The role of the un in the development of customary international norms in respect to non-state actors: the case of businesses' obligation to prevent their activities benefiting illegal armed groups and gross violators of human rights

Abstract

The present BEPE project reflects the second stage of a research funded by FAPESP, which aims at articulating a theory for the ascertainment of the role the UN plays in the development of customary international human rights norms regarding non-state actors, and at applying the theory to the study of different empirical cases. The theory focuses on the formation of customary legal norms; it shows that it is possible to identify norms that have potential to acquire customary legal character, and to define the different stages of their life-cycle. It submits that an emerging norm has the potential to affect the parameters of legitimacy and lawfulness of the international community in respect to the behavior it regulates. The theory claims that the development of the norm occurs in parallel with - that it affects and is affected by - the forging of the practice and opinio juris of the states. Moreover, it argues that the practice of UN organs, notably that of the Security Council, has a significant impact on those processes. UN organs introduce and promote norms that may acquire legal character, and influence the attitude and behavior of states and non-state actors in respect to said norms. On the one hand, they define and clarify the scope, application and enforcement of the norm; on the other hand, they manage compliance with the norm by states and non-state actors through persuasion, socialization, delivery of technical assistance, coercion. The present project will develop the theory further by improving some of its aspects, and will apply it to the study of what I claim to constitute an emerging customary legal rule whose theoretical and empirical importance are undeniable, namely, the obligation upon businesses to prevent their economic activities benefiting illegal armed groups and those involved with gross violations of human rights. (AU)