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ICJ Jurisdiction on Bilateral Issues: Possibilities Regarding Jammu and Kashmir Dispute

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On May 18, 2017, the order of provisional measures has been given by the International Court of Justice (hereinafter referred to as ICJ) in favor of India in Kulbhushan Jadhav case between India and Pakistan. Some scholars have expressed their concerns over the repercussions that India might have to face due to its actions of involving the ICJ in the Kulbhushan Jadhav case.

Their concerns are that India has played into Pakistan’s hands, and given it a handle to open up many other issues. It was confident that Pakistan would be approaching the ICJ to decide the Kashmir issue and it will then hardly lie in India’s mouth to object to the jurisdiction of ICJ since India cannot blow hot and cold together.

India’s traditional stance has been that all issues swith Pakistan would be resolved bilaterally and the change could give an opening to Pakistan to internationalize Kashmir issue.  Criticizing India’s move to ICJ in Kulbhushan Jadhav case, Congress said, the best resolution (to issues) is bilateral at all times, no matter how recalcitrant Pakistan is. Senior CPI member D Raja said, “This decision has vindicated India’s stand in the international community. Pakistan will now have to reconsider its actions and decisions. According to some Pakistani columnists, the case, however, would benefit Pakistan more in the long run, since it is the smaller party. “India had now used a multilateral forum and it can’t back away from it tomorrow on similar grounds.”

Sushma Swaraj, Minister of External Affairs in India, assured that Pakistan could not take Kashmir issue to the ICJ and asserted that the matter must be resolved bilaterally as the Shimla Agreement and Lahore Declaration on Kashmir are very clear that Kashmir is a bilateral issue, which would only be settled by the two countries. Now, what would be the possibilities of ICJ’s jurisdiction if in future Pakistan takes the Kashmir issue to the ICJ?

Statute of ICJ and UN Charter: Possibilities of Jurisdiction

There are two ways, inter-alia, in ICJ statute under which Pakistan can take Kashmir issue to ICJ; one is Article 36 (1) and second is Article 36 (2). As far as Article 36 (2) is concerned, it will be very difficult or almost impossible for Pakistan to take India in ICJ on Kashmir as India has made a declaration on 18 September 1974 where it has kept itself being reserved from ICJ jurisdiction on two instances, inter-alia, i.e., first, that preventing the Court from entertaining cases involving two members of the Commonwealth (Article 2 of the declaration) and, second, its multilateral treaty reservation (Article 7 of the Declaration).

Under Article 36 (2) of the Statute, Pakistan will also not repeat the same mistakes which it has done earlier in 1999 in Aerial incident case where the Court finds that it has no jurisdiction to entertain the Application of Pakistan under Article 36, paragraph 2, of the Statute Since Pakistan “is . . . a member of the Commonwealth of Nations”, and now in 2017 in Kulbhushan Jadhav on the issue of provisional measures where the Court rejected Pakistan’s arguments relating to jurisdiction based on Article 36 (2), since India did not base this Court’s jurisdiction under Article 36 (2) but under Article 36 (1). If Pakistan goes to ICJ on Kashmir under Article 36 (1) which follows as “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”. The compulsory jurisdiction of the Court under Article 36 (1) has three dimensions. Jurisdiction exists:

(a) In respect of all cases which parties refer to it,

(b) In terms of all matters specially provided for in the Charter of the United Nations, or

(c) In terms of all matters specially provided for in treaties and conventions in force.

So Pakistan may well approach ICJ jurisdiction under Article 36 (1) if either there is any treaty and convention in force exist between India and Pakistan on Kashmir issue or otherwise dealing with the issue, or under the provision of UN Charter.

Shimla Agreement between India and Pakistan on 2 July 1972 restricts the two countries, pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation (Article 1 (ii)), and more particularly in case of Jammu and Kashmir, neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations (Article 4 (ii)).

Under Lahore declaration on 21 February 1999, in its operative para, the two countries agreed to intensify their efforts to resolve all issues, including the issue of Jammu and Kashmir (Article 1), and shall intensify their composite and integrated dialogue process for an early and positive outcome of the agreed bilateral agenda (Article 2). Therefore, if the jurisdiction of the Court is founded on particular “treaties and conventions in force” or under the UN Charter under Article 36, paragraph 1, of its Statute, it becomes irrelevant to the Court to consider the objections to other possible bases of jurisdiction.

If Pakistan goes to ICJ against India’s violation of the principles and purposes of the Charter, as also envisaged and reiterated under Shimla agreement (Article (1)), pursuant to Article 36 (1) of the ICJ Statute, still Court will have no jurisdiction to entertain the Application on the basis of Article 36 (1) of the Statute as UN Charter contains no specific provision of itself conferring compulsory jurisdiction on the Court. 

Kulbhushan Jadhav Case: The Test of Bilateralism

As Pakistan argued in Kulbhushan case that the alleged activities of commander Jadhav are well dealt with under Article VI “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”, of Agreement on Consular Access on 21 May 2008 signed between India and Pakistan (hereinafter the “2008 Agreement”).

Pakistan also argued that the jurisdiction under Vienna convention on consular relations 1963 (from now on Vienna Convention) is limited, and indeed it is further limited and qualified or supplemented by the 2008 agreement.

India acknowledges that the Parties have signed 2008 Agreement, but it maintains that this instrument does not restrict the Parties’ rights and obligations under Article 36, paragraph 1, of the Vienna Convention.  In respect of the 2008 Agreement, Court concluded that it does not need to decide at this stage of the proceedings whether Article 73 of the Vienna Convention would permit a bilateral agreement to limit the rights contained in Article 36 of the Vienna Convention.  It is sufficient at this point to note that the provisions of the 2008 Agreement do not impose expressly such a limitation.

Article 73 (2) of the Vienna Convention says that “Nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof”. It means 2008 agreement can only confirm, supplement, extend or expand the Vienna convention but cannot limit it. On the other hand, Shimla agreement and Lahore declaration, prima facie, precludes any bilateral issue between India and Pakistan, including Jammu and Kashmir, to be decided outside bilaterally or at the multinational forum.

Last but not least, as if India has opened Pandora’s Box to Pakistan by making Jadhav issue from bilateral to multilateral, Pakistan may sure not hesitate to take India in ICJ not only on Kashmir but may also on many matters such as Kishan-Ganga power project under Indus Water Treaty 1960.  

Abhishek Trivedi is pursuing his LL.M. degree in International Law from Faculty of Legal Studies, South Asian University-an International University established by SAARC Nations, New Delhi. His fields of interest and research in academics are Public international law, Law of International Organization, Human Rights law, Conflict of laws, commercial arbitration and International Environmental Law

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Rohingya crisis: How long will Bangladesh single-handedly assume this responsibility?

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Photo: IOM/Mashrif Abdullah Al

At least 8,60,000 Rohingya FDMNs, mostly women and children entered Bangladesh fleeing unbridled murder, arson and rape by the Tatmadaw in Rakhine, what the United Nations has decried as textbook example of ethnic cleansing and genocide, beginning on August 25, 2017. The latest influx of Rohingyas brought the number of undocumented and registered Rohingya refugees in Bangladesh to more than 1.1 million. Not a single Rohingya returned home to Rakhine when the Myanmar government blocked the repatriation process in various ways. Owing to critical socio-economic, environmental and security concerns, the Bangladesh government launched a project of relocating one-tenth of the Rohingyas to Bhashan Char on a voluntary basis. So far 18,334 Rohingyas have been relocated to Bhashan Char and they expressed “high satisfaction” over the existing considerable safe, secured and crime-free environment compared to the mobbed camps in Cox’s Bazar.

Bangladesh government invested more than US $310 million from its own funds to develop the 13,000-acre island with all amenities and facilities of drinkable water, electricity, sanitation, agricultural plots, 120 cyclone shelters in each cluster, two hospitals, four community clinics, mosques, warehouses, telecommunication services, police station, learning centers and playgrounds which is far better than the facilities in the Cox’s Bazar camps. From the outset, the initiative was called into question by some human rights organizations and NGOs. However, in the wake of recent visits by high officials of the international community and donor states, it has been proven that the allegations against Bangladesh were merely political and propaganda.

Delegates from the EU, the OIC and the UN all demonstrated their prima facie satisfaction by seeing the facilities and living conditions of the Rohingya refugees in the Bhashan Char. Previously, a few INGOs and interest groups disseminated that the conditions in Bhashan Char are inhabitable and the relocation plan is a wrong decision of the Bangladesh government. But now all the foreign delegates and human rights proponents agreed that the decision to relocate some 100,000 Rohingyas to Bhashan Char under the Ashrayan-3 project was a timely decision for the well-being of the Rohingya community itself. Since the massive influx of Rohingya into Bangladesh in August, 2007, Bangladesh has actively carried out its humanitarian role. But, has the international community fulfilled its duty, apart from criticizing Bangladesh’s initiatives and raising funds for refugees for the time being? Bangladesh has done its part, and it is now time that the international community shares the burden and puts pressure on Myanmar to repatriate the Rohingya refugees.

Bangladesh is trying to solve the crisis with its utmost efforts using all of its diplomatic maneuvers in the bilateral, trilateral and multilateral levels. Acknowledging the outstanding assistance in hosting 1.1 million Rohingya in Bangladesh, the US special envoy for climate change John Kerry during his recent visit to Bangladesh said that the global community must hasten its efforts to resolve the crisis as it is not merely responsibility for the country. Bangladesh in every multilateral forum has been desperately raising the issue of the Rohingya crisis as it has a far reaching social, economic, environmental and security concerns not only for Bangladesh but also for the South Asian region. For instance, Bangladesh raised the Rohingya issue at the 10th D-8 summit held in Dhaka and sought international support.  But it is ironic, due to lack of goodwill of the concerned parties, the situation is protracting. All the international community including the UN, the EU and the OIC members should work in a coordinated way to find a comprehensive and durable solution to the Rohingya crisis.

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Covid19 mismanagement in India

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© UNICEF/Vinay Panjwani

The writer is of the view that the pandemic in India would have been less virulent if the Indian government had been more truthful and egalitarian in its preventive policies. India prematurely claimed a “victory” against the virus. It vowed to export vaccines to other countries while its own states groaned under shortage of vaccine, drugs and oxygen. The government called the foreign Muslim preachers “super spreaders of the virus” and “terrorists” while allowing elections rallies and  Kumbh congregation. The pandemic brought home one truth. Lies do not always fructify.

India is struggling to contain the spread of the new ‘double mutant’ Covid-19 variant which has turned out to be quite lethal. The positivity peaked with 3, 82,315 new Covid-19 cases pushing the country’s overall caseload to over 2, 06, 65,148. With fresh infections, the total active coronavirus cases in the country has mounted to 34, 87,229, according to the data released by India’s health ministry. The New York times reported, ‘The sudden surge in recent weeks, with an insidious newer variant possibly playing a role, is casting increasing doubt on India’s official Covid-19 death toll of nearly 200,000, with more than 2,000 people dying every day (New York Times April 24, 2021). However some reports indicate death of 2, 26, 000 to 3, and 23,000.

How the virus ran amok

White House chief medical adviser and America’s top pandemic expert Dr Anthony Fauci says, `India’s home-grown COVID-19 vaccine (Covaxin), has been found to neutralise the 617 variant of the deadly virus’. The mounting deaths are apparently due to India’s failure to inoculate its whole population. India’s prime minister Modi had declared a premature “victory” against the virus. India announced that it has enough vaccines to export to over 76 countries. The government looked the other way when police carried out a witch hunt against the foreign Muslim preachers when they visited India. They were labeled “corona super spreaders” and even “terrorists”.  However, the courts exonerated most of the preachers of the charges.

The ruling Bharatiya Janata Party fumed and fretted about the preachers. But, it allowed a Hindu religious congregation of naked or semi-naked pilgrims (Kumbh) to be held without any let up or hindrance. The BJP chief minister of Uttarkhand declared that faith and the purifactory power of the Ganga River would suffice as a Covid shield, though it did not. The mounting deaths are apparently due to India’s failure to stop congregations and inoculate its whole population. India’s prime minister Modi had declared a premature “victory” against the virus. India’s health minister, Harsh Vardhan, audaciously claimed that India’s fatality rate is still “the lowest in the world”. Two months back, he declared that his nation was “in the endgame” of the pandemic.

His boss, Modi, boasted to the World Economic Forum in January that India had “saved humanity from a big disaster by containing corona effectively”. Narendra Modi’s claim was preceded by the announcement that he was bringing a “message of confidence, positivity and hope from 1.3 billion Indians amid these times of apprehension”.

He looked the other way when police carried out a witch hunt against the foreign Muslim preachers when they visited India. They were labeled “corona super spreaders” and even “terrorists”.

White House chief medical adviser and America’s top pandemic expert Dr Anthony Fauci says, `India’s home-grown COVID-19 vaccine (Covaxin), has been found to neutralise the 617 variant of the deadly virus’.

The new variant ‘B.1.618’ is a major immune escape variant. India hit the world’s highest single-day tally when it recorded more than 300,000 active cases in a day. Hospitals in the country are running out of oxygen supply, resulting in a sharp rise in the number of deaths. Viral videos showed desperate people exhaling into mouths of their dying kins. Wood became short to cremate dead bodies. While patients kept dying for want of a bed or oxygen, par-medical staff kept minting money by stealing medicines from hospital stores, allocating and re-allocating beds, or charging exorbitant price of about Rs. 3000 a kilometer.

Situation in occupied Kashmir

The situation in occupied Kashmir became particularly gruesome. Oxygen cylinders from the disputed state were “bought out” for other states. Vaccinations centres soon vanished as no vaccine was available. The viral videos indicated that Kashmiri leaders were languishing in jails without medical treatment. Kashmiri women mourned deaths of their relatives outside hospitals. Simultaneously,

cordon-and search operations continued to kill innocent Kashmiris.

For a population of nearly 1.2 crore, there are only 600 ventilators. In Srinagar city, there is an availability of only 13,000 litres of oxygen per minute which, the medical experts say, was too low to cater to the ongoing rise in the cases. Several doctors said that each patient requires between 5-10 litres of oxygen per minute and the existing supplies at Srinagar hospitals are sufficient only for 2,000-3,000 people in a given time.

The work on the oxygen plants at the government hospitals is either stalled or has been going on at a snail pace. Although two more plants were opened in the northern Kashmir areas of Kupwara and Sopore on Sunday and another one was ready for use in southern Kashmir’s Shopian. The plants with their capacities of 1,000-litre per minute could cater to a few hundred people in a given time only.

Hospitals have no drugs, not even  Remdesivir. A court observed, ‘Death of Covid patients due to non-supply of oxygen not less than genocide’. Another court asked people to register murder charges against the election commission for allowing election gatherings.

Taking advantage of abrogation of special status, the Indian government is bringing people affected by the Corona epidemic into the Kashmir Valley.

Covid19 exposed limitations of propaganda

Modi’s gung-ho announcements of victories against the virus did not end the pandemic. He owes many of his electoral victories to the power of propaganda. He blamed Pakistan for bomb blasts in India and Kashmir. A self-styled businesswoman Madi Sharma (RAW surrogate) arranged a guided tour of far-right members of European parliament to the occupied Kashmir (October 30, 2013) through a fake International Institute for Non-Aligned Studies. The Institute paid for the travel and accommodation of an unofficial far-right delegation of 23 European Union parliamentarians to Srinagar on. The delegation’s shikara (boat) ride in Kashmir Lake (dal) pictured Kashmir as a heaven in serene peace. Some members however smelt a rat and abandoned the free joy ride. The aim was to convince the world that it was all hunky-dory in the occupied Kashmir after abrogation of the special status and age-old hereditary-ownership law.

Modi acted on Hitler’s propaganda playbook

It appears India has meticulously implemented Hitler’s propaganda theorems: `The bigger the lie, the better the results. The success of any propaganda campaign ultimately depends on the propagandist’s down-to-earth understanding of the “primitive sentiments of the popular masses”. Mein Kampf (pp. 179-180).  

The Arnab Goswami transcripts exposed Modi’s fake “surgical strikes”. Goswami referred to the Pulwama attack on 14 February 2019. Three days before the Balakot air strike on 26 February 2019, Goswami purportedly said India’s response would be: “Bigger than a normal air strike. And on the same time something major on Kashmir (abrogation of Special Status)”.

The leaks of the WhatsApp messages of Arnab Goswami (Republic TV) brought into limelight some bitter truths. One bitter truth is that the general public is a ‘bewildered herd’ (to quote Noam Chomsky) who could easily be made a fool of.

The leaked WhatsApp chats revealed that the Balakot ‘surgical strikes’ were conducted to shore up Narendra Modi’s image as a `strong man’, a Brobdignagian among the self-centered Lilliputian Indian politicians. The ‘strike’ helped Modi win elections with a thumping majority.

Though Modi is educated only up to high school, he understands the power of propaganda. He has done a three-month course in the USA on Image Management and Public Relations. His campaign blitz cost about $700 million. Modi is considered the most techno-savvy leader of India as he is very active on various social media platforms including Twitter, Facebook and Instagram.

The WhatsApp chats between Republic TV Editor-in-Chief Arnab Goswami and former Broadcast Audience Research Council (BARC) CEO Partho Dasgupta run into 500 long pages. They revealed the nexus between the media and politicians to hoodwink the masses.

Modi considers Indian people a “herd”. Modi owed his electoral victory to the power of propaganda. He made a fool of not only the Indian masses but also the world around until the West Bengal debacle.

History tells that the people, even the Americans, are gullible. Propaganda deeply influenced even independent-minded Americans who laid down a constitution, beginning with the words ‘we the people’. Chomsky says even the American masses are like a “bewildered herd” who have stopped thinking. He asserts that, in a “properly functioning democracy”, there are a “small percentage of the people”, a “specialised class of citizens” who … “analyse, execute, make decisions and run things in the political, economic, and ideological systems”. Chomsky reminds, ‘Woodrow Wilson was elected President in 1916 on the platform “Peace without Victory”, right in the middle of World War I.  The American population was extremely pacifistic and saw no reason to become involved in a European War. The Wilson Administration established a government propaganda commission, called the Creel Committee, which succeeded, within six months, in turning a pacifist population into a hysterical, war mongering population which wanted to destroy everything German, tear the Germans limb from limb, go to war and save the world…. After the war the same techniques were used to whip up a hysterical Red Scare…’.

Conspiracy theories exposed

One of the first conspiracy theories that came to light was that China created COVID-19 as a biological weapon in a laboratory in Wuhan (Jaaved, 2020). Another widespread conspiracy theory is that 5G technology is the primary cause of the highly contagious virus or even the amounts of deaths. Without enough evidence there are two sides to this theory: it is the direct cause of the virus because it has a very high level of frequency or it uses these high levels of frequency to weaken people’s immune systems and that way causing a lot of damage and fear. But this 5G theory also comes back to China. China has a very impressive technological security that uses 5G technology, and some traces show a connection between 5G hotspots and the first COVID-19 outbreaks (Thomas, 2020).

According to “The WHO terms the conspiracy theories as “infodemic” that “spreads faster and more easily than this virus, and is just as dangerous”.

Concluding remarks

The pandemic has proved that propaganda does not always succeed. Abraham Lincoln was right in saying “You can fool some of the people all of the time, and all of the people some of the time, but you cannot fool all of the people all of the time.”

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The World Biggest COVID-19 Crisis: Failure of India’s Vaccine Diplomacy

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Health workers pose with a vial of COVID-19 vaccine after receiving their shots at a hospital in India. UNICEF/Vinay Panjwani

As over 100 million people in the U.S. are fully vaccinated and the world’s daily count of new cases is falling, India faces healthcare system collapse as a second coronavirus wave is devastating. In accordance with the recent statistics of the WHO, in the past week approximately 2 million new confirmed cases were reported worldwide – almost half were from India. Interestingly, India is one of the main producers and exporters of coronavirus vaccines in the world and since mid-January, the federal government has approved a British-made Oxford-AstraZeneca, and a locally developed– a national pride Covaxin (both are being produced in India) for the massive immunization drive that has set the ambitious goal of fully immunizing 300 million people, particularly healthcare workers by the end of summer. Meanwhile, India had initially been planning to set the world record for mass vaccination but they ended up with the world record coronavirus cases, surpassing 400.000 daily COVID-19 cases for the first time.

The development and deployment of an effective and safe vaccine against the coronavirus was a key pillar in the authority’s current strategy to break down the chain of transmission. However, despite a promising start of a vaccination campaign at the beginning of this year, one of the largest immunization programs across the globe, it turns out there is not a sufficient amount of vaccine supplies in a number of states across the country. As cases continue to surge, many across the country have rushed to register for shots but most states are running out of doses and a large number of vaccination centers across India turned away people due to chronic shortages or complete lack of availability of jabs. While India is one of the major producers of COVID-19 vaccines with a monthly capacity of 70 million doses, now forced to import jabs, as local manufacturing facilities are facing challenges to meet growing demand. As India’s expansion of its immunization campaign has been failing badly, it makes a disastrous situation even worse. On the other hand, the current devastation leads to a depression in global vaccine supply and consequently, it hits the low and middle-income countries, as they rely on the Indian pharmaceutical industry.

The second devastating wave was hitting the country since mid-April and apparently, India’s poorly funded public healthcare system is not capable enough to overcome the world’s largest surge in COVID cases. Health facilities overwhelmed as infection rates explode; therefore, many hospitals in the large cities already suspended admitting even the critically ill coronavirus patients as all beds were full and medical equipment, particularly oxygen concentrators, ICU beds, test kits, PPEs and ventilators in short supply, while corpses pile up at morgues and crematoriums. As a death toll rises sharply, additional crematoriums are being built in order to deal with the grim situation, especially in the hardest-hit cities and states. Furthermore, in the midst of a big surge Indian government also launched a vaccination drive for anyone over the age of 18 starting 1st of May.  Ironically, along with China and Russia, India was a country that had begun exporting home-grownCOVID-19 vaccine doses to foreign countries, but only less than 3% of its population has been fully vaccinated so far. During a global pandemic, thanks to its massive production capacity, India actively donated locally produced Coronavirus vaccines to the Southeast Asian, Middle Eastern and African low and middle-income nations under the “Vaccine Friendship” program. The initiative was launched in early 2021 and it sought to promote cooperation and cement ties by distributing a dozen of jabs through the Vaccine Diplomacy. In reality, in the battle to gain political influence across the developing world, India shipped millions of doses to poorer countries before managing to secure an adequate amount of vaccines for its own people.

India’s infections keep surging due to the unavailability of medical resources and thus the crisis also affecting the global vaccine and medical supply chains, as over 40 countries, including Russia, European Union, China and the United States and numerous international charities are proactively providing a range of humanitarian aid and emergency assistance.

Many events marking religious festivals and cultural events across the world have been banned because of Coronavirus; on the contrary, despite the high risks of infection several crowded religious festivals and gatherings have been taking place in India’s various holy sites and places of worship with a thousand of unmasked pilgrims and devotees. Additionally, Prime Minister Narendra Modi’s total23campaign rallies that brought tens of thousands of incautious supporters together caused the spike in coronavirus cases. Hence, the federal government acted reluctantly to impose major restrictions for containing the virus by relying on local authorities to take action.

Indeed, India is the third country with over130 million doses administrated in the world, the highest figure just behind the United States and China respectively, but even the large-scale vaccination process was insufficient to prevent the second wave for a population of more than 1.3 billion people. Although international flights are being suspended to and from India by many governments, a more transmissible India COVID variant, formally known as B.1.617has already been detected in multiple countries and territories worldwide. India’s COVID -19 crisis warns that the risk of infection remains high and many countries could face a strong resurgence of COVID-19similar to India. Health experts concern that a new and more contagious strain spreads more easily and it could even evade vaccines. The current outbreak shows that every country remains vulnerable and could find itself in dire straits unless the adaptation and implementation of strict anti-pandemic measures and policies. However, strengthening the public health system, enhancing safety protocols and sanitary measures, ensuring transparency and accountability, and initiating a successful immunization campaign will be seemingly crucial to combat the pandemic, otherwise, a similar crisis could soon become a common tragedy for the entire world in the foreseeable future.

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