Abstract: This paper considers the evolution of governance standards for determining the extent of an enterprises’ responsibilities to protect human rights in weak governance zones. The paper briefly describes the development of the standard and then evaluates the standard as it has been developed and framed within the U.N. Guiding Principles for Business and Human Rights and in the Organization for Economic Cooperation and Development’s Guidelines for Multinational Enterprises (OECD Guidelines). Particular attention will be paid to the Risk Awareness Tool for Multinational Enterprises which was developed to complement the OECD Guidelines following the call made by 2005 G8 Summit for the development of OECD guidance. The paper suggests the ways that CSR has been transformed, in some respects, to a mandate for assuming governance responsibilities in those states unable ort unwilling to institute systems of law that conform to international consensus standards on human rights. It also explores the challenges of the approaches of both efforts. Both acknowledge the autonomy of enterprises as directly responsible for the operationalization of international norms wherever they operate. Yet both also open the door to extraterritorial application of law. The same framework that advances the governance autonomy of enterprises also envisions them as the vehicles through which home states may project national power within host states with weak governance regimes. And this tension built into both frameworks, a tension that goes to the dual character of enterprises as both autonomous governance actors and as creatures of the states n which they are domiciled, that mark the potential and the challenge to the internationalization of regimes of CSR.

1. Corporate Social
Responsibility in
Weak Governance
Zones
Larry Catá Backer
Symposium on "Critical Global
Business Issues: When Theory
Meets Practice”
Santa Clara University
6-7 Feb 2015

2. The Context
--the parameters of MNE legal compliance and societal
obligations are well understood
--compliance becomes more difficult in weak governance
zones
--allegations of the worst cases of corporate-related human
rights harm occur in WGZ
--little guidance from states
--international organizations have sought to incorporate
this issue into the general question of the responsibilities
of enterprises

3. Problem
--How to develop guidance for corporate responsibility
in weak governance zones with corporate buy in
--where corporations leery of substantial public role
--Focus on two international soft law efforts
1--UNGP
2—OECD Risk Awareness Tool and the OECD Guidelines
for Multinationals.

4. Roadmap
FIRST: Describe the standards and how
they are supposed to work
SECOND: consider the challenges they
pose both with respect to their respective
internal logic and as a coherent system

5. UNGP Approach
UNGP 7: State management of MNE
activities in WGZ
UNGP 23: Evaluating MNE activity as a
matter of legal compliance—the complicity
model.

6. Risk Awareness Tool
--targeted for use in those contexts in which there was not
a market failure requiring regulation, but analogously, a
governance institutional failure that may require
additional responsibilities of enterprises operating within
them
I) Obeying the law and observing international instruments
II) Heightened managerial care
III) Political activities
IV) Knowing clients and business partners
V) Speaking out about wrongdoing.
VI) Business roles in weak governance societies – a broadened view of self
interest

7. Challenges
A. Coherence—Scope of Coverage
B. B. What Are Weak Governance or Conflict Zones and
Who Decides?
C. C. Risk and Complicity.
D. The Perils of the Heightened Managerial Care
Standard.
E. Legitimate and Illegitimate Political Activities.

8. CONCLUSION
--Both the UNGP and the Risk Awareness Tool have had significant effects.
--Both approaches are grounded on the superiority of international norms,
irrespective of their character as law within the domestic legal orders of states.
--Both acknowledge the autonomy of enterprises as directly responsible for the
operationalization of international norms wherever they operate. Yet both also
open the door to extraterritorial application of law.
--The same framework that advances the governance autonomy of enterprises
also envisions them as the vehicles through which home states may project
national power within host states with weak governance regimes.
-- And this tension built into both frameworks, a tension that goes to the dual
character of enterprises as both autonomous governance actors and as
creatures of the states n which they are domiciled, that mark the potential and
the challenge to the internationalization of regimes of CSR.