Danilo Türk Book Presentation

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IN REMEMBRANCE OF THE PRESENTATION OF THE CZECHTRANSLATION OF THE BOOK FOUNDATIONS OF INTERNATIONAL LAW

which took place in presence of the author Prof. Dr. Danilo TÜRK, the President of the Republic of Slovenia

Pictures by: Stanko Gruden Ing. Martin Knopp PhDr. Marie Kohoutová RNDr. František Rozkot, Ph.D. Text by: Prof. MUDr. Jan Škrha, DrSc. Prof. JUDr. Pavel Šturma, DrSc. Prof. Dr. Danilo Türk

© Univerzita Karlova v Praze, Právnická fakulta, 2011 © Nakladatelství Eva Rozkotová, 2011

ISBN: 978-80-87488-02-7

Professor Jan Škrha, Vice-rector of Charles University in Prague, has welcomeH. E. Professor Danilo Türk, President of the Republic of Slovenia, on Charles University:

Your Excellency, Mr President,

Yours magnificences,Your Excellencies, spectabiles, honorabiles, professores, doctores, cives academici, colleagues, Ladies and Gentlemen, It is a great honour to me in the name of Charles University, to welcome our dear guest, His Excellency Dr. Danilo Türk, president of the Republic of Slovenia, on the occasion of a presentation of the Czech translation of his book “Foundations of International Law”, and also to welcome those accompanying him. Permit me also to express our pleasure at the presence of the ambassadors and members of the Prague diplomatic corp. Finally let me welcome the Rectors and other academic dignitaries from Prague universities as well as other visiting scientists and scholars, teachers, staff and especially student from our university and all our guests today. Let me introduce few words about our distinguished guest: Dr. Türk studied at the Faculty of Law, University of Ljubljana where he received his law degree (1975). He continued his studies in the field of minorities and international law and in 1982 he obtained his doctorate from the Faculty of Law in Ljubljana with a thesis on“The principle of non- intervention in international relations and in international law”. His career continued at the Faculty of Law till his profesorship of international law. However, his activites were broad as in Slovenia as out of its frontiers. This was also his contribution to the establishent of the Human Rights Council in Slovenia. After Slovenia´s declaration of independence Dr. Türk

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took an active role in diplomatic activities. It was his intensive work in the United Nations in Geneva as Ambasador of the Republic of Slovenia, he was involved in the analytical and consulting activities relating to the crisis at different parts of the world. He was appointed by Mr Kofi Annan as his Assistant-Secretary-General for political affaires. Dr.Türk returned toSlovenia after 13 year of very active life in the international affaires and returned to his University in Ljubljana. Since May 2006 he has served as Vice-Dean of the Faculty of Law, and in November 2007 he was elected President of the Republic of Slovenia. Ladies and gentlemen, I would like to ask His Excellency the President, Dr. Danilo Türk to take the floor. H. E. Professor Danilo Türk, President of the Republic of Slovenia, then expressed his thanks for the possibility to introduce the Czech translation of his book “Foundations of International Law” and delivered address to introduce basic ideas of his book (as concluded in the Summary of his book): As explained in this summary, the book offers the reader a broad brush picture of the foundations of international law. But it also outlines the most important details of the system of international law as a whole and captures the significant recent developments that have occurred in this era of dynamic evolution of international legal norms. Contemporary international law now constitutes a very comprehensive system. It is characterized both by considerable diversity and speciali-zation in its different components. The law of the sea, the law of human rights and the law of armed conflicts are three such examples. At the same time its systemic dimension continues to evolve. In recent times, fundamental aspects of international law such as state responsibility or the law of human

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rights or international criminal lawhave grown rapidly both in substance and importance and have contributed significantly to the broader development of international law. In these circumstances, it is timely to nurture a broad understanding of international law as a whole. The text is organized in eleven chapters covering themain areas of international law: (1) the concept and the sources of international law; (2) the subjects of international law (3) human rights and individual’s criminal responsibility; (4) state organs in the field of international relations (diplomatic and consular law); (5) international transactions; (6) international responsibility of states; (7) international organizations; (8) the objects of international law; (9) peaceful settlement of disputes; (10) collective security – prohibition of the use of force and measures for the maintenance of international peace and security; and (11) the law of armed conflicts. The first chapter starts with a definition of international law as a system of legal principles and norms which define the rights and obligations of its subjects in their mutual relations and within international community at large. The traditional subjects of international law are states. However, the contemporary development of international law is also characterized by an expansion of international norms which go beyond the regulation of state to state activity and now extend into the regulation of state activity vis-a-vis individuals. Human rights law and the law regarding international criminal responsibility of the individual are important examples. Over time, international law has undergone an important evolution not only with respect to its normative structure, but also in its doctrinal interpretation.The early authors (including Grotius, Pufendorf and Wolff ) were legal thinkers of the natural law school. They provided the philosophical basis on which the authority of international law as a system of legal principles and norms was built. The evolution of state practice from the earliest periods onwards provided a basis for the positivist approach which prevailed in subsequent periods. This evolution was characterized by diversity of practice and by scholarly discussion on such basic issues as the origin of the authority of international law and the relationship between international law and municipal law. Legal philosophy was an important part of this development,

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which culminated in the late 19th and early 20th century in the work of authors like Triepel, Jellinek and Kelsen. However, the interpretation of international lawbasedonphilosophical ideas, includingKelsen’s normativism, were challenged by alternative interpretations of international law – both those arising fromcommon law tradition and reflected in the British and in the American legal thinking and various sociological approaches to international law which emphasize social solidarity, the role of international institutions and the rights of the individual (Duguit, Le Fur, Scelle, Alvarez). After World War II there was a huge growth in the development of international legal norms under the auspices of the United Nations. This significantly increased the body of international law and allowed for a variety of interpretations. The positivist interpretations in particular demonstrated the value of careful analysis and systematic interpretation of the growing volume of state practice. At the same time, the increase in the number of sovereign states has enhanced the importance of theoretical inquiry into the evolution of sovereignty in an interdependent world, where international law limits sovereignty in a variety of new ways. Natural law, the oldest among theoretical interpretations of international law, also finds ongoing reinforcement in some of the trends of the past decades. Human rights law and humanitarian law in particular have increased the importance of the ethical base upon which the system of international law rests. International law evolves in response to developments in its sources: treaties, international customary law and the general principles of law. In addition to the sources enumerated in Article 38 of the Statute of the International Court of Justice, developments of the past decades have given rise to new sources of norms of international law, and the interplay between treaty-law and customary law has developed a new dimension. The role of decisions of international organizations as a source of international legal obligations has also increased. In the case of the United Nations, the Security Council has expanded the scope of its activity, using a teleological interpretation to define its powers under the UN Charter. Article 103 of the Charter, under which obligations under the Charter prevail over obligations under any other international agreement, has meant that decisions of the Security Council

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have become a major source of international legal obligation of states in the area of the maintenance of international peace and security. Other features of the recent evolution of international law can be seen in the results of several decades of progressive development and codification of international law due to the work of the UnitedNations and its International Law Commission.The relationship between international law and domestic law, as well as between international law and the law of the European Communities (more recently that of the European Union) has also become much more complex. The doctrines of monism and dualism, established in scholarly literature and in state practice, provide only a point of departure in the inquiry. Many constitutional systems have adopted international law – i.e. treaties binding upon them and the applicable customary law, including the principles of international law, such as those enshrined in Article 2 of the UN Charter – as part of their legal systems. Domestic courts, including constitutional courts, are increasingly giving weight to international law in deciding cases before them. In practice, however, the actual applicability of a particular international norm in domestic law depends on the precise state of the relevant international and domestic law. European Union Law constitutes another important development with a major effect on the application of international law. It represents a unique system of legal principles and norms which, on the one hand, apply directly within the national legal systems of EU member states and, on the other hand, they have to conform to the peremptory norms of international law (ius cogens). The institutions of the European Union have strengthened the rule of international law. By acting in conformity with the norms of international law they contribute to the application of international law by states while, in the areas of EU competence, the decisions of the EU bodies provide the means for the direct application of the relevant norms of international law within the national legal systems of EU member states. The latter function, also referred to as the “Europeanization of international law” strengthens the effectiveness of international law. In all these situations Article 103 of the UN Charter remains decisive.

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The second chapter deals with the subjects (persons) of international law. The importance of states as the primary subjects of international law remains central. Sovereign states continue to define the system of international law, either directly or through international organizations. They continue to enjoy fundamental rights (the right to existence, the right to sovereignty, the right to international communication and the right to enjoy respect). While the rules of international law governing the recognition of states and state succession were developed in recent decades, they have not changed fundamentally.Thus new states need to be established effectively within their territories. Their recognition might include other criteria (such as respect for fundamental human rights and peaceful settlement of disputes) but still rests on the criterion of effectiveness of statehood. The emergence of a state can be a lengthy process, ultimately dependent on the ability of the people concerned to effectively establish their state. The end of the 20th century also witnessed an expansion of the practice of international administration of territories which possess a degree of international legal personality and are in some cases states in statu nascendi. However, the growing number of such cases does not give rise to a single model or type of international status. The second chapter also provides the basic characteristics of such aspects of international personality as the permanent neutrality of states, the special status of the Holy See and the essential elements of the international personality of international organizations. The third chapter addresses the situation of the individual in international law. It focuses on two major aspects: the international protection of human rights and the international criminal responsibility of the individual. It lays out the main characteristics of the international system of the protection of human rights – both at the level of the United Nations and within the relevant regional organizations. While this system has become a major feature in the contemporary international law, and has clearly established the individual as an object of international legal obligations, it cannot yet be concluded that it has made the individual a subject of international law. The individual has gained important procedural mechanisms which allow for bringing his/her complaints to international fora, but the overall evolution

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has not changed the basic legal situation in which the state remains the responsible party with respect to the individual’s legal status, both within the state and internationally. The same conclusion is drawn in the discussion on the international criminal responsibility of the individual. The establishment of the international criminal tribunals and the International Criminal Court (established by the Rome Statute of 1998, in force since 2002) represents amajor newdevelopment in the systemof international law.This development marks an important change in the attitude of states, which have traditionally considered their criminal jurisdiction as a core domestic function of state sovereignty. However, it remains to be seen whether the jurisprudence of the international criminal tribunals will substantially internationalize the prosecution of war crimes and crimes against humanity. The third chapter addresses the growing scope for international law to impact directly on the individual –both in respect of human rights and the individual’s criminal responsibility.While international law has expanded considerably in its scope in these areas, the fundamental structure and centrality of the state has not changed. The subsequent chapters deal with those areas of international law where the state remains the central player. The fourth chapter addresses the organs of state relevant to international relations. It examines the functions and the legal status of the head of state, the prime minister and the foreign minister as well as those of diplomatic representatives, consuls and international civil servants.The chapter explains the basic features of their functions and status and identifies the areas where development of international law has played an important role including those related to the protection of diplomatic communication and the role of honorary consuls. Chapter five deals with international transactions. It starts with a discus- sion of unilateral declarations such as recognition, protest and waiver. The major part of this chapter is devoted to international treaties: conclusion of treaties, their validity and interpretation, reservations to multilateral treaties, revision of treaties and termination and nullity of treaties.

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Chapter six is devoted to the issues of international responsibility of states. It is divided into two sections.The first addresses the issues of responsibility of states for internationally wrongful acts – as developed in the recent evolution of international law. Special attention is placed on the draft articles produced by the International Law Commission in 2001. Particular attention is paid to the interrelationship between the primary obligation and its breach and the resulting responsibility of the wrong-doing state. The draft articles offer a sophisticated answer to the issue of responsibility of states for wrongful acts.The quasi-objective (i.e.“strict”) responsibility of the wrongdoing state is nuanced depending on the nature of the primary obligation and the nature of the breach.The first section of chapter six also discusses issues such as attribut ability, circumstances precluding wrongfulness and reparation for injury. Thesecondsectionof chapter sixaddresses specific featuresof theresponsibility of states in the area of the protection of environment.The discussion proceeds from the ordinary concept of international respon-sibility of states and from the principle sic utere tuo ut alterum non laedes. From there the discussion continues to specific primary obligations of states in the area of protection of environment suchas the dutyof notificationof activities affecting environment, the obligation of prior consultations, the duty to provide environmental impact assessment and the principle “polluter pays”.These obligations have developed internatio-nal law beyond the general rules of responsibility of states for the actual damage to the environment. Furthermore, they have to be seen in conjunction with the innovative arrangements in the institution- building for a more effective protection of environment. Taken together these elements represent an evolving international regime which is firmly based in the concept of responsibility of states while its normative structure is reaching into new forms of cooperation by states. This evolution is driven by the realization of states that they have a collective responsibility for the protection of environment and it thus represents an important comple- ment to the traditional international regime of state responsibility. Chapter seven addresses international organizations. It starts with a brief historical overview and an explanation of the main types of international organizations existing at present. A large part of the chapter is devoted

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to the United Nations and in particular to the evolution of the roles of the principal organs of the UN.The core functions of the UN in the maintenance of international peace and security and the growing role of the UN Security Council are discussed in more detail.The UN, as a system encompassing the UnitedNationsOrganization and its variety of funds and programs as well as the specialized agencies, is also explained. Taken together all these elements form a system which – although not tightly organized – can nevertheless be seen as a rudimentary mechanism of collective governance. The Chief Executives’ Board, which meets twice a year under the chairmanship of the UN Secretary-General is described. The chapter also provides an overview of international organizations at the global level which are not part of the UN system, such as World Trade Organization and several other treaty- based organizations and a selection of the existing regional organizations. In the latter category, special attention is paid to the European Communities, and to the structure of the European Union today. Chapter eight is devoted to the objects of international law, i.e. the state territory, international rivers, the air space, the sea, the Arctic and the Antarctic and the outer space. It provides information about the basic norms of international law governing those spaces and refers to some among the contemporary issues. Thus it addresses the issues of the acquisition of state territory by cession and sovereign activities, the non-navigational uses of the international watercourse and the evolution of international norms relating to the suppression of acts affecting the safety of air traffic. It also provides an overview of the main norms of the law of the sea and the United Nations Convention on the Law of the Sea of 1982. Chapter nine discusses the issues of peaceful settlement of international disputes. It provides an overview of diplomatic means for the settlement of disputes (negotiations, good offices, enquiry,mediation and conciliation) and a presentation of the basic features of arbitration and the International Court of Justice.This chapter also provides basic information about the International Tribunal on the Law of the Sea as well as about the dispute settlement system of the World Trade organization and that of the International Center for the Settlement of Investment Disputes.

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Chapter ten discusses the issues of collective security – the prohibition of the use of force by states and measures for the maintenance of international peace and security. It starts with the history of the prohibition of the use of force and explains the current scope of that prohibition and the legality of self-defense and coercive measures conducted or authorized by the UN Security Council. Recent developments related to the question of the use of force and specific examples are also discussed. The chapter also discusses the measures of the UN Security Council not involving the use of force, including the recent evolution of the Council’s practice towards targeted sanctions. One of the sections in this chapter is devoted to the basic legal characteristics of the peacekeeping operations and their evolution towards operations mandated under Chapter VII of the UN Charter (elements of enforce-ment action, initially alien to the concept of peacekeeping). Another section of this chapter deals with the issues of arms control and disarmament, while the final section is devoted to counterterrorism and to measures against the proliferation of weapons of mass destruction. Counterterrorism has become an important feature of international cooperation and has given rise to new institutional forms such as the Counterterrorism Committee of the UN Security Council. Chapter eleven, the final chapter of the book, deals with the issues of international law of armed conflicts. It starts with the notion of just war, the concepts of the ius ad bellum and ius in bello and explains the circumstances in which the original meaning of the ius ad bellum has changed while the norms constituting the ius in bello developed into the contemporary system of the law of armed conflicts. The evolution of treaty law (the “Hague law” and the “Geneva law”) and of other sources is also explained. Proceeding from these basic explanations the focus of discussion is placed on the issue of protection of persons (combatants and civilians) in armed conflicts – both in international armed conflicts and in armed conflicts which are not of an international character. The role of the protecting power and of the ICRC is also discussed. A separate section of this chapter deals with the issues of limitations in the conduct of hostilities related to the objects of military action and the methods and means of warfare. The special legal

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features of the naval warfare are briefly discussed in a section of this chapter. The final two sections are devoted to the legal consequences of the state of war among states and those of the status of neutrality during the war. As a result of the characteristics of the contemporary armed conflicts, including the international armed conflicts of the past decades, the established rules regarding the consequences of the state of war and those of neutrality in war have not been applied consistently. The focus of attention has shifted towards the fate of the individual in situations of armed conflicts and to the limitations of warfare. This is also reflected in the commentaries on the international law of armed conflicts today. Professor Pavel Šturma, Vice-dean of the Faculty of Law of the Charles University and the main editor of the Czech version of Prof. Türk’s book, then concluded importance of the book for Czech readers: Dear Mr. President, Magnificencies, Spectabiles, Excellencies, ladies and gentlemen, Allow me to say a few words about the Czech edition of the book of our distinguished guest, the President of Slovenia, Professor Danilo Tűrk. International law is by its very nature an international legal order.Therefore, it is common practice to use, for research and studies in this branch of law, not only domestic but also foreign textbooks and other publications. In the first half of the 20th century, at least three translations of eminent foreign textbooks of international law were published on the Czech territory. Two modern books appeared in Czech translation in the 1990s. All these books were translations from English, French and German. Today, we offer to Czech readers a translation from a language that is not internationally used. It is a book of the important Slovenian lawyer,

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diplomat and politician, Professor Dr. Danilo Tűrk, who worked as Assistant Secretary-General, then as Professor of International law at the Faculty of Law of the University of Ljubljana. The book Fundamentals of International Law, which appeared first in the Slovenian original in 2007, presents a work of an author who has both deep theoretical background and extensive practical experience in the filed of international law and organizations. Moreover, this is a book which may be, by its approach, very well accessible to Czech readers. Without any doubts, this textbook stems from the best Central-European traditions of international legal doctrine. I should also note that one hundred years ago, both Slovenians and Czechs lived in the same state, being at that time the Austro-Hungarian monarchy. Many contacts, including academic and cultural relations, have continued also after the creation of two independent States. Both the Czech Republic and the Republic of Slovenia are member states of the European Union. In my view, it is important that the voice of such small states like ours would be present and sufficiently represented at the European and global levels.The same is true for the doctrine of international law of those countries, which usually has more complicated possibilities of presen-tation and impact because of the rather limited number of specialists and the fact that the languages are not among the most widely used. The published book and its author are the best examples that the international legal scholarship in our countries is comparable to anywhere in the world. At the same time, each national doctrine brings a specific perspective, arising from the domestic tradition and particular problems which the theory and practice of international law have to deal with. Intheend,Iwould like to thankall collaborators,publishers andsponsorswho made this publication possible. In particular, I would like to thank Dr. David Blažek who translated the text from Slovenian into Czech, Dr. František Rozkot and Mrs. Eva Rozkotová who took care of the technical aspects of the publication. From the point of view of the coordination of this international project, my thanks belong to Doc. Ing. Petr Voznica, Czech Ambassador to the Republic of Slovenia, and Mag. Jacob Štunf, First Counsellor, Embassy of the Republic of Slovenia in Prague. As to the sponsors, I would like to

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thank Ing. Lubomír Kovařík, CEOof Česká zbrojovka, a.s., and Ing.Oldřich Kettner and the company VIPAP Videm Krško, Slovenia. I am convinced that the book of Professor Danilo Tűrk will find many readers in the Czech Republic.

In the discussion, which followed after Prof. Šturma’s speech, Prof. Türk answered questions from the auditorium.

Afterwards, Prof. Türk made a record in the University Guest Book and at the glass of wine discussed with Professors, Academicians and the other guests.

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CONTENT

March 16th, 2011, Patriotic Hall of Carolinum, Charles University, Prague

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Speech of Prof. Jan Škrha, Vice-rector of Charles University

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Speech of H. E. Prof. Danilo Türk, President of the Republic of Slovenia

Speech of Prof. Pavel Šturma, Vice-dean of the Faculty of Law of the Charles University

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Pictures from the Event

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Books waiting for the readers ... ... and readers waiting for the Author Prof. Škrha is wellcoming Prof. Türk Prof. Türk carefully listens to the invitation speech...

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... as well as the whole auditorium. Prof. Türk introduces his book... ... and Professors Škrha and Šturma listen to his speech Ambassadors of Czech Republic to Slovenia Mr. Petr Voznica and Slovenia to Czech Republic Mrs. Smiljana Knez Representants of Charles University and Doc. Voznica Professors Pavlíček and ... with Ing. Kettner Auditorium is listening Prof. Türk explains his opinions Prof. Šturma is speaking ... and Professors Türk and Škrha listen to his speech

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Professor Türk listens to the questions of guests... ... among others, Dr. Trauttmansdorff, Ambassador of Austria to Czech Republic Prof. Türk answers the questions Auditorium is carefully listening Professor Türk in informal discussion with the guests Prof. Türk writes his record in Guests Book of Charles University... Prof. Türk accepts a smal gift from Prof. Škrha, Vice-rector of Charles University Prof. Türk in the informal discussion with representants of Charles University, professors Šturma, Damohorský, ... and Škrha Prof. Türk signs his books to the guests Music CD for Prof. Türk Doc. Voznica and Ing. Kettner in discussion Prof. Türk with the publishers and staff of Czech issue of his book Prof. Škrha with Mag. Jakob Štunf, First Counsellor of Slovenian Embassy in Prague, and Dr. Florian Margan from hse d.o.o. Professor Türk with students Guests are waiting for President’s autograph Prof. Türk with the staff of Czech issue of his book Prof. Türk’s nice words written in Guests Book of Charles University

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29, 31 33-35 36-38 39 40-44

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Content and Legend to the Pictures

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IN REMEMBRANCE OF THE PRESENTATION OF THE CZECHTRANSLATION OF THE BOOK FOUNDATIONS OF INTERNATIONAL LAW

which took place in presence of the author Prof. Dr. Danilo TÜRK, the President of the Republic of Slovenia

Pictures by: Stanko Gruden Ing. Martin Knopp PhDr. Marie Kohoutová RNDr. František Rozkot, Ph.D. Text by: Prof. MUDr. Jan Škrha, DrSc. Prof. JUDr. Pavel Šturma, DrSc. Prof. Dr. Danilo Türk

Typografie: Eva Rozkotová Obálka a grafická úprava: RNDr. František Rozkot, Ph.D.

Vydala Univerzita Karlova v Praze, Právnická fakulta, ediční středisko v nakladatelství Eva Rozkotová, Na Ptačí skále 547, 266 01 Beroun www.eva@rozkotova.com

Tisk: POWERPRINT s.r.o. Brandejsovo nám. 1219/1 165 00 Praha – Suchdol

Praha 2011

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