While there may be a number of emerging jus cogens norms such as the prohibition of child soldiering after the Lubanga case (for which a few scholars are contending), or abrogation of head of state immunity (see earlier discussions debating this of this on this forum) in my opinion we remain a long way off from recognizing human rights on any broad scale as a jus cogens norm. There are many customary norms that might yet become jus cogens, but the time is not yet ripe for such large scale movement.

Professor Clarke, thank you for the answer. I was just introducing a topic so we could discuss on an open forum about the topics. Because as I see it, the child soldiering, the Geneva Conventions and so on, cannot be differentiated from human rights, but they are being specified. So if we were to specify a human right, such as freedom of speach (a right that is being torn in Bolívia and in Argentina, to protect the regime) could we not set it to be, materially speaking, thought as a jus cogens norm? Even if the recognition of such a parameter would not come easily or soon? Hope to get some answers to continue the debate.

I strongly agree with Professor Clarke's assessment.  On a global scale, human rights remains a struggle for many females, children, and "classes of human beings" as identified in some countries.  The actions of such groups as ISIS, Boko Haram, and other radical groups throughout the world are indicative of the lack of respect for human rights that some groups display.  The enslavement of children in labor camps, the child sex industry, and in pornography by their own parents in the United States and other modern industrialized countries shatters the ideal of human rights as long as these heinous crimes continue without prosecution.  The current influx of undocumented children and other immigrants from Central America in the U.S. is proof that people are seeking a better life, in a place where they will be treated like human beings, with an opportunity for their children to be succeed.   They risk life and limb to make this journey, only to be met with disdain by the border patrol and   many Americans who resent them.   Human Rights?  We have a long way to go before the concept could even be considered a norm on a global scale.

Rebecca, the proposition is to set human rights as a peremptory norm so they can be better enforced. The problem, as I could understand, is that you resent the applicability of such a instrument, in a wold where politics oversees the legal questions. So do I, but the proposition would be to use the international law paradigm, that is political by it's essence, to set an enforcement by pressure. As it is done with the economical and political sanctions used to enforce the abolition on some practices, as the nuclear research in Iran. Could it not be used to set a better life standard to human beings as well? I agree with you that migration is being used to search better conditions, but as you so well explained, the goal is to reach places that have different problems. There is no place to be called a safehaven and that can be set as being perfect. Examples are the US and the EU, that have some problems regarding the migrants and health issues. So as different countries, like mine, Brasil, has a major problem in corruption, security, education and health. 

     Therein lies the problem, as there is no true" International Law Paradigm": Case in point; North Korea.  No amount of pressure from any outside force could make the narcissist leader of North Korea change the inhumane practices of starvation, slave labor camps, torture, and other atrocities that currently occur within this communist state.  Were North Korea not situated on a Peninsula with China bordering the North, the course of Korean War would have taken quite a different course; with North Korea attempting to overtake the entire continent of Asia.  North Korea is not the only nation that holds these standards however, it is the best example to use at this point to bring about my proposal that we have not yet begun to reach a position wherein human rights can be considered a peremptory norm.  Nor can we assume that economical sanctions or political sanctions would influence the minds of leaders such as those of North Korea, Russia, Iran, and other radial groups whom are not motivated by the same goals we assume drive the leaders of the Western or Eastern world.  

    The concept of jus cogens makes the assumption that certain atrocities against mankind are internationally recognizable as 'Crimes of War" and will be accepted by all nations as punishable.  However, if we embrace this principle, we are making the assumption that all nations and their citizens and governments have the same measure of grace, compassion, and respect for human life,   Unfortunately, we must face that reality that this is not the fact in the world in which we are living, nor has it ever been fact.  Hitler was certainly not the first to slaughter millions, nor were Pol Pot or Constantinople. There are hard concepts to face, but necessary if we are to ask ourselves where we stand in relation to the recognition of Human Rights as International, in any form.

The concept of premptory laws (jus cogens) if made applicable to All the Human Rights at the international level is surely going make a superior procedural impact on their implementation. But its introduction is definitely going encroach upon the sovereignty of a State. This is because as we notice that few States around the world are capable of implementing human rights in their their letters and spirit. It is a dream that must come true where human rights get the status of jus cogens at the International level. Finally I can say that, it is easy to wake up a person who is really sleeping then a person who is pretending to be in deep sleep.

The presence of  An international Court for Human Rights- where victims can seek justice-would compel governments to strike a fair balance between public interest and individuals rights  And this would result in the emergence of jus cogens norms.

Rebecca, if I understand your argument correctly, I disagree with it. First, it does not matter how many groups like Boko Haram, disregard or even openly disparage even the most fundamental human rights. The mere fact that many people are speeding does not mean that there is no speed limit (any more). In the same way, even state sponsored terrorism by countries like North Korea or Nazi Germany can do little or nothing to prevent an emerging consensus about human rights as peremptory norms. The case on point would be South Africa before the end of its apartheid regime, which could not prevent apartheid from becoming recognized globally as prohibited by ius cogens erga omnes.

The problem lies in the simple fact, as indicated by Alan, that there simply is no emerging consensus about human rights -- however we would define and limit the term -- becoming peremptory norms. If there were such a consensus, involving all of the most important countries and legal systems, and supported not only by words but also by state practice, no rogue regime in Pjongjang or Damascus or anywhere could prevent those norms from becoming binding.

In my view, we are not only not moving in the direction of an emerging consensus today, we are moving away from it. The heyday of human rights was in the 1980s, when the West was more or less speaking with one voice in their favor and the Soviet Block at least signed every piece of paper that included HR, as long as they were able to issue one-way tickets to Siberia to everyone who dared to actually demand their application in the real world. Unfortunately, even the United States, as the long-term champion of human rights, are nowadays not only not standing up for them. The US has long joined the camp of the regular perpetrators and the EU has certainly not filled the void.

I would not be so pessimistic. The usage of Human Rights as a retorical purpose is not the aim. The objective is to set, not a consensus, cause it is not feasible, to get to everyone to agree in every term, or commas in some text. But it would be to enhance the belief that some values, defined by principles, can be applied according to the factual reality of different regions and legal systems. Agreeing in minimal standards that can be useful to reach the goal to megliorate the political an social environment for human beings. To set it as impossible is to reject the objective of social living, and the future of humankind. But it is not set to be an easy task, but it can be managed to reach its potential by margin of apreciation. What do you guys think? As such as we dispose of independent legal judges to set the parameters.

Scholarly Ladies and Gentlemen,

     I am well pleased to have elicited such passionate responses from each of you. Whether we agree or disagree matters not: That you have expressed your stance on human rights and the concept of peremptory laws that relate to these rights on an international level provides hope that " It is a dream that must come true where human rights get the status of jus cogens at the International level" as well stated by Vivek Dhupdale.

Coming from the field of refugee law I have a slightly pessimistic view on the spreading of ius cogens into the realm of human rights. It is a highly potiticized field, that is, immigration from my part and the nationa states zealously want their sovereignty to be upheld in spite of some positive developments like family reunification directive. I am a bit cautious here.