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Bluebook 20th ed.

Pow Aim Hailowng, South Asia Human Rights Documentation Centre, Human Rights and
Humanitarian Law-Developments in Indian and International Law, 9 ISIL Y.B. Int'l
Human. & Refugee L. 428 (2009).

ALWD 6th ed.

Pow Aim Hailowng, South Asia Human Rights Documentation Centre, Human Rights and
Humanitarian Law-Developments in Indian and International Law, 9 ISIL Y.B. Int'l
Human. & Refugee L. 428 (2009).

APA 6th ed.

Hailowng, P. (2009). South Asia Human Rights Documentation Centre, Human Rights and
Humanitarian Law-Developments in Indian and International Law. ISIL Year Book of
International Humanitarian and Refugee Law, 9, 428-434.

Chicago 7th ed.

Pow Aim Hailowng, "South Asia Human Rights Documentation Centre, Human Rights and
Humanitarian Law-Developments in Indian and International Law," ISIL Year Book of
International Humanitarian and Refugee Law 9 (2009): 428-434

McGill Guide 9th ed.

Pow Aim Hailowng, "South Asia Human Rights Documentation Centre, Human Rights and
Humanitarian Law-Developments in Indian and International Law" (2009) 9 ISIL Year
Book of Intl Humanitarian & Refugee L 428.

MLA 8th ed.

Hailowng, Pow Aim. "South Asia Human Rights Documentation Centre, Human Rights and
Humanitarian Law-Developments in Indian and International Law." ISIL Year Book of
International Humanitarian and Refugee Law, 9, 2009, p. 428-434. HeinOnline.

OSCOLA 4th ed.

Pow Aim Hailowng, 'South Asia Human Rights Documentation Centre, Human Rights and
Humanitarian Law-Developments in Indian and International Law' (2009) 9 ISIL YB Int'l
Human & Refugee L 428

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 BOOK REVIEW

Human rights and HumanitarianLaw-Developments in Indian

and International Law (South Asia Human Rights
Documentation Centre (SAHRDC), Oxford University Press,
2008), Price: Rs. 595/-.

The book, Human rights and Humanitarian Law-

Developments in Indian and International Law, is divided into
nine chapters, namely, the Jurisprudence of Human Rights, the
Human Rights in the International Framework, Regional
Approaches to Human Rights Implementation, International
Humanitarian Law, International Refugee Law, Human Rights in
the Indian Constitutional Framework, Human Rights and
Criminal Justice System in India, Economic, Social and Cultural
Rights and Environmental Protection and Human Rights. As the
name suggests, the book pertains to the concept of human rights
and humanitarian law, the different school of thoughts regarding
the jurisprudence of human rights and the development of both
the fields of law in the international sphere as well as India. The
book provides an elaboration as well as an insight into the
various concepts that build up the concept of human rights and
the various mechanisms and resources, which ensures its
implementation and development. In a larger sphere,
International Humanitarian Law is often confused with Human
Rights. A separate chapter is dedicated to the concept of
International Humanitarian Law, which is the law of and during
armed conflict. Even though war unfortunately cannot be
avoided, the sufferings during war, regardless of whichever side
of the conflict, can surely be avoided by following the principles
of humanity, which form the base of International Humanitarian
Law. Human Rights are those sets of right, which are applicable
to a person, for the fact that they are humans, and applicable at
all times- at times of war as well as peace. Human Rights are
intrinsic to a person and hence any infringement by any source
could be a ground for penal and moral consequence. Aimed at
helping and briefing students of law as well as other courses,
Human Rights and Humanitarian Law-Developments in Indian
and International Law, is a textbook and a guide for a good
understanding of the same. The book has immaculately compiled
several sources into an equally immaculate brief.
BOOK REVIEW

The first chapter titled the Jurisprudence of Human Rights,

deals with the brief of different school of thought, regarding the
philosophy and jurisprudence of human rights. From students'
prospective, it clearly answers FAQs without having to read all
of Bentham or Locke. It incorporates non-western views or
rather Cultural Relativism and 'Asia values', on the ideals of
Human Rights, which emphasises on group rights, duties and
responsibility and hence, unlike, the western concept of
individual rights. On the topic, Religion and Human Rights, the
chapter mentions An-Na'im, who proposes a 'reinterpretation of
Islamic sources that demonstrates agreement with human rights
norms', in place of an outright rejecting of human rights because
it is perceived 'new or unorthodox'. Highlighting the Indian
perspective on rights, it discusses Dharma and the Manusmriti.
Citing the American and the French Revolution, it discusses
Natural Rights, belonging to a person by nature and because he
is a human being, not by virtue of citizenship in a particular
country or membership in a particularreligious or ethnic group.
Discussing the Social contract theories, the chapter mentions
Hobbes and Locke. Social contract theory clearly reflects the
fundamental premise of most human rights movements, that
government are constituted to protect rights and serve
community goals. The Utilitarian approach, refers to John Stuart
Mill and Bentham's theory on pleasure and punishment, which
requires government to maximize the total net sum of the
happiness of all their subjects. Death penalty is not effective to
curb the menace of crime, and ought not be proposed when a
lesser sentence could fulfil the same objectives. A counter
argument, although, is that, with cumulative happiness, rights
are not taken seriously. The Positive approach discusses Kelsen's
idea of a basic norm and the Hart-Fuller debate on the concept
of law. Incorporating the Liberal-Egalitarian approach, it
discusses Rawls and Dworkin's theory of justice. The chapter also
discusses at length Marx, according to whom, as long as there is
no change in the societal structure itself, the idea of human
rights will remain a mere ideology.
The second chapter titled Human Rights in the International
Legal Framework address the several sources of International
Law, such as International Conventions, Customary
International Law, general principles of law, judicial decisions
and scholarly works. As rightly mentioned in the introduction to
the chapter, a significant impediment to the enforcement of
 BOOK REVIEW

international law is the notion of absolute control over internal

affairs of States by the States. The chapter has outlined in detail
the mechanisms for enforcement of international law.
Enforcement mechanisms developed by the United Nations
General Assembly and Security Council, the United Nations
Human Rights Council and the treaty bodies of the United
Nations, the International Court of Justice (ICJ), have been
explained. Enforcement mechanisms against individuals include
the Rome Statute, the Genocide Convention, the Ad hoc war
crimes tribunals such as the International Criminal Tribunal for
the former Yugoslavia (ICTY), and Rwanda (ICTR) and hybrid
courts such as the Special Court for Sierra Leone. Discussing the
development of international human rights law, it has touched
upon all the major events starting from the League of Nations,
International Labour Organization (ILO), the Nuremberg
Tribunals, the birth of United Nations, creation of the Universal
Declaration of Human Rights (UDHR), International Convention
on Civil and Political Rights,1966 (ICCPR) and the International
Convention on Economic, Social and Cultural Rights,1966
(ICESCR). The chapter can, in a way, also be referred to as more
of a historic narrative, both informative and engaging. The
chapter has included boxes including easy to remember pointers
such as the making of treaties and rights contained in the ICCPR
and ICESCR in the form of pointers. From students' perspective,
they make for ready reference and easy reading.
The third chapter titled Regional Approaches to Human
Rights contains the region wise efforts to contribute to the
development of human rights and the several regional human
rights protection mechanism. The European region has the
Council of Europe and the European Union while Americas have
the American Declaration on the Rights of Man, Charter of the
Organization of American State, American Convention of
Human Rights, Inter America Court of Human Rights and the
Additional Protocol to the American Convention on Human
Rights in the Area of economic, social and cultural Rights. In
Africa, the regional framework consists of the African Union and
the Organization of African Unity, African Charter on Human
and People's Rights, African Commission on Human and People's
Rights, The African Court on Human and People's Rights. In
West Asia, The League of Arab States, Arab Charter on Human
Rights, 1994, Arab Charter on Human Rights, 2004 are a potent
force towards regional implementation of human rights. With
BOOK REVIEW

regard to the Asia Pacific Region, the chapter explains the

Association of South East Asian nations (ASEAN) and South
Asian Association for Regional Cooperation (SAARC). In its
entirety, the chapter gives a precise and terse reading of the
regional mechanism.
The fourth Chapter of the book is on the International
Humanitarian Law (IHL). The topic of IHL itself constitutes a
book on its own and this book has made a good effort in
explaining the topic without compromising on its meanings and
details. It is a short compendium with clear understanding.
Beginning with the origin and development, it goes on to the
sources of IHL such as the Geneva Conventions, the common
Article 3, the Additional Protocols, the Hague Convention etc, to
the people it seeks to protect. It mentions the International
Committee of Red Cross (ICRC), the United Nations and the
International Criminal Courts and other tribunals who are the
major mechanism for the implementation of IHL.
The fifth chapter in on the International Refugee Law. The
chapter had touched upon all the major issues for a good
understanding on this topic. Starting from the origin and
development of this law, it discussed at length the meaning of
the term refugee, the exclusion and cessation clause, the principle
of non-refoulement, solutions to the refugee problem i.e.,
resettlement, repatriation and local integration. It has also
touches upon the concept of burden sharing. India's perspective
on the Refugee Convention and its attitude towards the refugees
makes for an interesting read. Though India has not been far
behind in the protection of refugees in India; Infact, India has
handled several refugee crises both prior to and following the
founding of the United Nations High Commission for Refugees
(UNHCR) which is directly involved with the protection of
refugees; there has been a steady debate on the need of a Model
Refugee Law for India since it has not signed the Refugee
Convention of 1951 also. India's critique on the 1951 Convention
is an interesting and useful read.
The relation of human rights with the Indian Constitution has
been given in the sixth chapter titled Human Rights in the
Indian Constitutional Framework. As observed and said in the
introduction, both the Indian Constitution and the United
Nations Universal Declaration of Human Rights (UDHR), was
drafted in the late 1940's at roughly the same post war historical
 BOOK REVIEW

moment, an though no direct connection between the two

documents can be made, both seem to draw upon a common
language of rights. The Indian Constitution includes both the
Fundamental Rights as well as the Directive Principles of State
Policy (DPSP). The chapter has successfully explained the
Fundamental Rights, provided for in the Indian Constitution,
which can be headed under the civil and political rights as well
as the economic, social and cultural rights, by way of nuances
liked the arguable justification of reservations under Article
29(2), right to strike, externment laws, right to life under Article
21, the DPSP etc. Further, Indian Judiciary has upheld
interpretations of domestic laws that are consistent with India's
obligation with international conventions. Conflict between
Rights and the constitutionality of Special Laws has been stated.
It must be commended that security laws such as the Armed
Forces Special Power Act (AFSPA), Unlawful Activities
Prevention Act, the lapsed Terrorist and Disruptive Activities Act
(TADA) and Prevention of Terrorism Act (POTA) have been
incorporated and duly devoted space. A student going through
the book would find it informative to know the laws, which may
have ceased but created an impact although the AFSPA debate
continues to be a burning issue.
The seventh chapter is with regard to human rights and
criminal justice in India. The Indian Constitution contains several
provisions with respect to the protection of rights in the criminal
justice system. Some examples include Article 20(2) on the right
against double jeopardy, Article 21 requiring that no person is to
be deprived of right to life and liberty except according to
procedure established by law, interpreted by the Supreme Court
to be a fair, just and reasonable procedure, Article 20(3) which
provides that no person accused of an offence shall be compelled
to be a witness against himself, and Article 22 which articulates
rights with respect to arrest and detention. An accused person at
the time of arrest has the right to be informed about the grounds
of arrest while women cannot be arrested after sunset and before
sunrise in exceptional cases. This was inserted in the CrPC, in
2005, under the newly incorporated Section 46(4). Further, the
chapter highlights the status of victims and witness within the
criminal justice system. Areas of conflict within the criminal
justice system such as the conflict between the rights of the
accused and that of the victims, the impact of videoconferencing
on the rights of the accused and victim, and the recently
BOOK REVIEW

introduced measure of plea bargaining are flagged in the

chapter.
Chapter eight is titled Economic, social and cultural rights. It
focuses on the history, context and implementation of economic,
social and cultural rights (ESCRs). The chapter emphasises on
the International Covenant on Economic, Social and Cultural
Rights (ICCSCR) followed by the Indian perspective.
Developments relating to the right to health, education, work,
housing, and food are explained by way of case laws.
Chapter nine of the book is titled Environmental Protection
and Human Rights. As rightly mentioned, international and
national acknowledgement of the relationship between human
rights and environmental protection is relatively recent. The
Hague Declaration of 1989, signed by twenty-four countries was
one of the first documents to connect environmental issues to
human rights issues, stating that environmental harm threatens
'the right to live in dignity in a viable global environment.'
Discussing the right to environment it goes on to discuss the
relationship between the right to environment and the right to
development. Some of the key principles in the right to
development are the principle of inter generational equity, The
precautionary principle and the polluter pays principle, the
public trust doctrine, the Common Heritage of Mankind
Principle. Touching upon the Indian framework on the right to
environment, it mentions the various Indian movements such as
the Chipko movement, Silent Valley and the Narmada Bachao
Andolan. Article 14, 21, 48 A and 51A (g) constitute the
foundation of environmental protection in India. India as an
evolving country has to balance between development and the
right of environment and hence certain aspects need more
attention such as the corporate social responsibility and the
responsibility of developed countries in cutting green house
gases.
The purpose of any book, especially ones aimed at students,
should be to enlighten and impart as much information in as
simple terms, in as concise way as possible without intimidating
with its bulkiness. The book is successful in all the aspects. It is
a well-researched book that enables us to be a part of various
literature and opinions in precisely one good book. The
references provided could be a source for further reading and
deep study, but teachers and professors could recommend the
 BOOK REVIEW

book to a student for clear diction of Human rights and IHL. For
researchers and eminent academicians the book could be an
excellent passing reference, a read over a 'cup of tea'. The simple
elaboration of topics makes the book even more helpful and
effectively serves the purpose of the book. Indian cases have
been referred to at length and the Indian perspective duly given
attention. One of the best parts of the book is the related topics
for discussion given at the end of each topic. A discussion on
those topics would clarify further, any possible doubts in
understanding both Human Rights and International
Humanitarian Law. The chapter incorporates boxes, which make
for easy to remember information. For instance, the principle of
DPSP could be understood in 12 points and a lesser-known topic
like 'green' political parties highlighted in a short note. We can
look forward to a reprint of the book with the updates on 'For
discussion' at Pg.16 since Supreme Court has already decided in
favour of Naz Foundation decriminalizing Sec 377. One of the
outcomes of the Copenhagen Climate Summit held in December
7-18, 2009 in Copenhagen, Denmark was, "Scaled up, new and
additional, predictable and adequate funding" [is]to be provided
to developing countries to support mitigation efforts (including
forest-related), adaptation, technology development and transfer,
and capacity-building. For the period 2010- 2012, developed
countries have a "collective commitment" to provide "new and
additional resources.. .approaching USD 30 billion." This could
be a debatable topic for discussion since with the mounting
global warming, environment organization like Greenpeace
observe that more requires to be done. A new topic could thus be
incorporated. In all, Human rights and Humanitarian Law-
Developments in Indian and International Law, should receive a
good rating from both students as well as teachers, and also any
layman reader.

Pow Aim Hailowng*

(LL.B., P.G. Diploma in Human Rights, International Humanitarian and Refugee

Law) and Interns at ICRC, New Delhi.