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International Law

Refugees: The Horns of a Dilemma

Dr. Nafees Ahmad

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The refugees in the present vicious visage want to stand to reason within the bounds of possibility by holding the scales at the odds being in favour etched in the feast of reason and the flow of soul so that they could come out of the horns of a dilemma.

Refugee status is an incredibly malleable legal concept that can take on different meanings as required by the nature and scope of the dilemma prompting involuntary migration. I have been talking about a trajectory of refugee rights beyond the rubrics of rights sans any regurgitation for more than two decades that is not reflected in the contemporary international refugee law. The governance architectures across the globe have blackballed the refugees from their itinerary of international obligations and prescriptions as enunciated in the UN Charter and Universal Declaration of Human Rights (UDHR). The International community has been performing its refugee mandate in a state of ostensible action for refugees who have been grappling with the quagmire of cynicism that has morphed all avenues of evolving solutions into geo-strategic polemics. Cartelization of humanitarian assistance and relief on the grounds of caste, colour, ethnicity, race, region, political opinion, social origin and statelessness amounts to the decimation of dignity, elimination of equality and liquidation of liberty.

The global dimensions of diplomacy, political permutations of international relations and paradoxes of protection priorities have pandered to procrastination in durable solutions which have trussed the paradigms of refugee protection. I have tried to have deciphered an understanding of refugee discourse that is innate, instinctive, intrinsic and inherent in transcendentalism whereas it is native, natural and normative in existentialism. Although, it is a well-established fact that classical and contemporary institutional conviction does not speak of this inalienable framework of refugeehood. Therefore, the present international refugee law poses more questions than offers answers. Despite the fact of it’s more than sixty years of existence it could not offer any durable or permanent solution to the problem of refugees such as Palestinian refugees and other intractable refugee questions across the globe. The most prominent challenge of the contemporary international refugee law is of its survival as law, and it must be attended in the right earnest otherwise it may turn out be a positive morality of a vanishing vacuum of the jurisprudence of international law. Let’s talk about rights beyond rights in a refugee peregrination paradigm from utopianism to utilitarianism within the premise of permanent protection having dwelt into epistemological, teleological, sensible and jurisprudential understandings of the refugee discourse.

The Refugee Desideratum

We, the People of the World, are all refugees in scriptures, structures, and literature commanded in the logistical and tactical architecture of divine delineations. But they are not regarded as such in geopolitical identities on planet earth at which refugees are conditioned by crossing lines called blurred borders, barbed boundaries and bracket barriers in a world-wide web of justice, equity, and the rule of law. Nobody wants to be a refugee but people are being made refugees that has really created a void in human relationships across the spectrum of humanity. That has pandered to the galvanizing a new cornucopia of questions which are not straightforward to answer as these are impregnated with multi-layered predicament, prevarication, and predaciousness of those who have the propensity to stir the course of history. Thus, the plight of refugee flight has acquired an immutable multitude, marmoreal magnitude, and immaculate mapping thitherto not available to be rummaged outside the confines of rudimental oblivion to regimental reminiscences.

There are refugees; there are rights but whose rights, what rights that are the questions? Should rights be understood in innate sense or merely as an expression of modern codification? Intrinsic rights should be regarded horizontal foundation for the vertical gestation and growth of refugee rights which are ancillary, incidental, peripheral and vicarious to the refugee discourse. Should rights be alive or dead? Rights could not be lifeless, if they were, they could not have been rights. How to visit these rights in classical and contemporary jurisprudence? How to address the psychological, mental and intellectual premise of violations forming an itinerary of alienation, agony, and trauma resultant in human displacement, social dehumanization, and human demonization? Is there any moral, ethical and ecclesiastical possibility to have the categorization of human pain, sufferings and deprivations enslaved in occidental and Asian jurisdictions, jurimetrix cs and jurisprudence? Should there be victors’ rights only? Is there just majoritarian premise of rights? Could refugee rights be interpreted, appreciated and adjudicated upon within the legalistic welter of words enunciated in hard laws and soft laws in the garb of definitions sans governance accountability? What about the poverty, gender, communal conflagration, generalized violence, organized crimes, mass rape, economic sanctions, economic recession, climate change, development displacement, mass movements of persons fleeing civil war, military occupation, foreign domination, gross violations of human rights, natural disasters, or simply bad economic conditions, natural disaster and scientific experiments as well-founded grounds of being treated as refugees? Should refugee protection paradigm still depend upon other human rights instruments for its being considered before national and international judicial tribunals? Shouldn’t time have come to make refugee law an independent substantive discipline of study? Shouldn’t existing definition of refugee be deconstructed, developed and designed? Shouldn’t we head for a new, novel and nice comprehensive, consolidated and cosmopolitan refugee law?

The Refugee Status

The most conspicuous stigma on humanity is having some of its integral parts as refugees whose life, liberty and dignity have been decimated, destined and destroyed in camps.  The contour, conviction, and commitment to contemporary international refugee law have outlived its utility. The present global refugee law poses more questions than offers answers. Despite the fact of it’s more than sixty-five years of existence it could not offer any durable or permanent solution to the problem of Palestinian refugees and other intractable refugee questions across the globe. The most prominent challenge of the contemporary international refugee law is of its survival as law, and it must be attended in the right earnest otherwise it may turn out be a positive morality of a vanishing vacuum of the jurisprudence of international law. Let’s talk about rights beyond rights in a refugee peregrination paradigm from utopianism to utilitarianism within the premise of permanent protection having dwelt into epistemological, teleological, sensible and jurisprudential understandings.

The matter of refugee status is of ancient origin, although the manner of treating it has not always been that which is currently acceptable. At every stage of its historical evolution, it underwent a volatile metamorphosis of legal construction. The idea of giving a home to the stranger appeared as early as the Old Testament. The complete code of treatment of refugees has also been crystallized in the Holy Quran and rights of refugees have also been come to be supplanted by modern refugee regime. Mass population movements occurred throughout history: The arrival of the barbarians in the Roman Empire, expulsion of Jews from Spain in 1492, expatriation of French Protestants after revocation of the Edict of Nantes in 1685, emigration of the French aristocracy after 1789 and the exodus of Jews from German territory are but a few examples. The estimated number of refugees in the world today ranges between twelve and fourteen million. A survey by the United States Committee for Refugees at the end of 1988 reported over four million refugees in Africa, nearly nine million in the Middle East and South Asia, nearly 280 000 in Latin America and the Caribbean, over 625 000 in East Asia and the Pacific, and almost 350 000 in Europe. As new refugee situations develop, such as the flow of more than half a million new refugees in Southern Africa, thousands of Iraqi Curds into Iran and Turkey, or as the number of Vietnamese boat people in Hong Kong increased sharply in 1988, or as thousands flee the civil war in Yugoslavia or the worsening economic situation in Eastern Europe, the problem becomes exacerbated.

Refugee Rights Beyond Rights

Refugees are the counter-product of sustainable hate that has a past in the present to shape the future oozed out of the clash of clans, castes, communities’ and countries since the inception of humanity. Human migration, movement, and mobility are entrenched in the human psyche since pre-socio-political crystallizations that have become most obvious, desirous and catastrophic in the twenty-first century necessitated by the ever-growing paradigmatic shift in its dialectics, dimensions, and delineations regarding perception, interpretation, and determinations. Deviant to the grounds whatsoever of displacement the biggest pain in one’s life is to have been dislocated from his or her country of origin in a manner that is fallible, fallacious and fatal? Thus, there are refugee rights beyond rights which can only be felt by the human soul and mind in the most profound sense of mental integration with the roots of birth. To displace anybody from his land of habitual habitation tantamounts to deny and divest him of his or her a catena of rights such as:

  • Right to a healthy life,
  • Right to psychological integration,
  • Right to have past,
  • Right to have a sense of allegiance to the homeland,
  • Right to have an ancestral identity,
  • Right to the immemorial neighborhood,
  • Right to historical culture,
  • Right to perennial socialization,
  • Right to classic climate,
  • Right to mental stability,
  • Right to mental health,
  • Right to specific custom,
  • Right to geo-political predilections,
  • Right to be consulted in economic modules,
  • Right to participate in community development,
  • Right to good governance,
  • Right to the rule of law,
  • Right to socio-economic development,
  • Right to leave and return,
  • Right not to be displaced,
  • Right to have rights beyond rights,

These rights encapsulate all the divisions of rights as natural claims, non-derogable basic bonds, fundamental freedoms, inalienable human entitlements, and rudimental human rights outside the convention-oriented prescriptions. The venomous vicissitudes of global change have presented a picture of development which is muddy, mawkish and manoeuvred by the political class. The politically empowered class happens to be around the chess-board of the common heritage of gene-kind in and around the domestic and international commands at which humanity is at loggerheads with humanity. Nevertheless, from retrospect to prospect, the miasma of migration has more been created, crafted and calibrated by aristocratic wiles, kings cozenage, royal revanchism, political prestidigitation, civilian charlatanry, political chicanery and subterfuge at every stage of the civilizational endurance and its graduation to ultra-modernity.

Diagnosis to Prognosis

Consequently, there is a contemptuous atmosphere of peace, progress, and prosperity that is alienated, exclusive, elite and with a tint of arrogance, aggression, and attitude of above the board while not swotting the experiences from economic melt-downs and fiscal drubbings in USA and Eurozone and elsewhere. These developments have made the humanity to move, move and move in addition to the humanitarian crises and climate-induced displacement as around the globe, millions of people are being subjected to risk of man-oriented displacement at a magnitude that is beyond human comprehension. The first inhabited island was submerged due to rising sea levels, and island nations around the Central Pacific, South Pacific and the Indian Ocean, as well as extensive tracts of land from Bangladesh to Egypt, risk partial or total displacement by the middle of this century. The impacts of global warming on habitat are being felt in multiple modes, various ways and different dimensions around the world. Rising sea levels have imperiled the very existence of Small Island Nation-States, while Inuit communities in North America and Greenland stirred with a well-founded fear of being displaced due to melting ice. It is horrible to note that climate-induced displacement (CID) is of particular significance to Australia given its topographical, geographical and geological proximity to islands such as Kiribati and Tuvalu, where the entire nation’s displacement is imminent. Australia is a prominent destination country in the region for so-called climate change ‘refugees’ who do not qualify as ‘refugees’ under international law. In this conspectus, the growing worldwide flow in the number of people leaving their country has created a significant challenge to India and other population-receiving countries and continents such as USA, Australia, Canada, UK, Switzerland, Pakistan, Europe and South Asia, etc.

These flows are mostly the consequence of pejorative, pernicious and deteriorating social, political and economic conditions in many countries and continents in the 1st, 2nd and 3rd  Worlds in the former Soviet Union, or among states that were within the Soviet, Europe, African and Indian Sub-Continental circumnavigate. Every nation-state at a particular stage of its development and history has struggled with the problem of human influx and outflux in one way or the other, but the stakeholders have rummaged no permanent, pragmatic and plausible or durable solutions in the game with a gavel. The plight of flight is not easy to be understood without having a heterodoxical hermeneutics of the causes, combinations, conflations, permutations, a miasma of mutations and the regime of reasons purportedly to have been emplaced by the state and non-state actors who morphed themselves in ostensible pro bono publico obligations across the globe. Thus, a holistic, panoramic and pervading understanding of the questions and issues of the classical and contemporary refugee regime is required to be rejigged.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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International Law

A sea and thousands of concerns

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The name of the “Caspian Sea” has been recently heard more than any other time! In the meantime, there are rumors, ambiguities and, of course, concerns that need to be described in the Convention on the Legal Status of the Caspian Sea which was signed on August 12 in the port city of Aktau, Kazakhstan.

Accordingly, there are some important points that calls for attention and scrutiny. In general, over the past 21 years, several meetings have been held on the Caspian Sea and how the coastal countries should be benefited from its resources. In these meetings, legal, security, economic, and even cultural cooperation were discussed among the littoral countries.

After more than two decades of fraught diplomatic efforts, the five littoral Caspian nations – Russia, Iran, Kazakhstan, Azerbaijan and Turkmenistan – agreed upon a legal framework for sharing the world’s largest inland body of water. However, as long as all disputes, especially legal conflicts between the participating countries aren’t resolved, it is impossible to talk about the establishment and continuity of sustainable relations among these countries. It should be noted that over the past two decades, one of the main tasks of our country’s Ministry of Foreign Affairs has been to direct this case and determine its legal convention.

1) Prolongation of the finalizing process of a case is not undesirable if it’s the result of scrutiny in the legal and technical parts. This is the case with determining the legal dimensions of the Caspian Sea Convention. After the collapse of the Soviet Union, we witnessed a kind of transformation in the Caspian legal regime. The Soviet Union was divided into 15 countries.

Consequently, Russia, Kazakhstan, Azerbaijan and Turkmenistan each became a separate and independent variable in this equation. Undoubtedly, the transformation of a two-variable legal equation into a “legal-security” multivariable equation is not considered a simple transformation. Therefore, we should understand the complexities of the Caspian case.

The countries of Iran, Azerbaijan, Turkmenistan, Russia and Kazakhstan each have specific demands regarding their share of the Caspian Sea resources. Making a balance between these demands and subsequently realizing them is very difficult and complicated. What is important in this context is to strengthen the “principle of cooperation” among the Caspian coastal nations, and to define joint maritime projects among all neighboring countries to protect the Caspian Sea.

Another point to be taken into consideration here is about the draft of the Caspian Sea Legal Convention and the role of the Foreign Ministry in this process. As mentioned above, the Caspian Sea Case has been open for more than two decades and has not yet come to a complete conclusion. Negotiations held among the Caspian Sea littoral states should distract our attention from the realities.

It should be noted that the establishment of the Caspian Sea Legal Convention is the basis for solving the existing disagreements over the Caspian Sea and defining concrete and conclusive cooperation among the littoral countries. A remarkable part of such security and economic cooperation will be the result of this convention.
In other words, the Convention on the Legal Status of the Caspian Sea can’t and shouldn’t be taken as in the same level with “defining the security and economic cooperation” between the coastal countries. Undoubtedly, the definition of economic, security and even cultural cooperation between the coastal countries depends on the settlement of legal disputes between these countries and setting of a common legal convention.

2) Speaking of controversial issues such as Iran’s 50 percent share of the Caspian Sea, which couldn’t be fulfilled even before the collapse of the Soviet Union, and the creation of false subjectivities in the country, by those who claim to be the representatives of our people, has no result except for the weakening of national security.

his is while the Iranian president, Hassan Rouhani, had emphasized that “we should recognize there are more important issues that need to be addressed.”
This is a legal process, and one of the main tasks of our country’s diplomacy and foreign policy system is to manage and direct this complex process. Obviously, under the current circumstances, expressing biased and targeted words will only lead to the loss of focus of our country’s diplomatic apparatus on this critical case.

Finally, it should be noted that good commitments were made during the meeting among the countries involved in this case. Today, the ministers of foreign affairs of the Caspian littoral states, unanimously emphasize on the necessity of the absence of foreign forces in this region, which is a positive trend. Moreover, from the statements made by the foreign ministers of the Caspian littoral states, we understand that their cooperation on resolving existing disputes has become faster than before.

However, until all legal conflicts between the Caspian littoral countries are not totally resolved and the Convention of the Caspian Sea Law Convention is not perfectly codified, we can’t think of this legal and strategic case as closed and settled. Therefore, in this critical situation, all efforts should be made so that Iran can benefit most.
It is emphasized here that even one singled legal disagreement should not remain among the players involved in the case. Meanwhile, the mechanism for resolving disputes should be carefully decided. Therefore, while welcoming the settlement of the existing disagreements over the Caspian Sea, there shouldn’t be any haste in completing this process.

First published in our partner Tehran Times

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International Law

Iran has to be very careful in future negotiations on Caspian Sea

Payman Yazdani

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Professor of political science says although the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states, Iran has to be very careful in future negotiations.

Five Caspian Sea littoral states signed Caspian Sea Treaty on August 12, 2018 in Kazakhstan. The agreement has created many debates about the share of Iran in Iran.

To know more about the issue we reached out to Nader Entessar Professor Emeritus of Political Science in University of South Alabama.

There are many debates on the legal regime of the Caspian Sea. Some argue that according to the treaties of 1921 and 1940 between Iran and the USSR, the share of Iran equals to 50% of this sea. Is Iran’s share stipulated in those treaties?

Nader Entessar

No.  Neither the 1921 nor the 1940 treaties specify that Iran and the USSR each share 50 per cent ownership of the Caspian Sea.  Both of these treaties talk in general terms about the resources of the Caspian Sea being the used by Iran and the USSR without stipulating the exact ownership of the seabed, boundary delimitation, and other related issues.  We have to remember that these two treaties were signed well before the United Nations Convention on the Law of the Sea (UNCLOS) was drafted and came into force.  Therefore, the 1921 and 1940 treaties could not have foreseen the complex issues of maritime boundaries that were discussed in UNCLOS.

Based on the international law, what is the legal status of the Caspian Sea after the collapse of the USSR and the sharing of the Caspian Sea by the five littoral states? Some bring about the idea of 20% sharing? Is there any base for this idea in the international law? 

The answer to this question depends on if the Caspian is defined as a “sea” or a “lake.”  If one classifies the Caspian as a lake, then according to international law its resources should be divided equally among the five riparian states.  However, if the Caspian is designated as a sea, then the five littoral states should draw lines extending from their shores to the midway point with littoral neighbors.  This explains why for many years Iran had insisted on defining the Caspian as a lake.  However, it appears that the five littoral states agreed in Aktau that the Caspian is a sea.  That is why some observers have argued that in the final delimitation agreement, Iran will end up getting not only about 13 per cent of the Caspian but also the saltiest and deepest part of it.

Is the share of each of the littoral states from the Caspian Sea defined in the convention signed on August 12 in Kazakhstan?

No, the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states.  In so far as Iran is concerned, this issue will have to be determined in a future agreement with Azerbaijan and Turkmenistan.  Iran has to be very careful in future negotiations with its two neighbors because the resulting boundary agreement will determine Iran’s final Caspian share.

What is the main achievement of the Aktau Convention, signed on August 12 in Kazakhstan, in regards to the legal regime and status of the Caspian Sea?

Although some reports have referred to the Caspian Sea Convention as a “landmark agreement,” I don’t view this agreement as such.  Its main achievement was that after more than 20 years of contentious diplomatic efforts, the five littoral states of the Caspian Sea finally agreed on a legal framework for sharing the resources of this significant body of water.  There are some clear and specific agreements in the Convention.  For example, all five littoral states agreed to 15 miles of sovereign waters, plus a further 10 nautical miles of fishing area.  But the wording of the Convention remains vague in many parts of the document, thus delaying divisive decisions that have to be made in future negotiations.

First published in our partner MNA

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International Law

Fifty Years of NPT: Weaknesses over the course

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NPT is a landmark treaty that lies at the heart of non-proliferation regime (NPR). In July 2018, Fiftieth anniversary of the NPT has been celebrated. Theoretically, NPT is committed to the goal of arms control and aims to accomplish the nuclear disarmament. For this purpose, the NPT member states are devoted to pursue three key objectives of the treaty: prevent horizontal proliferation, state’s right to use nuclear energy for peaceful objectives, and nuclear disarmament. However practically due to shifting US’ alliances, major power politics, and growing arms race, the fifty years of NPT has only delivered “Distress, Conflict and discrimination”.

Loopholes and weaknesses exist in NPT which are being misused by Nuclear Weapon States (NWS) and Non-Nuclear Weapons States (NNWS) of the treaty. Despite the NPT’s presence for 50 years and an expansion in its membership, atomic weapons have not been wiped out from the world. All the NWS aim to maintain their nuclear weapon state status due to their security or strategic concerns. Despite the dialogues of arms control, all major and smaller nuclear weapon states are committed to maintaining credible deterrence and strategic balance. Such aspirations of NWS demonstrate that major powers party to the arms control and disarmament treaty are merely the silent spectators to the existing weakened structure of the so called universal treaty of 191 member states due to their own vested interests.

The fifty years of NPT have reaffirmed that the universal mechanism to fight with nuclear proliferation and achieving the objective of disarmament is not adequate for two reasons: first, the international mechanism of non-proliferation has failed to deal with the few potential proliferators; secondly, strategic and security concerns of NWS and NNWS has undermined the Articles I, II, IV, VI and X of the treaty. In spite of the fact that until the 1980s worldwide measures to counteract atomic multiplication were generally more effective, yet in the subsequent years the NPT was not much successful to counter the aspirants of nuclear capability such as North Korea, Iran, Libya and Syria. Due to inadequate mechanism and weaknesses of the treaty, now nine states possess nuclear weapon capability and approximately 30 states have the technical ability to acquire it that is viewed as serious threat to the NPT.

Despite the potentials of non-proliferation, since 1968 with participation of 191 states and various agreements and talks, an efficient and effective regime stresses on pin pointing the weaknesses and restructuring, re-evaluation and reformation of the treaty structure.  The key setback to the NPT is that the articles of the treaty are not fairly adopted by the member states due to which the regime has failed to address the significant objectives of horizontal proliferation, arms control and disarmament. For instance under Article I of the treaty, transfer of nuclear material and technology by NWS to NNWS is prohibited. But treaty has failed to address the transfer of fissile material and nuclear technology from one NWS to another NWS. Such dynamic have increased the insecurities of NNWS and resultantly forces them to take extreme measures to ensure their security .e.g. North Korea. Simultaneously, despite being the member of the treaty, the US has been providing nuclear related technology to India since 1990s under the umbrella of various bilateral treaties or agreements. India-US nuclear agreement and granting of NSG waiver to India is viewed as an intentional measure to help India increase its military buildup to carry forward strategic ambitions of the US in the Asian region.

Furthermore, the US agreement with India for joint production and development of  military related technology such as mini UAVs , distinctive kits for C130 and designing/ development of jet engine technology has played central role in speedy development of India’s nuclear program. Such development is not only the violation of NPT by the US but also compels the NNWS to acquire nuclear capability to address their security concerns.  Right of all states to use nuclear energy for peaceful objectives played key role as bargaining chip and is viewed as major loophole in the treaty due to technical similarities in peaceful use of nuclear technology and technology for military purposes. North Korea Withdrew from the NPT in 2003.Article X of the treaty provides the right to member states to withdraw from the treaty if their sovereignty is on stake. However not accepting the states’ right to withdraw from the treaty is denial of their right of self defence and violation of treaty. Therefore, discriminatory attitude, special treatment and country specific treatment pose serious question mark on the implementation and standards of NPR.It demonstrates that the regime is just an instrument of major powers to fulfill their strategic and foreign policy objectives.

The current doctrines of NWS comprise of elements warfare, which shows hegemonic mindsets of major powers and explains their reluctance to give up on their “nuclear assets”. These factors have posed negative impact on the process of non-proliferation and disarmament. Therefore it can be inferred that the above mentioned scenarios have played central role in keeping Pakistan away from joining the NPR. If NPT states want to attract non-NPT states for the membership of regime then the current member states will have to pursue non-discriminatory approach towards non-proliferation themselves.

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