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Moments of Nino

Published on January 3, 2012        Author: 

EJIL is marking in different ways the passing of Nino Cassese, one of its founding editors. I have no intention of listing all of Antonio Cassese’s many distinctions and achieve­ments as one of the great international lawyers of his generation. Readers of EJIL will be familiar with all of that, and Wikipedia (a decent entry) is just one click away. It is the person behind the public figure who is of interest. One has to be personal. I met Nino for the first time in 1978. I was a young(ish) Assistant at the European University Insti­tute. He was a Professor ‘down town’ in Florence. Relations between the faculty at the University and the EUI on the top of the hill were frosty. At best an entente cordiale. Nino would have none of that. He embraced me and within months of my arrival invited me, first to his home, and then to contribute to a major project he was directing on Parlia­mentary Control of Foreign Policy. I was asked by him to write the Report on the Euro­pean Communities. It was a telling moment. The late Christoph Sasse, distinguished professor of EC law from Hamburg, was indignant: ‘a role for a Professor, not an Assist­ant’. Nino had no patience for that stuff either. He really did not know me all that well and was taking a risk. But it was typical of him: reaching out, welcoming, having faith, including the young, foreigners. It galvanized me. It was, too, a lesson for life.

Planting trees together, ploughing fields, building houses, jointly creating some­thing from nothing, all bring people together as little else does. I was privileged to build two houses together with Nino. One was this Journal – EJIL. Bruno (Simma) and I had no doubt that it should be Nino we should turn to as our Italian ‘partner’. He embraced the project with his typical enthusiasm and commitment. He had more ideas per gallon than all of us put together. The Italians have a wonderful saying: Nove parlano, Uno fa. Nine talk, one does! Nino was one of those Ones. Indeed, he did the work of all the other nine put together. And of course it was infectious. Those of you with some experience in these matters know how meetings of journals, institutes and the like proceed. The French idiom ‘Il faut’ goes into overtime. One needs to do this, and one needs to do that. A nice way of being creative, engaged and, yet, lazy and un­committed at the same time. Nino would collect all the ‘Il fauts’ like the discarded wine bottles at our meetings and then just do them! Whether it was organizing, or writing.

I attach at the end of the Editorial in the Current Volume of EJIL a list of his contributions to EJIL over the years – some iconic, all memorable. His imprint on the Journal is still everywhere, years after he left to build yet another house, the Journal of International Criminal Justice.

We also established together the Academy of European Law – now in its 23rd year. He took charge of the Human Rights section, I led the EU part. The same enthusiasm was on display there too. Here is a tiny, telling anecdote. At a certain point we had to dismiss an employee of the Academy who simply was not up to the task. Nino just could not do it. He called me, his Co-Director, for a little talk. ‘Joe, you’re an Old Testament type. You have to do it’… I did.

I invite students, colleagues, friends to contribute Moments of Nino – stories and recol­lections, which illuminate not his professorial or judicial or diplomatic prowess, but Nino’s human side and his great humanity. Read the rest of this entry…

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Nino in His Own Words

Published on January 3, 2012        Author: 

EJIL will be publishing in due course a Special Issue in honour of Antonio Cassese in which, in addition to a scholarly symposium the contours of which are still under discussion, several tributes by some friends and colleagues will appear.

In 2003 Nino was invited as a Distinguished Global Fellow to NYU Law School. It is customary to invite senior judges, present or past, domestic and international, to that position. For a week or two they participate in seminars, give lectures and associate with colleagues. One fixture in the calendar is a public interview ‘To Be a Judge on [this or that Court]’. The purpose of the interview is not to discuss fine points of law, nor even to gain insight into the procedure of this or that Court or Tribunal, but pri­marily to get to know the person behind the judicial robes.

The following is a transcript of the interview I conducted on 4 September 2003 with Nino. It is only very slightly edited. I have not corrected the usual little lexical gremlins which creep into free flowing discussion. I believe that in this unadorned way one can hear the authentic Nino – self-deprecating, earnest, passionate, with a twinkle in his eye, and that wonderful child-like little smile and giggle.

 Professor Joseph Weiler [JW]: Good evening Ladies and Gentlemen, this is the third in our series of encounters with international and constitutional court judges. It’s a great priv­ilege and honour to have with us Professor Antonio Cassese, who was the first President of the Tribunal for the former Yugoslavia.

Tell us first of all a little bit about your background as a child, where were you born, where you went to school, what kind of school you went to – in short, the early Cassese. We want to get a feel for this person sitting next to me.

 Professor Cassese: I was born in Atripalda (a village of 10,000 inhabitants) in 1937, but my family moved when I was a child to Salerno – which is a small town near Naples – in 1937, and that means that I have a very vivid recollection of the war, because as you know in September 1943 the American troops landed in Salerno, my hometown. And so, therefore I was six, but I remember the war very well, everything – every moment of bombing and the first time I saw my mother crying, and the first time I saw my father terrorized. He escaped and we went away to the countryside just a few days before the landing. Read the rest of this entry…

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Roaming Charges: Piazza Duomo Milano (and the Last Page)

Published on January 3, 2012        Author: 

Places of Worship: Piazza Duomo Milano

The experiment continues. This issue’s Last Page features a poem by Jonathan Shaw, On Reading Horace Odes 3.2 with Rusty Latin. For the most part we have had very positive reactions to both the Last Page poems, and to Roaming Charges. I would be worried if the reactions were universally favourable. Blandness we do not like at EJIL. As far as the Last Page is concerned, I make another plea – Poets of the World (of inter­national law) Unite! Send us your poems; encourage others to do so.

Roaming Charges still perplexes some: Nice photos, but how exactly does it relate to International Law? To EJIL? Read the rest of this entry…

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The Rise and Fall of Eunomia (re-run) – Episode 3: Fin de fête

Published on January 2, 2012        Author: 

This is the third episode of a series of posts on “The Rise and Fall of Eunomia”. Episodes 1  and 2 of this series can be found at here and here. The series was first posted in late 2010 and is being re-run.

The Sky is the Limit

In the aftermath of this landmark decision, Eunomian lawyers, flush with victory, vouched that more ambitious cases would be in the making. Eunomia had begun proceedings against the state of South Gacaca. South Gacaca had just emerged from a decade of turmoil during which a brutal regime of Apartheid was set up. Following a UN supervised transition, the first constituent assembly of South Gacaca adopted a complex scheme to restore ‘peace, justice and the rule of law.’ The scheme involved a Truth and Reconciliation Commission. By all accounts, it had lead to painful confessions, and had clarified the fate of thousands of disappeared persons. However, some of those who had committed crimes subsequently suggested that they had merely ‘gone along’ with the Commission to avoid what they considered to be a ‘foregone conclusion’ if they had gone to trial.

Eunomia had been contacted by a group of victims of the South Gacacan regime who felt they were being shortchanged by the whole scheme, and who had launched a coalition under the slogan, ‘We don’t want truth, we want justice!’ Armed with that popular mandate, Eunomia argued before the ICJ that in proclaiming an amnesty, the South Gacacan state sought to extinguish an interest in prosecutions that was not entirely its to extinguish. In his blog, the head of Eunomia’s Ministry for Global Transitional Justice was quoted as saying

if crimes against humanity are really crimes against humanity, then we must understand that it is the conscience of mankind that is shocked by them. We sympathize with some of the reasons that have been advanced by South Gacaca to push ahead with the Truth and Reconciliation process, but we also believe that international law mandates some prosecutions of at least those principally responsible for the atrocities committed in the last decade. We would not be faithful to our ideals if we did not press this case. Eunomia will stand by the side of the victims of South Gacaca.

An even more ambitious case for Eunomia’s legal team was in the works that would have involved Eunomia suing all of the world’s major polluters at once for their contribution to global warming, and what was hailed as an erga omnes obligation not to contribute to the destruction of all living ecosystems. Eunomian lawyers knew this was a long shot but they felt that if worse came to worse it would at least attract attention to the urgency of the problem. A London barrister and professor of international environmental law had been hired to work on the case, and was said to be confident that the ICJ would recognize an actio popularis to defend against irreversible global damage to the environment. After the disappearance of the Seychelles two years earlier, some judges were said to be eager to adopt a landmark decision revolutionizing the old Trail-Smelter precedent in an age of “Global Commons” (although the less generously inclined suggested that the judges were mostly worried about the Peace Palace being flooded by rising waters threatening the Dutch coast). A case challenging ‘global economic inequality’ was also in the making. Eunomia was said to be preparing to invoke a range of treaties on economic cooperation and soft law on the right to development in support of this ‘mega-case.’ The argument was that many states that would have stood to benefit from litigating under-development failed to do so out of fear that they would be ostracized by the donor community. Read the rest of this entry…

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EJIL 22 Issue 4 is Out: In this Issue

Published on December 31, 2011        Author: 

We begin this new issue of EJIL with four articles. Jaye Ellis explores comparative law’s contribution to the identification of general principles as a source of international law through a renewed understanding of the interplay between municipal legal systems and international law. Thilo Rensmann analyses the ways in which two Munich Alumni, Ernst Rabel and Karl Loewenstein, have influenced the evolution of international human rights law (see full free text of article here). The importance of scholarship is also illustrated by Anastasios Gourgourinis in his article as he suggests some tools which aim to overcome the fragmentation of international law: the general/particular international law and the primary/secondary norms di­chotomies which, in his view, constitute the unitary elements of the international legal system. Lastly, Daphne Richemond-Barak tackles another kind of fragmen­tation: the decentralized regulatory framework of the private security and military industry, and seeks to demonstrate the potential of Global Administrative Law meth­odology in understanding and contending with the growth of the private security and military industry.

In our occasional series, Critical Review of International Jurisprudence, Sonia Morano-Foadi and Stelios Andreadakis reflect on the potential of the EU Charter of Fundamental Rights and the EU’s accession to the European Convention of Human Rights to achieve a more harmonious and convergent human rights system in Europe, based on a careful study of the divergent approaches of the ECJ and the ECtHR in the specific area of expulsion/deportation of third country nationals from the European territory.

In our rubric Critical Review of International Governance, Abigail Deshman sets out to identify the questions raised and the answers provided by a rare case of horizontal review between international organizations: the Parliamentary Assembly of the Council of Europe’s criticisms of the transparency and accountability of the World Health Organization during the H1N1 pandemic.

Two EJIL: Debates! this time. Read the rest of this entry…

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The Rise and Fall of Eunomia (re-run) – Episode 2: A movement is born

This is the second part of a series of posts on “The Rise and Fall of Eunomia”. Episode 1 of this series can be found at here. The series was first posted in late 2010.

Eunomia’s internationalism takes shape

Initially, the real reasons for creating the State of Eunomia had been somewhat a mystery. After all, many of the social experiments that Eunomians sought to engage in were the sort that could have been engaged in in other countries, without the huge cost of doing so literally in the middle of nowhere. The style section of an international magazine described the whole experiment as ‘radical-libertarian-humanitarian-chic.’ As it turned out, however, the real plan laid elsewhere and it only began to emerge once Eunomia’s statehood had been officially recognized. There were a few telltale signs, including the proclamation that Eunomia would be an entirely monist state, and its immediate adoption of all eight major international human rights treaties as having supra-constitutional status. Some legislators went as far as to suggest that little ordinary legislation would not be necessary: the WTO rules would provide Eunomia with the framework for a market economy; the ILO treaties its labor legislation; the WHO rules its health standards, etc. Indeed, the direction in which Eunomia was headed might have been apparent to any one who carefully read the rapidly crafted Eunomian constitution, article 17 of which proclaimed:

Eunomia is a pacifist state dedicated to the pursuit of international justice. It is the obligation of the Eunomian state to strive for such international justice through every means possible, including all recourses available under international law.

Although the first sentence sounded innocuous enough, the second one was the deal clincher. The debates leading to the adoption of the Eunomian constitution included a rag tag group of veterans of frustrated globalist causes, founding members of the International federalist society, veterans of the New International Economic Order, and various Hague appeals for peace fellow travelers. All had consistently deplored the absence of significant progress towards centralized international authority and a ‘world public order of human dignity.’ A lifetime of experience trying to influence states had led them to the dispiriting conclusion that the ways of the inter-state world were almost impossible to reform from without. Whilst academic international lawyers focused on a few landmark international judicial decisions as symbols of progress, these disenchanted apostles of civil society were more prone to see the huge black holes of the international legal order: those countless cases that were never litigated because states themselves were often complicit in keeping the international rule of law at a rudimentary stage.

A former negotiator at Montego Bay, once considered a good contender for the first Secretary General of the International Seabed Authority, made an impassioned plea before the Eunomian parliament denouncing the cupidity and short-sightedness of sovereigns. The argument was that if centralized global institutions could not be expected to take over any time soon, what was needed was for a few enlightened states – perhaps only one state – to take the lead and stand for the global community’s interest in international public order. That glorious avant garde would drag the international system out of its collective action problem kicking and screaming if it had to. And if one state was to take that responsibility, who better than Eunomia? After all, Eunomia was well taken care of, financed for decades to come thanks to a huge endowment, and could count on some of the best activist minds the world had to offer. It did not even have a national interest of its own that might stand in the way of its idealism; or rather, to the extent that it had one, it was in fact one with international law; Eunomia would be dédoublement fonctionnel without the dédoublement; world attorney without the international politics; its own interest and that of the international community in unison.

The crusade is launched

After the Eunomian constitution was ratified, the new ‘Ministry of international justice and foreign affairs’ immediately announced a catalogue of measures. First, Eunomia was to become a member of all major international organizations. Read the rest of this entry…

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The Rise and Fall of Eunomia (re-run) – Episode 1: Eunomia rising

Editor’s Note: This series was first posted on this blog at the end of 2010. We are running it again like one of those old favourites that gets rerun on TV around Christmas time.

Frédéric Mégret is an Associate Professor of Law, the Canada Research Chair on the Law of Human Rights and Legal Pluralism, and the Director of the McGill Clinic for the Sierra Leone Special Court, McGill University. Alexandra Harrington is currently a Doctor of Civil Law candidate at  McGill University

It had been a masterfully planned operation from start to finish. When Grigory Savros heard the news that, following a massive volcanic eruption in the South Pacific, a new island, roughly six by eight miles, had emerged, he at first paid little attention. The incident had of course generated considerable popular interest and, as the only known island of its kind in several millennia, was the buzz of geologists. But the volcanic fumes arose hundreds of miles away from the nearest flight path, and the island was first reported as barely habitable. Savros had other things to think about. One of the world’s richest men, he had made his fortune betting against the financial stability of emerging economies through complex derivative products that only a few insiders – if any – could fathom. He had since reinvented himself as, to use the Times’ cover’s expression, ‘The World’s Biggest Philanthropist,’ one involved in everything from art to human rights, fighting global diseases to reducing global warming. Besides, he was already the proud owner of no less than two islands (one in the Caribbean, and one in the Mediterranean) in which he hardly ever spent any time.

But one detail had caught Savros’ attention and vaguely stirred up recollections from his international law days, before he became a wealthy investor, when he was still what he sometimes described in interviews as an ‘idealistic law student’ (he had quickly abandoned his initial idea of working in international law, a discipline he had found to be largely irrelevant to the ways of the world). The island was beyond the territorial waters or even the exclusive economic zone of any state. As such, it was no less than the first bit of prime terra nullius real estate to emerge in at least 200 years (with the exception of ‘fake’ terra nullius of colonization). Of course, this fact had not escaped several foreign ministries, but of the few states with any presence in the region, most concluded that it would be far too expensive to maintain a base on the island, and quickly gave up the notion. The land and the surrounding waters were devoid of any particular resource, at least the sort that could be exploited profitably. These were hard financial times globally, and no state had the appetite for an extra piece of rock in the mid-Pacific, with no economic or geopolitical value. One landlocked state in Central Asia expressed some interest in acquiring the island so that its Great Leader could claim to have ‘brought the sea’ to his country, but the plan quickly foundered. There was some vague talk at the UN General Assembly of ‘internationalizing’ the rock (which still had no name), but no one really knew what for, and the matter was deferred to a committee. A window of opportunity had been opened, but no one could quite suspect what use it would be put to.

Genesis and settlement

With no expressions of interest from states in the region, Savros summoned his inner circle of advisors to the privacy of his mountain getaway. What emerged from this evening is still a matter of speculation and what we know of it has been reconstructed from scattered archives and memoires of those who were in attendance. At first, Savros had apparently been characteristically enigmatic about the reasons for bringing them together at short notice. But after dinner and over glasses of (very good) cognac, he had flipped a switch in his parlor, turning on a spectacular holographic display of a paradisiacal island, rich with fields, roads and villages hovering just above the guests, and had made the following almost comically solemn announcement: ‘Ladies, and gentlemen, welcome to the soon-to-be state of Eunomia, the first state built by and for civil society, a state dedicated to the highest values of justice, solidarity and freedom!’ The guests had been flabbergasted and, were it not for Savros’s reputation for fits of anger, might have shared a piece of their mind that this all looked rather megalomaniac. Savros, however, had obviously given the idea considerable thought and over a night of passionate discussions had little by little convinced one after the other that this was not only a project worth trying, it could very well be the defining project of the age.

During the next weeks the decision was made to launch a secret operation, codenamed ‘Tiger Lily,’ that would begin to turn the project into reality. It was to involve, at first, six cargo ships (including two mega-container carriers, one supertanker, two large ferries and one commanding ship). The plan was for these ships to set sail from several points around the globe with shipping orders indicating routine trading routes. Seven days later, they would meet at a secret location in the mid-Pacific. At 0200 hours, the passengers would disembark and bring ashore the contents of the container ships: generators, desalination equipment, cement, various construction vehicles, and much more. A leading conservationist had advised on how to engineer a rapidly expanding ecosystem through an assortment of bees and bugs. Enough material was brought on that first trip not only to construct a small self-sufficient village, but also to lay the seeds for greater things to come: the expansion of the village into a city; the transformation of that barren land into a fully sustainable, eco-friendly, autonomous site of life. Read the rest of this entry…

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ICJ Press Releases Distinguish the ICJ from other International Tribunals

Published on December 27, 2011        Author: 

In the past couple of months the ICJ has inserted a paragraph at the end of its press releases which seeks to make clear that the ICJ is different from the other newer international tribunals out there. The paragraph can be found at the end of the ICJ press release announcing the proceedings recently instituted proceedings by Nicaragua. It reads as follows:

“The ICJ, a civil court open only to States for contentious proceedings and to certain organs and institutions of the United Nations system for advisory proceedings, should not be confused with the other ⎯ mostly criminal ⎯ judicial institutions based in The Hague and adjacent areas, such as the International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the Security Council), the International Criminal Court (ICC, the first permanent international criminal court established by treaty, which does not belong to the United Nations system), the Special Tribunal for Lebanon (STL, an independent judicial institution composed of Lebanese and international judges, which is not a United Nations tribunal and does not form part of the Lebanese judicial system), or the Permanent Court of Arbitration (PCA), an institution founded in 1899, which is independent of the United Nations.”

This paragraph, which now appears at the bottom of each ICJ press release, was probably drawn up because the folk at the ICJ have become tired of people confusing that court with other international courts. I sympathise with them. I suspect that I am not the only one who gets frustrated with the media confusing the different international tribunals. All too often there is talk of people being prosecuted by the ICJ when what is meant is the ICC or perhaps the ad hoc tribunals. Or sometimes the confusion is the other way with references to the ICC when what is meant is an inter-State ICJ case. In December last year, I gave an interview in the Guardian newspaper on wikileaks revelation that the CIA had been spying on senior UN staff and permanent representatives of other Security Council members. In that interview, I spoke about possible violations of the UN – US Headquarters Agreement and the UN General Convention on Privileges and Immunities. I then made reference to the  provision in the latter which allows for binding advisory opinions from the ICJ in the event of dispute regarding the application of the convention.  I was dismayed when the article appeared and it stated that the US actions could lead to “prosecution at the international criminal court”!

This confusion, of course, exists also in the mind of the general public. A few years ago, I was in the Hague and running late for a meeting at the Peace Palace (where the  ICJ is). I jumped into a taxi and told the driver I wanted to go to the ICJ. After a little while I realised that I did not recognise the route he was taken. When I asked him about the route, his response was something to the effect “but this is the quickest route to the ICC”.

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Happy Holidays

Published on December 24, 2011        Author: 

All of us at EJIL: Talk! wish our readers and their families a merry Christmas and a happy New Year – hopefully the new year will prove to be just a tad less exciting than the old.

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ICC Press Release Makes Inaccurate Statements about Prior ICC Darfur Decision

Published on December 24, 2011        Author: 

Earlier this month, the  Prosecutor of the International Criminal Court requested a warrant for the arrest of the current Sudanese Defense Minister Abdelrahim Mohamed Hussein. He is alleged to have committed crimes against humanity and war crimes committed in Darfur from August 2003 to March 2004. In a press release announcing the request for the arrest warrant, the ICC stated that:

“The crimes were perpetrated during attacks upon the towns and villages of Kodoom, Bindisi, Mukjar and Arawala in the Wadi Salih and Mukjar Localities of West Darfur. The attacks followed a common pattern: the Government of Sudan forces surrounded the villages, the Air Force dropped bombs indiscriminately and foot soldiers, including Militia/Janjaweed, killed, raped and looted the entire village, forcing the displacement of 4 million inhabitants. Currently, 2.5 million remain in camps for Internally Displaced Persons.

In the “Prosecution v. Harun & Kushayb” case, Pre-Trial Chamber I ruled that Local Security Committees coordinated these attacks. They were supervised by State Security Committees which reported to Mr. Harun, who in turn, according to the evidence, reported to Mr. Hussein”

These statements regarding the prior Prosecutor v Harun & Kushayb case are simply inaccurate. Moreover, the Office of the Prosecutor at the ICC must know or should know that they are inaccurate. The statement in the press release referring to that earlier decision is to a decision of the Pre-Trial Chamber on a request for an arrest warrant. Those decisions are made ex parte and on the basis of the prosecutor’s application. No detailed arguments are heard and no alternative evidence is led. In these decisions, the Pre- Trial chamber does not (or at least, it should not) make any definitive rulings. The standard that is required under Art. 58 of the ICC Statute for such a decision is that there are “reasonable grounds to believe” that the crime has been committed. This is a  low standard.  It is lower than the “substantial grounds to believe” that the crime has been committed which is required for a confirmation of charges and lower than the standard of “beyond reasonable doubt” which is required for a conviction (see the ICC Appeals Chamber decision in Prosecutor v. Bashir, (Arrest Warrant Appeal), 2010, para 30). Even after the Pre-Trial Chamber has issued an arrest warrant on the basis of reasonable grounds to believe that an accused has commited crimes, it may then later decide in confirmation of charges proceedings that there are no substantial grounds to believe what it had earlier held there were reasonable grounds to believe. This happened just this month in the Mbarushimana case. And of course, even if it confirms charges it may actually decide to acquit.

It really is quite shocking that the ICC will suggest that a decision for an arrest warrant is a ruling that certain things happened. But this is not the first time this has happened. The ICC Prosecutor, Luis Moreno-Ocampo wrote an article in the Guardian Newspaper last year saying that the ICC found Sudanese President Bashir and his forces responsible for atrocities in Darfur (see my earlier post here). Of course, all the ICC Chamber had done was to issue a request for a warrant applyng the reasonable gronds to believe standard.

These inaccurate statements about what the ICC has found are troubling because they are issued to the press with the intent that they be disseminated around the world. Issuing false statements about what the Court has held is clearly prejudicial to the accused. A judicial institution should do better than that. The statements are also troubling because they appear to suggest that either those who write these press statements are not knowledgeable about the Court’s own procedure or they are wilfully misrepresenting the facts. I very much doubt that it could be the latter. However, I would call on the ICC to issue a press release correcting their earlier press release. If they don’t want to be regarded as wilfully issuing false information which prejudices defendants, they should  issue a correction which is disseminated as widely as the original misleading press release. Read the rest of this entry…

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