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Denial of Humanitarian Aid in Myanmar a Crime under International Law?

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As the world remains shocked at the atrocities committed against civilians in the northern Rakhine state, Myanmar government has once again blocked all aid agencies from delivering vital supplies of food, water, and medicine to thousands of civilians trapped in military campaign zone.

The Guardian quoted the Office of the UN Resident Coordinator in Myanmar that “because the security situation and government field-visit restrictions rendered us unable to distribute assistance,” suggesting authorities were not providing permission to operate. Further to this United Nations High Commission for Refugees (UNHCR), the United Nations Population Fund (UNFPA), and the United Nations Children’s Fund (UNICEF), the UN World Food Programme (WFP) and sixteen major non-government aid organisations – including Oxfam and Save the Children – have also complained that the government has restricted access to the conflict area.

It is not the first time that humanitarian actors face the challenge of providing humanitarian aid to the victims. Governments, especially those who fight rebels in their territories, keep humanitarian agencies at bay doubting their independence, impartiality, and neutrality. The states also use control over humanitarian aid access as a strategy to weaken the rebel controlled territories.  These restrictive measures may consist of regulation of movement, blockades, penalization, and arrests of relief staff, and various bureaucratic strategies for restricting access, like preventing aid workers from entering the country. Restrictions on access can take any dimension like denials or delays in processing travel permits, limitations on the number of staff, and arbitrary bureaucratic limitations on the passage of relief supplies. In the present case of Myanmar also, its leader Aung San Suu Kyi’s office accused aid workers of helping “terrorists,” a claim that prompted fears for the safety of aid workers. Myanmar authorities have also denied international staff access by holding up visa approvals.

Not only the States, various rebel and militia groups have also been responsible for obstructing relief efforts. Their tactics range from harassing checkpoints to outright denials of access. In some cases, aid organizations themselves have been targeted for killing, attacks on relief convoys, looting of supplies, and even the killing of relief personnel. Irrespective of from where restrictions on access have occurred, it leads to thousands of deaths from malnutrition and disease, and as these numbers increase world over, it is a serious concern for the humanitarian world.  

These challenges have increased manifold, as most of the present day conflicts like one in Myanmar are not traditional international armed conflicts, where international law provisions offer access as a matter of right for humanitarian agencies. If international law does not give a cogent answer on the right of access to aid agencies in Rakhine State, is Myanmar Government justified in its action? 

Sanctity of Humanitarian Aid under International Law

International humanitarian law (IHL) provides legal sanctity to the work of humanitarian agencies in supporting governments for fulfilling their obligations to protect civilians when states are unable to do it. The Fourth Geneva Convention of 1949 through its articles 55 and 81, and article 70 of the Additional Protocol I to the Geneva Conventions have given the states a duty to provide humanitarian aid to the civilian population under their control. This includes non-nationals, whether free or detained and the people of occupied territories of the adverse party. Further, if states are unable to do so, they are bound to accept the offer of third parties like impartial aid agencies to provide the required support.

At the same time in cases of internal conflicts (non-international armed conflicts as well as in other internal disturbances, like in the present Myanmar’s case) International law, does not give aid agencies any unfettered rights to reach out to the civilians. Right to access in such situations are subjected to the consent of state parties and scrutiny by them under Article 70 of Additional Protocol I, Article 18 of Additional Protocol II, and Articles 23 & 59 of Geneva Convention IV. Such a liberty of states to control the movements of aid agencies inside their boundaries is primarily because in cases of conflicts of non-international nature States doesn’t want unnecessary international attention unless they decide so.

However, these restriction based upon the sovereign authority of the state is not absolute. As per the ICRC Commentaries to the Geneva Conventions, this consent requirement does not give unfettered discretion to allow or not to allow relief action. According to the Commentaries, if the humanitarian organization is impartial and neutral, then denial of relief action would amount to a violation of the rule prohibiting starvation of civilians as a method of combat. Further states have the primary responsibility to protect and ensure their basic need for survival of the civilians under Articles 55-56 of Geneva Convention IV. States are required to permit and facilitate the free passage of relief supplies and personnel and to guarantee their protection under Articles 23, 30 & 59 of Geneva Convention IV and Articles 70-71 of Additional Protocol I, and Art.18 of Additional Protocol II. There are also other international human rights documents, which provides for the right to freedom for movement for all, including for humanitarian personnel under Article 13 of Universal Declaration of Human Rights (UDHR) and Article 12 of International Covenant on Civil and Political Rights (ICCPR). Further, individual’s rights to survival and development including the right to food, medical treatment, and shelter are given under Article 25 of UDHR.

Further, if the restrictions on humanitarian access results in the deprivation of basic necessities, the attacks on relief organizations, and the destruction of sources for survival contribute to violations of various international norms especially it may constitute Grave Breaches under IHL and crimes under the International Criminal Law especially the International Criminal Court’s Rome Statute. Following are the provisions of IHL and Rome Statute, which penalize the restriction of humanitarian aid.

Grave Breaches Under IHL

Under Articles 50, 51, 130,147 respectively of the four Geneva Conventions provides for willfully causing great suffering torture or inhuman treatment as grave breaches for which the perpetrator can be prosecuted. Denial of aid to a starving civilian population during a conflict situation may amount to same.

Crimes under International Criminal Law

  1. Genocide

Genocide is an act of  ‘killing members of the group with a Intend to destroy in part or as a whole’. It is also committed by causing death by withholding aid. Denial of aid may also cause ‘serious bodily or mental harm.’ The same can also be characterized as deliberately inflicting on the group conditions of life calculated to bring about death through deprivation of food and medical supplies.  [The Rome Statute Art. 6 and the interpretation of Art.6(a) in Elements of Crime]

  1. b) Crime Against Humanity
  • Murder can be interchangeable with caused death due to the deprivation of access to food and medicines as per the interpretation of Elements of Crime. (The Rome Statute Art. 7 and interpretation of Art.7(1)(b) of Elements of Crime]
  • Extermination can include ‘mass killing by inflicting conditions of life calculated to bring about the destruction of part of a population, both direct and indirect including one caused by the deprivation of access to food and medicines [The Rome Statute Art. 7 and interpretation of Art.7(1)(b) of Elements of Crime]
  • Torture- intentional infliction of severe pain and suffering, whether physical or mental, in custody or under the control of the accused. This can be applied in situations where the aid and support are denied to a group who is under the party’s control. [The Rome Statute Art. 7 (2)(e)].
  • Persecution – is defined as ‘intentional and severe deprivation of fundamental rights which includes deprivation of access to food, water, medicine and other elements of survival [The Rome Statute Art. 7 (2)(g) and Art. 23 GC IV, Arts. 5-6 ICCPR]
  • Other Inhuman Acts- ‘intentionally causing great suffering, or serious injury to body or to the mental health. This can be applied in situations where the aid and support is denied to a group who is under the party’s control. [The Rome Statute Art. 7 (1)(k)].
  1. C) War Crimes-

During international armed conflicts

 Intentionally starving of civilians during international armed conflict (IAC) as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies. [The Rome Statute Art. 8 (2)(b)(xxv)].

  • During IAC Willful killing [The Rome Statute and Elements of Crime Art. 8 (2)(a)(i)] and Torture and inhuman treatment (IAC)- [The Rome Statute and Elements of Crime Art. 8 (2)(a)(ii)-1(i)] and

During non- international armed conflicts

  • Violence to life and person – [The Rome Statute and Elements of Crime Art. 8 (2)(c)(i)]
  • Intentionally directing attacks – against buildings, materials, medical units and transport, and personnel using the distinctive emblems. [The Rome Statute and Elements of Crime Art. 8 (2)(e)(i)]
  • Intentionally directing attacks – against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peace keeping missions under UN Charter. [The Rome Statute and Art. 8 (2)(e)(ii)-(iii)]
  • Pillaging a town or place – destroying or seizing the property of an adversary unless such destruction or seizure is demanded by military necessity, which includes food sources and supplies. [The Rome Statute and Art. 8 (2)(e)(xii)]

Conclusion

Hence actions including the present Myanmar governments decision to block aid in the conflict affected areas in Myanmar could amount to violations which would attract penal action under the International law. Given the nature of attack and atrocities happening against an ethnic group, the chances of the commission of a crime of genocide weigh more in the present case, with individual counts of murder, extermination, and persecution. It is high time that other major nations to intervene and re-establish humanitarian aid in the affected area and further limit such atrocities being committed.

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International Law

The Relevance of International Relations Theory in Community Policing

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Community policing in general refers to adopting such measures by law enforcement agencies specifically police where closer ties between the community and the police tends to prevent crime rather than police responding to the incidents of crime once it has taken place. Community policing as a concept implies its meaning in the realm of ‘’public good’’. This concept of public good in itself is shadowed by another broad concept of ‘’order’’. These two concepts go hand in hand so that so peace is achieved as an end. Both ‘’public good’’ and ‘’order’’ lies at the center of community policing. 

As identified above, one of the central tenants of community policing which is ‘’Order’’ or ‘’Structure’’ is a concept embedded in the theoretical approach of ‘’Neo-Realism’’ as well. The relevance of this approach of Neo-Realism in the study of community policing is validated by the fact that Police as an institution functions with obligations to its institutional structure. Therefore, the role of police is molded by its presumed authority. It is here where the point of convergence is established between the idea of community policing and neo-realism. Neo-realism which is also called structural realism contends that it is the architecture of the international system that determines state behavior. So that so, in whatever manner the structure of the international system is designed, state’s actions will be in accordance to that structure.

The approach adopted in this paper is to debate the concept of community policing from two different lenses. One such approach as mentioned above is Neo-realism and another one can be Realism as a general theoretical perspective. These two approaches are debated in such a manner that it complements the study of community policing. The reason to incorporate these two concepts is to evaluate community policing from a specific to a general lens. In a theoretical frame of reference this means that it to debate this concept from the level of analysis perspective of international relations.

In the general frame of ideas, the fundamental aim on which community policing is predicated is ‘’prevention of crime’’. The outlook of the practices taken upon by the police personnel are all in alignment of this aim which may include building better relations with the community and developing trust between and among all the stakeholders. It is in this sense that the theoretical framework of international relations theories is worth exploring in accordance with the concept of community policing. In any inquiry of social sciences, the basic purpose of incorporating theory is because theory is what explains the practice and helps to build a better understanding of the social circumstances which affects the lives of people. 

Community policing as a concept when deconstructed consists of two major ideas. At the core of it exists the idea of ‘’public good’’ and another one is the idea of ‘’order’’. Public good remains the end goal, whereas the idea of ‘’order’’ is the function of its structure. It is therefore necessary to understand the function of this concept in order to draw justifiable conclusions.

Neo-Realist Perspective on Community Policing

The neo-realist perspective of international relations builds upon the premise that the structure of the international order is the primary determinant of state’s actions. That is to say that if the dilemma of threat exists between two states, and one state is compelled to act in accordance to that to take up measures which ensures its survival then this is due to the prevalent structure or environment of the international order. In this case, state’s actions in a way becomes subservient to the structure. On the other hand, in a community of people, where police personnel are as credible actors as a state is in the international system, his/her actions also are subservient to the prevalent structure of the institution of police as whole. The liberty to exercise power is informed by the institutional obligations which exists upon the personnel. Therefore, the principle of ‘’order’’ which can also be referred to as ‘’structure’’ can determine the extent of prevention of crime rate in a certain community. The structure then has direct effects on behavior of the police personnel.

Realist Perspective on Community Policing

Before dwelling into the explanation of the realist perspective and into relevance to community policing, it is essential to point out why this is being discussed after neo-realism, since realism as a theory of international relations is a broader and a more conventional concept than neo-realism. The primary reason for this is because the argument of community policing is drawn from the behavior of ‘’individual’’ which functions under an institution, therefore the approach undertaken is from specific to general. In that regard, it was essential to debate the structure of the institution which affects the behavior of the personnel first and subsequently debating the role of the broader perspective of realism.

Realism is a theory which is predicated upon the idea that the primary source of conflict in international system is prevalent because states in general seek to maximize their power. The power struggle undertaken by states then translates into security dilemma and balance of power between states. So as to ensure a position of relative advantage against each other. Applying this theory to the concept of community policing, it manifests itself in a manner where the community police is presumed as one actor and the people of the community is considered to be another actor. Both these actors, function with relative powers to each other. Where the police functions with more explicit power of ‘’force’’, the people of the community function with the mobilizing power of ‘’rights’’ and ‘’democracy’’ which is more explicitly referred to as the power of ‘’vote’’.  Here the dimension of power maximization applies to both the actors in terms of conflict of interest. As it happens in the international arena, as a bargaining failure of diplomacy leads to states confronting each other by other means, similarly in a community, where both the law enforcing agencies and the people of the community diverge over a conflict of interest, such as wrongfully accusing an individual of a crime which builds a negative perception of the police in the minds of the general public leads to resentment. This, then translates into people being mobilized against the law enforcing agencies. In response to which, the police would further build its capacity to confront the rebels since they usually are in larger numbers. The concept of dilemma then in this realm does exist as enshrined in the philosophy of realism as well. Here dilemma exists where both parties, the law enforcement agencies and the people of the community understand that their relationship is regulated by the nexus of the amount of force that police can use against the people and the authority that is given to them implicitly by the people by putting their trust in the governance system. Therefore, community policing as a concept is predicated to evade the dilemma of mutual conflict and as it happens with the business of one state with the other, where they pursue diplomacy to reach any mutual point of interest; Similar is the case with community policing which aims to establish peace and harmony through public diplomatic channels.

Both these theoretical perspectives then provide insights into how they can actually be debated upon in the study of community policing. It informs the function community policing as well as analyzes its main contours.

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International Law

A leader of the third world has to lead a movement for reformation of the International law

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It is by no means a hyper reality that China has accelerated its geo political influence around the world this year despite the criticism of the West on China’s negligence in concealing the COVID 19 at outset. China being one of the permanent members of security council has widely contributed to the UN system. In this single modern global market, the People’s Republic of China has arguably become the manufacturing hub of the world in producing a large number of goods than any other western country, besides that it has also become the world’s second largest importer of goods.  Today the realm of bargaining power in the positivistic international law is completely based in the idea of power politics and the US stands as its cradle beyond a doubt. I would mention America as leader of the first world and China as leader of the third world. As the leader of the western world, the United States relentlessly works for its political, economic and legal dominance, which it has been enjoyed for plenty of years. The third world, which is considered to be the group of states known for its extreme poverty, civil wars, unrest and unemployment, has realized that poverty would become an inevitable obstacle in the process of its development. Mohammed Bedjaoui , who had served as a judge on the International Court of Justice, clearly claimed in his great astonishing work “ Towards a New International Economic Order” that “ It is western exploitation that leads to the poverty of the third world. “The third world pays for the rest and leisure of the inhabitants of the developed world,” and that “Europe created, and the United States has appreciably aggravated, most of the problems which face the third world”.

International law governing the rights and duties of states is perpetually and predominantly being dominated by the first world and its embodiment that is the United States. In this research article, I am going to discuss two essential things which are: what China has to do to reform the west constructed International law and as well as why China should lead a movement of the third world for its reformation?

For knowing these queries, we have to note the origins of International law down and how it works in today’s world?

If we have a look at the brief history of International law, International law has its roots in diverse European civilizations. To say in simple terms, International law is Eurocentric. Natural law which is also considered as a part of International law was developed by ancient Christian thinkers whose ideas were rooted in the Greco Roman ideas on rights and justice, in the due course of time those ideas were imbued with the Catholic theological virtues. However, it was such a sense of sheer irony that ideas such as natural law venerated by the Catholic thinkers were later used to legitimize the colonial expansion in the 16th century. For instance Francesco Vittoria who has been regarded as one of pioneers of modern international law used the very concept of natural law as Spanish justification of its rights over Indian territories in America. Let us turn towards modern International law. Modern International law primarily developed based on two concepts that are the concept of State practice and International treaties.

On the one hand, most of the global scholars perceive the United Nations charter as a founding International treaty of International law that contains rights and duties of states. On the other hand, the third world scholars perceive the United Nations as a founding organization of colonial imperialistic powers. There is a general perception among third world International law scholars that the Security Council of the United Nations is completely dominated and run by the colonial turned imperial powers. Four members out of the five in the Security Council were purely colonial countries who had ruled and economically exploited the world for centuries. The Security Council has also arguably been Eurocentric which is consisted of more western states embodying their own interests. Security Council is the principal organ of the United Nations, which mostly enjoys veto power. Permanent members may use the veto to defend their national interests. Over the years, in history of the Security Council, the United States has used the veto power more than other permanent member for defending west interests including Israeli interests. Most importantly, the third world has no effective role to play and to defend its interests in this globalised world. The colonial super powers met in San Francisco, to establish a predecessor to the League of Nations, have not granted independence to a number of African and Asian countries. Most of the third world countries became independent after establishing the United Nations.

Finally, we reached to the end. I would conclude this article by answering questions that I have put above. The structure of the United Nations is based on the charter of the United Nations, which is considered as a founding document of modern International law.  In this way, the United Nations charter grants more absolute powers to the Security Council where third world countries do not have participation. The leader of the third world China must wage a movement for developing countries to reform the Security Council. China has to collaborate with a group of developing countries for removing global financial power that lies with the Bretton Woods Institutions. Obviously, most of the power lies with the Bretton Woods Institutions, where western nations exercise the power on the rest of the world. So far, third world was exploited. So, the rest of the world outside the west has to demand for new international economic order, which would work for developing states.

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International Law

UN at 75: The Necessity of Having a Stronger & More Effective United Nations

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October 24, 2020, marks the 75th anniversary of the United Nations. In this context, this article investigates the necessity of having a stronger UN for the benefits of the world’s people. In fact, if one looks at the past, the UN came up in 1945 in response to the Second World War for a more stable, secured, and peaceful world. And the UN has been successful to a larger extent to that goals and objectives, many argue. Kofi Annan, the former UN Secretary-General for instance, wrote that ‘The United Nations, with their rules and institutions, are at the heart of the international system. They encourage States to prevent or settle disputes peacefully. The United Nations speaks for the voiceless, feeds the hungry, protects the displaced, combats organized crime and terrorism, and fights disease across the globe’ (Annan 2015).

If one looks at the history, after the Second World War, there are not so many wars on a large scale or conflicts except some bilateral Wars like Vietnam War or Iraq invasion in Kuwait or US invasion in Afghanistan or Iraq or Syrian crisis or Rohingya crisis. One can claim that the present world is more stable and peaceful than the world before the Second World War. Against this backdrop, Ramesh Thakur rightly observes, ‘On balance, the world has been a better and safer place with the UN than would have been the case without it (Thakur 2009:2). And it will not be wrong to claim that the United Nations Security Council (UNSC) is playing a crucial role in this regard, focusing both on ‘hard’ and ‘soft’ security issues. Hard security issues ranges from nuclear threat to international terrorism and soft security issues include human security issues to human rights to international criminal justice and international sanctions (For details see, Thakur, 2009).

The UN is not only concerned about international peace and security but also concerned about economic and social issues. There are several UN organizations e.g. United Nations Development Programme (UNDP), World Food Programme (WFP) or the United Nations High Commission for Refugees (UNHCR) which is involved in socio-economic issues that impact millions of people globally.

First, one can look at the role of the UN General Assembly to understand the necessity of having a more robust UN. It is the core organ of the UN. It is the only organ in which all the member countries are represented all of the time. The role of the UN includes to pass resolutions and to create subsidiary agencies to deal with particular issues (Barkin 2006: 58). UN General Assembly works as a forum where the world’s states meet and discuss the pressing global problems. In this context, Eleanor Albert, Leo Schwartz, and Alexandra Abell write that ‘Since its inception seventy-one years ago, the United Nations General Assembly has been a forum for lofty declarations, sometimes audacious rhetoric, and rigorous debate over the world’s most vexing issues, from poverty and development to peace and security’ (Albert et al. 2016). However, in September 2015, the Assembly agreed on a set of 17 Sustainable Development Goals, contained in the outcome document of the United Nations summit for the adoption of the post-2015 development agenda (resolution 70/1). Notably, the implementation of SDG goals will have broader implications for the world’s people.

In addition, the Assembly may also take action in cases of a threat to the peace, breach of peace or act of aggression, when the Security Council has failed to act owing to the negative vote of a permanent member. In such instances, according to its “Uniting for Peace” resolution of 3 November 1950, the Assembly may consider the matter immediately and recommend to its Members collective measures to maintain or restore international peace and security.

Second, one should also look at the role of the Security Council to make the case of having a stronger United Nations. The UN Security Council is the most powerful security-related organization in contemporary world politics. As the Charter of the United Nations says: ‘the Security Council has primary responsibility for the maintenance of international peace and security (Article 24). The Security Council takes the lead in determining the existence of a threat to the peace or act of aggression. It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of the settlement. In some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security’

In contemporary world politics, the UN Security Council is the most potent security-related organization because it is the only recognized and legitimate international organ which deals with international peace and security. In this regard, Justin Morris and Nicholas J. Wheeler claim that ‘The United Nations Security Council is at the heart of the world’s collective security system’ (Morris and Wheeler 2007: 214). The UNSC play role by passing Resolutions regarding maintaining international peace and security, determining threats to peace and security and finally undertaking peacekeeping operations.

Decisions made by the Security Council are known as the Security Council resolutions. Examples of Security Council resolutions include Resolution 794 (1992), which authorized military intervention in Somalia on humanitarian ground, or the resolution 1325 (2000), which called on states to recognize the role of women in peace, and security and post-conflict situations. In the UN Security Council Working method Handbook, it is noted that the UNSC has adopted over 2,000 resolutions relating to conflict and post-conflict situations around the globe. Another report, titled Repertoire of the Practice of the Security Council noted that between 2008 and 2009, the Security Council adopted  35 out of 65 resolutions in 2008 (53.8 %), and 22 out of 47 resolutions in 2009 under Chapter VII (46. 8 %) concerning threats to the peace, breaches of the peace or acts of aggression. The report also notes about several UN resolutions authorizing United Nations peacekeeping missions. In connection with the mission deployed in the Central African Republic and Chad, the Council approved the deployment of a United Nations military component for the first time in 2009 to follow up operations by the European Union in Chad and Central African Republic (EUFORChad/CAR). The Council continued to authorize enforcement action for United Nations peacekeeping missions in Côte d’Ivoire (UNOCI), Darfur/Sudan (UNAMID), the Democratic Republic of the Congo (MONUC), Lebanon (UNIFIL) and Sudan (UNMIS). This increased number of UNSC Resolutions dealing with international peace and security reinforces its legitimacy and power as a security organization.

The critical question that comes into the forefront is how much UNSC can implement its mandates neutrally or independently in terms of maintaining world peace and security. The critiques bring the example of Iraq war (2003) where UNSC ‘faces a crisis of legitimacy because of its inability to constrain the unilaterally inclined hegemonic United States.’ (Morris and Wheeler 2007:214). Another critical question is the role of UNSC in resolving the long-standing Syrian crisis or the Rohingya refugee crisis.

It is undeniable the fact that UNSC cannot function with its full potentialities due to the challenges and limitations it faces because ‘in their pursuit of raisons d’état, states use whatever institutions are available to serve their interests’ (Weiss 2003: 151). And here comes the politics in the Security Council which is highly manifested in the past. Against this backdrop, Weiss correctly observes, ‘the politics of the UN system- not only the principal organs of UN like Security Council or General Assembly is highly politicized but even ‘technical’ organizations, for instance, World Health Organization or the Universal Postal Union continue to reflect the global division between the so-called wealthy, industrialized North and the less advantaged, developing South’ (Weiss 2009: 271).

It is, therefore, states and particularly the P5 want to use the Security Council as a means to uphold its interest. Gareth Evans rightly points out ‘for most of its history the Security Council has been a prisoner of great power manoeuvring…’ (Evans 2009:Xi).  Hence, using veto by the P5 remains a significant challenge for the UNSC to work in its fullest potentials. In the recent case of the Rohingya refugee crisis, the UNSC is unable to take adequate measures due to veto power used by China and Russia. However, the UNSC is responsible for maintaining world peace and security.

The bottomline is that there is no alternative to having a stronger and more effective UN because it is the only hope for millions of people around the world. The UN is an inevitable international organization in this turbulent world despite its criticism or limitations.Thus, it becomes essential for the P5 nations to think about the broader benefits of the world’s people instead of their narrowly defined interest in the case of using veto power. And the world also needs to acknowledge that the UN reform has been a reality to ensure the neutrality and objectivity of the United Nations for a more peaceful, stable, secured world.

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