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International Law

Validity of Reservations of Bangladesh against Article 2 of CEDAW

Samarth Trigunayat

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One of the greatest victories for the post-modern feminist movement in the arena of International Law was the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW, hereinafter, the Convention). Often termed as the harbinger of an alternative understanding of the feminist cause going beyond the Human Rights regime, the Convention heralded the greatest possible change in the Status of women, recognized internationally. Often regarded as the International Bill of Rights for Women, CEDAW is a comprehensive treaty on the rights of women and establishes legally binding obligations on the State Parties to follow the legal standards set by it to end discrimination against women by achieving equality between men and women. (Tackling Violence against Women, London School of Economic Blog)

Despite the theoretical attempts at establishing an equal society, for most part of the World, the coverage of the Convention is minimal. This is mostly because of the ‘reservations’ made by member States in the name of personal laws often originating in their religious set up. The personal laws in their very inception are rooted in the ideas of patriarchy, dominance of men, and lesser roles for women. Many instances from the sources of these personal laws would prove that men are in charge of women and hence can direct their personal spheres. These discriminatory personal laws are protected even in the most advanced constitutional setups either through a document or a bill of rights within the purview of Right to Religion. As a consequence, many countries in order to show their neutrality towards the concept of Religion and to establish the beautiful ideals of secularism tend to overlook the discrimination these religious laws preach.

In the current Article, the researcher provides an analysis as to what kind of reservations are permitted under the CEDAW, and how Bangladesh completely misunderstood its qualified right of Reservations, as an absolute right and established an anomaly, which doesn’t merely contradict its international commitments but also the fundamental principles of the Constitution of Bangladesh.

Concept of Reservations to Treaties

The existing ambiguities in the treaty reservations law have often led to irregularities and illegalities in law. In 1969 the Vienna Convention on the Law of Treaties was adopted to codify practice and provide legal guidance on the meaning of reservations and a uniform procedure for entering them. The Vienna Convention provides that reservations may not be made that are “incompatible with the object and purpose of the treaty.” (Vienna Convention on the Law of Treaties (23 May 1969), Entered into force 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331.) This provision raises as many questions as it answers, as the Vienna Convention does not define “object and purpose,” nor does it indicate what body has the power to determine validity. The Vienna Convention also provides for state parties to object to a reservation within twelve months of its entry. However, objections do not dispose of the question of validity, although some states have objected to reservations to CEDAW on the ground of invalidity. In 1994,M. Alain Pellet, the Special Rapporteur on Reservation to treaties, addressed various aspects of the reservation issues. The most significant for purposes of dealing with CEDAW and other human rights treaties is his discussion of reservations to “normative” treaties. The international human rights treaties differ from most other treaties in that their implementation is monitored by bodies that are established by the terms of the respective treaties. (Human Rights Committee, General Comment No. 24 on Reservations, CCPR/C/21/Rev.1/dd.6 (November, 1994), republished as HRI/GEN/1/Rev.6.) Despite establishments of treaty bodies, within the framework of treaties, who hold authority to judge any reservations on its merits, all these bodies have had issues with reservations.

The Convention permits ratification subject to reservations. Some state parties that enter reservations to the Convention do not enter reservations to analogous provisions in other human rights treaties. A number of states enter reservations to particular articles on the ground that national law, tradition, religion or culture are not congruent with Convention principles, and purport to justify the reservation on that basis. (Reservations to CEDAW, Available at: http://www.un.org/womenwatch/daw/cedaw/reservations.htm, accessed on 6/10/2019).Article 28 (2) of the Convention adopts the impermissibility principle contained in art. 19 (c) of the Vienna Convention on the Law of Treaties. The impermissibility principle states that any reservation which is incompatible with the object and purpose of the treaty shall be invalid. The CEDAW Committee considers art. 2 as the core provision of the Convention. The Committee holds the view that art. 2 central to the objects and purpose of the Convention and as a consequence its importance cannot be neglected. States parties which ratify the Convention do so because there exists an agreement between all the states that any form of discrimination against women in all its forms should be condemned and that strategies set out in art. 2, should be implemented by States parties to eliminate it. How far the traditional, religious or cultural practice, incompatible domestic laws or other policies can justify violations of the Convention, needs some thorough scrutiny.

Fundamental Rights under the Constitution of Bangladesh

Article 7 of the Constitution of Bangladesh, 1972 refers to Supremacy of Constitution and all powers to be exercised in consonance with the same, as it manifests the will of the people of the Republic. The Constitution also guarantees various fundamental rights to its citizens and explicitly states than any law inconsistent with the Fundamental Rights shall be void. The Constitution also promotes equality (art. 27, Constitution of Bangladesh) and prohibits any form of discrimination against women in all spheres of state and in the public life (art. 28(2) Constitution of Bangladesh). Despite these provisions proclaiming equality and non-discrimination against women in the law of the land, Bangladesh holds reservations against art. 2 of the Convention, which, as already discussed above is crucial for the objects and purposes of the Convention. The ground, as repeatedly claimed by Bangladesh, for such reservation is that these provisions contradict the Sharia Law based on Holy Quran and Sunnah. As a response to this, neither the Committee nor any State party has belaboured the issue. Bangladesh withdrew the reservations to Articles 13(a) and 16 (1) (f) of the Convention in 1997 but has not withdrawn the Article 2 and Article 16 (1) (c). The Committee has continued to press on the question of withdrawing the remaining reservations, however mostly unsuccessfully.

Periodic Committee Reports at a glance

Soon after the ratification of the treaty, in 1996 the Ministry of Women and Children’s Affair constituted an inter-ministerial committee to review the reservations to the Convention. The report of the Committee reaffirmed the supremacy of the law, and stated that Bangladesh doesn’t have Sharia Law as such rather certain provisions have been codified into legislation. Also, the report suggested that the provisions of Sharia are not immutable and hence can be reinterpreted as per need of time. (Committee on the Elimination of Discrimination against Women, Third and Fourth Report of State Parties: Bangladesh, CEDAW/C/BGD/3-4 p 26 (April 1, 1997)).

Again in 2004, during the 31st session of the CEDAW, in its fifth report the Bangladeshi representative asserted their intention to withdraw all the reservations. The Committee was gratified to hear that Bangladesh intended to withdraw its reservations to the Convention in the near future. In doing so, it would ensure the effective implementation of the Convention and send a significant message to other Muslim nations. (Committee on the Elimination of Discrimination against Women, Fifth Report (Continued), Summary Record of 654 Meeting, CEDAW/C/BGD/5, para 61, (July 9, 2004))

Regarding the optional protocol, Dubravka Šimonović, Special Rapporteur on Violence against Women, observed, although Bangladesh had ratified the Optional Protocol to the Convention, its reservations to articles 2 and 16.1 (c) effectively meant that the Optional Protocol was not applicable regarding certain rights provided for in the Convention. She remarked that the Bangladeshi delegation had stated that the Government was gradually taking steps to implement the equal rights guaranteed to men and women under the Constitution, and she would appreciate knowing why that was the case, since those rights should be granted, not on a gradual basis, but immediately. (Convention on Elimination of All forms of Discrimination Against Women, 5th Periodic Report: Bangladesh, Summary Records CEDAW/5/SR.653 (12th August 2004)) The fifth periodic report also focused on the ongoing role of NGOs and other Civil Societies stating their lobbying efforts and advocacy attempts to remove reservations from the Article 2 and 16.1 (c).

Most recently, the 8th Periodic Report submitted in 2016, recalled the importance of Law Commission (hereinafter, LC) reports, which is a statutory body empowered to recommend enactment, amendment or repealing of laws relating to fundamental rights and values of society. Since 2009, the LC has suggested reform of laws for the promotion of human rights, including prevention of sexual harassment in educational institutions and workplaces, prevention of violence against women, protection of victims and witnesses to grave offences, reform of Hindu family laws and the withdrawal of reservation on the two Articles (2 and 16.1(c) of CEDAW. (Convention on Elimination of All Forms of Discrimination Against Women, 8th Periodic Report: Bangladesh, May 2015) In the report, the Bangladeshi representative submitted that the Government is aware about the potential movements by the Islamic fundamentalist groups against the withdrawal of the reservations. Therefore, cautious steps are being taken so as not to jeopardize application of the principles of CEDAW. Partnership and cooperation with civil society is essential to create a positive environment for the withdrawal of reservation.

The abovementioned constitutional provisions and periodic reports show that despite being an equal society, at least constitutionally, the abovementioned reservations appear highly mis-founded as they can essentially have only two understandings- first, Sharia is inherently discriminatory against women; Second, Bangladesh has wrongly appreciated and understood Sharia, which has misguided such reservations. While the first one could not be agreed for most of its part, as 29 out of 57 members of Organization of Islamic Cooperation (OIC), with Sharia law in force, have ratified the treaty without any reservations. When it comes to Second observation, then it can be affirmatively said that the Bangladeshi reservation is rooted in the wrong conception of its own religious conceptions and practices. Various reports suggest that the Sharia is not immutable and such changes can be made as per the needs of time. This can be regarded as one of the most important times where call for such amendments in the Bangladeshi understanding and interpretation of Sharia Law as the crime against women in the South Asian region is on all-time high. (See Media Report)

Concluding Remarks

In light of the above-mentioned facts it becomes imperative to understand the prospects of such reservations both in law and in practice along with the methods of tackling the existing obstacles in the implementation of women centric legislations. While Bangladesh has accepted the irregularity of its reservations to the CEDAW in every periodic report submitted to the CEDAW, yet any action for the withdrawal of the same is still an implausible idea because of the pressure on the Government exerted by fundamentalist groups active in Bangladesh. As the reservation contradicts various provisions of the Constitution of Bangladesh like Articles 26, 27, 28, 29, etc, they are inherently invalid. But despite the vehement oppositions from various NGOs and civil societies to the reservations, no such remark has yet been made by the judiciary of Bangladesh. Along with reiteration of supremacy of constitution over sharia law, it is necessary for the courts to remove the divide between public and private spaces. While private spaces are completely untouched by the State, it is imperative that the manifestations of such personal practices which become social factors should be regulated. Alternatively, reading the reservation invalid within the purview of Sharia Law can be another plausible task that the Government can undertake. Taking into consideration the examples of other Islamic nations, which have no reservations against the CEDAW, can also be beneficial to the withdrawing of reservation procedure. These exemplified and exalted examples of law in other Islamic nations which don’t have reservations can help Bangladesh cope up with the resistance to the withdrawal by the fundamentalist forces.

Regarding reservations of Bangladesh, it can be concluded that they are highly misplaced because of inherent problem in their conception. States are required to be proactive in adopting laws and policies to eliminate discrimination against women and in attempting to modify or abolish discriminatory “customs and practices.” As the article lays out the fundamental requirement to comply with all articles of the Convention in the State party’s constitution, statutes, and policies, it is imperative for Bangladesh to withdraw the same.

Samarth Trigunayat is LLM graduate from South Asian University, New Delhi. South Asian University was established by SAARC member nations to enhance cooperation between the member states through the tool of education. The author is currently employed as Young Professional (Law) at Ministry of Commerce, Government of India. The author has previously worked as Assistant Professor at Faculty of Law, Shree Guru Gobind Singh Tricentenary University, Gurugram, India. His area of interest includes International Trade Law, International Investment Law, Feminist Jurisprudence and Constitutional Law. The author can be reached at: lawyer.samarth[at]gmail.com

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International Law

Transition of Balance of Power from Unipolar to Multipolar World Order

Fatima Arif

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The international system may be described as a complex system of social, scientific, political, military and technological systems. This dynamic structure is very difficult to evaluate and it is even more difficult to predict its future.

The distribution of power potential in the international system defines the number of major powers and thus the international system’s polarity. The system would be multi-polar if the great powers are more than two; if they are two it would be bipolar and systems with only one great power are called unipolar.

It can be expected in the future multipolar world that the global economy does not settle with a couple of significant nations but rather with multiple nations of varying capabilities. In the limited arena of affairs pertaining to their country, each state with its particular notable qualities will have decisive say. Beyond the US, Japan, China, the EU, and India are capable of economic influence due to their advancements in technology, increasing economy, and large population base. Iran, Saudi Arabia, Venezuela, African Union countries and Brazil will have an impact, owing to their large energy reserves. Russia should have preferences for both. Because of their geostrategic location such as Pakistan, Central Asia, Ukraine and Turkey, a few nations will have some regional influence because these nations are situated on the energy routes from which energy resources would be on route to other parts of the world.

United States and the Changing World Order

There is a broad bipartisan consensus within US political leadership that the country must remain a global leader / world leading power. This assumption in its re-eminence also comes with the fundamental underpinnings that the United States will lead the world to freedom and liberty. Its third term is resolve to contain China.

It’s troubling to what extent the US continues to pursue China’s containment. The’ democracy alliance’ or the’ pivot to Asia’ are examples of US designs. China too, because of its part, diverted from the usual cautious approach and its proclaimed strategy of’ peaceful progression’ to an unambiguous stance on the South China Sea. Right now, however, the condition does not appear to come to a head-on collision anytime far. Yet the contest could bring a serious and dangerous situation to the fore. The US is not going to communicate directly with its forces on the field. There is a lot of resistance for another war at home. This doesn’t mean the US is ineffective. What we have is a hegemon with a diminishing power and a reluctance to give up his position of leadership. At the other hand, there is no other country capable of replacing it while they frequently seek to question its authority. Chinese occasional deviation from caution, and reluctance on the part of the US to yield, build a dangerous situation.

Decline of the Unipolar System

The U.S. has been the only hegemony since the end of the Cold War, but since the economic crisis of 2008 its world hegemony has been undermined. The gap in power between China and the US is diminishing. In 2011, China’s GDP contributed for around half of the US GDP. If China’s GDP continues to rise at 8.5 per cent and US GDP increases at less than 3.8 per cent, the current gap between the two forces will level out in the decade to come. Meanwhile, the economic gap between these two nations and the other major powers will continue to expand over the next ten years. In the next five years, only the US and China will spend more than $100 billion annually on defense, growing the difference in power between them and the others. Accordingly, the international structure would not be unipolar.

International Players That Can Change the International World Order In 21st Century (Analytical Approach)

Bipolar global structure collapsed by the end of the Cold War. The United States has become the sole superpower and as expressed in the new industrial order of defense, the international structure has become unipolar. The major powers of the global community are China, Russia, Japan and the E.U. Whether the international system can turn into a bipolar or multipolar system depends on developments in many countries and regions in technological, political, economic, and military terms. China, Russia, Japan, the EU and India have the power to change their international structure. In the last twenty-five years, China’s capacities have steadily increased in magnitudes that significantly restructure the international order. Economic prosperity for China goes hand in hand with the advancement of science and technology. It is developing expensive weapons systems that are increasingly capable compared to developed countries ‘ most advanced weapons systems. Another important determinant of the future of the international community is the relative dominance of the U.S. in science, technical, economic and military capacities compared to other major powers.

Conclusion

The position of emerging states, which influence the range and change of the international system, is very difficult to comprehend. The general outlines of what is happening with this phenomenon are becoming more evident, as transition happens under intense internal dynamic conditions and not from external factors. There is a group of candidates that can be considered growing powers, and there are rapid bursts in this phase of transition, but it is longer than expected. Under conditions of changing institutionalization a central component of these changes occurs. Yet there is also a gap in the assumptions regarding the principles of collaboration and conflict. National interests and principles are certainly the most significant in the changing world order, and these can also lead to deeply complex and frustrated bargaining situations that need to be resolved by enhanced collaboration at the state level. Joined societies dissolve, along with the old beliefs. According to different ideas of world system, that countries are not less divided, and they can constantly struggle and communicate with each other at the same time. Therefore, the future multi-polar system would be no different from the other multi-polar moments that history has seen, resulting in more chaos and unpredictability than in the current unipolar world. Nevertheless, multi-polarity does not only carry the risks involved in researching balance of power among great powers for the first time in history.

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International Law

The UN reforms are required to make it functional

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Today, the world we live in has become more unpredictable, insecure, and exposed to more vulnerability. Geopolitics is changing rapidly, new problems are often emerging, while old issues remained unresolved. Humankind is under threats and challenges; some of them might be natural disasters, like Earthquakes, Floods, Fires, Valconos, Pandemic, etc. But most of the difficulties and problems are man-made, creation of some powerful countries, the result of over-ambitions, greed, expansionism, biases and jealousy. Big and more muscular countries are keeping eyes on the natural resources of small and weaker nations, etc.

In 1945, the United Nations was established to replace the League of Nations. Because the League of Nations was unable to solve most of the problems faced by the world, unable to resolve conflicts and wars, unable to protect human lives, unable to maintain justice and equality, the failure of achieving objects, the League of Nations was dissolved, and UN was established.

The UN was established with the following four objectives:

Maintaining worldwide peace and security

Developing relations among nations

Fostering cooperation between nations in order to solve economic, social, cultural, or humanitarian international problems

Providing a forum for bringing countries together to meet the UN’s purposes and goals

UN Charter was written by very professionals and experts in their own fields. The Charter is comprehensive and based on many considerations, satisfying almost the needs of nearly everyone at that time. Considering the disaster of the Second World war, the Charter was considered a most appropriate document to address practically all concerns.

The UN has been functioning since 1945 and ready to celebrate its 75th anniversary soon. At this moment, if we look at the performance of the UN, there are many things one can mention as achievements or in the UN’s credit. No doubt, in the early days of the Establishment of the UN, the objectives achieved were rated quite well. However, over time, the UN was politicized, and some of the countries, who were a major donor to UN contribution, were using the UN and its structures to achieve their political objectives. They were misusing the UN platform to coerce some other nations or using UN umbrella to achieve political of economic goals by harming other nations. On the other hand, geopolitics became so complicated and complex that the existing structure of the UN is unable to meet the challenges of the modern world.

Just, for example, Afghan is under war for the last four decades, people are being killed in routine matters, foreign intervention caused the loss of precious lives and economic disaster to people of Afghanistan. Iraq war, Libya War, Syria war, Yemen War, the situation in Ethiopia, Burkina Faso, Venezuela, Ukraine, somewhat more complicated conflict among the U.S., Iran, Israel, and the Persian Gulf, U.S.-North Korea tussle, and Kashmir, all are remained unresolved under the current structure of the UN.

Should we remain silent spectators and keep the status quo, and let the humankind suffer more? Should we justify ourselves as helpless and let the more powerful kills more human beings? Should we remain in isolation and keep our self busy with our own interests? Should we compromise with our conscious? Should we ignore our inner voice? Should we prove ourselves as innocent and not responsible such crimes committed by someone else?

Think and thing smartly, and consider yourself in the same situation and a victim, what we should be expecting from other nations, the international community, and the UN. We must do the same thing to meet the expectations of the victims.

The UN is unable to achieve its objectives with the current structure; the reforms are inevitable. We must strengthen the UN and transform the current dysfunctional UN to a more effective UN, which should satisfy the core issues of all nations. Africa is a major continent, and facing many challenges, but have no say in the UN; there is no single country from Africa in the Security Council of the UN as a permanent member having veto power. The Muslim world, having an estimated population of two billion, every fourth person in this world is a Muslim, there are 57 independent sovereign countries as member f the UN,m but no voice in the UN, no permanent member of UNSC, no veto power, who will protect their rights and who will look after their interests. Should they remain at the mercy of the current five permanent members of the UNSC?

Some countries are rebellious to the UN; some states are defaulter of the UN, and not implementing the resolutions passed by UNSC. Some countries have bypassed the UN and imposed war or sanctions on other nations. They must be held responsible for their acts, the UN should kick such countries out of the UN, and their membership may be suspended or cancelled.

It is time to introduce, comprehensive reforms in the UN, to address all issues faced by today’s modern, complex and rather complicated world. An appropriate representation of all nations, groups, ethnicity or religion should be ensured. The UN has a heavy responsibility, deserve more budgets, more powers and needed to be strengthened further.

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International Law

Coronavirus Shaping The Contours Of The Modern World

Nageen Ashraf

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Globalization vs. Protectionism:

Globalization means the movement of ideas, products, technology, and people across borders and different cultures. It is a multi-dimensional phenomenon. It has social, cultural, economic, political and legal aspects. Globalization has made the world a global village and talks about co-operation and interdependence. Protectionism, on the other hand, is the restriction of movement of goods and products across borders to protect the national industries and economy. The major goal of protectionism is to boost up national economy, but protectionist measures can also be applied for security purposes. So, we can say that protectionists are basically anti-globalists and prefer domestic strength as compared to foreign co-operation.

Protectionism and Covid-19

Globalization has made the world so interdependent and interconnected that any economic or political change in one state creates a domino effect and influence many other states. For the pandemic, most states were initially blaming China, but as it slowly healed and the pandemic caused more devastating impacts in the western states, more fingers are pointing towards globalization. Multiple narratives are building regarding globalization where protectionists finally got a chance to prove how right they were all along.

Globalization not only played a vital role in the spread of this epidemic, it also made the economic crisis go global by affecting the supply chains. An epidemic that affected a single city in Dec, 2019, grew to become a pandemic affecting almost every state in the world through movement of people and goods. States that adopted strict measures and restricted the movement of people, have relatively less cases of corona virus as compared to other states. The worst impacts of corona virus so far can be seen in USA where New York City was initially the epicenter.

New York City is definitely one of the most crowded cities in the world where daily, thousands of people move in and out for various purposes. This could be one of the reasons of such devastating impacts of corona in NYC because the free circulation of people and goods allowed the virus to spread exponentially. On the other hand, if we talk about African continent, where most states are under developed, and the movement of people in and out of the continent is very less as compared to Europe and Americas, reported cases of corona virus are very low. As of Sep 11, 2020, in the whole continent, the highest number of corona cases is in South Africa, with a count of642k as compared to USA’s count of 6.49m. This provides evidence that movement of people played a vital role in the spread of this virus and movement of people has increased a lot since the rise of globalization.

Critiques of globalization also argue that globalization is to be blamed for an epidemic that spread across borders and will soon plunge the whole world into recession. Interdependence because of globalization has made the world more vulnerable to such situations. For instance, China is one of the biggest markets in the world that exports antibiotics and telecommunications and remains an important part of most of the global supply chains. Half of the world’s surgical masks were made by China, even before pandemic. So, when the pandemic struck Wuhan, China, the supplies from China to the rest of the world affected many states that were dependent on China, and they ran out of important pharmaceutical inputs. Even the developed states like France ran out of medical masks and had to suffer because of lack of important medical equipment. This reveals the cost of such deeply interconnected global supply chains that create a domino effect.

Is Globalization ending?

Globalization has made the world a global village and undoubtedly facilitated the free movement of people, goods, ideas, cultures, information, and technology across borders. But on the other hand, it has also played a major role in the spread of diseases and has made states vulnerable to unexpected shocks. Globalists also believe that the medical or health consequences of corona would prove less destructive if states work together instead of working separately for the vaccine, as a competition. Adopting the nationalist or isolationist approach during the pandemic would crash the international economy and further increase the tensions. As the protectionists suggest, if we’d continue to protect only our national economies and keep on putting barriers on international trade, the national recession would soon turn into a global depression, as happened in 1930’s.Timely economic recovery is only possible through global cooperation.

 I think that the threat of Covid-19 has created an extraordinary situation. Originating from Asia, and then causing millions of deaths all around the globe, the blame on globalization is legitimate. Most of the states in the world rely on their tourism revenue that has been affected badly due to corona virus. For instance, Saudi Authorities decided to cancel Hajj because of growing pandemic, and the impact on KSA’s economy would be dramatic. Similarly, Japan is one of the states that depend highly on tourism revenue from Chinese tourists and travel restrictions have caused severe losses. We have also seen how the supply chains are affected just because one of the major producers (China) was badly hit by the virus. Globalization seems to have conquered the world so there is no way that it can be avoided completely. However, after the pandemic, there might be a little change in the world order regarding high interdependency. States that were mostly dependent on China for their important supplies might try to produce the supplies on their own and prioritize their domestic industries over foreign industries because of the consequences they had to bear during the pandemic. Similarly, travel bans will surely be removed but people might hesitate to cross borders and move freely because there will be awareness regarding the risks related to free movement. So, I think that the pandemic has highlighted some backlashes in globalization, but it doesn’t mean that globalization has failed. We can say that it is fragile, despite or even because of its benefits.

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