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Article 370 and 35-A: Rigmarole to becloud UN charter and resolutions

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India has scrapped articles 370 and 35-A of its constitution. The article 370 withdraws `special status’ for disputed Kashmir. According to India, this status was quid pro quo for fire-brand Kashmir leader Sheikh Abdulah and so-called `Kashmir constituent assembly’ for `acceding to India’. Article 35-A protects hereditary rights granted by Kashmir’s prince to its subjects.

To divert world’s attention from disputed nature of the state, India beclouds the bitter truth that Kashmir is a disputed state, not an `integral part’ of India. `Accession to India’ is ultra vires under United Nations’ resolutions and Simla Accord. Future of Kashmir remains to be self-determined by Kashmiris themselves.

Historian Alastair Lamb, in his works has lambasted India’s view that Kashmir prince, maharajha Hari Singh acceded to India by signing an `instrument of accession’ on October 26, 1947.Avtar Singh Bhasin, through lens of Pandit Jawahar Lal Nehru’s documents, shows that Nehru had a perfidious mind. He remained committed to plebiscite and never cared a fig for `accession’ resolution or `instrument’. Curious readers may refer to Lamb’s Incomplete Partition,  Kashmir – A disputed legacy 1846-1990, and Birth of a Tragedy. Avtar Singh Bhasin, have tried to sift truth about `Pakistan’s aggression’ and the myth of `accession instrument’. Curious readers may refer to Lamb’s Incomplete Partition,  Kashmir – A disputed legacy 1846-1990, and Birth of a Tragedy; besides, Bhasin’s India and Pakistan: Neighbours at Odds ( Bloomsbury, New Delhi, 2018),  10-volume documentary study of India-Pakistan Relations 1947-2007. It contains 3649 official documents, accessed from archives of India’s external-affairs ministry. Also, Selected Works of Jawaharlal Nehru (SWJ), Nehru Memorial Museum and Library, Department of Culture, Government of India.

Let’s have a bird’s-eye view of documented facts.

UN outlaws `accession’ and supports plebiscite: Accession resolution, passed by the occupied Kashmir’s ‘constituent assembly’ is void. Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions, Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957,  to forestall the `foreseeable accession’.

It is eerie to note that `Instrument of Accession’ is not registered with United Nations India took the Kashmir issue to the UN in 1948 under article 35 of Chapter VI which outlines the means for a peaceful settlement of disputes on Jammu and Kashmir state, not under Chapter VII dubbing Pakistan as `aggressor’. India knew at heart that she herself was an aggressor.

India’s `father of constitution’ Ambedkar advocates a plebiscite: After revoking the special status of Jammu and Kashmir, India’s prime minister Narendra Modi told the nation that the government has fulfilled Ambedkar and other tall leaders’ dream. His view was orchestrated by a coterie that included Union Minister Arjun Meghwal, Vice President Venkaiah Naidu, and  BSP President Mayawati.  There are no documents to corroborate the view that Ambedkar opposed article 370. Ambedkar was misquoted by Hindu extremist leader  Balraj Madhok in RSS mouthpiece, Organiser, published on November 14,  2004

Ambedkar’s well-documented speeches, writings and parliamentary debates  are available on the Ministry of External Affairs’ website. Ambedkar sought a quick solution for the Kashmir issue and advocated a plebiscite. Ambedkar even said that the Partition was the right solution for Kashmir!

In a speech Ambedkar rendered in the Parliament on 10 October 1951, while resigning from Nehru’s cabinet, he said, “Give the Hindu and Buddhist part to India and the Muslim part to Pakistan, as we did in the case of India. We are really not concerned with the Muslim part of Kashmir. It is a matter between the Muslims of Kashmir and Pakistan. They may decide the issue as they like.” (BR Ambedkar,  in 1951). He suggested a zonal plebiscite saying, “… If you like, divide it into three parts: the Cease-fire zone, the Valley and the Jammu-Ladhak Region, and have a plebiscite only in the Valley. What I am afraid of is that in the proposed plebiscite, which is to be an overall plebiscite, the Hindus and Buddhists of Kashmir are likely to be dragged into Pakistan against their wishes and we may have to face the same problems as we are facing today in East Bengal.” Obviously, Ambedkar did not want to cling to Valley against wishes of the Muslim majority there. In another speech in 1953, during a parliamentary debate on India’s

foreign policy, Ambedkar said, “The key note of our foreign policy is to solve the problems of the other countries, and not to solve the problems of our own. We have here the problem of Kashmir. We have never succeeded in solving it. Everybody seems to have forgotten that it is a problem. But I suppose, someday, we may wake up and find that the ghost is there.”(BR Ambedkar, in 1953).

Nehru disowns `accession’ and supports plebiscite: In  Chapter 5 titled Kashmir, India’s Constitution and Nehru’s Vacillation (pages 51-64), Bhasin Nehru discarded maharajah’s and Kashmir assembly’s `accession’. In a letter dated October 31, 1947, addressed to the disputed state’s prime minister, he `after consideration of the problem, we are inclined to think that it [plebiscite] should be held under United Nations’ auspices (p. 28 ibid.). He reiterated in New Delhi on November3, 1951 that `we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar] as we are concerned come in the way of a decision by the Security Council, or the United Nations’(SWJ: Volume 4: page 292, Bhasin p.228). Again, at a press conference on June 11, 1951, he was asked `if the proposed constituent assembly of Kashmir “decides in favour of acceding to Pakistan, what will be the position?”’ he reiterated,  `We have made it perfectly clear that the Constituent Assembly of Kashmir was not meant to decide finally any such question , and it is not in the way of any decision which may ultimate flow from the Security Council proceedings’ (SWJ: Volume 15:, Part II, page 394. Bhasin page 56). He re-emphasised his view once again at a press conference in New Delhi On November 3, 1951. He said `we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar as] we are concerned come in the way of a decision by the Security Council or the United Nations’. Bhasin points out (page 57 op. cit.), `at press conference on 24 July, 1952 when asked what the necessity of plebiscite was now that he had got

[accession by]

the Constituent Assembly, he replied “Maybe theoretically you may be right. But we have given them an assurance and we stand by it (SWJ: Volume 19, pp. 240-241. Bhasin).

Was India the `aggressor’ in Kashmir in 1947: The factual position is that India marched its troops into Kashmir without Maharajah’s permission _ an act of aggression. Historian Alastair Lamb, in his book Incomplete Partition (Chapter VI: The Accession Crisis, pp.  149-151) points out that Mountbatten wanted India not to intervene militarily without first getting `instrument of accession’ from maharajah [prince] Hari Singh.  Not doing so would amount to `intervening in the internal affairs of what was to all intents and purposes an independent State in the throes of civil conflict’.  But, India did not heed his advice. Lamb says `timing of the alleged Instrument of Accession undoubtedly affected its legitimacy'(p.172, ibid). He adds `If in fact it took place after the Indian intervention, then it could well be argued that it was either done under Indian duress or to regularise an Indian fait accompli’.

Lamb concludes (p. 191, ibid):`According to Wolpert, V. P. Menon returned to Delhi from Srinagar on the morning of 26 October with no signed Instrument of Accession.  Only after the Indian troops had started landing at Srinagar airfield on the morning of 27 October did V. P.   Menon and M. C. Mahajan set out from Delhi from Jammu. The Instrument of Accession, according to Wolpert, was only signed by Maharajah Sir Hari Singh [if signed at all] after Indian troops had assumed control of the Jammu and Kashmir State’s summer capital, Srinagar.

Lamb regards the so-called Instrument of Accession, ‘signed’ by the maharajah of Kashmir on October 26, 1947, as fraudulent (Kashmir – A disputed legacy 1846-1990). He argues that the maharajah was travelling by road to Jammu (a distance of over 350 km). How could he sign the instrument while being on the run for safety of his life? There is no evidence of any contact between him and the Indian emissaries on October 26, 1947. Actually, it was on October 27, 1947 that the maharajah was informed by MC Mahajan and VP Menon (who had flown into Srinagar) that an Instrument of Accession is being fabricated in New Delhi. Obviously, the maharajah could not have signed the instrument earlier than October 27, 1947. Lamb points out Indian troops had already arrived at and secured Srinagar airfield during the middle of October 1947. On October 26, 1947, a further airlift of thousands of Indian troops to Kashmir took place.

He questions: “Would the Maharajah have signed the Instrument of Accession, had the Indian troops not been on Kashmiri soil?” Actually, it was on October 27, 1947 that the maharajah was informed by MC Mahajan and VP Menon (who had flown into Srinagar) that an Instrument of Accession is being fabricated in New Delhi. Obviously, the maharajah could not have signed the instrument earlier than October 27, 1947. The instrument remains null and void, even if the maharajah had actually signed it. In his later work, Birth of a Tragedy, Lamb claimed that Maharajah of Jammu and Kashmir never signed the Instrument of Accession at all.

No allegiance to Indian constitution in `instrument’: The ‘Instrument’ expresses ‘intention to set up an interim government and to ask Sheikh Abdullah to carry the responsibilities’ with maharajah’s prime minister. By Balkanising the disputed state, India tore the Instrument of Accession, even otherwise doubtful, to shreds. Para 7 of the Instrument of Accession,  `signed’ by Maharaja Hari Singh ostensibly on October  26, 1947 stated, “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter accession resolution, passed by the occupied Kashmir’s ‘constituent assembly’. Bhasin, p. 57).

Pakistan never labeled `aggressor’ at UN: Nehru told parliament on March 1, 1954 `that …United States have thus far not condemned it [aggression] and we are asked not to press this point in the interest of peace (Bhasin,  pp. 55-56, ibid.).

Nehru himself invokes UN’s intervention: Bhasin points out Nehru made `tactical error’. One `of committing himself to the UN’ (p. 28. op. cit., SWJ: Volume 8: pages335-340). Accession documents are un-registered with the UN.

Post-Nehru equivocal rhetoric: The Kashmir Question is intact on General Assembly’s agenda, with United Nations’ Military Observers’ Military Group on duty.

Inference: It is eerie that the whole architecture of India’s `integral part’ stand on Kashmir is erected on the mythical `instrument of accession’ and its endorsement by the disputed state’s assembly. Legal rigmarole at India’s Supreme Court about special status being temporary or permanent is immaterial. UN charter and right to self- determination override ultra vires `accession’ antics. 

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.

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South Asia

As Sri Lanka struggles with Chinese debt-trap, Maldives moves closer to the Quad

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The Indian Ocean’s geopolitical currents have witnessed drastic transformation this year, particularly in the past three months, with India shedding the exclusive right of its sphere of influence over the Indian Ocean, by allowing the United States in its own backyard. Washington and New Delhi seems to have entered into what few analysts call a ‘soft alliance’.

Sri Lanka and Maldives are strategically located in the northern section of the Indian Ocean, and have long been historically, culturally, and geopolitically under India’s sphere of influence. But, things are beginning to change as Chinese debt-trap looms over these islands.

The Quad grouping, consisting of India, Japan, the United States and Australia, has demonstrated its collective military might in the maritime sphere of India with the recently concluded annual Malabar naval exercise. It also led to the emergence of new dynamics of cooperation in previously reticent areas, built upon confidence in each other’s abilities and consciousness of where it stands in the newly unravelling geopolitical equation.

India’s new strategic comfort with bringing in partners from the Quad partners lying external to the Indian Ocean Region, namely the US and Japan into its long-held exclusive sphere of influence signals a tilt in strategic imperatives for New Delhi in favour of the US that too in an evolving cold war-like situation involving Washington and Beijing with different set of countries rallying behind each side.

India has recently welcomed the US-Maldives Defense Cooperation Agreement signed in September, this year. The following month saw US Secretary of State Mike Pompeo’s visit to Male where he announced Washington’s intent to open an embassy soon.

Less than three months after the defence pact with Washington, Male signed a new agreement with Tokyo this month, for availing a Japanese grant of $7.6 million to strengthen the archipelago’s Coast Guard capacities, in a second major pact with a Quad member.

New Delhi’s newfound willingness to work with external actors in the Indian Ocean is a sign of strategic comfort stemming out from realist foreign policy considerations to expand its circle of friends and coalition partners in its own backyard against a common and more powerful adversary, Beijing, with which it also have decades-long tensions in the Himalayan frontiers.

Even though both these two countries succumbed to disproportionately superior Chinese economic might since the past one decade, it seems Maldives has somehow managed to come out of its dangerous level of dependency on China since Ibrahim Mohammed Solih of the Maldivian Democratic Party assumed presidency of the island nation two years back in November 2018.

The Sri Lankan economy went into a tailspin since the civil war ended in 2009. The country’s exchequer was badly in need of financial support to sustain itself. It was also the time when Beijing just began to project its military and economic power in its neighbourhood and beyond as the flamboyant 2008 Beijing Olympics concluded.

The island of Sri Lanka soon acquired new geoeconomic significance when President Xi Jinping launched the most ambitious infrastructure project of this century in 2013, the Belt and Road Infrastructure, connecting three continents with the Indian Ocean as its epicenter of vitality.

With BRI, a tangled web of debt-trap rapidly began to loom over Sri Lanka as Beijing pumped-in investments into the war-battered island with malicious intentions.

The story of handover of Hambantota port, strategically located in the southern tip of Sri Lankan coast, to China for a 99-year lease in 2017, and the Colombo Port City project being built with Chinese assistance are just examples of how economic leverage gained geopolitically advantageous positions for Beijing overlooking the Indian Ocean. These assets are going to play a significant role in the connectivity of BRI’s ‘Maritime Silk Road’ aspect.

Chinese-led projects are built and managed by Chinese workers themselves as they do in any other part of the world, naturally bringing presence of Chinese personnel to the areas where it operates.

The BRI, however, enhances Sri Lanka’s significance in what theorists call the String of Pearls, wherein Beijing attempts to encircle India by a series of ports and maritime installations under its control in the Indian Ocean such as the overseas military base in Djibouti, Gwadar in Pakistan, and the ports in Bay of Bengal under Chinese influence hosted by either Bangladesh or Myanmar. Chinese submarine presence is also a new reality, particularly in areas surrounding the Malacca Straits.

All these factors naturally brought New Delhi closer to Washington to formulate a ‘collective strategy’ against the expansionist tendencies manifested by Chinese behaviour. At the same time, India has been taking proactive steps in its individual capacity to boost ties with other island and littoral states in the Indian Ocean Region (IOR), like Mauritius and Seychelles where India’s listening posts to monitor sea-lanes also operate.

The Indian Navy has always been the first responder to any HADR (Humanitarian Assistance and Disaster Relief) situations in the IOR which earned significant soft power and respect for India in the countries of the region. This vision has been immortalized in India’s maritime doctrine for regional cooperation in the Indian Ocean, SAGAR (Security and Growth for all in the Region), that was unveiled in 2015.

With the entry of the US, which already has its presence in the British Indian Ocean Territory of Diego Garcia lying mid-way of the ocean, that too with India’s approval, and France in Reunion in the western Indian Ocean, the geostrategic picture of IOR is beginning to change.

Maldives stands as a good example of how to overcome Chinese dominating agenda by boosting cooperation among democracies. But, the Abdullah Yameen-era nightmare of Chinese debt burden is still far from over. In fact, Sri Lanka too is well aware of the Chinese trap from which it yearns to decouple itself. But, Colombo is left with limited options or alternatives to do so.

The renewed Indo-US strategic cooperation, if not translated into offering a viable solution to the debt-trap conundrum, Sri Lanka might irreversibly evolve into another extension of Beijing’s legs in the Indian Ocean threatening the sovereignty of democracies in the region.

Recent steps in the strategic realm are welcome, but the Indo-Pacific democracies, particularly India and the US, should cooperate with these two key island states more in the economic realm as well, if possible near to the extent of Beijing as a collective move.

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The Dysfunctional Pakistan’s Legislature

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The legislature of Pakistan has several problems and because of this very reason governments are unable to make any landmark laws for the state that can prove to be effective in resulting some socio-political or economic changes in the society. The noncooperation among the parties in the house is the major problem that leads no healthy debate. People have never seen the political parties having a healthy debate among the political parties on some key matters that need to address. Political parties prefer crosstalk on each other that mostly ends up on the dismal of legislature. Mostly in the house the opposition and the party in power never each on consensus on anything that shows their no seriousness towards the legislation.

 In my opinion the opposition of Pakistan perceives its role to be negative always. The opposition perceives as their duty to walk out from the house, make fun of their fellow colleagues, bringing our historical facts to propagate negativity about the agenda. This attitude results in no fruitful law-making.

The scenario of national assembly of Pakistan is that if the ruling party does not has two-third majority in the house they will be paralyzed as the opposition has imagines role of not supporting the government to pass laws and bills that can benefit their reputation among the public. In this game of interest the parties forget the importance of legislation and national interest rather they are more focused on protecting their own interests and interests of their political parties.

The tussle between the government and the opposition is endless that is negatively impacting the legislative system of Pakistan.

Another factor that weakens the legislative process of Pakistan is the issues within the upper house. This plays a vital role in enacting the laws without senate’s cooperation legislation cannot improve and strength.

 The sustained bitterness and confrontation with the government and opposition leads to no progress in the making of legislation and strengthening the rule of law. For example the PTI coalition passed the bills and introduced 8 ordinances in its first year of government.

The ten bills passed by national assembly faced a new challenge which was the Senate of Pakistan where PTI also does not hold the majority. Ten out of 4 bills sailed through Senate whereas 3 remained pending in Senate. Only 7 bills turned into acts in the first year of PTI government.

The lack of coordination and seriousness in the parliament is affecting the progress of Pakistan. Without rules and making of new legislation how can the country progress? In a democratic system the rule of law is one of the pillars for true democratic practices but unfortunately in Pakistan we only see leg-pulling and blame game between the institutions.  The lack of political consensus among the parties is another problem. On the other hand the formation of Standing Committees of national assembly is important for the functioning of the system. According to the Rules of Procedure of national assembly the members of Standing Committees has to be elected within 30 days after the elections of the leader of house but according to the data of PILDAT previous assembly managed to form these in 3 months instead of 30 days. This indicated lack of seriousness of the members.

The current government has only got the executive authority and not the legislative competence that makes them dysfunctional as they are dependent on the opposition and then Senate for passing of the legislation and making it a law.

Another factor that weakens the legislative system of Pakistan is the overactive judiciary and the intervention of the military in law making. Through this intervention the legacy of the military rule is still being kept alive. Most of the time the Supreme Court and the judiciary intervene in the legislation to serve their interest and weaken their opponents sitting in the government. The overactive judiciary encroaches the governance agenda, legislative advice etc. the legislative procedure in Pakistan is still developing its institutional identity.

The duty of the legislature is to respond to its public needs and also exercise oversight of the executive, but there is not engagement in the civil society and no research is being conducted on the public policy for better and effective policy making.

In the end it can be concluded that the system is also faulty but the attitude of the parliamentarians is more disappointing and discouraging. The whole system is unsuitable for a less educated population of Pakistan as most of the parliamentarians are unaware of policy-making and its importance for the state. The process is also complex and complicated as it has to go through several steps for making a bill a law.

Through this process, law-making on controversial issues is nearly impossible because in Pakistan people protect their interest instead of their state. Even if the government is serious for law-making the judiciary, military and bureaucracy will not allow the government to do its job. This is high time to adopt a new system in this country and draw lines for every institutions particularly judiciary that is the most rigid institutions and creates hurdles for every government by interrupting them.

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Reinforcing the Role of the International Community in Resolving the Rohingya Crisis

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A young Rohingya girl holds her brother outside a youth club in Cox's Bazar, Bangladesh. © UNHCR/Vincent Tremeau

Bangladesh is hosting more than 1.1 million Rohingya refugees since August 2017. The United Nations defined Myanmar’s August 2017 atrocities to the Rohingyas as “Textbook case of ethnic cleansing”. On July 02, 2018, during his visit to Cox’s Bazar, Bangladesh, António Guterres, the UN Secretary-General noted that “I have no doubt that the Rohingya people have always been one of, if not the, most discriminated people in the world, without any recognition of the most basic rights starting by the recognition of the right of citizenship by their own country – Myanmar”. Thus, the severity of the Rohingya crisis is well-recognized by the international community. This article focuses on the necessity of the international community’s role in facilitating a safe and sustainable Rohingya crisis solution.

The ironic story is that though it is already three years passed, no concrete action is manifested to facilitate the Rohingya refugee repatriation. In the United Nations Security Council, Russia and China applied veto power in the case of Rohingya refugee resolution, which made strong impediments to the repatriation process. Russia and China did this calculating their narrowly defined interest rather than humanity which is in fact, ironic for the world. Thus, the United Nations could not play a crucial role in facilitating the Rohingya refugee repatriation.

Bangladesh is one of the densely populated countries in the world. Though Bangladesh is a rising economic power, feeding more than 170 million people is not an easy task. Also, more than 1.1 million Rohingya refugees have added extra socio-economic pressures in the country. For Bangladesh’s continued growth, prosperity, and stability, there is no alternative to repatriate the Rohingya refugees in Myanmar as early as possible. Since Myanmar committed ethnic cleansing to the Rohingyas, and the country is not interested in taking back the Rohingyas, only the international community including the United Nations, the European Union, the Organization of Islamic Cooperation (OIC) can pressurize Myanmar to ensure a safe and sustainable repatriation.

Bangladesh strongly believes that the international community can play an essential role in resolving the Rohingya refugee crisis permanently. For instance, at the 72nd United Nations General Assembly, Sheikh Hasina, the Prime Minister of Bangladesh, offered five points proposal including the full implementation of recommendations of the Kofi Annan Commission, and the establishment of civilian monitored safe zone in the Rakhine State to the international community to resolve the issue. Similarly, at the 74th Session of the United Nations General Assembly, Sheikh Hasina offered a four points-proposal to resolve the Rohingya crisis highlighting the role of the international community. Sheikh Hasina emphasized that the international community must ensure that the root causes of the Rohingya problem area addressed and the violation of human rights and other atrocity crimes committed against the Rohingyas are accounted for.

The good news is that the on November 19, 2020, the United Nations has adopted a resolution on “The Situation of Human Rights of the Rohingya Muslims and other minorities in Myanmar” while Bangladesh seeks a peaceful solution to the Rohingya crisis. The Resolution called for taking concrete actions by Myanmar to address the root causes of the Rohingya crisis, i.e. granting them citizenship, ensuring the safe and sustainable return of the Rohingyas to their homes by creating a conducive environment. Bangladesh Permanent Representative to the UN Ambassador Rabab Fatima notes that “As a country that hosts over 1.1 million forcibly displaced Rohingyas, Bangladesh continues to seek a peaceful solution to this crisis, which lies in their safe and dignified return to Myanmar”.

Notably, Germany on behalf of the European Union and Saudi Arabia on behalf of the OIC co-tabled the Resolution which was sponsored by the 104 member states including the USA, Canada, and Australia. It is also a positive development that a total of 132 countries voted in favour of the Resolution while nine countries voted against and 31 countries abstained. It demonstrates that most of the countries in the world want a permanent, sustainable and peaceful solution to the Rohingya crisis. It also signifies that these countries care for the humanity while the nine countries who voted against the Resolution only care for their narrowly defined interest. The future generations will undoubtedly read and know the actions of those nine countries who do not care for humanity. Those nine countries need to know that despite several domestic challenges, Sheikh Hasina has shown kindness, humanitarian gesture and thus protected and sheltered those Rohingyas from killing by the Myanmar armies.

Notably, Bangladesh is one of the top ten countries in the world in terms of hosting refugees. This will remain as a humanitarian example in the world. One also needs to keep in mind that the socio-economic realities of Turkey (who is the top in hosting refugees), and Bangladesh is not the same. While the GDP (per capita) of Turkey is US$ 9043, Bangladesh’s GDP (per capita) is US$ 1856, the population density of Turkey is 108 per square kilometres, and Bangladesh’s population density is 1116 per square kilometres. Thus, considering the contexts, and socio-economic realities of Bangladesh, the international community needs to reinforce the Rohingya refugee repatriation process. Most importantly, the international community needs to execute the adopted Resolution as early as possible for the sake of humanity, for the sake of a just cause. The future world will certainly note the noble actions taken by the international community for such a just, and reasonable cause.

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