The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage

Penelope Simons & Audrey Macklin, The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage (Routledge, 2014)

Posted: 29 Jan 2015

See all articles by Penelope C. Simons

Penelope C. Simons

Faculty of Common Law, University of Ottawa

Audrey Macklin

University of Toronto - Faculty of Law

Date Written: 2014

Abstract

This book explores the persistence of the governance gap with respect to the human rights-impacting conduct of transnational extractive corporations operating in zones of weak governance.

The authors launch their account with a fascinating case study of Talisman Energy’s experience in Sudan, informed by their own experience as members of the 1999 Canadian Assessment Mission to Sudan (Harker Mission). Drawing on new governance, reflexive law and responsive law theories, the authors assess legal and other non-binding governance mechanisms that have emerged since that time, including the UN Guiding Principles on Business and Human Rights. They conclude that such mechanisms are incapable of systematically preventing human rights violating behaviour by transnational corporations, or of assuring accountability of these actors or recompense for victims of such violations. The authors contend that home state regulation, while not a silver bullet, has a crucial role to play in regulating such conduct. They pick up where UN Special Representative John Ruggie’s Guiding Principles on Business and Human Rights left off, and propose an innovative, robust and adaptable template for strengthening the regulatory framework of home states. Their model draws insights from the theoretical literature, leverages existing public, private, transnational, national, ‘soft’ and hard regulatory tools, and harnesses the specific strengths of state-based governance.

Keywords: governance gap, human rights, transnational corporations, weak governance, Talisman Energy, Sudan, Harker Mission, governance, reflexive law, responsive law, self-regulation, home state regulation, host state, UN Guiding Principles, IFC Performance Standards, OECD Guidelines, GRI, Equator Principles, Voluntary Principles

JEL Classification: F23, G18, G38, H57, K20, K22, K29, K33, L71, L72, M14

Suggested Citation

Simons, Penelope C. and Macklin, Audrey, The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage (2014). Penelope Simons & Audrey Macklin, The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage (Routledge, 2014). Available at SSRN: https://ssrn.com/abstract=2327960

Penelope C. Simons (Contact Author)

Faculty of Common Law, University of Ottawa ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

HOME PAGE: http://www.commonlaw.uottawa.ca

Audrey Macklin

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-946-7493 (Phone)
416-978-7899 (Fax)

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