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Economy

Brazil India Investment Cooperation and Facilitation Treaty (2020)

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During a recent visit to India (24th – 27th January) as a chief guest of the Republic Day celebration, Brazilian President Jair Messias Bolsonaro sketched an ambitious plan to revitalisation their faltering economy. This new strategic partnership will expand cooperation in key sectors of the economy such as oil, gas, and mining, while it was setting the target of USD 15 billion in bilateral trade by 2022. While approaching to WTO against India for extending support to her sugarcane farmers, Brazil penned investment cooperation and facilitation treaty. This is Brazil’s 10thand India’s 4thbilateral investment agreement since both nations had adopted their Model Bilateral Investment Treaty. Previously, India has managed to conclude bilateral investment treaties with Belarus, Kyrgyzstan, and Cambodia after scrapping down all 83 existing bilateral investment treaties. The object and purpose of this short write-upare to critically analyse and compare the new Brazil-India Cooperation and Facilitation Treaty (Brazil-India BIT) with the Model BITs of India and Brazil. It will be discussed who deviates from Model BIT and to what extent to sign the investment agreement. Moreover, the author will evaluate whether both countries have compromised their interest to strike a deal and who wins the deal or to what extent.

The Definition of Investment

Definition of investment is one of the essential elements in any investment agreement as this is the first thing a disputant has to establish before an investment tribunal to avail the protection. Brazil-IndiaBIT under Article 2.4 incorporates the meaning of investment. Here we see that enterprise-based definition is adopted where an enterprise is taken together with all of its assets. Both Brazil and Indian Model BITs have adopted the same enterprise-based definition approach. The BIT definition of investment is coupled with some other characteristic such as the commitment of capital, objective of establishing a lasting interest, expectation of gain or profit, and the risk assumption. In this, the BIT commensurate with Indian Model BIT as Brazil BIT lacks these elements in the definition of investment. A slight difference remains with the Indian Model BIT as the BIT does not require the “significance for the development of the host-state” characteristic in investment. Prof. Ranjan rightly pointed out that the requirement “investment should be significant for the development of the host-state” is a subjective requirement which is very much challenging for the foreign investor to prove the same before an investment tribunal.

Novelty in Expropriation Clause

A novelty of the new Brazil-India BIT is its expropriation clause which completely excludes indirect expropriation from the scope and purview. Article 6 only talks out “Direct expropriation” as the heading of the article proposes. Article 6.3 incorporates a provision which clearly states that the treaty only covers direct expropriation. The direct expropriation takes place in the time of nationalisation or when expropriation is made directly through formal transfer of title or when a downright seizure is made. Thus Brazil-India BIT does not cover indirect expropriation of investment. After a thorough reading of both Model BIT, it is observed that Brazilian Model BIT does not have any provision related to indirect expropriation while Indian Model BIT covers the same under Article 5.3. Thus, this can well be said that this novel idea of excluding indirect expropriation, Brazil wins while India deviated its Model BIT. As this rule allows investors to bring indirect expropriation claims on imperceptible grounds. Brazil has been critical to indirect expropriation for some time. According to the Brazilian approach, this provision allows foreign investors to make abusive claims and shrink regulatory spaces of the host-state, which helps host-state to protect public interest such as public health, environment, public security etc. Since direct expropriation of foreign investment is very much rare in the modern economic affair, it is unexpected that the Indian side departed from its earlier practice. Even recently concluded Indian BIT with Belarus provides rules of indirect expropriation under article 5.3A thorough reading will reveal that not only those BITs provide for protection from both ends but also laid down formulae of determining indirect expropriation which could be a great guide for investment tribunals. Host-states regulatory powers which emanate directly from its sovereignty puts a prodigious test for the investors. The regulatory measures are taken in public interest frequently creates hardships and might upset investment adversely. Although there is a possibility of abusing power under the blanket of indirect expropriation, the entire removal of the system of indirect expropriation is not a welcome step. In the words of professor Ranjan, “leaving indirect expropriation outside the scope of the BIT creates a yawning gap in the protection of foreign investment.

Prevention and Settlement of Dispute Clause – A New Horizon

Settlement of dispute is a vital portion of any investment agreement. It is observed that Brazil-India BIT used the phrase “dispute prevention and settlement” instead of the word dispute settlement only. Settlement of dispute comes under Part IV Institutional Governance, Dispute Prevention and Settlement. This highlights that both countries emphasise on the prevention of disputes resorting to the principle “prevention is better than cure”. Ostensible novelty is established in this BIT as Brazil has been very critical to the Investor-State Dispute Settlement System (ISDS) which gives an investor a right to approach an investment tribunal directly against a State. There is no provision of ISDS in this new Brazil-India BIT. Article 13 calls for the creation of the Joint Committee for the administration of this Treaty comprising of government representatives of  both parties. This Joint Committee shall oversee the implementation and execution of the treaty, coordinate and facilitate, and resolve the dispute amicably between the parties. In pursuant to Article 14 Each party has to establish National Focal Point or Ombudsman who will be responsible for following recommendations of Joint Committee and consult with other party’s Ombudsman. Concisely, Ombudsman shall work closely with the other party’s Ombudsman, Joint Committee, and relevant government authorities at the state and local level to address differences and helping in preventing disputes. A unique dispute prevention mechanism is provided under Article 18. Under this article, if a party considers that a specific measure adopted by the other party constitutes a breach of this treaty, the party may initiate dispute prevention procedure within the Joint Committee. If the Joint Committee fails to resolve the dispute within a specified time of two months, the party may submit the dispute to the arbitration in according to article 19. Article 19 envisages State to State Dispute Settlement (SSDS) mechanism. This article says when dispute prevention mechanism fails to address and resolve the differences between parties, either party may refer the dispute to arbitration tribunal under this article. Article 19.2 says in explicit language that the purpose of the arbitration is to decide on the interpretation of the treaty or the observance of the terms of the treaty by a party. Furthermore, it spells out that the tribunal does not have any power to award compensation. Indian Model BIT provides both ISDS and SSDS mechanisms while Brazilian Model BIT excludes ISDS procedure, instead they devise SSDS system of dispute settlement. Thus, it is more than clear that India compromised its stand and agreed to adopt the SSDS system put forward by Brazil. However, in the absence of ISDS, the foreign investor has to depend entirely upon the home-state. If home-state does not wish to protect the interest of the investor, the investor will have no remedy available to the foreign investor under general international law.

Non Discrimination Clause

Non-discriminatory clauses in BIT protects investors from losses which may incur due to war or other armed conflicts, civil strife, national emergency etc. If any investment is adversely affected due to any above-stated reasons the state has to compensate the investor. The BIT stipulates the ways of compensation. Typically, it includes restitution, indemnification, and other forms of compensations. Article 7 of the Brazil-India BIT incorporates such rule. It says, if investment suffers losses in the territory of other party due to war or other armed conflicts, revolution, state of emergency, civil strife or any other similar events, shall enjoy restitution, indemnification, or other forms of compensations. Moreover, the clause attached with MFN clause. So, the adversely affected investor has the option to avail the most favourable treatment under the MFN clause, which is awarded to a third-party than the treatment the host-state accords to its own investors. Both Model BITs have featured this non-discrimination clause. The Indian Model BIT only includes National Treatment clause not MFN clause whereas Brazilian Model BIT incorporates MFN clause. Thus, once again, India compromised its stand to Brazil and agreed to embrace the MFN clause to article 7 of Brazil-India BIT. However, one may find this kind of attachment of the MFN clause is standard protocol and nothing new to the investment lawyers.

Commonalities with Indian Model BIT

Although most of the BITs do embrace MFN clause as a standard procedure, the Brazil-India BIT does not include the same. Brazil conceded not to include MFN clause although its Model BIT provides for the same under article 6. There is no provision of the MFN clause in the Indian Model BIT. Taxation related regulatory measures have been put outside the purview of the treaty under article 20 of Brazil-India BIT. The same is offered by Indian Model BIT under article 2.4 with a minor variance that host-state’s decision on the impugned measure is taxation related, is final and non-justiciable. Whereas article 20 of the Brazil-India BIT does not use the word non-justiciable as such. Both Brazil-India BIT and Indian Model BIT have adopted General Exceptions clause under articles 23.1 and article 33.1 respectively. One may find that article 23.1 of the Brazil-India BIT is a reproduction of article 33.1 of Indian Model BIT. In terms of Security Exceptions clause, both Brazil-India BIT and Indian Model BIT have encompassed under article 24 and article 33 respectively. Again the Security Exceptions clause of Brazilian-Indian BIT is influenced from Indian Model BIT. Article 24 is almost a reproduction of article 33 of the Indian Model BIT with an insignificant alteration in article 24.3. 

Conclusion

After analysing Brazil-India BITs with Model BITs, the present author opines that newly concluded BITs between two nations rests mostly on Brazilian Model BIT. Although two countries have compromised on certain aspects. As it does contain SSDS system excluding the ISDS system of dispute settlement and the indirect expropriation clause.  We witness the Brazil-India BIT is based on the principle of dispute prevention rather than the prevalent notion of dispute settlement. It is designed in such a way that it will be productive in preventing disputes more effectively. This unique dispute prevention tactic needs appreciation. The modern economic affairs hardly witness nationalisation or the direct takeover of foreign investment. As a result, in the absence of rules of indirect expropriation, it could well be expected that a certain degree of foreign investment protection would be weakened.  After White Industries Arbitration case, asluicegate was opened for foreign investors’ claims which put at risk Indian government. Recently, India had terminated a close to 60 investment agreements which were based on the investor-centric approach of 2003 Indian Model BIT. In 2016, India published its new model BIT and started negotiation with other states, which is state-centric. After thorough analysing of the provisions, one can certainly reach to the conclusion that Indian Model BIT2015 gives precedence to host-state’s right to regulate over investment protection. This new Brazil-India BIT is even more placed on host-state’s sovereign right to regulate. As Indian Model BIT has been compromised most of the time while inking the Brazil-India BIT, the question remains to see in future BIT negotiations; whether India sticks to its own Model BIT or pay heed to the terms advances by the counterparts; hesitatingly or readily.

Swargodeep Sarkar studied Law at the University of Calcutta & holds a Master in international law & organisations from Tamil Nadu Dr. Ambedkar Law University, Chennai, India. Currently, he is a PhD candidate in international law at the Indian Institution of Technology, Kharagpur. His research area includes.public international law, international investment law, peaceful settlement of international dispute.

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Economy

Sustainable Agriculture in Modern Society

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Now everybody is seeing the world is changing fast in this 21st century and many industries and modern buildings are also developing all over the world. But the land areas for farming are becoming narrower and narrower. Moreover, the global population is increasing rapidly and the earth becomes a crowded planet. But the younger people who are interested in agriculture are becoming less and less. There might be some young people who even think that they get foods from grocery stores because the younger generation are used to buy many kinds of ready-made foods such as fruits and vegetables easily from supermarkets. Recently, in the developed countries, the average age of many farmers is over 50 years old and the numbers of young farmers are decreasing. The shortage of young farmers can become a crisis in the future of the developed world.

In modern days, most young adults cannot see the difficult lives of farmers beyond the curtain. The farmers have to pass their whole life through a tough living in farming and sell their products at very low profit to many profiteering companies because they don’t have much choices. It is a sad story for farmers but truly happening in these modern days.

Today I would like to point out that we should not forget the role of agriculture which is very fundamental and essential for building a nation. Farming is an age-old profession that supported the settlement of human beings for thousands of years to survive on this planet. Agriculture is very important for the development of a nation because it provides the trading and employment, supply the foods and textiles and that can lead to the rise in gross domestic product (GDP) of a nation. Agriculture plays a crucial role in economy of a developing nation where majority of population is in rural areas and agriculture is the main source of job in many underdeveloped areas. Many families in developing countries live depending on farming for their livelihood. So, it can be even said that developing agriculture is an important step to reduce poverty and hunger in many developing countries. Agriculture support nutrients rich foods that are essential requirements for our healthy life because nutrients rich foods provide energy for our body, essential nutrients for our vital organs such as brain and heart etc, and enhance our immune system. So, agriculture is necessary for a flourishing and joyful life of human being.

Especially let’s see my home country, as data from Food and agriculture organization (FAO) of the United Nations, “The agriculture supports 37.8 % of gross domestic product of Myanmar, contributed to 25-30% of total export earnings and employs 70 % of the labour force”. Humans cannot survive without agriculture. When there is no more agriculture, it will end with starvation and collapse in economy. It will cause a serious failure in modern civilization.

Nowadays, modern farming is largely evolved into industrial agriculture where many kinds of chemical fertilizers are being used to induce massive production. Industrial agriculture is beneficial to economic development because it can cause the crops growing faster than in the traditional agriculture. The industrial agriculture can provide more enough foods for growing population in modern civilization. However, it is not sustainable because it cannot protect the benefits of the society and our green planet in the long run. Chemicals used in agriculture are destroying the soil where is left with damaged soil fertility and this area can’t be reused in the future. This is a huge affect to sustainability of our green environment.

Modern agriculture has many issues related to water scarcity, soil erosion, climate changes and etc. To be sustainable in agriculture, we must focus on solutions of these issues. The sustainable agriculture will focus on three bottom lines that is environmental, economical and social.

The sustainable agriculture involves many practices such as using the organic fertilizers in farming, growing drought resistant crops, breeding biodiversity in farms, modified irrigation systems and others. Sustainable agriculture is more suitable to practice for the future of the green earth than industrial agriculture. It is very important to promote awareness of sustainable agriculture and issues related to environmentally toxic practices in agricultures among local farmers. And I believe that it can cause many advantages for economic development if farmers can work systematically with sustainable practices in their farming and the local authority can provide farmers with more technological skills and lending some funding to practice sustainable ways in agriculture. With the willingness to participate for environmental heath at the enough profit for incomes of daily living life, I hope famers will become socially responsible persons.

And another one more point, in this digitalization era, we should certainly apply digital technologies in sustainable agriculture. By developing digital farming, it will help farmers to get easier access to source of many information related to agricultural practices. Government in developing countries should support to develop digital farming as rapidly as possible for the poor farmers to get proper profits and to work in environmentally friendly practices. Since poor countries already have enough labour force, they just need many financial aid and technology supports to grow into sustainable agriculture.

I believe that it is a responsibility for our humans that we should not forget something that had supported our existence on this earth. We should work out for development of traditional agriculture into modern agriculture with the best sustainable ways. As being a part of this society, we must help each other, we must protect the sustainability of this green earth, Biodiversity and this is also beneficial for long-term existence of our human beings on this earth. Let me end this talk by suggesting everyone to promote sustainable agriculture in your surrounding local farming.

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Economy

The Blazing Revival of Bitcoin: BITO ETF Debuts as the Second-Highest Traded Fund

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It seems like bitcoin is as resilient as a relentless pandemic: persistent and refusing to stay down. Not long ago, the crypto-giant lost more than half of its valuation in the aftermath of a brutal crackdown by China. Coupled with pessimism reflected by influencers like Elon Musk, the bitcoin plummeted from the all-time high valuation of $64,888.99 to flirt around the $30,000 mark in mere weeks. However, over the course of the last four months, the behemoth of the crypto-market gradually climbed to reclaim its supremacy. Today, weaving through national acceptance to market recognition, bitcoin could be the gateway to normalizing the elusive crypto-world in the traditional global markets: particularly the United States.

The recent bullish development is the launch of the ProShares Bitcoin Strategy ETF – the first Bitcoin-linked exchange-traded fund – on the New York Stock Exchange. Trading under the ticker BITO, the Bitcoin ETF welcomed a robust trading day: rising 4.9% to $41.94. According to the data compiled by Bloomberg, BITO’s debut marked it as the second-highest traded fund, behind BlackRock’s Carbon fund, for the first day of trading. With a turnover of almost $1 billion, the listing of BITO highlighted the demand for reliable investment in bitcoin in the US market. According to estimates on Tuesday, More than 24 million shares changed hands while BITO was one of the most-bought assets on Fidelity’s platform with more than 8,800 buy orders.

The bitcoin continued to rally, cruising over the lucrative launch of BITO. The digital currency rose to $64,309.33 on Tuesday: less than 1% below the all-time high valuation. In hindsight, the recovery seems commendable. The growing acceptance, albeit, has far more consequential attributes. The cardinal benefit is apparent: evidence of gradual acceptance by regulators. “The launch of ProShares’ bitcoin ETF on the NYSE provides the validation that some investors need to consider adding BTC to their portfolio,” stated Hong Fang, CEO of Okcoin. In simpler terms, not only would the listing allow relief to the crypto loyalists (solidifying their belief in the currency), but it would also embolden investors on the sidelines who have long been deterred by regulatory uncertainty. Thus, bringing larger, more rooted institutional investors into the crypto market: along with a surge of capital.

However, the surging acceptance may be diluting the rudimentary phenomenon of bitcoin. While retail investors would continue to participate in the notorious game of speculation via trading bitcoin, the opportunity to gain indirect exposure to bitcoin could divert the risk-averse investors. It means many loyalists could retract and direct towards BITO and other imminent bitcoin-linked ETFs instead of setting up a digital custodianship. Ultimately, it boils down to Bitcoin ETFs being managed by third parties instead of the investor: relenting control to a centralized figure. Moreover, with growing scrutiny under the eye of SECP, the steps vaguely intimate a transition to harness the market instead of liberalizing it: quiet oxymoronic to the entire decentralized model of cryptocurrencies.

Nonetheless, the listing of BITO is an optimistic development that would draw skeptics to at least observe the rampant popularity of the asset class. While the options on BITO are expected to begin trading on the NYSE Arca Options and NYSE American Options exchanges on Wednesday, other futures-based Bitcoin ETFs are on the cards. The surging popularity (and reluctant acceptance) amid tightening regulation could prove a turn of an era for the US capital markets. However, as some critics have cited, BITO is not a spot-based ETF and is instead linked to futures contracts. Thus, the restrain is still present as the regulators do not want a repeat of the financial crisis. Nevertheless, bitcoin has proved its deterrence in the face of skepticism. And if the BITO launch is to be marveled at, then the regulations are bound to adapt to the revolution that is unraveling in the modern financial reality.

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Is Myanmar an ethical minefield for multinational corporations?

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Business at a crossroads

Political reforms in Myanmar started in November 2010 followed by the release of the opposition leader, Aung San Suu Kyi, and ended by the coup d’état in February 2021. Business empire run by the military generals thanks to the fruitful benefits of democratic transition during the last decade will come to an end with the return of trade and diplomatic sanctions from the western countries – United States (US) and members of European Union (EU).  US and EU align with other major international partners quickly responded and imposed sanctions over the military’s takeover and subsequent repression in Myanmar. These measures targeted not only the conglomerates of the military generals  but also the individuals who have been appointed in the authority positions and supporting the military regime.

However, the generals and their cronies own the majority of economic power both in strategic sectors ranging from telecommunication to oil & gas and in non-strategic commodity sectors such as food and beverages, construction materials, and the list goes on. It is a tall order for the investors to do business by avoiding this lucrative network of the military across the country. After the coup, it raises the most puzzling issue to investors and corporate giants in this natural resource-rich country, “Should I stay or Should I go?”

Crimes against humanity

For most of the people in the country, war crimes and atrocities committed by the military are nothing new. For instances, in 1988, student activists led a political movement and tried to bring an end to the military regime of the general Ne Win. This movement sparked a fire and grew into a nationwide uprising in a very short period but the military used lethal force and slaughtered thousands of civilian protestors including medical doctors, religious figures, student leaders, etc. A few months later, the public had no better options than being silenced under barbaric torture and lawless killings of the regime.

In 2007, there was another major protest called ‘Saffron Uprising’ against the military regime led by the Buddhist monks. It was actually the biggest pro-democracy movement since 1988 and the atmosphere of the demonstration was rather peaceful and non-violent before the military opened live ammunitions towards the crowd full of monks. Everything was in chaos for a couple of months but it ended as usual.

In 2017, the entire world witnessed one of the most tragic events in Myanmar – Again!. The reports published by the UN stated that hundreds of civilians were killed, dozens of villages were burnt down, and over 700,000 people including the majority of Rohingya were displaced to neighboring countries because of the atrocities committed by the military in the western border of the country. After four years passed, the repatriation process and the safety return of these refugees to their places of origin are yet unknown. Most importantly, there is no legal punishment for those who committed and there is no transitional justice for those who suffered in the aforementioned examples of brutalities.

The vicious circle repeated in 2021. With the economy in free fall and the deadliest virus at doorsteps, the people are still unbowed by the oppression of the junta and continue demanding the restoration of democracy and justice. To date, Assistant Association for Political Prisoner (AAPP) reported that due to practicing the rights to expression, 1178 civilians were killed and 7355 were arrested, charged or sentenced by the military junta. Unfortunately, the numbers are still increasing.

Call for economic disengagement

In 2019, the economic interests of the military were disclosed by the report of UN Fact-Finding Mission in which Myanmar Economic Corporation (MEC) and Myanmar Economic Holding Limited (MEHL) were described as the prominent entities controlled by the military profitable through the almost-monopoly market in real estate, insurance, health care, manufacturing, extractive industry and telecommunication. It also mentioned the list of foreign businesses in partnership with the military-linked activities which includes Adani (India), Kirin Holdings (Japan), Posco Steel (South Korea), Infosys (India) and Universal Apparel (Hong Kong).

Moreover, Justice for Myanmar, a non-profit watchdog organization, revealed the specific facts and figures on how the billions of revenues has been pouring into the pockets of the high-ranked officers in the military in 2021. Myanmar Oil & Gas Enterprise (MOGE), an another military-controlled authority body, is the key player handling the financial transactions, profit sharing, and contractual agreements with the international counterparts including Total (France), Chevron (US), PTTEP (Thailand), Petronas (Malaysia), and Posco (South Korea) in natural gas projects. It is also estimated that the military will enjoy 1.5 billion USD from these energy giants in 2022.

Additionally, data shows that the corporate businesses currently operating in Myanmar has been enriching the conglomerates of the generals and their cronies as a proof to the ongoing debate among the public and scholars, “Do sanctions actually work?” Some critics stressed that sanctions alone might be difficult to pressure the junta without any collaborative actions from Moscow and Beijing, the longstanding allies of the military. Recent bilateral visits and arm deals between Nay Pyi Taw and Moscow dimmed the hope of the people in Myanmar. It is now crystal clear that the Burmese military never had an intention to use the money from multinational corporations for benefits of its citizens, but instead for buying weapons, building up military academies, and sending scholars to Russia to learn about military technology. In March 2021, the International Fact Finding Mission to Myanmar reiterated its recommendation for the complete economic disengagement as a response to the coup, “No business enterprise active in Myanmar or trading with or investing in businesses in Myanmar should enter into an economic or financial relationship with the security forces of Myanmar, in particular the Tatmadaw [the military], or any enterprise owned or controlled by them or their individual members…”

Blood money and ethical dilemma

In the previous military regime until 2009, the US, UK and other democratic champion countries imposed strict economic and diplomatic sanctions on Myanmar while maintaining ‘carrot and stick’ approach against the geopolitical dominance of China. Even so, energy giants such as Total (France) and Chevron (US), and other ‘low-profile’ companies from ASEAN succeeded in running their operations in Myanmar, let alone the nakedly abuses of its natural resources by China. Doing business in this country at the time of injustice is an ethical question to corporate businesses but most of them seems to prefer maximizing the wealth of their shareholders to the freedom of its bottom millions in poverty.

But there are also companies not hesitating to do something right by showing their willingness not to be a part of human right violations of the regime. For example, Australian mining company, Woodside, decided not to proceed further operations, and ‘get off the fence’ on Myanmar by mentioning that the possibility of complete economical disengagement has been under review. A breaking news in July, 2021  that surprised everyone was the exit of Telenor Myanmar – one of four current telecom operators in the country. The CEO of the Norwegian company announced that the business had been sold to M1 Group, a Lebanese investment firm, due to the declining sales and ongoing political situations compromising its basic principles of human rights and workplace safety.

In fact, cutting off the economic ties with the junta and introducing a unified, complete economic disengagement become a matter of necessity to end the consistent suffering of the people of Myanmar. Otherwise, no one can blame the people for presuming that international community is just taking a moral high ground without any genuine desire to support the fight for freedom and pro-democracy movement.

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