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Wake up call for the United Nations

Rashad Aslam

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The biggest criticism against the United Nations (UN) is that it has failed to reflect the present day international political order. The traditional importance of Western countries has diminished and gradually been replaced by more regional powers.

There is an urgent need for reforms of international institutions like the UN. At the heart of the UN reforms agenda, is the Security Council. The post Cold War world has seen major changes, such as the rise of American unilateralism, increasing instances of terrorism and the emergence of regional superpowers. The continued dominance of the ‘old powers’ poses a serious threat to international stability, resulting in greater urgency to expand and reform the United Nation Security Council (UNSC).

Even on grounds of democratic legitimacy, there are serious concerns with the functioning of the UN. Till date, no country from the African continent finds place in the Security Council’s permanent membership. At the same time, Europe is over-represented with the presence of United Kingdom, France and Russia. Further, while the world has witnessed the emergence of regional and international power, there has been no change in the veto powers holding countries. This is more startling when seen in light of the fact that the membership of the UN has almost quadrupled (from around 50 in 1945 to 193 at present), but the strength of the veto powers holding members continues to be only 5.Further, post the decolonisation process, a number of newly independent countries want to assert themselves as independent entities at the international stage.

Issues of legitimacy and credibility arise from the misuse of veto powers for personal gains. For example, the US has often used its veto powers to protect Israel from any action by the Security Council for its alleged human rights violations. Similarly, in the recent crisis in Syria, Russia has good relations with Syrian President Bashar Al-Assad and has used its veto power to prevent sanctions being imposed against his regime. Therefore, the veto power is used more often for vested political interests rather than serving the purposes laid down in the UN Charter. Further, the vesting of veto powers in a handful of important countries reduces the scope for genuine negotiations and rather grants leeway to these countries to grandstand and pursue their independent selfish agendas, decays the purposes and objectives of the UN.

It is due to this apparent misuse of veto powers, that France moved a proposal in September 2015 to restrain the five permanent members from using veto powers in cases involving genocide, as in the present case involving Syria. The intention behind the proposal was that the Security Council ought not to be made redundant by vested political considerations in cases involving mass atrocities like genocide. However, Russia was quick to reject the French proposal and termed it as “not a workable proposition”. This further shows the reluctance of the permanent members to part with their veto powers in order to secure their vested political interests.

Apart from the above-mentioned factors, the UN’s credibility and legitimacy has been further weakened due to its failure to meet its basic goals. Ever since the turn of the millennium, there have been an increasing number of international conflicts, such as the War in Afghanistan, the War in Iraq and the conflict in Syria, and the present day  crisis  in  Kashmir is amongst others. These international conflicts have further portrayed the UN as a tool for aiding Western unilateralism, rather than a forum for promoting multilateral solutions for international disputes. The UN’s inability to protect the interests of weaker nations has become apparent and this has further strengthened the call for reforms.

The 2003 war in Iraq is an important example to highlight the inadequacy and failure of the UN to meet the present day international problems. Despite pressure from the UN, the US and its allies carried out the war in Iraq with little or no regard to international legal principles and the UN Charter. Notably, Mr. Kofi Annan, who was the former UN Secretary General, observed that the US led war in Iraq is illegal and contravenes the principles of the UN Charter, but even then no action was taken against the US. This clearly shows the inadequacy and the structural weakness of the UN to initiate any action whatsoever against a member country, even though it had committed a clear violation of the UN Charter.

Furthermore, the  recent unsolved crisis of Kashmir and  the step  taken by United  Nation Security Council (UNSC)affirms that  how  this  organization  is dominated by the   economic superpowers   -willing to suppress the voice of Innocent Kashmiris  , by  supporting  the India’s recent  Illegitimate occupation of Kashmir .Additionally,  the  claim by India  that the resolution passed   by UNSC  on Kashmir  from  1947-1957 ,was non-binding and is  only  recommendatory  and the  failure of UNSC to   address the issue  depicts the internal   weakness of the entire system .The fact that  nations can  easily  get away with their  illegal  agenda  thus putting other nation in distress  and   UN  keeping itself confined  in a narrow space establishes a negative jurisprudence  and adversely effects the  International rule of law ,

As a result of this gross failure by the UN, there was a call for an urgent reform of its structure especially that of the Security Council, and to make the organisation more meaningful in terms of today’s political realities .The need for change in the Security Council was recently recognised in September 2015 by the General Assembly, when it passed a consensus Resolution for initiating discussions at the Intergovernmental Negotiations Group (“ING”) for formulating a strategy for the reform of the Security Council.

Apart from the Security Council, there have been calls for other reforms of the UN as well. Notably, the secrecy behind the Secretary General’s selection has been held to be opaque, collusive and contrary to democratic principles. It is argued that such a secret selection process leads to various problems such as secret deals between the powerful countries, lack of criteria for candidate selection, absence of proper scrutiny process of the candidate’s selection and the veto power over the selection process by the five permanent members can lead to a race to the bottom.

It’s time that UN  should step up and  act accordingly and  provide  real solution to the real   problems. The inception  of  new member and the growth of  complex robust society   raises  robust legal  question   which  the UN  organ must address in order to keep  the faith in International  rule of law alive .Failure to  meet the requirements of 21st century would gradually  bring an end to  such  an organization which can perform  expensive meeting behind  close door  and can only raise concern on paper which  never  transform  into reality .

Author is an International legal Analyst, academician and a practicing lawyer Based in London

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International Law

Withering away of World War II era Multilateralism

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The strains on multilateralism are increasing with each passing day. The most recent development is Russian President Vladimir Putin’s decision to revoke the Soviet statement made during the ratification of the Additional Protocol I to the 1949 Geneva Convention that relates to the protection of victims of International Armed Conflicts. In his letter of 16 October 2019 to the speaker of lower house of Russian Parliament on the “recall of the statement made at the ratification”, he said an international commission, set up in order to investigate war crimes against civilians, “has effectively failed to carry out its functions since 1991.” Some Western media reports have speculated that this move is connected to the latest situation in Syria.

The Russian move, like the US President Donald Trump’s decision in July 2018 to withdraw from the UN Human Rights Council in Geneva is a major challenge for the post World War II international order. The US Permanent Representative to the UN in New York at that time Ms Nikki Haley described the Human Rights Council as a “hypocritical and self-serving organization“. US Secretary of State Mike Pompeo denounced the Council as “a protector of human rights abusers“. The latter criticism has been re-played in stark manner in the recent days with the victory of Venezuela to the 47-member Human Rights Council.

The progress on the disarmament front has been taking place in fits and starts. The two major players, Russia and USA, seem unable to handle the China factor either creatively or with a sense of purpose. This is also partly because of the state of the respective bilateral relations. The United States’s withdrawal from the 1987 Intermediate-Range Nuclear Forces (INF) Treaty was officially completed on 2 August 2019. Recent reports indicate that talks between Russia and the US on extending the New START treaty (set to expire in early 2021) is running into the China factor hurdle. According to the Stockholm International Peace Research Institute, in 2018, Russia and the U.S. each have more than 6,000 warheads, followed by France at 300, China at 290, the U.K. at 200, India and Pakistan with over 100 each, Israel at about 80 and North Korea estimated at 20 to 30.

It is not just the liberal internationalism of the World War II vintage that is being undermined. In fact, the most dramatic episodes are being enacted on the platforms of environmentalism and climate change. The climate change skeptics have become energized after the US President Donald Trump refused to continue the association with the Paris Agreement. Even in the discussions between the US and China, these issues have taken a backseat. The checkered history of the green movement has shown that countries are unwilling to commit to legally binding obligations but want others to sign on to the dotted line. But what we are witnessing now is a fundamental challenge to long held assumptions about transnational issues and concerns.

There is more bad news on the other major concern of terrorism. The international collaboration seems to be fraying at the edges with political compulsions overriding all other considerations and in this regard, the absence of a comprehensive treaty with a commonly accepted definition of ‘terrorist’ and ‘terrorism’ is a grim reminder. It is indeed instructive to observe how quickly the cards have been shuffled on the Middle East table. Some countries plod on with the medieval ages belief that sending killers across borders to target innocent people is kosher in the twenty-first century international comity of nations.

In the midst of all this the emerging consensus on the need for development is heartening. This is partly the result of the weakening of the European experiment and the dissonance between the polities on the two sides of the Atlantic. The more important reason however is the prosperity that has been manifested in China and India, besides other parts of Asia. However there are apprehensions about China’s intentions especially about their One Belt, One Road initiative. Some argue that the Chinese want to replace the US as the global superpower; others counter by saying that cooperation for infrastructure development cannot and should not be misunderstood. From an Indian perspective, it would not be possible to accept Chinese arguments about a corridor through Pakistan Occupied Kashmir. In short, even on the slightly positive dimension of development, there are issues. Alongside the weakening of the institutions that held up the international liberal order especially those related to global trade was the phenomenon of the marginalization of the small states in the global discourse. The role of regional arrangements is one side of the story because the smaller countries do not select themselves. The other side is the fact that the fault-lines between the opposing camps are so stark that these small states can no longer afford to be seen as neutral. The state of affairs in the World Trade Organization’s dispute settlement body does not augur well for the future of the global trade architecture. Finally, there is some good news about the International Court of Justice which has become active again. That countries have started taking the legal approach for settling issues and disputes is a welcome development. So is the increasing spread of the territories that are being governed by the rule of law. If not a democratic wave, a greater degree of legalism and constitutionalism is being witnessed around the world.

In conclusion it is becoming abundantly evident that fissures, in the humanitarian and human rights front, environmental matters, cross border trade, security and disarmament aspects are real and not merely episodic. Perhaps it is time multilateralism paid heed to these changes and adapted its norms, principles and institutions accordingly.

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South China Sea Dialogue 2019

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Centre for Security Studies, O P Jindal Global University organized (November 29) an international conference on the topic ‘The South China Sea: Current Challenges and Future Perspective’ at India International Centre (IIC), New Delhi. During the conference presentations were made by 14 eminent scholars from different think tanks and universities of India and attended by more than 50 scholars, academics, media persons, and students.

While giving the introductory remarks Dr. Pankaj Jha, coordinator of the conference and Centre for Security Studies said that the purpose is to highlight the evolving dynamics in the South China / East Vietnam sea, and how it would have an impact on great power politics as well as the faith on the international maritime order. He clearly said that the time has come for the international community to take note of the developments in SCS and work out a feasible solution protecting interest of smaller nations. In his opening address Professor Sreeram Chaulia, Dean of Jindal School of International Affairs said that the policy of US president while referring to his newly released book ‘Trumped’ talked about post US international order and gave a detailed description about how the Beijing led order would be a problem for the international community. He exhorted the scholars and academics to raise the issue in every forum to highlight the problems and cautioned that US has to commit itself to international responsibilities rather than asking for a raise for the costs of stationing US troops in Korea and Japan. He said the all UNSC permanent members should take cognizance of the developments and call a meeting of UNSC to highlight the need to take precautionary measures.

The draft COC need to be finalized without compromising on the rights of smaller nations such as Vietnam. Professor Brahma Chellaney said that Vietnam’s response to Chinese activities in Vanguard bank need to be noted and lauded. He said that despite dismal and minimum support from international community, Vietnam saw to it that its EEZ and its maritime interests are not hampered and put up a strong resistance to China. He said that the global community needs more action, and commitment to the cause otherwise the world will witness that the South China Sea might turn into a Beijing lake. He said that China has created a reclaimed area equivalent to Washington DC in the SCS region, and it would take lot of ammunition to flatten the reclaimed land. For a free Indo-Pacific Vision, South China Sea is the critical connector. The attention that should be given to the region should be more from India also as the effect would be effect in Indian Ocean also. The military activities and also demarcation of illegal maritime zones by China means that it would become completely under Chinese control. He said that Exxon Mobil a US company is planning to withdraw from South China Sea, and it means that US influence is incrementally eroding. The withdrawal of Exxon Mobil would mean that the company is not sure of US support for its exploration activities.

In the first session of the conference, Dr. Rajaram panda, the Governing Council member ofICWA of Ministry of External Affairs supported think tank said that the time has come to limit Chinese assertive postures and undertake deep thinking so that the increasing Chinese activities can be curbed, and China must comply with international rules and regulations. He said that the ASEAN Treaty of Amity and Cooperation (TAC) to which China is a signatory need to be revised and amended so that threat or use of force should be seen as an act of aggression by any dialogue partner. He said that there are a number of issues involved in the strategic sea lanes and it needs ASEAN activism to address these issues so that the ASEAN multilateral organization stay relevant for its members. 

Dr Vijay Sakhuja said that while maritime domain awareness and standard operating procedures need to be framed in the context of South China Sea, the challenge is to create marine domain awareness also which is more about undersea minerals, and other valuable resources. Unfortunately, the debate is about maritime zones not the huge resources which exists and for which China has started exploration and research activities taking non-contentious zones as its domain. Oliver Gonsalves of NMF, an Indian Navy think tank said that the oil exploration activities and legitimate research activities has been thwarted by Chinese naval activities and many nations have withdrawn from the EEZ of the claimant states with the exception of China. Chinese dominance in strategic sea lanes have an impact on international trade and commerce and also marine life as well as fishing activities. Dr Faisal Ahmed, said that there are economic aspects of Chinese activities and proposed that the coastal countries and other partner countries can engage in joint exploration, knowledge sharing, and mutual capacity building in this area.

Moreover, fisheries in SCS accounts for an estimated 12 per cent of the global fish catch. It is however likely to witness a decline owing to the damaging coral reefs caused due to artificial islands and installations. The marine ecosystem is becoming gradually vulnerable, which is a serious cause of concern. Dr. Nguyen Ba Cuong, from Scientific Research Institute of Sea & Islands, Vietnam, highlighted Vietnam’s Perspective on Developments in the SCS and said that China has dispatched a ship for a months-long seismic survey, together with armed escorts, into Tu Chinh–Vung May Basin along with its continued harassments with Vietnam’s longstanding oil and gas activities in Nam Con Son Basin since June, whichever is all well within Vietnam’s exclusive economic zone. These and other developments underscored the increasing violations of China on its neighbors’ EEZ and continental shelves and just how critical managing and resolving tensions in the South China Sea are, for Vietnam and for region. He said that the international community needs to take note of Chinese expansionism, the power of international law in securing the rule-based international system, and the effective balance of power which is essential for maintaining the law and order in the Indo-Pacific region.

Chairing the second session, Brigadier (Dr.) Vinod Anand, Research Director, Vivekananda International Foundation said that the resolution of SCS is important for the safety and security of the maritime trade and commerce and in case it is not resolved under certain international guidelines then the situation would become grim and alarming. Navy Captain(Dr.) Sarabjeet Parmar, Executive Director, National Maritime Foundation opined that the South China Sea is host to multiple case studies revolving round power dynamics, rules-based order, sovereignty of islands, and the interpretation, respect, and adherence to international law. The tribunal ruling on the Philippines-China case can be viewed as a landmark judgment, which unfortunately cannot be enforced as UNCLOS works on the principle of global acceptability. He underlined and analyzed critical aspects that are germane to sovereignty, international laws and related aspects vis-à-vis the South China Sea.

Ms. Sana Hashmi, ex- consultant MEA said that over the years, China has strived to enhance its naval capabilities in the region, and a major objective behind this naval expansion is to reinforce its sovereignty claims on the South China Sea. The Chinese claims, based on arguably dubious historical precedents, are challenged by a number of countries in the region. So far, some of the claimants involved have maintained strong uncompromising positions. It has internal political dynamics involved in its international posturing. Dr. Udai Bhanu Singh from IDSA said major powers reacted to the South China Sea developments differently. As pointed out by a Chatham House study, while the leadership of Australia, India and Japan, respectively, do not have common views on China, they agree that China must be managed. Neither India, nor indeed Japan or Australia would like to see the relationship with China as a zero sum game. The U.S. takes no position on competing sovereignty claims in the South China Sea, and has not signed UNCLOS. But the US does encourage all countries to uphold international law, including the

Law of the Sea as reflected in the Law of the Sea Convention, and to respect unimpeded lawful commerce, freedom of navigation and over flight, and peaceful dispute resolution.

DrXuan Vinh Vo from Vietnam opined that ASEAN Ministerial Meeting in 2012 failed to release the communique due to the disagreement over the South China Sea dispute. After the release of a separate statement on the current developments in the South China Sea in the wake of China’s illegal deployment of oil rig in Vietnam’s Exclusive Economic Zone and continental shelf in 2014, ASEAN’s cooperative spirit has continued to decrease. Although expressing the grouping’s position, phrases such as ‘some leaders’, and ‘some ministers’ have appeared in chairman’s statements and joint communiques in recently instead of ‘leaders’ or ‘ministers’ as it used to be. The process of COC negotiation process has heavily effected by Chinese approach, especially close economic relations between China and some ASEAN member states. It is difficult for ASEAN and China to reach a legally binding COC in 2021 as scheduled.

Presiding over the last session of the Conference Dr.Jyoti MPathania, Senior Fellow of Centre for Land Warfare Studies (CLAWS) an Indian Army think tank, said that there is a need to look for possible solutions of this problem and the international community will have to undertake the task of bringing order in the region. General Shashi Asthana from United Service Institution (USI) said that while much has been said about Quad in strategic circles but SCS is the possible theater where the utility of this grouping can be explored. However, it has its limitations. It can be put to tests through group sail and joint exercises. Undertaking surveillance activities and enforcing order through military means should be an option. There are chances of flare up but then the Quad members will have to activate their international standing to force China to comply with international maritime order.

Rudroneel Ghosh, Assistant Editor, Times of India said the South China Sea (SCS) has been in media limelight in recent years due to China’s aggressive activities in the region. Beijing has been building artificial islands and militarizing some of them to bolster its claims over the entire SCS area. This, despite the fact that its so-called Nine-Dash Line cartographical claim was rejected in 2016 by the Permanent Court of Arbitration in a case brought by the Philippines. He cautioned that there is also a tendency to view the SCS issue exclusively through the prism of China and a matter between China and Southeast Asian nations. And this can be counterproductive to sustaining international media attention on the SCS, which is necessary to evolve a consensus-based architecture in line with international law.

Dr.Sripathi Narayanan said the Maritime Silk Road (MSR) and Indo-Pacific region symbolises the shift in the global centre of gravity from the Euro-centric Atlantic order to the Asian landmass. The prevailing contestation is not only confined to hegemony and power politics but also scripting the discourse on the global order. While the MSR, as a subset of the BRI is a political articulation stemming out of infrastructure projects, the Indo-Pacific is a reverse, wherein the political posturing is yet to fructify in any visible form.

In his concluding remarks Dr. Pankaj Jha said China’s assertive postures and threatening tactics that it has adopted with India’s oil exploration initiatives and also Indian naval ships have been intimidated through radio messages in the past. Given the fact that South China Sea, Sunda, Lombok and Makassar straits are areas of secondary maritime interest from India but Chinese actions to demarcate the non-contentious area also as disputed zones would add to India’s problems. The Chinese dominance in South China Sea would trickle down in Indian Ocean also and therefore India will have to make tactical and strategic choices to constrain Chinese actions in the region.He said that there is a need for dialogue partners dialogue on the subject while keeping ASEAN in the loop. There is a need for elevating East Asia Summit for more proactive role in the region.

The rapporteurs to the conference presented the findings and the summary report of the presentations by Srimal Fernando

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International Law

The clash of interests upon Intellectual Property Rights between Japan and Russia: The Kuril Islands case

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The Kuril Islands, Russia’s Kurilskiy Ostrova, Japan’s Chishima-Retto, an archipelago in the Sakhalin region, far east of Russia, encompassing 750 miles from the southern end of the Kamchatka Peninsula (Russia) to the northeast corner of Hokkaido Island, Japan (750 km) from the Pacific Ocean with 56 small islands which cover 6,000 square miles (15,600 sq km). The archipelago was inhabited by Ainu, and currently, are settled by Russians and Japanese.

The Kuril Islands are strategically important for both Japan and Russia. Conflict over the islands has continued throughout history. Even in these areas, there is still some misunderstanding regarding the production and fishing of islands on the island. It is an obvious fact that Russia has a number of military bases on the islands and is trying to secure safe access to the Pacific Ocean. Russia has even begun several social and economic development programs that have been allocating about 70 billion rubles(around $ 1.1 billion) in the federal budget for the development of these regions since 2014 to provide its security in the region.

According to the Ministry of Economic Development of the Sakhalin region, in 2015, Russia has launched out a new federal target program “Socio-Economic Development of the Kuril Islands (Sakhalin Oblast) for 2016-2025 years” with total funding of 68.9 billion rubles. The main priority was given to the development of the transport system, infrastructure, and improvement of living conditions. Although the development plans seemed to be decisive, locals always complain that the program did not have yet an effect on unemployment, low wages and lack of roads in the region.Local residents say that while the salaries are low, living costs are high and they have to do some work to finish their jobs.

Gydrostroy is one of the main employers on the Kuril islands. Locals built a hospital, a kindergarten, and an airport in Kurilsk several years ago. However, most locals point out that finding a job is difficult, salaries are not competitive, and most of their jobs are taken by migrant workers in the region. The island is rich in terms of natural resources, including the unique rhenium resources of the Kudryavyi volcano, but the main income comes from the fishing industry and the production of fish rye. The fish products of the island exported to Russia is quite popular in the country.

The Kuril Islands were annexed by the Soviet Union following the landing operation in the Kuril Islands at the end of World War II. The territorial dispute prevents Russia and Japan from signing an official peace treaty. Japan claims four islands: Habomai, Shikotan, Kunashir, and Iturup. According to the report given by the Russian leader Vladimir Putin to Bloomberg, Russia does not want to have trade-in territories. Many policy analysts do believe that Russia will never abandon the island in exchange for greater economic cooperation. Based on the opinion of Tamerlan Abdikeev, the founder of Tokyo-based INVERO Advisors, there are several problematic issues with the deployment of whether Russian or U.S military bases in Japan if Japan acquires one of the islands, which would not necessarily be accepted by the Russian side. He also added that economic cooperation between Japan and Russia will not be boosted upwithout taking clear-cut decisions concerning the resolution of the Kuril Islands. Therefore, it is difficult to expect mutual trust without signing an effective peace contract between the two countries.Even keeping the “status quo” between the two countries means there is little chance of change in the region. The “status quo” condition does not mean that the two parties could achieve something significant in this matter.Russia in the example of Kuril islands does not have the mind to give up the islands, as it wants those islands as the main trade and geostrategic zone of the country.

In the coming future, Russia is planning to place additional missile systems from the Hokkaido region to the two islands north of the Kuril Islands chain to strengthen its defense capabilities in the region. This plan shows Russia’s strategic importance to the Kuril Islands for the protection of the Achat Sea and nuclear forces against the United States. Russia opposes the deployment of US missile forces in the Asia-Pacific region. As the Japanese government official pointed out, while Russia has strongly criticized the United States for building a missile defense network, but they are steadily strengthening their own defense systems in the region.

In November 2016, Japanese Prime Minister Shinzo Abe for the first time hosted Vladimir Putin during his first official visit to G-7 country concerning achieving breakthrough over the territory of Japan’s northern coast. Since Russia’s annexation of Crimea in 2014.The four islands are known as the South Kurils in Russia and the Northern Territories in Japan and have been controversial for more than seventy years. According to the Ministry of Foreign Affairs of Japan, the Northern Territory consists of four islands on the northeast coast of the Hokkaido and Nemuro peninsula. These are Habomai, Shikotan, Kunashiri, and Etorofu. The northern territory is not included in the Kuril Islands.

The consistent position of Japan in this conflict is that the Northern Territories, Takeshima, and Senkaku islands are the inherent part of Japan-based on historical facts and international law that illegally annexed by Russia. (See Annexes 30 and 31 below)

In conclusion, it should be noted that Russia prefers political principles rather than legal principles in resolving territorial disputes with Japan. Russia does think that if one of those islands is handed over to Japan, the security of Russia on the American side may be in doubt. Japan, on the other hand, believes that it is more important for him to ensure territorial integrity and to work in accordance with the legal principles than political issues. Whenever the parties come together for a peace agreement, the issue remains stable and no small change is apparent. Thus, the outcome of the negotiations between the parties remains numb.

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