This book adds a new dimension to the increasing interest and practice in business and human rights issues. It places these issues in a clear and coherent context, shows the governance gaps that exist, and provides practical and manageable recommendations for ways forward. In so doing, it builds upon the existing scholarship of both the authors and others, while offering new insights.
The ‘governance gap’ of the title concerns ‘the prevention of, and accountability for, direct and indirect corporate human rights abuses in host states and the provision of redress to victims of such abuses’ (9). The particular focus of the book is on transnational extractive corporations when operating in zones of weak governance. These corporations are active in areas where there are natural resources and so may find themselves operating long term, usually through a contract with the host State, in locations where the host State government is unable or unwilling to prevent violations of human rights.
By commencing the book with a case study of Talisman Energy Inc's operations in South Sudan, the authors provide an immediate and compelling picture of the ways that a transnational corporation can, directly and indirectly, impact on human rights in a weak governance zone. Based on the authors’ own involvement in the Canadian government's Harker Mission to South Sudan, they argue persuasively that much of what they considered to be the corporation's abuses of human rights were more a case of wilful blindness and complicity than direct perpetration. They also show that the pressures of civil society, shareholders and (inconsistent) political interest affected Talisman's reputation to such a degree that the corporation decided to disinvest in South Sudan.
After this interesting narrative, the authors return to the current context of developments in the business and human rights area. They examine the various multi-stakeholder and intergovernmental initiatives and offer insightful critiques of these initiatives. In so doing, they also show that voluntary or self-regulation alone is not effective or sustainable to bridge the governance gap. This chapter is followed neatly by a high-quality analysis of a very wide range of domestic legal and other measures being taken in home states and why home state regulation is essential. This analysis interweaves expertly conceptual ideas and theories with legal regulation and case law. They also recognize that there is a need to increase legal capacities of host States, so that they are not allowed to avoid responsibility. My only minor issues are that there is not enough analysis of the growing body of UK, Dutch and other European litigation or the effects of EU Regulations on matters such as forum non conveniens, and that there is not sufficient consideration of the views of those in the global South, not least as the actions of home states can be valuable and necessary but can be potentially counterproductive in some circumstances.
The final chapter sets out the authors’ approach to closing the governance gap. This has an institutional aspect in the creation of an independent ‘Corporate Social Responsibility Agency’ by each host State, with a mandate to perform pre-investment human rights impact assessments, post-investment monitoring and, possibly, dispute resolution. The authors’ aim is that this body will influence corporate decision-making, enable access to remedies for victims and assist market responsiveness. The authors then provide a remarkable model law proposal, complete with draft legislation, as to what would be the remit of such a CSR Agency, the extent of a corporation's liability and a range of valuable definitions. There are some aspects for which there may be differences of views, such as the ‘domicile’ of a corporation (cf the Brussels I Regulation), the definition of ‘serious harm’ to exclude environmental damage and labour rights, insufficient comparisons with the anti-corruption/bribery laws, and the use of the term ‘corporate social responsibility’ for an agency to protect against human rights abuses (as the two terms are not the same). The lack of an Appendix setting out the model law in full is a pity. Yet this is an impressive achievement to provide such a detailed proposal.
Overall, this is a very good book, which brings a remarkable range of perspectives, disciplines and practices to bear on a difficult subject. The authors’ breadth of knowledge and analysis provides a sustained argument about the importance of narrowing the governance gap and offers a practical way forward to bridge it. It is a valuable addition to the literature for all those interested in this area.