Managing the governance gap

There is a governance gap in the reach of both national and international law, thus leaving companies not legally accountable for potential human rights violations. Closing this governance gap is a critical challenge and one that Penelope Simons and Audrey Macklin strive to address in their book, The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage. After carefully outlining the limitations of existing laws and initiatives, they argue that home state regulation should play a larger role in deterring corporations from becoming complicit in human rights violations. The potential success of any regulatory proposal to close the governance gap will depend on its ability to effectively shape corporate behaviour. In an effort to achieve this goal, Simons and Macklin recommend a home state governance regime that not only provides ex poste civil liability but is also focused on ex ante prevention of corporate human rights abuses through assessment, monitoring, and disclosure mechanisms. Simons and Macklin’s proposal revolves around mandatory domestic legal mechanisms and a risk-based approach that is centred around due diligence, which would facilitate the operationalizing of human rights within corporate culture. This review essay considers the implications of this proposal in the context of a review of Simons and Macklin’sbook.