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Council Regulation (EC) No 2368/2002Show full title

Council Regulation (EC) No 2368/2002 of 20 December 2002 implementing the Kimberley Process certification scheme for the international trade in rough diamonds

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Council Regulation (EC) No 2368/2002

of 20 December 2002

implementing the Kimberley Process certification scheme for the international trade in rough diamonds

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof,

Having regard to the proposal from the Commission,

Whereas:

(1) The sanctions adopted by the United Nations Security Council against the rebel movements in Sierra Leone and Angola and against the Liberian government, prohibiting under certain conditions imports of rough diamonds from Liberia, Angola and Sierra Leone have not been able to stop the flow of conflict diamonds into the legitimate trade or to bring the conflicts to a halt.

(2) The Göteborg European Council of June 2001 endorsed a programme for the prevention of violent conflicts, which states, inter alia, that the Member States and the Commission will tackle the illicit trade in high-value commodities, including by identifying ways of breaking the link between rough diamonds and violent conflicts and supporting the Kimberley Process.

(3) Council Regulation (EC) No 303/2002 of 18 February 2002 concerning the importation into the Community of rough diamonds from Sierra Leone(1) prohibits, under certain conditions, the importation of rough diamonds into the Community.

(4) There is a need to complement the existing measures with effective controls over the international trade in rough diamonds in order to prevent the trade in conflict diamonds from financing the efforts of rebel movements and their allies to undermine legitimate governments. Effective control will help maintain international peace and security and will also protect the revenue from exports of rough diamonds, which is essential for the development of producer countries in Africa.

(5) The Kimberley Process negotiations, bringing together the Community and producer and trading countries representing practically all international trade in rough diamonds, as well as the diamond industry and representatives of civil society, were initiated with a view to developing such an effective control system. They led to the development of a certification scheme.

(6) All participants accepted the outcome of the negotiations as the basis for implementing measures within their own jurisdiction.

(7) In its resolution 56/263 the UN General Assembly welcomed the certification scheme developed in the Kimberley Process and called on all interested parties to participate in that scheme.

(8) Implementation of the certification scheme requires that the imports and exports of rough diamonds into or from the territory of the Community be made subject to the certification scheme, including the issue of the relevant certificates by participants in the scheme.

(9) Each Member State may designate the authority or authorities responsible for the implementation of the relevant provisions of this Regulation within its territory and may limit the number of authorities.

(10) The validity of certificates for imported rough diamonds should be properly verified by the competent authorities of the Community.

(11) Compliance with this Regulation should not be construed as equivalent or as an alternative to compliance with any other requirements under Community legislation.

(12) In order to increase the effectiveness of the certification scheme, circumvention or attempts to circumvent should be prevented. Likewise, providers of ancillary or directly related services should exercise due diligence in establishing that the provisions of this Regulation are duly applied.

(13) Export certificates for rough diamonds should only be issued and validated where there is conclusive evidence that those diamonds have been imported under a certificate.

(14) Circumstances may justify that the competent authority of the importing participant should send the competent authority of the exporting participant confirmation of import of shipments of rough diamonds.

(15) A system of warranties and industry self-regulation of the kind proposed by the representatives of the rough diamond industry in the Kimberley Process could facilitate the provision of such conclusive evidence.

(16) Provisions should be made to allow the export of rough diamonds imported before the applicability of specific import controls provided for by this Regulation.

(17) Each Member State should determine the sanctions applicable in the event of a breach of this Regulation.

(18) The provisions of this Regulation concerning the import and export of rough diamonds should not apply to rough diamonds transiting the Community in the course of export to another Participant.

(19) For the purposes of implementing the certification scheme, the Community should be a participant in the Kimberley Process certification scheme. It should be represented by the Commission at meetings of participants in the Kimberley Process certification scheme.

(20) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(2).

(21) A forum should be created to enable the Commission and the Member States to examine questions concerning the application of this Regulation.

(22) This Regulation should enter into force on the day of its publication, but the provisions on import and export control should be suspended until a date has been agreed in the Kimberley Process for the simultaneous implementation of the import and export controls by all participants,

HAS ADOPTED THIS REGULATION:

CHAPTER IU.K.SUBJECT MATTER AND DEFINITIONS

[F1Article 1U.K.

This Regulation sets up a [F2United Kingdom] system of certification and import and export controls for rough diamonds for the purposes of implementing the Kimberley Process certification scheme.

F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

This Regulation does not prejudice or substitute any provisions in force relating to customs formalities and controls.]

Textual Amendments

Textual Amendments

Article 2U.K.

For the purposes of this Regulation the following definitions shall apply:

(a)

‘Kimberley Process’ means the forum in which the participants have designed an international certification scheme for rough diamonds;

(b)

‘Kimberley Process certification scheme’ (hereinafter ‘KP certification scheme’) means the international certification scheme negotiated by the Kimberley Process as set out in Annex I;

(c)

[F4‘Participant’ means any State, regional economic integration organisation, WTO-member or separate customs territory that fulfils the requirements of the KP certification scheme [F5and has notified that fact to the Chair of the KP certification scheme];]

(d)

‘certificate’ means a document duly issued and validated by a participant's competent authority identifying a shipment of rough diamonds as being in compliance with the requirements of the KP certification scheme;

(e)

‘competent authority’ means the authority designated by a participant to issue, validate or verify certificates;

(f)

[F6‘United Kingdom competent authority’ means ‘the Secretary of State’;]

(g)

[F7‘United Kingdom certificate’ means a certificate issued by the United Kingdom competent authority;]

(h)

‘conflict diamonds’ means rough diamonds as defined under the KP Certification Scheme;

(i)

‘rough diamond’ means a diamond that is unworked or simply sawn, cleaved or bruted and falls under the Harmonised Commodity Description and Coding System 7102 10, 7102 21 and 7102 31 (hereinafter ‘HS code’);

(j)

‘imports’ means the physical entering or bringing into any part of the geographical territory of a participant;

(k)

‘export’ means the physical leaving or taking out of any part of the geographical territory of a participant;

(l)

‘shipment’ means one or more parcels;

(m)

‘parcel’ means one or more diamonds that are packed together;

(n)

‘parcel of mixed origin’ means a parcel that contains rough diamonds from two or more countries of origin;

(o)

F8...

(p)

F8...

(q)

F8...

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Textual Amendments

CHAPTER IIU.K.IMPORT REGIME

Article 3U.K.

[F1The import of rough diamonds into the [F9United Kingdom] F10... shall be prohibited unless all of the following conditions are fulfilled:]

(a)

the rough diamonds are accompanied by a certificate validated by the competent authority of a participant;

(b)

the rough diamonds are contained in tamper-resistant containers, and the seals applied at export by that participant are not broken;

(c)

the certificate clearly identifies the consignment to which it refers.

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Article 4U.K.

[F111.Containers and the corresponding certificates shall without delay be submitted for verification to the United Kingdom competent authority.]

4.The importer shall be responsible for the proper movement of the rough diamonds and the costs thereof.

5.[F12The United Kingdom competent authority] shall opt for either of the following methods to verify that the content of a container matches the particulars on the corresponding certificate:

(a)it will open each container with a view to such verification; or

(b)it will identify the containers to be opened with a view to such verification on the basis of a risk analysis or equivalent system that gives due consideration to rough diamond shipments.

6.[F12The United Kingdom competent authority] shall complete the verification without delay.

Textual Amendments

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Article 5U.K.

1.If [F12the United Kingdom competent authority] establishes that the conditions in Article 3 are:

(a)fulfilled, it shall confirm this on the original certificate and provide the importer with an authenticated and forgery-resistant copy of that confirmed certificate. This confirmation procedure shall take place within 10 working days of the submission of the certificate;

(b)not fulfilled, it shall detain the shipment.

2.If [F12the United Kingdom competent authority] finds that the failure to fulfil the conditions is not made knowingly or intentionally or is the result of an action by another authority in the exercise of its proper duties, it may proceed with the confirmation and release the shipment, after the necessary remedial measures have been taken to ensure that the conditions are met.

3.[F12The United Kingdom competent authority] shall, within one month, inform F13... the competent authority of the participant that purportedly issued or validated the certificate for the shipment of any failure to fulfil the conditions.

Textual Amendments

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F14Article 6U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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F15Article 7U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Article 8U.K.

[F11.[F16The United Kingdom competent authority] shall consult participants on the practical arrangements for providing the competent authority of the exporting participant that has validated a certificate with confirmation of imports into the [F9United Kingdom]F17....]

F182.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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F19Article 9U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Article 10U.K.

F201.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.[F12The United Kingdom competent authority] shall keep the originals of certificates provided for under Article 3(a) submitted for verification for at least three years. It shall provide [F21the Chair of the Kimberley Process Certification Scheme] with access to these original certificates [F22as necessary for the monitoring or facilitation of the KP certification scheme].

Textual Amendments

Textual Amendments

CHAPTER IIIU.K.EXPORT REGIME

Article 11U.K.

[F1The export from the [F9United Kingdom] F23... of rough diamonds shall be prohibited unless both of the following conditions are fulfilled:]

(a)

the rough diamonds are accompanied by a corresponding [F24United Kingdom certificate] issued and validated by [F12the United Kingdom competent authority] [F25, or a certificate issued and validated under this Regulation prior to IP completion day];

(b)

the rough diamonds are contained in tamper-resistant containers sealed in accordance with Article 12.

Textual Amendments

Textual Amendments

Article 12U.K.

1.[F12The United Kingdom competent authority] may issue a [F24United Kingdom certificate] to an exporter when it has established that:

[F1(a)the exporter has provided conclusive evidence that:

(i)

the rough diamonds for which a certificate is being requested were lawfully imported in accordance with Article 3; F26...

(ii)

F27...]

(b)the other information requested on the certificate is correct;

(c)the rough diamonds are effectively destined for arrival in the territory of a participant, and

(d)the rough diamonds are to be transported in a tamper-resistant container.

2.[F12The United Kingdom competent authority] shall not validate a [F24United Kingdom certificate] until it has verified that the content of the container matches the particulars on the corresponding certificate and that the tamper-resistant container containing the rough diamonds has subsequently been sealed on the responsibility of that authority.

3.[F12The United Kingdom competent authority] shall opt for either of the following methods to verify that the content of a container matches the particulars thereon on the certificate:

(a)it will verify the content of each container; or

(b)it will identify the containers, the content of which shall be verified, on the basis of a risk analysis or equivalent system that gives due consideration to rough diamond shipments.

4.[F12The United Kingdom competent authority] shall provide the exporter with an authenticated forgery-resistant copy of the [F24United Kingdom certificate] it has validated. The exporter shall keep any copy accessible for at least three years.

5.The [F24United Kingdom certificate] shall be valid for export for no more than two months from the date of issue. If the rough diamonds are not exported within this period, the [F24United Kingdom certificate] shall be returned to F28... [F12the United Kingdom competent authority].

Textual Amendments

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Article 13U.K.

If an exporter is a member of a diamond organisation listed [F29in the list of self-regulating diamond organisations, as published by the Secretary of State for the purposes of Article 17], [F12the United Kingdom competent authority] may accept as conclusive evidence of lawful import into the [F30United Kingdom] a signed declaration by the exporter to that effect. Such a declaration shall contain at least the information to be given in an invoice under Article 17(2)(a)(ii).

Textual Amendments

Textual Amendments

Article 14U.K.

1.If [F12the United Kingdom competent authority] establishes that a shipment of rough diamonds, for which a [F24United Kingdom certificate] is requested, does not fulfil the conditions of Articles 11, 12, or 13, that authority shall detain the shipment.

2.If [F12the United Kingdom competent authority] finds that the failure to fulfil the conditions is not made knowingly or intentionally or is the result of an action by another authority in the exercise of its proper duties, it may release the shipment and proceed with the issuing and validation of a [F24United Kingdom certificate], after the necessary remedial measures have been taken to ensure that the conditions are met.

3.[F12The United Kingdom competent authority] shall, within one month, inform F31... the competent authority of the participant that purportedly issued or validated the certificate for the shipment of any failure to fulfil the conditions.

Textual Amendments

Textual Amendments

Article 15U.K.

F321.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F332.The United Kingdom competent authority shall keep for at least three years the authenticated copies provided for under Article 12(4) as well as all information received from an exporter to justify the issue and validation of a United Kingdom certificate.

The United Kingdom competent authority shall provide the Chair of the Kimberley Process Certification Scheme with access to those authenticated copies of this information as necessary for the monitoring or facilitation of the KP certification scheme.]

Textual Amendments

Textual Amendments

Article 16U.K.

1.The [F34United Kingdom competent authority] shall consult participants on the practical arrangements for obtaining confirmation of imports of rough diamonds exported from the [F35United Kingdom] covered by a certificate validated by [F12the United Kingdom competent authority].

F362.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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CHAPTER IVU.K.INDUSTRY SELF-REGULATION

Article 17U.K.

1.Organisations representing traders in rough diamonds which have established a system of warranties and industry self-regulation for the purposes of implementing the KP Certification Scheme may apply to the [F37Secretary of State] for listing in [F38the list of self-regulating organisations published by the Secretary of State for the purposes of this Article].

2.When applying for listing, an organisation shall:

(a)provide conclusive evidence that adopted rules and regulations whereby its members dealing in rough diamonds, whether natural or legal persons, undertake that they will F39...:

(i)

sell only diamonds purchased from legitimate sources in compliance with the provisions of relevant United Nations Security Council Resolutions and of the Kimberley Process Certification Scheme and guarantee in writing on the invoice accompanying each sale of rough diamonds that, on the basis of their personal knowledge and/or written warranties provided by the supplier of such rough diamonds, the rough diamonds sold are therefore not conflict diamonds;

(ii)

see that each sale of rough diamonds is accompanied by an invoice containing the said signed guarantee unequivocally identifying the seller and buyer and their registered offices, containing the VAT identification number of the seller, where applicable, the quantity/weight and qualification of the goods sold, the value of the transaction and the date of delivery;

(iii)

not buy rough diamonds from suspect or unknown sources of supply and/or rough diamonds originating in non-participants in the KP certification scheme;

(iv)

not buy rough diamonds from any source found, after legally binding due process, to have violated government laws and regulations concerning the trade in conflict diamonds;

(v)

not buy rough diamonds in, or from, any region that is the subject of an advisory notice from a governmental or KP certification scheme authority to the effect that conflict diamonds are emanating from, or are available for sale in, that region;

(vi)

not knowingly buy, sell or assist others in buying or selling conflict diamonds;

(vii)

ensure that all employees buying or selling rough diamonds within the diamond trade are fully informed of trade resolutions and government regulations restricting the trade in conflict diamonds;

(viii)

create and maintain for at least three years records of invoices received from suppliers and issued to customers;

(ix)

instruct an independent auditor to certify that these records have been created and maintained accurately and either that it has identified no transactions which failed to comply with the undertakings referred to in (i) to (viii) or that any transaction which failed to comply with such undertakings has been duly reported to [F12the United Kingdom competent authority] [F40, or, if prior to IP completion day, a competent authority];

and

(b)provide conclusive evidence that is has adopted rules and regulations which oblige the organisation:

(i)

to expel any member found, after a due process inquiry by the organisation itself, to have seriously violated the abovementioned undertakings; and

(ii)

to publicise that member's expulsion and notify the [F41United Kingdom competent authority] thereof;

(iii)

to make known to all its members all governmental and KP certification scheme laws, regulations and guidelines regarding conflict diamonds and the names of any natural or legal person found guilty, after legally binding due process, of violating these laws and regulations;

and

(c)provide F42... [F12the United Kingdom competent authority] with a complete list of all its members dealing in rough diamonds, including full names, addresses, location and other information which will contribute to avoiding mistaken identities.

3.Organisations covered by this Article shall immediately notify F43... [F12the United Kingdom competent authority] F44... of all changes in their membership subsequent to the application for listing.

[F454.The Secretary of State must publish a list containing each organisation that fulfils the requirements of this Article.]

5.(a)A listed organisation or a member thereof shall provide [F12the United Kingdom competent authority] with access to any information that may be needed to assess the proper functioning of the system of warranties and industry self-regulation. Where circumstances justify, [F12the United Kingdom competent authority] may require additional guarantees that an organisation is able to maintain a credible system.

F46(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6.If, in the course of monitoring the proper functioning of the system, [F12the United Kingdom competent authority] F47... obtains credible information that a listed organisation covered by this Article F48..., or a member thereof F49..., is infringing the provisions of this Article, it shall inquire into the matter to verify whether the provisions of this Article have effectively been infringed.

F507.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8.If an inquiry leads to the conclusion that an organisation is infringing the provisions of this Article, [F12the United Kingdom competent authority] F51... shall take the appropriate measures with a view to removing that organisation from the list [F52of self-regulating organisations published by the Secretary of State for the purposes of this Article].

F539.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10.Organisations or their members covered by this Article acting in the territory of a participant other than the [F54United Kingdom] shall be considered to have complied with the provisions of this Article if they comply with the rules and regulations that this participant has laid down for the purpose of implementing the Kimberley Process Certification Scheme.

Textual Amendments

Textual Amendments

CHAPTER VU.K.TRANSIT

[F1Article 18U.K.

Articles 4, 11, 12, and 14 shall not apply to rough diamonds which enter the [F9United Kingdom] F55... solely for the purposes of transit to a participant outside [F56the United Kingdom], on condition that neither the original container in which rough diamonds are being transported nor the original accompanying certificate issued by a competent authority of a participant has been tampered with at entry into or exit from the [F9United Kingdom] F55..., and the transit purpose is clearly attested by the accompanying certificate.]

Textual Amendments

Textual Amendments

CHAPTER VIU.K.GENERAL PROVISIONS

Article 19U.K.

F571.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.[F58The Secretary of State must provide the Chair of the Kimberley Process Certification Scheme with the information showing that the United Kingdom competent authority] can reliably, timely, effectively and adequately fulfil the tasks required by this Regulation.

F593.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4.[F60The United Kingdom competent authority] may ask an economic operator to pay a fee for the production, issue and/or validation of a certificate and for a physical inspection in accordance with Articles 4 and 14. Under no circumstances shall the amount of that fee exceed the costs incurred by that competent authority for the operation concerned. No levies or similar duties shall be charged in relation to such operations.

F615.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F626.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[F4Article 20U.K.

On the basis of relevant Information provided to the Chair of the KP certification scheme and/or by participants, the [F63Secretary of State must publish (and update from time to time to reflect any changes)] the list of participants and their competent authorities.]

Textual Amendments

Textual Amendments

F64Article 21U.K.

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F64Article 22U.K.

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F64Article 23U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Article 24U.K.

1.Any natural or legal person providing services directly or indirectly related to the activities covered by Articles 3, 4, 6, 7, 11, 12, 13, 17 or 18 shall exercise due diligence for establishing that the activities for which it provides services comply with the provisions of this Regulation.

2.The participation, knowingly and intentionally, in activities, the object or effect of which is, directly or indirectly, to circumvent the provisions of this Regulation shall be prohibited.

F653.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Article 25U.K.

Information supplied in accordance with this Regulation shall be used only for the purposes for which it was provided.

F66. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Article 26U.K.

Compliance with this Regulation does not discharge any natural or legal person from compliance, fully or partially, with any other obligation under F67... national legislation.

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Article 27U.K.

Each Member State shall determine the sanctions to be imposed where the provisions of this Regulation are infringed. Such sanctions shall be effective, proportionate and dissuasive and shall be capable of preventing those responsible for the infringement from obtaining any economic benefit from their action.

Pending the adoption, where necessary, of any legislation to this end, the sanctions to be imposed where the provisions of this Regulation are infringed shall, where relevant, be those determined by the Member States in order to give effect to Article 5 of Regulation (EC) No 303/2002.

Article 28U.K.

This Regulation shall apply:

(a)

within the [F9United Kingdom], including its airspace, or on board any aircraft or any vessel under the jurisdiction of [F68the United Kingdom];

(b)

to any national of [F68the United Kingdom], and to any legal person, entity, or body which is incorporated or constituted under the law of [F68the United Kingdom].

Textual Amendments

Textual Amendments

[F69Article 29U.K.

Amendments to the certification scheme

(1)Where the condition in paragraph (2) is met, the Secretary of State may by regulations amend this Regulation.

(2)The condition is that that the Secretary of State considers that this Regulation is no longer effective to ensure that the law of the United Kingdom is consistent with the international Kimberley Process requirements.

(3)Regulations under this Article may only contain provision that the Secretary of State considers to be—

(a)appropriate for the purposes of ensuring that this Regulation is consistent with the international Kimberley Process requirements; or

(b)appropriate in connection with any provision made under point (a).

(4)Regulations under this Article may contain transitional and consequential provisions and savings.

(5)The power in this Article to make regulations is exercisable by the Secretary of State by statutory instrument.

(6)A statutory instrument containing regulations under this Article may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(7)In this Article “the international Kimberley Process requirements” means any certification requirements or similar controls relating to the import or export of rough diamonds that are agreed from time to time by the Participants.]

Textual Amendments

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This Regulation shall be binding in its entirety and directly applicable in all Member States.

ANNEX I U.K.Kimberley Process Certification Scheme

PREAMBLEU.K.

PARTICIPANTS,

  • RECOGNISING that the trade in conflict diamonds is a matter of serious international concern, which can be directly linked to the fuelling of armed conflict, the activities of rebel movements aimed at undermining or overthrowing legitimate governments, and the illicit traffic in, and proliferation of, armaments, especially small arms and light weapons;

  • FURTHER RECOGNISING the devastating impact of conflicts fuelled by the trade in conflict diamonds on the peace, safety and security of people in affected countries and the systematic and gross human rights violations that have been perpetrated in such conflicts;

  • NOTING the negative impact of such conflicts on regional stability and the obligations placed upon states by the United Nations Charter regarding the maintenance of international peace and security;

  • BEARING IN MIND that urgent international action is imperative to prevent the problem of conflict diamonds from negatively affecting the trade in legitimate diamonds, which makes a critical contribution to the economies of many of the producing, processing, exporting and importing states, especially developing states;

  • RECALLING all of the relevant resolutions of the United Nations Security Council under Chapter VII of the United Nations Charter, including the relevant provisions of Resolutions 1173 (1998), 1295 (2000), 1306 (2000), and 1343 (2001), and determined to contribute to and support the implementation of the measures provided for in these resolutions;

  • HIGHLIGHTING the United Nations General Assembly Resolution 55/56 (2000) on the role of the trade in conflict diamonds in fuelling armed conflict, which called on the international community to give urgent and careful consideration to devising effective and pragmatic measures to address this problem;

  • FURTHER HIGHLIGHTING the recommendation in United Nations General Assembly Resolution 55/56 that the international community develop detailed proposals for a simple and workable international certification scheme for rough diamonds based primarily on national certification schemes and on internationally agreed minimum standards;

  • RECALLING that the Kimberley Process, which was established to find a solution to the international problem of conflict diamonds, was inclusive of concerned stake holders, namely producing, exporting and importing states, the diamond industry and civil society;

  • CONVINCED that the opportunity for conflict diamonds to play a role in fuelling armed conflict can be seriously reduced by introducing a certification scheme for rough diamonds designed to exclude conflict diamonds from the legitimate trade;

  • RECALLING that the Kimberley Process considered that an international certification scheme for rough diamonds, based on national laws and practices and meeting internationally agreed minimum standards, will be the most effective system by which the problem of conflict diamonds could be addressed;

  • ACKNOWLEDGING the important initiatives already taken to address this problem, in particular by the governments of Angola, the Democratic Republic of Congo, Guinea and Sierra Leone and by other key producing, exporting and importing countries, as well as by the diamond industry, in particular by the World Diamond Council, and by civil society;

  • WELCOMING voluntary self-regulation initiatives announced by the diamond industry and recognising that a system of such voluntary self-regulation contributes to ensuring an effective internal control system of rough diamonds based upon the international certification scheme for rough diamonds;

  • RECOGNISING that an international certification scheme for rough diamonds will only be credible if all Participants have established internal systems of control designed to eliminate the presence of conflict diamonds in the chain of producing, exporting and importing rough diamonds within their own territories, while taking into account that differences in production methods and trading practices as well as differences in institutional controls thereof may require different approaches to meet minimum standards;

  • FURTHER RECOGNISING that the international certification scheme for rough diamonds must be consistent with international law governing international trade;

  • ACKNOWLEDGING that state sovereignty should be fully respected and the principles of equality, mutual benefits and consensus should be adhered to,

RECOMMEND THE FOLLOWING PROVISIONS:

SECTION IU.K.Definitions

For the purposes of the international certification scheme for rough diamonds (hereinafter referred to as ‘the Certification Scheme’) the following definitions apply:

  • CONFLICT DIAMONDS means rough diamonds used by rebel movements or their allies to finance conflict aimed at undermining legitimate governments, as described in relevant United Nations Security Council (UNSC) resolutions insofar as they remain in effect, or in other similar UNSC resolutions which may be adopted in the future, and as understood and recognised in United Nations General Assembly (UNGA) Resolution 55/56, or in other similar UNGA resolutions which may be adopted in future;

  • COUNTRY OF ORIGIN means the country where a shipment of rough diamonds has been mined or extracted;

  • COUNTRY OF PROVENANCE means the last Participant from where a shipment of rough diamonds was exported, as recorded on import documentation;

  • DIAMOND means a natural mineral consisting essentially of pure crystallised carbon in the isometric system, with a hardness on the Mohs (scratch) scale of 10, a specific gravity of approximately 3.52 and a refractive index of 2.42;

  • EXPORT means the physical leaving/taking out of any part of the geographical territory of a Participant;

  • EXPORTING AUTHORITY means the authority(ies) or body(ies) designated by a Participant from whose territory a shipment of rough diamonds is leaving, and which are authorised to validate the Kimberley Process Certificate;

  • FREE TRADE ZONE means a part of the territory of a Participant where any goods introduced are generally regarded, insofar as import duties and taxes are concerned, as being outside the customs territory;

  • IMPORT means the physical entering/bringing into any part of the geographical territory of a Participant;

  • IMPORTING AUTHORITY means the authority(ies) or body(ies) designated by a Participant into whose territory a shipment of rough diamonds is imported to conduct all import formalities and particularly the verification of accompanying Kimberley Process Certificates;

  • KIMBERLEY PROCESS CERTIFICATE means a forgery resistant document with a particular format which identifies a shipment of rough diamonds as being in compliance with the requirements of the Certification Scheme;

  • OBSERVER means a representative of civil society, the diamond industry, international organisations and non-participating governments invited to take part in Plenary meetings;

  • PARCEL means one or more diamonds that are packed together and that are not individualised;

  • PARCEL OF MIXED ORIGIN means a parcel that contains rough diamonds from two or more countries of origin, mixed together;

  • PARTICIPANT means a state or a regional economic integration organisation for which the Certification Scheme is effective;

  • REGIONAL ECONOMIC INTEGRATION ORGANISATION means an organisation comprised of sovereign states that have transferred competence to that organisation in respect of matters governed by the Certification Scheme;

  • ROUGH DIAMONDS means diamonds that are unworked or simply sawn, cleaved or bruted and fall under the Relevant Harmonised Commodity Description and Coding System 7102 10 00, 7102 21 00 and 7102 31 00;

  • SHIPMENT means one or more parcels that are physically imported or exported;

  • TRANSIT means the physical passage across the territory of a Participant or a non-Participant, with or without transhipment, warehousing or change in mode of transport, when such passage is only a portion of a complete journey beginning and terminating beyond the frontier of the Participant or non-Participant across whose territory a shipment passes;

SECTION IIU.K.The Kimberley Process Certificate

Each Participant should ensure that:

(a)

a Kimberley Process Certificate (hereafter referred to as the Certificate) accompanies each shipment of rough diamonds on export;

(b)

its processes for issuing Certificates meet the minimum standards of the Kimberley Process as set out in Section IV;

(c)

Certificates meet the minimum requirements set out in Annex I. As long as these requirements are met, Participants may at their discretion establish additional characteristics for their own Certificates, for example their form, additional data or security elements;

(d)

it notifies all other Participants through the Chair of the features of its Certificate as specified in Annex I, for purposes of validation.

SECTION IIIU.K.Undertakings in respect of the international trade in rough diamonds

Each Participant should:

(a)

with regard to shipments of rough diamonds exported to a Participant, require that each such shipment is accompanied by a duly validated Certificate;

(b)

with regard to shipments of rough diamonds imported from a Participant:

  • require a duly validated Certificate;

  • ensure that confirmation of receipt is sent expeditiously to the relevant Exporting Authority. The confirmation should as a minimum refer to the Certificate number, the number of parcels, the carat weight and the details of the importer and exporter;

  • require that the original of the Certificate be readily accessible for a period of no less than three years;

(c)

ensure that no shipment of rough diamonds is imported from or exported to a non-Participant;

(d)

recognise that Participants through whose territory shipments transit are not required to meet the requirement of paragraphs (a) and (b) above, and of Section II (a) provided that the designated authorities of the Participant through whose territory a shipment passes, ensure that the shipment leaves its territory in an identical state as it entered its territory (i.e. unopened and not tampered with).

SECTION IVU.K.Internal controls

Undertakings by ParticipantsU.K.

Each Participant should:

(a)

establish a system of internal controls designed to eliminate the presence of conflict diamonds from shipments of rough diamonds imported into and exported from its territory;

(b)

designate an Importing and an Exporting Authority(ies);

(c)

ensure that rough diamonds are imported and exported in tamper resistant containers;

(d)

as required, amend or enact appropriate laws or regulations to implement and enforce the Certification Scheme and to maintain dissuasive and proportional penalties for transgressions;

(e)

collect and maintain relevant official production, import and export data, and collate and exchange such data in accordance with the provisions of Section V.

(f)

when establishing a system of internal controls, take into account, where appropriate, the further options and recommendations for internal controls as elaborated in Annex II.

Principles of Industry Self-RegulationU.K.

Participants understand that a voluntary system of industry self-regulation, as referred to in the Preamble of this Document, will provide for a system of warranties underpinned through verification by independent auditors of individual companies and supported by internal penalties set by industry, which will help to facilitate the full traceability of rough diamond transactions by government authorities.

SECTION VU.K.Cooperation and transparency

Participants should:

(a)

provide to each other through the Chair information identifying their designated authorities or bodies responsible for implementing the provisions of this Certification Scheme. Each Participant should provide to other Participants through the Chair information, preferably in electronic format, on its relevant laws, regulations, rules, procedures and practices, and update that information as required. This should include a synopsis in English of the essential content of this information;

(b)

compile and make available to all other Participants through the Chair statistical data in line with the principles set out in Annex III;

(c)

exchange on a regular basis experiences and other relevant information, including on self-assessment, in order to arrive at the best practice in given circumstances;

(d)

consider favourably requests from other Participants for assistance to improve the functioning of the Certification Scheme within their territories;

(e)

inform another Participant through the Chair if it considers that the laws, regulations, rules, procedures or practices of that other Participant do not ensure the absence of conflict diamonds in the exports of that other Participant;

(f)

cooperate with other Participants to attempt to resolve problems which may arise from unintentional circumstances and which could lead to non-fulfilment of the minimum requirements for the issuance or acceptance of the Certificates, and inform all other Participants of the essence of the problems encountered and of solutions found;

(g)

encourage, through their relevant authorities, closer cooperation between law enforcement agencies and between customs agencies of Participants.

SECTION VIU.K.Administrative matters

MEETINGSU.K.

1.Participants and Observers are to meet in Plenary annually, and on other occasions as Participants may deem necessary, in order to discuss the effectiveness of the Certification Scheme.U.K.
2.Participants should adopt Rules of Procedure for such meetings at the first Plenary meeting.U.K.
3.Meetings are to be held in the country where the Chair is located, unless a Participant or an international organisation offers to host a meeting and this offer has been accepted. The host country should facilitate entry formalities for those attending such meetings.U.K.
4.At the end of each Plenary meeting, a Chair would be elected to preside over all Plenary meetings, ad hoc working groups and other subsidiary bodies, which might be formed until the conclusion of the next annual Plenary meeting.U.K.
5.Participants are to reach decisions by consensus. In the event that consensus proves to be impossible, the Chair is to conduct consultations.U.K.

ADMINISTRATIVE SUPPORTU.K.

6.For the effective administration of the Certification Scheme, administrative support will be necessary. The modalities and functions of that support should be discussed at the first Plenary meeting, following endorsement by the UN General Assembly.U.K.
7.Administrative support could include the following functions:U.K.
(a)

to serve as a channel of communication, information sharing and consultation between the Participants with regard to matters provided for in this Document;

(b)

to maintain and make available for the use of all Participants a collection of those laws, regulations, rules, procedures, practices and statistics notified pursuant to Section V;

(c)

to prepare documents and provide administrative support for Plenary and working group meetings;

(d)

to undertake such additional responsibilities as the Plenary meetings, or any working group delegated by Plenary meetings, may instruct.

PARTICIPATIONU.K.

8.Participation in the Certification Scheme is open on a global, non-discriminatory basis to all Applicants willing and able to fulfill the requirements of that Scheme.U.K.

9.Any applicant wishing to participate in the Certification Scheme should signify its interest by notifying the Chair through diplomatic channels. This notification should include the information set forth in paragraph (a) of Section V and be circulated to all Participants within one month.U.K.

10.Participants intend to invite representatives of civil society, the diamond industry, non-participating governments and international organisations to participate in Plenary meetings as Observers.U.K.

PARTICIPANT MEASURESU.K.

11.Participants are to prepare, and make available to other Participants, in advance of annual Plenary meetings of the Kimberley Process, information as stipulated in paragraph (a) of Section V outlining how the requirements of the Certification Scheme are being implemented within their respective jurisdictions.U.K.

12.The agenda of annual Plenary meetings is to include an item where information as stipulated in paragraph (a) of Section V is reviewed and Participants can provide further details of their respective systems at the request of the Plenary.U.K.

13.Where further clarification is needed, Participants at Plenary meetings, upon recommendation by the Chair, can identify and decide on additional verification measures to be undertaken. Such measures are to be implemented in accordance with applicable national and international law. These could include, but need not be limited to measures such as:U.K.

(a)

requesting additional information and clarification from Participants;

(b)

review missions by other Participants or their representatives where there are credible indications of significant non-compliance with the Certification Scheme.

14.Review missions are to be conducted in an analytical, expert and impartial manner with the consent of the Participant concerned. The size, composition, terms of reference and time-frame of these missions should be based on the circumstances and be established by the Chair with the consent of the Participant concerned and in consultation with all Participants.U.K.

15.A report on the results of compliance verification measures is to be forwarded to the Chair and to the Participant concerned within three weeks of completion of the mission. Any comments from that Participant as well as the report, are to be posted on the restricted access section of an official Certification Scheme website no later than three weeks after the submission of the report to the Participant concerned. Participants and Observers should make every effort to observe strict confidentiality regarding the issue and the discussions relating to any compliance matter.U.K.

COMPLIANCE AND DISPUTE PREVENTIONU.K.

16.In the event that an issue regarding compliance by a Participant or any other issue regarding the implementation of the Certification Scheme arises, any concerned Participant may so inform the Chair, who is to inform all Participants without delay about the said concern and enter into dialogue on how to address it. Participants and Observers should make every effort to observe strict confidentiality regarding the issue and the discussions relating to any compliance matter.U.K.

MODIFICATIONSU.K.

17.This document may be modified by consensus of the Participants.U.K.
18.Modifications may be proposed by any Participant. Such proposals should be sent in writing to the Chair, at least ninety days before the next Plenary meeting, unless otherwise agreed.U.K.
19.The Chair is to circulate any proposed modification expeditiously to all Participants and Observers and place it on the agenda of the next annual Plenary meeting.U.K.

REVIEW MECHANISMU.K.

20.Participants intend that the Certification Scheme should be subject to periodic review, to allow Participants to conduct a thorough analysis of all elements contained in the scheme. The review should also include consideration of the continuing requirement for such a scheme, in view of the perception of the Participants, and of international organisations, in particular the United Nations, of the continued threat posed at that time by conflict diamonds. The first such review should take place no later than three years after the effective starting date of the Certification Scheme. The review meeting should normally coincide with the annual Plenary meeting, unless otherwise agreed.U.K.

THE START OF THE IMPLEMENTATION OF THE SCHEMEU.K.

21.The Certification Scheme should be established at the Ministerial Meeting on the Kimberley Process Certification Scheme for Rough Diamonds in Interlaken on 5 November 2002.U.K.

Annex I to ANNEX ICERTIFICATES

A.Minimum requirements for CertificatesU.K.

A Certificate is to meet the following minimum requirements:

  • Each Certificate should bear the title ‘Kimberley Process Certificate’ and the following statement: ‘The rough diamonds in this shipment have been handled in accordance with the provisions of the Kimberley Process Certification Scheme for rough diamonds’

  • Country of origin for shipment of parcels of unmixed (i.e. from the same) origin

  • Certificates may be issued in any language, provided that an English translation is incorporated

  • Unique numbering with the Alpha 2 country code, according to ISO 3166-1

  • Tamper and forgery resistant

  • Date of issuance

  • Date of expiry

  • Issuing authority

  • Identification of exporter and importer

  • Carat weight/mass

  • Value in US$

  • Number of parcels in shipment

  • Relevant Harmonised Commodity Description and Coding System

  • Validation of Certificate by the Exporting Authority

B.Optional Certificate ElementsU.K.

A Certificate may include the following optional features:

  • Characteristics of a Certificate (for example as to form, additional data or security elements)

  • Quality characteristics of the rough diamonds in the shipment

  • A recommended import confirmation part should have the following elements:

    • Country of destination

    • Identification of importer

    • Carat/weight and value in US$

    • Relevant Harmonised Commodity Description and Coding System

    • Date of receipt by Importing Authority

    • Authentication by Importing Authority

C.Optional ProceduresU.K.

Rough diamonds may be shipped in transparent security bags.

The unique Certificate number may be replicated on the container.

Annex II to ANNEX IRECOMMENDATIONS AS PROVIDED FOR IN SECTION IV, PARAGRAPH (F)

General RecommendationsU.K.

1.Participants may appoint an official coordinator(s) to deal with the implementation of the Certification Scheme.U.K.
2.Participants may consider the utility of complementing and/or enhancing the collection and publication of the statistics identified in Annex III based on the contents of Kimberley Process Certificates.U.K.
3.Participants are encouraged to maintain the information and data required by Section V on a computerised database.U.K.
4.Participants are encouraged to transmit and receive electronic messages in order to support the Certification Scheme.U.K.
5.Participants that produce diamonds and that have rebel groups suspected of mining diamonds within their territories are encouraged to identify the areas of rebel diamond mining activity and provide this information to all other Participants. This information should be updated on a regular basis.U.K.
6.Participants are encouraged to make known the names of individuals or companies convicted of activities relevant to the purposes of the Certification Scheme to all other Participants through the Chair.U.K.
7.Participants are encouraged to ensure that all cash purchases of rough diamonds are routed through official banking channels, supported by verifiable documentation.U.K.
8.Participants that produce diamonds should analyse their diamond production under the following headings:U.K.

  • Characteristics of diamonds produced

  • Actual production

Recommendations for Control over Diamond MinesU.K.

9.Participants are encouraged to ensure that all diamond mines are licensed and to allow only those mines so licensed to mine diamonds.U.K.
10.Participants are encouraged to ensure that prospecting and mining companies maintain effective security standards to ensure that conflict diamonds do not contaminate legitimate production.U.K.

Recommendations for Participants with Small-scale Diamond MiningU.K.

11.All artisanal and informal diamond miners should be licensed and only those persons so licensed should be allowed to mine diamonds.U.K.
12.Licensing records should contain the following minimum information: name, address, nationality and/or residence status and the area of authorised diamond mining activity.U.K.

Recommendations for Rough Diamond Buyers, Sellers and ExportersU.K.

13.All diamond buyers, sellers, exporters, agents and courier companies involved in carrying rough diamonds should be registered and licensed by each Participant's relevant authorities.U.K.
14.Licensing records should contain the following minimum information: name, address and nationality and/or residence status.U.K.
15.All rough diamond buyers, sellers and exporters should be required by law to keep for a period of five years daily buying, selling or exporting records listing the names of buying or selling clients, their license number and the amount and value of diamonds sold, exported or purchased.U.K.
16.The information in paragraph 14 above should be entered into a computerised database, to facilitate the presentation of detailed information relating to the activities of individual rough diamond buyers and sellers.U.K.

Recommendations for Export ProcessesU.K.

17.A exporter should submit a rough diamond shipment to the relevant Exporting Authority.U.K.
18.The Exporting Authority is encouraged, prior to validating a Certificate, to require an exporter to provide a declaration that the rough diamonds being exported are not conflict diamonds.U.K.
19.Rough diamonds should be sealed in a tamper proof container together with the Certificate or a duly authenticated copy. The Exporting Authority should then transmit a detailed e-mail message to the relevant Importing Authority containing information on the carat weight, value, country of origin or provenance, importer and the serial number of the Certificate.U.K.
20.The Exporting Authority should record all details of rough diamond shipments on a computerised database.U.K.

Recommendations for Import ProcessesU.K.

21.The Importing Authority should receive an e-mail message either before or upon arrival of a rough diamond shipment. The message should contain details such as the carat weight, value, country of origin or provenance, exporter and the serial number of the Certificate.U.K.
22.The Importing Authority should inspect the shipment of rough diamonds to verify that the seals and the container have not been tampered with and that the export was performed in accordance with the Certification Scheme.U.K.
23.The Importing Authority should open and inspect the contents of the shipment to verify the details declared on the Certificate.U.K.
24.Where applicable and when requested, the Importing Authority should send the return slip or import confirmation coupon to the relevant Exporting Authority.U.K.
25.The Importing Authority should record all details of rough diamond shipments on a computerised database.U.K.

Recommendations on Shipments to and from Free Trade ZonesU.K.

26.Shipments of rough diamonds to and from free trade zones should be processed by the designated authorities.U.K.

Annex III to ANNEX ISTATISTICS

Recognising that reliable and comparable data on the production and the international trade in rough diamonds are an essential tool for the effective implementation of the Certification Scheme, and particularly for identifying any irregularities or anomalies which could indicate that conflict diamonds are entering the legitimate trade, Participants strongly support the following principles, taking into account the need to protect commercially sensitive information:

(a)

to keep and publish within two months of the reference period and in a standardised format, quarterly aggregate statistics on rough diamond exports and imports, as well as the numbers of certificates validated for export, and of imported shipments accompanied by Certificates;

(b)

to keep and publish statistics on exports and imports, by origin and provenance wherever possible; by carat weight and value; and under the relevant Harmonised Commodity Description and Coding System (HS) classifications 7102 10; 7102 21; 7102 31;

(c)

to keep and publish on a semi-annual basis and within two months of the reference period statistics on rough diamond production by carat weight and by value. In the event that a Participant is unable to publish these statistics it should notify the Chair immediately;

(d)

to collect and publish these statistics by relying in the first instance on existing national processes and methodologies;

(e)

to make these statistics available to an intergovernmental body or to another appropriate mechanism identified by the Participants for (1) compilation and publication on a quarterly basis in respect of exports and imports, and (2) on a semi-annual basis in respect of production. These statistics are to be made available for analysis by interested parties and by the Participants, individually or collectively, according to such terms of reference as may be established by the Participants;

(f)

to consider statistical information pertaining to the international trade in and production of rough diamonds at annual Plenary meetings, with a view to addressing related issues, and to supporting effective implementation of the Certification Scheme.

F70ANNEX IIU.K. List of participants in the Kimberley Process certification scheme and their duly appointed competent authorities as referred to in Articles 2, 3, 8, 9, 12, 17, 18, 19 and 20

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F70ANNEX IIIU.K. List of Member States' competent authorities and their tasks as referred to in Articles 2 and 19

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F70ANNEX IVU.K. Community certificate as referred to in Article 2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F70ANNEX VU.K. List of diamond organisations implementing the system of warranties and industry self-regulation referred to in Articles 13 and 17

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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