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Kashmir: From legal rigmarole to a solution

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Kashmir conflict is a maleficent inheritance from the British raj. India and Pakistan went to fisticuffs to settle this dispute. Following their first war on Kashmir, both India and Pakistan accepted ceasefire from January 1, 1949 under supervision of UN observers. No UN resolution incorporates India’s view that maharajha had acceded to India. It is said that the accession instrument stands `stolen’. There is a United Nations’ resolution that forbids India- occupied Kashmir `assembly’ from acceding to India (authenticating royal accession). The main resolutions on Kashmir are: (a) United Nations’ Commission for India Pakistan Resolution dated August 13, 1948. Para 75 (Serial110) in Part III of this resolution states ` The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the truce agreement, both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured. (b) UNCIP Resolution dated January 5, 1949 Para 51 (Serial 1196) states ‘The question of accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite’.

Since both parties agreed to a plebiscite, the question of sanctions never arose. Besides, India approached the United Nations under Chapter VI (Pacific Settlement of Disputes), not Chapter VII (Acts of Aggression).On Nov 2, 1947, Nehru declared in a radio broadcast that the government of India was “prepared, when peace and order have been established in Kashmir, to have a referendum held under international auspices like the United Nations.” I am quoting from Chaudhri Mohammad Ali’s The Emergence of Pakistan. Till 1953, India was, at least verbally, committed to the plebiscite. But, in subsequent period, she had been making frantic efforts to warp the UNO and woo the USA in her favour. For instance, during temporary absence of Pakistan’s rep, India tried to get the `India-Pakistan Question’ deleted from the UN agenda.  India based her plea on Security Council’s informal decision, dated July 30, 1996, about deleting dormant questions. The Question was deleted during the Pak rep’s absence, but was restored to agenda upon his arrival.

Again, at India’s behest, US Congressman Stephen Solarz elicited the statement from Bush-administration high-level diplomat, John H. Kelly, that plebiscite was no longer possible in Kashmir.

Here is an extract of Solarz’s grilling questions and the gullible answers thereto.

Mr. Solarz: What is the position of the United States with respect to whether there should be a plebiscite?

Mr. Kelly: First of all we believe that Kashmir is disputed territory…

Mr. Solarz: Well, how did we vote upon that resolution at the U.N. back in 1949?

Mr. Kelly: In favor, Mr. Chairman.

Mr. Solarz:  Right. So at that time we favored a plebiscite. Do we still favor a plebiscite, or not? Or is it our position now that whether or not there should be a plebiscite is a matter, which should be determined bilaterally between India and Pakistan?

Mr. Kelly:  Basically, that’s right, Mr. Chairman.

Mr. Solarz:  So we are no longer urging a plebiscite be held?

Mr. Kelly:  That’s right.

To India’s chagrin, John R. Mallot, the US State Department’s point man for South Asia in 1993, corrected Kelly’s faux pas. He told the House Foreign Affairs Sub-Committee on Asia and the Pacific on April 28, 1993 that John Kelly ‘misspoke’ in 1990 when he said that the United States no longer believed a plebiscite was necessary in South Asia. Mallot clarified that Kelly made his comment after ‘continued grilling’ by the panel’s (pro-India) chairman, Stephen J. Solarz of New York.

Avid readers may refer to Solarz-Kelly conversation and corrective policy action taken by the US State Department in Robert G. Wirsing’s book India, Pakistan, and the Kashmir Dispute, published by Macmillan Press Limited, London in 1994. They may also see Mushtaqur Rehman’s Divided Kashmir: Old Problems, New Opportunities for India, Pakistan and the Kashmiri People (London, Lynne Reinner Publishers, London, 1996, pp. 162-163).

Kashmir is a simmering nuclear tinderbox. There is no UNO resolution incorporating India’s volte face that India-occupied Kashmir has acceded to India through the so-called state assembly’s resolution.  Till recently, the USA viewed Kashmir as a disputed state. It clarified there is not an iota of change in US policy on Kashmir what’s its current position?

Despite lapse of over 70 years, India has not fulfilled its promise of a plebiscite in Kashmir.

India’s attitude negates the cardinal principles in inter-state relations, that is, pacta sunt servanda `treaties are to be observed’ and are binding upon signatories.  If disinterested, India should wriggle out of bilateral and multilateral agreements by pleading that the UNO resolutions stand antiquated under another principle clasula rebus sic stantibus _In the case of a `fundamental change of circumstances’, that existed when a treaty was concluded, a party to that treaty may invoke this fact as a ground for termination or suspending operation of a treaty.

The principle stands codified in Article 62 of the Vienna Convention on the Law of Treaties.   Para 3 of the Convention, codifying the principle of rebus sic stantibus, states `If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty, it may also invoke the change as a ground for suspending the operation of the treaty’.

India should tell the International Court of Justice that the Simla Agreement of 1972 has superseded the UNO Resolution of 1948 (envisioning exercise of the right of self-determination) on the basis of the principle `lex posterior derogat priori, later treaty abrogates the earlier one’.  The principle is enshrined in Article 59 of the Vienna Convention on the Law of Treaties, which provides as follows: ‘TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY IMPLIED BY CONCLUSION OF A LATER TREATY.  1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and: It appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty: or a) The provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time…’.

But, to India’s chagrin, even Simla Accord accepts the UN resolutions. The UN observers are still on duty on the line of actual control.  They submit annual report to the UN’s secretary general.  This report identifies Kashmir as an international problem. India could not get the dormant `India-Pakistan Question’ deleted from the UN agenda (as informally decided by the Security Council on July 30, 1996).

Paragraph 1(i) of the Simla Agreement provides, `the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries’.  Right of self-determination is a recognised right under the UNO charter and conventions. It is now not only a political but also a legal right.

The United Nations’ Military Observers’ Group on India Pakistan came into existence between 1949 and 1951 to maintain sanctity of the ceasefire line drawn between India and Pakistan after the war of 1947-48. The first group of United Nations military observers arrived on 24 January of 1949 to supervise the ceasefire.  The UN spends US$ 40 million each year to keep them up.

India is wary of their presence. It asked them to vacate their residence at 1/AB, Purana Qila Road, Connaught Place, Delhi – 11000; from where it has been functioning since 1949 (India asks UN team on Kashmir to leave Delhi, Reuters July 9, 2014). It even harassed `Three members of the United Nations Military Observers Mission for India and Pakistan (UNMOGIP) had a close call along the restive Line of Control (LoC) in Azad Jammu and Kashmir after Indian troops shot at and injured two locals who were briefing them on the situation prevailing in the wake of ceasefire violations’ (Indian troops fire across LoC in presence of UN observers, 2 injured, March 14, 2018).

India-Pakistan dialogues never progressed towards solution of the Kashmir tangle. Both countries stick to their iron-clad legal closets. India’s former foreign secretary, J.N.Dixit was of view that both countries should think beyond legal rigmarole.  He says, `It is no use splitting legal hair. Everybody who has a sense of history knows that legality only has relevance up to the threshold of transcending political realities. And especially in inter-state relations…so to quibble about points about points of law and hope that by proving a legal point you can reverse the process of history is living in a somewhat contrived utopia. It won’t work’ (V Schofield, Kashmir in the Crossfire).

There are a plethora of alternative solutions 🙁 a)Freezing the Territorial Status Quo. This solution offers the Kashmiris south of the LoC both Kashmiri ID cards and Indian passports. Likewise, it offers those on the north of the LoC, Kashmiri ID cards and Pakistani passports (Marc Weller. and Staffan Wolff (eds.), Autonomy, Self-Governance and Conflict Resolution, New York, Routledge Taylor and Francis Group, 2005, pp. 41-42). (b) Andorra Model. Andorra was a unique co-principality- (without any arbitrator), ruled by the French chief of state and the Spanish bishop of Urgel for 715 years. Through a constitution, enacted in 1993, the government was transformed into a parliamentary democracy with both French and  Spanish heads of states jointly wielding executive powers (as well as defence) as co-principis. When this solution was first proposed by Hurriyat Conference (in 1974), President Musharraf supported it. However, all sections of the Indian media termed this solution ‘Pandora’s box’. (c) Sweden-Finland Aland-Island Model.

Swedish nationals in Finland controlled the Island. They wanted to unite it with Sweden. But, Finland did not allow them to do so. With League of Nations appointed as an arbitrator in 1921, the island was given the status of an autonomous territory. Finland retains nominal sovereignty over the island with obligation to ensure linguistic rights (Swedish language) as well as culture and heritage of Aland residents. The island enjoys a neutral and demilitarised status with its own flag, postage stamps and police force. On December 31, 1994, Aland joined the European Union voluntarily. Aland is a self-governing entity, created without use of force, catering for conflicting interests of rival communities. (d) Italy-Austria South Tyrol Model. South Tyrol was part of Austria. It was inhabited by three linguistic groups (70% Germans, 26% Italians, and 4% Ladin). It was annexed by Italy in 1919. German majority rebelled against Italianisation.

An agreement between Austria and Italy provided autonomy framework, vouchsafed by Paris Peace Agreement, 1946 (also known as Gruber Degasperi Agreement). Under the South Tyrol Package of 1969, Austria exercised mandatory protective function vis-à-vis Italy for the Austrian and Ladin minorities in South Tyrol. The package was meant to pave way for peaceful co-existence of German- and Ladin-speaking communities of South Tyrol, particularly in the multi-ethnic province of Bolzano. The package collapsed and gave way to a settlement in 1992 with the United Nations as the arbitrator. The revised package still recognizes Italian sovereignty but allows greater autonomy of legislation and administration, recognition of cultural diversity, minority vote on issues of fundamental importance, and proportional ethnic representation. (e) National Conference Autonomy Formula (2001). The formula envisages return to 1953 position, abrogation of all central laws imposed on the state, and an informal co-federal relationship between the parts of Kashmir. (f) Chenab Formula. According to this formula the River Chenab will form the separation line between free (Azad) and occupied parts of Kashmir. Some writers have discussed Indus-basin-based formula, akin to it. (g) Kashmir-Study-Group Formula: It envisages division of the state into two self-governing entities, enjoying free access to one another. The entities would have their own democratic constitutions, citizenship, flag, and legislature (sans defence matters jurisdiction). Defence would be the joint responsibility of India and Pakistan. (h)    Northern Island model.  In a video talk to an audience in New Delhi bill Clinton favoured it (India Today, March 17,2003, p. 24).(i) Misc. Sami parliamentary model, Italy-Yugoslavia Trieste model, Basque leader Jose Ibarretxe ideas, Caledonia island (discovered in 1774) sovereignty sharing Noumea agreement (1999).

The question is will any of the above solutions fit in with warped crucible of India’s subconscious framework?  Indian army chief says India should talk to Pakistani generals on Kashmir. For, any agreement with generals will be sincerely implemented. India regards all civilian rulers as army puppets and cobras in India’s backyard.

Pakistan’s prime minister himself says he and army are on one page. Given Imran is an army or Establishment’s poster boy, as India claims, why she is chary of talking to him.

Besides being a geographical dispute, Kashmir dispute has a human rights dimension.

Pending a final settlement, softening the borders a la Mehta appears to be need of the hour to mitigate suffering of the Kashmiri. For some time, the divided Kashmiri families used to exchange gifts across a bit softened border.

If no solution is hammered out, then, still, there are two solutions- a nuclear holocaust or, perhaps,  divine intervention.

Mr. Amjed Jaaved has been contributing free-lance for over five decades. His contributions stand published in the leading dailies at home and abroad (Nepal. Bangladesh, et. al.). He is author of seven e-books including Terrorism, Jihad, Nukes and other Issues in Focus (ISBN: 9781301505944). He holds degrees in economics, business administration, and law.

South Asia

Pakistan and Germany are keen to Sustain Multifaceted and Mutually beneficial Cooperation

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Pakistan has varied history of relationship and cooperation with other countries in international arena. Despite of proactive foreign policy Pakistan has been struggling to acquire global or regional status as a major power. Now in the age of globalization, the foreign relations between states have become more significant than before. Global and regional organizations, societies, economic zones and countries have network to attract and develop relationship among them. A major goal of Pakistan’s foreign policy is to develop good relations with international community and to handle global and regional issues. Activism of Pakistan‘s foreign policy reflects on the domestic socio-economic development. The national interest of Pakistan also support to regulate inputs from the external atmosphere into internal situation and to strive security and territorial integrity in the region and glob which always remained top concern of Pakistan. As bearing geo-strategic position, Pakistan seeks good relations with regional and global powers like America, China and European Union. Within European Union Germany has emergence as the developed economy in Europe. It is not only playing vital role within European Union but at the global level. Pakistan is also enjoying cordial relations with Germany on the base of common interest and perception on all international issues. Germany is also very keen to see sustainable development in Pakistan and acknowledges that the Pakistan is playing constructive role for regional peace. Germany greatly values Pakistan intense to strengthen multifaceted and mutual beneficial cooperation. Both the countries have been engaged on political, economic and socio-cultural partnership.

In past, East and West Germany had tilted towards forming alliance with India in 1950s but in 1960s, President Ayob Khan‘s visit to West Germany established economic relation between both the countries. Post Pak-India war 1971, East Germany was the first country of the Europe who recognized Bangladesh. During 1990s, Pakistan and Germany established Pakistan German Business Forum and Germany had become the fourth largest trade partner of Pakistan in 2000.  Germany also was ally of Pakistan in the war against terrorism in the north-west part of the country. Since the last few years, both the countries developed trade relations as well as Germany invested in the field of science and technology in Pakistan. On August 24, 2014, Germany built Pakistan Gate in Berlin to provide business and trade facilities to the businessmen of both the countries.

In November 2018, Pakistan offered Germany to join CPEC and to invest in the Special Economic Zone (SEZs). The mutual trade between both the countries enhanced to 3.0 billion euro in 2019.In 2021, Both Pakistan and Germany are celebrating 70th anniversary of establishment of bilateral relationship. Both the countries are planning to undertake several activities in this regard. Last month German Ambassador visited Karachi Chamber of Commerce and industries to call German companies, entrepreneurs and investors to earn from the potential and opportunities which are available in Pakistan and to bring business communities of both the countries more closer as well. Foreign minister of Pakistan has visited to Germany and meeting with business and members of Pakistani community. The foreign Minister held meetings with the leadership of Germany and repeated the desire of expansion of bilateral economic activities and exchange of technology. Both sides also discussed rapidly changing situation of Afghanistan and South Asian region. During the discussion, Pakistani Foreign Minister Shah Mehmood Qureshi and Foreign Minister of Germany Heiko Mass, Pakistan and Germany agreed to review the entire gamut of Pakistan-Germany relationship and tools of further deep bilateral cooperation in the field of trade, investment security and defense, health, education, tourism. The mass of both the countries want to utilize the potential of good relationship but it is observed that both sides have lack of political hierarchy, dedication and sincerity in past. The development and expansion of bilateral relationship lies on the path of peaceful coexistence and serious changes in the socio-economic structure is needed. Peace process with the neighboring countries like Afghanistan and India may attract Germany to invest in CPEC projects and other local project of education, vocational training, dam construction, tourism and economic activities in Pakistan. There is a need to organize a forum for the students and scholars of both the countries could interact and exchange their expertise for academic, economic and technology growth. There is potential of people to people interaction and development of cooperation between Pakistan and Germany. Pakistan may be more benefit from the relationship with Germany if the serious efforts be made on government level.

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South Asia

Modi’s Illiberal Majoritarian Democracy: a Question Mark on the Future of Indian Minorities

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india democracy

The word majoritarian is an adjective which relates to or constitutes a majority, majoritarian politics, or majoritarian democracy. It can be defined as a traditional political idea, philosophy or a practice according to which any decision whether political, social, or economic of an organized society should be made by a numerical majority of that society or it can be defined as a traditional political philosophy that stresses that a majority usually branded by religious, language, social class that also includes other recognizing factors of individuals in a society are subject to a level of superiority in a society because of which they have a say in every affair of a society. The concept of majoritarian dispensation in India under Narendra Modi has deep links with four other political philosophies i.e. Populism, Nationalism, Authoritarianism, and Sultanism. Before exploring Narendra Modi’s majoritarian policy of governance in India and its effects on the future of Indian minorities, I will first uncover the link of majoritarianism to political philosophies as mentioned.

A majoritarian leader is actually a populist leader who works hard for the concerns of people that who thinks are being ignored by the established elite groups in a society, and who always present himself as a new man mostly of a modest and plebeian background against old political establishment, in spite of the fact that who is a seasoned political figure, but usually not centre stage. This is exactly what Narendra Modi is, because in his 2014 election campaign, he presented himself as a new man against the Ghandi’s family’s old political system despite the fact he was CM Gujrat at that time. He also presented himself as someone who belongs to a very plebeian background that he had to work in his father’s tea shop when he was a child. Whereas, nationalism is a political idea or a philosophy that promotes and protects the interests of a particular nation, nationalism is the bedrock of most of the populists and NarendraModi is no exception. NarendraModi is a majoritarian national-populist leader who since his childhood has been the member of RSS, and now is a full time pracharak of RSS ideology that stresses that Hindu are the true and only sons of this Indian soil.

Majoritarian national- populist leaders like Narendra Modi are basically authoritarian leaders who reject political pluralism, and this is exactly what Modi is doing in India.Modi  and the BJP has made it clear that no other party should compete with it, or is even needed, as indicative from its slogan of a ‘Congress Mukt Bharat’ (a Congress-free India).Whereas, Sultanism is a form of authoritarian government and according to Max Weber NarendraModi is a new sultan of India who is pushing India towards illiberal democracy by rejecting all kind of civil liberties particularly of Indian Muslim minority.

Modi’s majoritarian policy of governance in India is basically the promotion of majoritarian democracy that asserts Hindus a special and superior status in India because they constitute 80.5% of total Indian population and that this majoritarian policy protests Hindutva ideology  that stresses that Hindus are the only sons of this soil and that strengthen the Hindu community. This majoritarian democracy is a big question mark on India as the world biggest liberal democracy because continuous violence, rejection of civil liberties, and crimes against the minorities that are Muslims, Sikhs, and Christians have been on the increase. About 1.8 million people who are minority communities are tortured in police custody every year. The word murder of minorities has been replaced by the term encounter killings. Torture have increased to such a huge extent that it questions the credibility of the rule of law and criminal justice. Hindu nationalists are revolting all around India especially against Muslims because they are the largest minority in India constituting 13.4% of total population and because Hindus have resentment toward their religion, Christians and Sikhs are no exception to their violence because they too constitute 2.3% and 1.9% of total Indian population.

Unfortunately, India under Narendra Modi is crawling from the world’s biggest liberal democracy to illiberal majoritarian democracy which is promoting and safeguarding only Hindu’s civil rights and liberties and that which is negating minority’s civil liberties and civil rights especially rights and liberties of Muslims of India. One such example of this is the Citizenship Amendment Bill (CAB).Under the act, for the first time in India, religion is a basis for granting citizenship. According to some this citizenship amendment bill by BJP is an intentional act in order to marginalize Muslims from mainstream politics. In addition to this, Muslims are not only being tortured at their religious places for their religious affiliations, but they are also being tortured at their educational institutions which is evident from a video of 15 December 2020, where Delhi police brutally tortured Muslims students of Jamia Millia Islamia university.

Keeping in mind Narendra Modi’s illiberal majoritarian democracy, the future of liberal democracy or pluralistic India appears to be gloomy, where the future of Indian minorities especially Muslims is a big question mark. 

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South Asia

CoVID-19 Control: Can Pakistan Learn From China?

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coronavirus people

It has been over a year since the first case of CoVID-19 was confirmed in Pakistan. The tally has reached 721,018 confirmed cases, 15,443 have died and 4,143 critical cases by 11thApril2021. Across many countries, since January 2020, a massive surge of research into CoVID-19 had enabled the scientific and medical community to better understand how to manage and eliminate the virus through public health interventions. Today, we have learned, CoVID-19 causes acute symptoms and death. We have learned, immunity lasts at least eight months and we also have five licensed vaccines. We have learned, the long-term effects of CoVID-19 and the morbidity attached to having this virus. We have learned, virus transmission occurs through droplets and aerosols spread through coughing, sneezing, breathing and speaking. We also have learned, stopping the spread of CoVID-19 requires people to avoid mixing though restrictions on social life. We have learned, the virus can mutate into various strains that can be more transmissible – and we also have understand cat-and-mouse game between vaccine and variants.

To alleviate the destructive effects of CoVID-19 on the economy, Pakistan has sought debt relief of slightly around $2 billion from its G20 creditors. In addition to the G20 countries, China was the largest bilateral creditor with $9 billion, followed by Japan with $5 billion. By early April 2020, when there were just about 2,000 CoVID-19 positive cases in Pakistan, the World Bank approved $200 million package to help Pakistan. Likewise, the International Monetary Fund (IMF) had approved the payout of $1.386 billion as financial support to Pakistan to meet its urgent balance of payment needs halting from the CoVID-19 outbreak. Further, to support Pakistan’s public health response to the CoVID-19 and allow to meet the basic needs of the vulnerable and poor segment of society, the Asian Development Bank (ADB) approved $500 million emergency assistance loan to Pakistan. Similarly, The Islamic Development Bank (IDB) also provided a $650 million financial package to support Pakistan in its efforts against the CoVID-19. All these grants were provided to Government of Pakistan to assist in effective and timely action in response to the spread of the CoVID-19. The objective was to strengthen Pakistan’s public health infrastructure and to alleviate socioeconomic disruptions due to the pandemic. Despite huge grants and substantial endowments, Pakistan’s response to the CoVID-19 has been unsatisfactory. Lack of basic healthcare infrastructure, disease surveillance and management system,  and inconsistent implementation of policies and SOPs resulted in the rapid and incessant spread of third-wave of CoVID-19 throughout the county.

China’s extraordinary organized and preventive risk management approach, established on coalition between government officials, virologists, epidemiologists and public health experts, has demonstrated to be successful in containing and controlling CoVID-19.The experience in China emphasized the significance of listening to science and public health experts during pandemic event. Firstly, China’s response demonstrates the value of national research and public health capability. Huge investment in research and development rendered China much better prepared for CoVID-19. China’s experience indicates the value of investing in national health and research scheme to boost laboratory capacity along with workforce. They are essential to a rapid and effective national response to health emergencies and to national health security. Secondly, a strong foundation of research and development cannot ensure effective control without powerful top-level political dedication to use science to confront the outbreak. Government and leaders must respect science, understand its significance, and act on science-based advice in a way that is best for society. Thirdly, attaining speedy and successful implementation of control measures for CoVID-19 requires extensive community engagement. Public solidarity during the CoVID-19 outbreak in China had been unprecedented. Control measures that could sacrifice personal freedom were accepted readily by the nation.

To be brief, cricket is to South Asia and football is to Europe. In fighting CoVID-19, everyone is equal. Everyone has the identical liability and shares the equal threat. The effective implementation of prevention and control measures in China is a model for Pakistan other parts of world to follow. From the beginning, a science-based, risk-informed and phased approach was taken, with a clear appreciation and enthusiasm. Today, China has restarted its economy, reopened and almost returned to normality. The key of success story is to make everybody responsible, get every single division involved and held executives accountable. These are the most prominent lessons Pakistan could learn from China at national and local levels. After the failure of “Smart-Lockdown” strategy, Pakistan needs to choose a strict strategy, should follow the example of China and continue the lockdown until the number of CoVID-19 infections is brought close to zero; the strategy should then be to maintain infection rates at very low level until vaccination is done. China’s epidemic management provides an important experience from which countries such as Pakistan can learn. This applies in particular to Pakistan, which would risk to lose many of its achievements in case of a severe third wave of the epidemic. Government of Pakistan should involve not only public health experts, virologists and epidemiologists, but also scientist and respect science advice when making any decision that is required to keep the epidemic under control. The rest of the world can also learn from China’s success in bringing outbreak under control.

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