil Society Coalition have already taken place in an apparent attempt to get these observers on board in support of the 2012 KP chair's agenda.  The U.S. has always closely coordinated its position with Civil Society. There are currently 11 members left in the NGO coalition, but the U.S. is already cajoling Global Witness - which slammed the door some months ago - to come back to the system.

The interpretation of the role of chair is certainly different from what we have been used to. Let's call it: The American Way. The core document of the KP system never gave too much thought to the function of the chair. Traditionally, a chair would organize and preside over the KP meetings, especially the intersessional and plenary, as well as over ad hoc working groups, mostly logistical and organizational tasks. The decision-making power of the chair is close to zero. When, last year, the KP chair issued a decision that he claimed was consensus-based, the U.S. State Department did not hesitate to issue a biting statement noting that there had not been any consensus and therefore the decision was not valid. If no consensus is reached, a chair is allowed "to consult" - not decide.

Reaffirmation of Consensus

Though some believe that the KP's "consensus" arrangement, which gives even a small, irrelevant country (from a diamond-trade perspective) a right of veto, is the Achilles' heel of the system and is in need of reform, the new KP chair's first public statement contained a reaffirmation of the consensus mechanism:

"I would say that consensus and seeking consensus is going to be the biggest part of the job," Ambassador Milovanovic said during an interview posted on the U.S. State Department website. "The Kimberley Process, as many probably know, is a combination of government, industry, and civil society. It was launched in 2003 in order to stem the flow of conflict diamonds that were funding rebel groups. It is a process that operates by consensus, and therefore, seeking consensus, fostering the ability to come together and to make decisions in order to move the Kimberley Process forward, is going to be a critical element for the United States this year," she added.

One may have doubts that all the changes can be made and keep the consensus arrangement intact at the same time.

Reviewing the Core Definition of Conflict Diamonds

One of the tasks the U.S. chair has set for the year is to "review the core definition of conflict diamonds," which is a euphemism for "changing the definition." In her subtle diplomatic language, Ambassador Milovanovic, in reference to KP core objectives and definitions, says:  "Now where that will go remains to be seen, but the goal, certainly, is to look as there is a need to make some changes..."

It is no secret that the U.S., the NGOs and a number of KP participants would like to tie the definition of "conflict diamonds" to human rights violations in one form or another. As it was applied in the Zimbabwe situation, human rights violations could be considered as a breakdown of "internal controls" - which is a KP minimum requirement. But this is currently not the case. Ambassador Milovanovic has not publicly indicated what changes she is looking for, diplomatically suggesting that the KP leadership may need to consider "breadth, depth, whatever - and then look at what those changes might be."

The widening of the conflict diamond definition would probably be able to get broad if not overwhelming KP participant support. However, the problem would center on the question of responsibility - who is guilty of such human rights violations?  If private actors are responsible, the KP could probably deal with it.  But if the violations are committed by a member government, how could the KP take action if the very government is part of the KP's decision-making process?

Opposition against the inclusion of human rights language would likely come from countries (Russia, India, China) that would want very specific and defined language as to what is an applicable human rights violation. Others will raise questions on the capacity of the KP to deal with very difficult materials totally removed from the competences of the participating country representatives - mostly mining or commerce ministries. What does a customs enforcement official know about human rights enforcement or infringements?

Reform Agenda Mostly Not Controversial

To expand the definition of conflict diamonds to include human rights violations would probably necessitate a prior change of the KP's consensus voting mechanism. It's almost a chicken and egg argument - which comes first. You cannot have one without the other.  Will the U.S. be able to do this? We wouldn't know. But if the U.S. cannot do it, no one else will - and failure may just herald the beginning of the end of the KP.  That's an undesirable outcome to any global bureaucratic arrangement that keeps officials in near-permanent (airplane) meetings. On the other hand, there will be those who argue "mission accomplished" - and will be ready to live without it.

The U.S. eyes various additional reform targets, which were outlined in its agreement with South Africa when the two respective countries accepted the chair and vice-chair positions. These reforms include efficiency, administrative staff, development and technical assistance roles, etc. In all of these areas, a very determined U.S. chair will probably meet little resistance.

Bureaucratic systems tend to assume their own permanency and relevancy. Pondering about Ambassador Gillian Milovanovic, whom I met earlier this month in Washington, I somehow expect that she is the kind of diplomat that will get what she sets out to achieve. But the year is still young and she is still miles away from having formed a consensus on all the agenda items.