Problematising the ‘governance gap’: corporations, human rights, and the emergence of transnational law

ABSTRACT The problem of transnational corporate responsibility as it relates to human rights has been conceptualised as arising from a ‘governance gap’ (or gaps). Such a framing focuses attention on efforts to bridge that gap, including through expansion of private regulation, typically identified with the work of transnational law. This paper problematises that framing. It argues first, that the notion of ‘gaps’ in law (or governance more broadly) is inapt and second, that their invocation facilitates responses conducive to, rather than constraining of, transnational corporate power and authority. The argument is developed through analysis of decisions issued in the 1950s concerning oil concessions in Middle Eastern states that were formative of a postwar order enabling such power. The problem of (transnational) corporate human rights violations and impunity as it concerns law, the paper concludes, is better understood as arising not from any gap in law’s rule, but from how law rules.