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

Penelope Simons and Audrey Macklin

February 2014
Routledge
ISBN: 9781138124912

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.

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About the Author:

Penelope Simons has been engaged in research on corporate human rights accountability for over a decade. In December 1999 she participated in the Canadian Assessment Mission to Sudan (the Harker Mission), appointed by Canada's Minister of Foreign Affairs and International Trade, to investigate allegations of slavery as well as links between oil development in Sudan and violations of human rights. Her current research is focused on the human rights implications of domestic and extraterritorial corporate activity, state responsibility for corporate complicity in human rights violations, as well as the intersections between transnational corporate activity, human rights and international economic law.

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