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Kadi II: The 1267 Sanctions Regime (Back) Before the General Court of the EU

Published on November 16, 2010        Author: 

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow. Many thanks are due to Christian Tams, Marko Milanović, and Dapo Akande for their comments. The usual disclaimer applies.

In the aftermath of the ECJ’s Kadi decision, which annulled the EC Regulation implementing the 1267 sanctions regime against Mr Kadi and the Al Barakaat Foundation, Kadi was almost immediately relisted by the Council of the EU in a new Regulation. This subjected him afresh to the restrictive regime of SCRs 1267 (1999) et seq, most recently SCR 1904 (2009). And, as Devika Hovell reported on this blog, almost immediately Kadi brought a fresh challenge against that Regulation before the CFI, now renamed as the ‘General Court of the EU’ after the entry into force of the Lisbon Treaty. On 30 September, the General Court rendered its decision in Kadi II.

EJIL:Talk! regular readers will know that we have consistently reported on challenges to the 1267 regime before national and regional courts on this blog (see eg here, here, here, here, here, and here). In Kadi II, the General Court grudgingly follows the ECJ’s reasoning in Kadi I and confirms a trend of defiance of Security Council sanctions. In this post I will try to situate the Kadi II decision in the context of challenges to Security Council restrictive measures under Article 41 of the UN Charter. Read the rest of this entry…

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Formation of Custom and the Inherent Powers of the Special Tribunal for Lebanon

Published on November 11, 2010        Author: 

Yesterday the STL Appeals Chamber issued its first substantive decision (h/t Bill Schabas’ blog), penned by Professor Antonio Cassese, who was not only the presiding judge but also the judge rapporteur in the Chamber. The decision delves in great detail into the concept of inherent powers of international courts and tribunals, and is strongly reminiscent of the ICTY Appeals Chamber’s first decision in Tadic, over which Judge Cassese obviously also presided.

Expansive invocations of inherent powers have not come without controversy. The STL decision, although ostensibly dealing with a very technical matter of the access of a potential suspect to documents in his case file, is well worth the read on several points of principle. I was particularly struck by the Appeals Chamber assertion (para. 43 of the decision) that a rule of customary international law now exists to the effect that international courts and tribunals possess an inherent jurisdiction, which confers on each of them the power to determine the scope of their own jurisdiction (competence de la competence; Kompetenz-Kompetenz). I was even more struck by how the Appeals Chamber went on to prove that such a customary rule existed (para. 47):

The extensive practice of international courts and tribunals to make use of their inherent powers and the lack of any objection by States, non-state actors or other interested parties evince the existence of a general rule of international law granting such inherent jurisdiction. The combination of a string of decisions in this field, coupled with the implicit acceptance or acquiescence of all the international subjects concerned, clearly indicates the existence of the practice and opinio juris necessary for holding that a customary rule of international law has evolved.

Fantastic, no? Note how custom now apparently equals what tribunals say is custom, plus lack of objection by anyone else. Note also how the Appeals Chamber does not refer to state practice and opinio juris, but to practice pure and simple, as well as to the ‘lack of any objection by States, non-state actors or other interested parties‘ and the ‘acquiescence of all the international subjects concerned.’ Hardly an orthodox account of the formation of custom!

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Philippine Supreme Court Silencing Dissent?

Published on November 9, 2010        Author: 

Given the wide coverage of the Calvo-Goller/Weigend/Weiler saga, EJIL Talk readers will be well aware of the topic of challenges to academic freedom. This post seeks to draw readers’ attention to another instance involving risks of an altogether different degree, and to raise awareness for what seems to be a worrying attempt, by a court, to silence dissent among academics: the Court in question is the Philippine Supreme Court, which is threatening 37 members of the University of Philippine’s College of Law with disciplinary sanctions for contempt – a charge that may eventually result in the loss of their bar licenses. This is only the latest twist in legal proceedings that from the outside seem altogether surreal, but that involve risks of a very real nature to some of our colleagues. So what is it all about, and why should we care?

What it’s about

The contempt proceedings have their origin in the proceedings of Isabelita Vinuya et al. v. Executive Secretary et al., in which the plaintiffs sought an order requiring the Philippine government to seek reparations from Japan for the mistreatment of Philippine “comfort women” during World War II. The Supreme Court declined the request, and in the course of its decision discussed concepts such as jus cogens and obligations erga omnes. Its discussion was curious because it quoted passages from works by Dr Mark Ellis, Professors Evan Fox-Decent and Evan Criddle and myself without properly attributing them, and, it seems, without really having understood them – hence attempts to apply jus cogens or obligations erga omnes meaningfully were presented as evidence of their questionable status.

Read the rest of this entry…

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Post-Conflict Justice Survey & Interviews

Published on November 9, 2010        Author: 

Have you worked in the field of post-conflict justice? Would you like the chance to share the story of your experiences?

If you have ever worked on issues relating to post-conflict rule of law or accountability for atrocities, you are invited to participate in a survey about your work experience. You can take the survey on-line in English here. Or if you would prefer to take the survey in French, click here. The survey, which is being conducted by yours truly, Professor Elena Baylis at the University of Pittsburgh Law School, should take only about 10-15 minutes to complete.

As thanks for participating in the survey, you will be eligible to win a $100 Amazon.com gift card. One of every 25 people participating in the survey will win. At the end of the survey, you will see a report summarizing the survey responses so far and indicating how your responses compare to those of other survey-takers. You will also be given the chance to request a copy of the final report of this research study.

We would also welcome the opportunity to talk to you about your post-conflict justice work. You will have the chance to volunteer for an interview at the end of the survey. Interviews will be brief (no more than 30 minutes) and can be conducted in person or over the phone.

The purpose of this research study is to learn about the work and career choices of people working on post-conflict justice issues and to examine what effect those choices are having on the development of the field of post-conflict justice. This is the first study to focus on the role of the people involved in post-conflict justice, rather than primarily on its processes or institutions. By participating, you will help us better understand this emerging area of the law — and have the chance to tell your story as well.

The survey is anonymous, and interviews can also be conducted anonymously if you wish. All individual responses are confidential and will be kept secure. The data from the survey will be reported only in the aggregate. There are no foreseeable risks to you from participating in this research study, and the only benefit offered is the chance at winning a gift card. Your participation is voluntary and you may withdraw from the study at any time.

If you have any questions about this study, or if you wish to volunteer for an interview or request a copy of the final report without taking the survey, you may contact me directly at ebaylis {at} pitt(.)edu

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Editorial: In this issue [Vol. 21: No. 3]

Published on November 5, 2010        Author: 

The latest issue of the European Journal of International Law has recently been published. A Table of Contents is available here on EJIL’s website

This issue begins with a symposium on treaty interpretation. The principal EJIL 20th Anniversary symposia were extra-systemic: looking at the way international law deals with the use of force or certain aspects of globalization.  For this issue of Volume 21, we chose a different tack. The aim was to hold a workshop with an ‘introspective’ focus, honing in on the processes of international law as a legal discipline. The goal was to re-examine a classical topic. The issue of treaty interpretation or re-interpretation immediately presented as both important and interesting.  Thus, a lively workshop on this topic was held last November in Florence.

Our panel of authors included George Letsas, Leena Grover, Lucas Lixinski, Isabelle Van Damme and Riccardo Pavoni. Luigi Crema also submitted a fine paper on this topic, which we later added. After much dialogue and revision, we are pleased to publish our symposia, The Interpretation of Treaties – A Re-examination.

Next, we publish three articles under our occasional series, Critical Review of International Governance.  In our last issue, we published three articles in this series from authors hailing from Ethiopia, China and Malaysia.  In this issue, all of our ‘Critical Review’ authors call Europe home and focus respectively on European institutions.  As with our last iteration of this series, however, we suspect you will find that in critically confronting the operations of a specific ‘global’ institution, these authors provide important contributions to broader debates on global governance. Here at the EJIL we often find that it is the confrontation with the particular that gives us a better understanding of the whole. The first is an article by Juliet Chevalier-Watts on investigations under Article 2 of the European Convention on Human Rights.  Next is an article by Frank Hoffmeister. The EJIL has long been interested in questions of state responsibility for internationally wrongful acts. Hoffmeister studies this issue through a new lens, examining how the European Union might bear responsibility for internationally wrongful acts, taking particular note of the International Law Commission’s draft articles on the attribution of responsibility to international organizations. Last we have an article by Anne-Sophie Tabau and Sandrine Maljean-Dubois that considers the relationship between the Kyoto Protocol System and the European Union.

We also publish in this issue a Review Essay by Sergio Dellavalle, which fleshes out the central arguments from a number of texts on the topic of global order.  All authors chosen by Dellavalle write within the universalist paradigm of international law.  This essay’s contribution is that it serves as an able guide to a number of recent distinctions within this mode of thought.

We conclude with a poem, Cosmos Assessed by Eric Stein.

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Editorial: Copyright, Law Journals and a Romantic View of EJIL

Published on November 5, 2010        Author: 

For at least 20 years I have been conducting guerrilla warfare against legal publishers on the matter of copyright. Whenever I get a copyright form I either ‘forget’ to send it back to the publisher (in more than half the cases no one seems to notice or care) or, if they do insist, I always cross out the critical language concerning my intellectual property (they usually ask you to make them a gift of your copyright) and replace it with a handwritten grant of a non-exclusive licence. I was challenged only once. I informed the publisher of the journal in question (Blackwell) that if they were unhappy they should feel free to drop my piece. That did not happen. The first footnote proudly displayed: ©JHH Weiler.

I remember the moment of change. The publisher in question was Walter De Gruyter, publisher of the multi-volume series Integration through Law, of which I was co-editor and in which I had published a couple of pieces myself. Some years later I wanted to photocopy one of the pieces for my students. University copy-centres in the USA take copyright seriously and requested a release from the publishers. I requested such from De Gruyters, who promptly sent it accompanied by a hefty bill. They owned, it appeared, the copyright on my work and were now re-selling it for a profit. (two years later I would presumably receive a 10% royalty on the fee I had paid….) Res ipsa loquitur.

Consider the raw deal we authors get from most legal publishers, including law journals. Typically you are asked in exchange for publishing your brilliant piece, the result of many months of research, drafting and redrafting, to cede your copyright to the publisher of the journal. Now make no mistake: law journals are a serious source of profit for publishers. The break-even point occurs at a remarkably low subscription rate. Internet publishing has made them even more profitable – as the ratio between paper subscription (with the heavy costs of production, warehousing and delivery) and the cheaper online-only version shifts to the latter. Internet journal publishing has given a considerable boost to another source of publisher income: online access to individual articles. In the past it was rare that a publisher would get a significant second bite at the apple. After all, how many permission requests for republication would come their way after the initial publication of an article in the printed journal? But now, with internet research there is an appreciable market for the one-of-a-kind-download-for-payment, which generates very considerable income for the publisher. You, the author, see none of this. The issue is not the money. It is the restriction of access to our work that rankles.

The prevailing fiction is that you give your copyright in exchange for publication, which does involve costs and which gives you fame and recognition. But that would be like saying that in exchange for exhibiting his or her paintings, an artist must actually give them to the gallery or museum as a gift. By simply allowing the journal to publish your piece, by giving them a licence, you are giving them something of value. People subscribe to the journal because enough authors of quality like yourself allow their work to be published therein. So on what ground should one be asked to give away, for ever, the intellectual property in one’s work? Read the rest of this entry…

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Bill Schabas on the African Union’s Proposal to Amend Article 16

Published on November 2, 2010        Author: 

Professor Bill Schabas has written on his blog  (see his post here) about the recent paper co-authored by Charles Jalloh, Max du Plessis and me on the African Union’s (AU) proposal to amend Article 16 of the ICC Statute (see earlier post on this paper here). Prof. Schabas was a member of the expert group convened by the Institute for Security Studies to provide advice and reflection on the paper and it was a pleasure to engage with him on the issue. As readers will see from his post, he is concerned about the tension that has arisen between African States and the ICC. He is also concerned that this tension arises out of what he would consider to be the misguided view that decisions regarding ICC prosecutions should be taken without reference to broader political considerations and in particular without reference to the effect of those prosecutions on stability and peace. He says:

Africa’s declining enthusiasm for the Court has been manifested in a number of ways, including the refusal of certain ICC member states to comply with the Al Bashir arrest warrant. Africa’s tension with the Court is profoundly troubling.
This report, written by three Africans, addresses the African concerns with great understanding and sympathy. It concludes that the legal obstacles to the proposed amendment to article 16 are actually not so serious. The real problem is political. The report suggests there will not be sufficient support among members of the Court. I think that getting general support within the United Nations, or within the States Parties to the Court, is probably not such an obstacle. After all, article 16 was not exactly a careful, balanced attempt to address the relationship between peace and justice. Rather, it was a nasty compromise with the five permanent members of the Security Council, who thought (and probably still think) that in any case the Security Council has the power to stop the Court at any time, even permanently. The real problem with amending article 16 is the permanent five.
It is often said that involving the General Assembly in deferral of prosecution would only ‘further politicise’ the Court. But it is already politicised. I don’t see why making the politicisation of the Court more democratic, by involving the General Assembly, aggravates a problem. In that sense, the African Union proposal makes fine sense. The heart of the matter, I think, is that there is indeed a role for political considerations in the identification of situations for prosecution before the Court, and in decisions to defer prosecution. It is problematic that these decisions are essentially the remit of a single individual, the Prosecutor of the Court. Leaving the Security Council as the only body able to bring such political considerations to bear is also unacceptable, for obvious reasons.
The African Union has probably not found the answer to this conundrum, but its amendment helps in the discussion about how to relate political considerations to choices about prosecution. The current mantra that suggests the Prosecutor is ‘independent’ and indifferent to political matters doesn’t make sense and doesn’t correspond to reality. Like all of us, he has his own views about the world and they are reflected in the determinations that he makes. But many continue to promote the fiction that the Prosecutor is guided only by judicial criteria, such as the mysterious, enigmatic concept of ‘gravity’.

There is a section in the report about impunity in Sudan. It seems accurate enough, except I tend to think it is beside the point. We can all agree that impunity in Sudan needs to be addressed, yet we must also bear in mind the importance of ending existing conflicts and preventing new ones in that unhappy country. African political leaders seem in broad agreement that prosecuting Al Bashir at this sensitive point, with a referendum on the breakup of the country only weeks away, will do more harm than good. Their views are largely dismissed by what I will call the ‘international justice community’. Personally, I am inclined to think that the views of African political leaders are extremely important. I would trade a prosecution of Al Bashir for the promise of peace in Sudan in a heartbeat.

In our discussions with the expert group one of the most contentious issues was the proper meaning to be given to Article 53 of the Rome Statute, which speaks of “interests of justice” as a factor to be taken into account in decision-making about ICC prosecutions. Read the rest of this entry…

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Addressing the African Union’s Proposal to Allow the UN General Assembly to Defer ICC Prosecutions

Published on October 30, 2010        Author: 

One of the aspects of the stand-off between the African Union (AU) and the International Criminal Court (ICC) regarding the proceedings against Sudanese President Omar Al Bashir is the call by AU for the United Nations Security Council to invoke Article 16 of the ICC Statute and request a deferral of the ICC prosecution of Bashir. The organs of the AU have made this call several times in the past 18 months but the Security Council has not acceded to this request. This has led to a feeling on the part of some African States that African concerns are being marginalised and that the structure of the UN Security Council does not take sufficient account of their interests. At a Ministerial meeting of African parties to the ICC Statute, held last November, African States recommended that Article 16 of the ICC Statute be amended to allow the UN General Assembly to make requests for deferrals of ICC investigations and prosecutions. The obvious aim of the proposal was to dilute the power of the SC with regard to ICC prosecutions. The proposed amendment reads as follows:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

A State with jurisdiction over a situation before the Court may request the UN Security Council to defer a matter before the Court as provided for … above.

Where the UN Security Council fails to decide on the request by the state concerned within six (6) months of receipt of the request, the requesting Party may request the UN General Assembly to assume the Security Council’s responsibility under para 1 consistent with Resolution 377(v) of the UN General Assembly.

Although the proposal was made in the lead up to the Kampala review conference which considered some amendments to the ICC Statute, it was made too late to be on the agenda for that conference. The recommendation was made just days before the 8th session of the meeting of the Assembly of States Parties (ASP) to the ICC Statute. The proposal was put forward at that 8th session and again at the resumed 8th session of the ICC ASP in March 2010 but it was decided not to consider the proposal in Kampala in June 2010 but to defer it to the 9th ASP. The 9th ASP will take place in December this year and it is likely that the AU will be pushing its proposal at that meeting since it was reiterated by the AU Assembly of Heads of State earlier this year.

So what should the ASP do with the AU’s proposal? The proposal raises issues not only with regard to the ICC but also raises questions about the division of competence between the UN Security Council and the UN General Assembly. Is the proposed amendment not merely an amendment to the ICC Statute but also an indirect way of amending the UN Charter? For example, would the amendment be compatible with Article 12 of the UN Charter which states that the Gen. Assembly may not make recommendations with regard to situations or dispute in respect of which the SC is exercising its functions?  What are the prospects for success for this amendment? Furthermore, quite apart from the specifics of Article 16, how should the concerns of some African States regarding the operation of the ICC be addressed? Are those concerns valid and can they be addressed without amendment to the ICC Statute?

In a recent paper produced for the South African based Institute for Security Studies, Max du Plessis (University of KwaZulu Natal), Charles Jalloh (University of Pittsburgh) and I address these issues concerning the AU concerns about the ICC.

This African expert study on the African Union’s (AU) concerns about article 16 of the Rome Statute of the International Criminal Court (ICC) seeks to articulate a clearer picture of the law and politics of article 16 deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC) to invoke article 16 to suspend the processes initiated by the ICC against President Omar al-Bashir of Sudan. The lack of a formal reply by the UNSC to the AU request has resulted in AU member states deciding to withhold cooperation from the ICC in respect of the arrest and surrender of Bashir. In light of the AU’s continued concerns, questions have arisen about the UNSC’s exercise of the controversial deferral power contained in article 16. This culminated in the AU proposing that article 16 be amended to empower the UN General Assembly to act should the UNSC fail to decide on a deferral request after six months.

Although states parties to the Rome Statute have shown little support for the AU’s proposed amendment to article 16, the merits of the AU proposal must be considered. A failure to engage with African government concerns about the deferral provision could further damage the ICC’s credibility in Africa. Constructive suggestions about the ‘article 16 problem’ must be developed in order to contribute towards resolving the negative stance that some African countries have taken towards the ICC. The challenge is to devise both legally sound and politically palatable options. Read the rest of this entry…

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Changes in the EJIL:Talk! Team

Published on October 26, 2010        Author: 
The EJIL community wishes to extend its warm thanks to Nehal Bhuta  who is stepping down as an editor of EJIL:Talk! our hugely successful blog. Working along side Dapo Akande,  the Blog has become an important forum and voice for international legal discourse.  It has set the highest standards for seriousness and sobriety eschewing many of the pitfalls of cyberspace. EJIL: Talk! complements EJIL — the whole being greater than the sum of the parts. This is a good moment to thank Dapo Akande for his continued and selfless leadership of EJIL:Talk! and to welcome two new editors who will work along side him: Iain Scobbie of EJIL’s Scientific Advisory Board and Marko Milanovic — well known for his thoughtful and thought provoking contributions to EJIL:Talk!
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The Enron Annulment Decision’s exposure of Necessity’s Endemic Uncertainty: A Welcome Critique

Published on October 25, 2010        Author: 

Sahib Singh is a  member of the international litigation and arbitration group at Skadden and a visiting lecturer at the University of Vienna.

As promised by my last post on the Sempra Annulment decision, this is a comment on the Enron Annulment decision of 30 July 2010. The decision is fascinating for a number of reasons, but this post shall concentrate on the Committee’s analysis of the “only means” requirement under the customary doctrine of necessity. Whilst highlighting the inherent ambiguity in the application of these words, the Committee’s inquisitorial approach may create more problems than it solves. Accordingly, this post concludes with a rough sketch of logical steps a tribunal may take in applying the “only means” requirements under custom.

I.          Background & Findings of the Committee in the Enron Annulment decision

By way of background on investor-State arbitration claims concerning Argentina, please see my last post. The Enron Annulment Committee concluded that the original award, rendered in favour of the Claimant, was to be annulled due to the Tribunal’s failure to apply the applicable customary law as represented by Article 25 of the ILC Articles on the Responsibility of State for Internationally Wrongful Acts and failure to give reasons (paras. 377-8, Enron Annulment). In particular the Committee concluded that the tribunal’s reasoning of the “only means” requirement under Article 25 was entirely insufficient: (emphasis added)        

369. The first question concerns the legal definition of the expression “only way” in Article 25(1)(a) of the ILC Articles. The Committee notes that the expression is capable of more than one possible interpretation. One potential interpretation is that it has its literal meaning, such that in the present case, the principle of necessity could be relied on by Argentina if there were genuinely no other measures that Argentina could possibly have adopted in order to address the economic crisis. As Argentina points out, there will almost inevitably be more than one way for a Government to respond to any economic crisis, and if this interpretation were correct, the principle of necessity under customary international law could rarely if ever be invoked in relation to measures taken by a Government to deal with an economic crisis. However, that would not mean that it would not be open to a Tribunal to find that this is the correct interpretation, although there are other interpretations that would be equally open to a Tribunal.

 370. For instance, another possible interpretation would be that there must be no alternative measures that the State might have taken for safeguarding the essential interest in question that did not involve a similar or graver breach of international law. Under this interpretation, if there are three possible alternative measures that a State might adopt, all of which would involve violations of the State’s obligations under international law, the State will not be prevented from invoking the principle of necessity if it adopts the measure involving the least grave violation of international law. Under this interpretation, the principle of necessity will only be precluded if there is an alternative that would not involve a breach of international law or which would involve a less grave breach of international law.

 371. A second question not addressed by the Tribunal is whether the relative effectiveness of alternative measures is to be taken into account. In adopting measures to safeguard an essential interest, a State may in practice not be in a position to know with certainty whether a given measure will prove to be effective, and reasonable minds may judge that some measures are likely to be more effective than others. For instance, suppose that there are two possible measures that a State might take in order to seek to safeguard an essential interest. One is 90 per cent probable to be 90 per cent effective to safeguard that essential interest, while the other is 50 per cent probable to be 60 per cent effective. Suppose that the former measure would (subject to the potential application of the principle of necessity) be inconsistent with obligations of the State under international law, while the latter measure would not. Would the State be precluded from invoking the principle of necessity if it adopted the former measure, on the basis that there was an alternative available? Or could the State claim that the measure taken was the “only way” that stood a very high chance of being very effective?

 372. A third question that is not specifically addressed by the Tribunal is who makes the decision whether there is a relevant alternative, and in accordance with what test? Does the Tribunal determine this at the date of its award, when the Tribunal may have the benefit of knowledge and hindsight that was not available to the State at the time that it adopted the measure in question? Or does the Tribunal determine whether, on the basis of information reasonably available at the time that the measure was adopted, a reasonable and appropriately qualified decision maker would have concluded that there was a relevant alternative open to the State? Or does customary international law recognise that reasonable minds might differ in relation to such a question, and give a “margin of appreciation” to the State in question? In that event, the relevant question for the Tribunal might be whether it was reasonably open to the State, in the circumstances as they pertained at the relevant time, to form the opinion that no relevant alternative was open.

  II.        Analysis of the Committee’s Annulment approach to “only means”

 The Committee’s analysis of the “only means” requirement under Article 25 ILC Articles raises three particular points of interest (sections B-D below). However, this post shall quickly examine the background to this requirement. Read the rest of this entry…

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