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Concept of Recognition, Nationality and Extradition under International Law

In the sphere of international law, many concepts are used such as recognition of states and governments, nationality, refugees and internally displaced people, immigrant, extradition and asylum. All these concepts play a prominent role in day to day functioning of international law.

Recognition of States and Governments State

There is no exact definition of State, it is generally characterized by the strong centralized organization. According to Max Weber the State is:
human community that claims the monopoly of the legitimate use of physical force within a given territory.

States on the basis of independence can be categorized into two types i.e. sovereign or subject to external sovereignty or hegemony. According to International Law, a State is typically defined as being based on the 1933 Montevideo Convention. According to Article 1 of the convention, the State as a person of international law should possess the following qualifications:
  1. Permanent population
  2. Defined territory
  3. Government
  4. Capacity to enter into relations with the other States.

Government

Government can be defined as a system where group of people govern a community or unit, with their consent. Major task of Government is to administer and set public policies for the welfare of the people. There are myriad institutions through which government try to establish rule of order to ensure good governance for the common people. There are different variants of Government such as democracy, republic etc.

According to Harold Damerow, a professor of government and history:
Government is responsible for making public policy for an entire society and the steering mechanism for a given society.

Recognition

At global level, when new State and government are formed, they need recognition from other sovereign States which will facilitate or allow them to form diplomatic relations with each other.

For example:
Taiwan is still not recognised by the large number of countries, as a result, it does not have full-fledged relations with other nations. A Sovereign State cannot recognize any nation on its whims and fancies but there are some essential features of State and government, which are interpreted according to the internal law. In international law, States are considered as the principal person. The recognition of state is often a political act of a State.

Important thing to note here is that recognition of government is not similar with the recognition of the State. A State is recognised on the basis of mandatory attributes. Once the status of State is recognised, it can't be changed randomly. However, recognition of government can be changed even though recognition of the State continues.

Views of Jurists in the Context of Recognition

As per Professor L Oppenheim:
in recognising a State as member of international community, the existing States declare that in their opinion the new State fulfils the condition of statehood as required by international law.

According to Kelsen, a community to be recognised as an international must fulfill the following conditions:
  1. The community must be politically organised.
  2. It should have control over a definite territory.
  3. This definite control should tend towards permanence.
  4. The community thus, constituted must be independent.

Effects of Recognition
  1. Recognition facilitates newly established State to possess property situated in the territory of recognizing State.
  2. Dejure recognition ensures that diplomatic relations are established.
  3. After recognition, a State can sue in the courts of the recognised States.
  4. With recognition, a State gets right of Sovereign Immunity.

Theories of Recognition

Recognition is a multidimensional topic, there are two type, of theories of recognition, which are as follows:

Constitutive Theory

Hegel is claimed as a pioneer of this theory and others who supported and propounded it were Anzilotti, Holland and Oppenheim. According to this theory, recognition is defined as a process whereby a State is constituted, therefore, it is referred to as a constitutive theory. It helps State in acquiring international personality by becoming a member of family of nations.
Views of chief exponents regarding recognition are as follows:

According to Anzilotti:

since the rules of international law have grown up by the common consent of the States, a subject of international law comes into being with the conclusion of the first agreement as expressed by the treaty of recognition. Such recognition is reciprocal and constitutive, creating rights and obligations which did not exist before.

According to Holland:

a State cannot be said to have attained maturity unless it is stamped with the seal of recognition, which is indispensable to the full enjoyment of rights which it connotes.

According to Oppenheim:

a State is and becomes an international person through recognition only and exclusively. According to this theory, recognition gives the rights and duties to recognised States under the international law.

The recognition of Poland, Czechoslovakia through the instrumentality of the Treaty of Versailles lends support to the constitutive theory of recognition.

Declaratory Theory or Evidentiary Theory

Professor Hall, Wagner, Pitt Cobbett and Brierly were propounders and supporters of this theory. This theory is based on the concept that recognition requires evidence or declaration. This theory contradicts the concept of constitutive theory. For example, first statehood then recognition. According this theory, State or government exists as such prior to and independently of recognition. Hence, recognition is just formality to acknowledge already established State.

The views of chief exponents of this theory are as follows:

According to Professor Hall:
the State, which is a politically organized community, enters as of right into the family of States, must be treated according to the law soon as it is able to show the marks of statehood, and no State has a right to withhold recognition when it was being earned.

According to Brierly:
the granting of recognition to a new State is not a constitutive but a declaratory act. It does not bring into legal existence a State which did not exist before. A state may exist without being recognised, and if it does exist in fact then, whether or not it has been formally recognised by other states, it has a right to be treated by them as a State.

Modes of Recognition

De Facto Recognition

This type of recognition is temporary in nature which can either be conditional or non-conditional. This recognition is granted by a nation to other when a State or government has not acquired sufficient stability. It is provisional recognition of the State. To get de facto recognition, State or government much possess following attributes
  1. Permanence
  2. Trust of people in government and state
  3. Fulfilling international obligations

De facto recognition is usually followed by de jure recognition when the recognising State accepts that the effective control exerted by the government in question is permanent and firmly established.

Views of jurists regarding de facto recognition are:

According to

Oppenheim:

The de facto recognition of a State or government takes place when, in the view of the recognising State, the new authority, although actually independent and wielding effective power in the territory under its control, has not acquired sufficient stability or does not yet offer prospects of complying other requirements of recognition such as, willingness or ability to fulfill international obligation.

According to

Judge Philip C Jessup:

de facto recognition is a term which has been used without precision when properly used to mean the recognition of the de facto character of a government. It is objectionable and indeed could be identical with the practice suggested of extended recognition without resuming diplomatic recognition.

De Jure Recognition

According to Kelsen:
de jure recognition is final whereas de facto recognition is only provisional and thus, may be withdrawn. This recognition means legal recognition to State or government is permanent in nature, which cannot be easily withdrawn. It is extended only when a State or government fulfills all the essential criteria, according to the international law.

It is not necessary for a state or government to have de facto recognition for getting de jure recognition. When a State gets de jure recognition, then State is allowed for exchange of diplomatic representative, thus establishing diplomatic relation with other nations. A State de jure recognised by majority of States, then that State is entitled to get membership of UN. The difference between de facto and de jure, recognition is mainly political in nature rather than legal.

Some Other Types of Recognition

Implied Recognition

Generally, recognition is done through written or oral statement. However sometimes, recognition may be implied in the attitude or action taken by the sovereign State. Implied recognition can be inferred from the action of sovereign State that it has accepted State as a member of international family. So in this type of recognition, indication plays a chief role. Implied recognition usually falls in the sphere of de facto recognition.

Collective Recognition

Recognition can be either unilateral or multilateral. When more than one nation recognizes a State or government, it is referred as collective recognition. The perfect example of collective recognition is when a State is admitted to the United Nations through a majority of votes by the member States of UN.

Doctrine of Recognition

There are three main types of doctrines which deal with the recognition, which are as follows:

Estrada Doctrine

It was core foreign policy instrument of Mexican government. It was named after Genaro Estrada, Secretary of foreign affairs (1930-32). It is believed that foreign government should not judge, positively or negatively, the government or changes in government of other States, as judging them will raise a question mark on their sovereignty. The principles behind the formulation of this were non-intervention, peaceful resolution of disputes and self determination of all nations.

Stimson Doctrine

This doctrine is named after Henry Stimson, US secretary of State. This policy followed the principle of nonrecognising the States which came into existence as a result of aggression. The doctrine was an application of the principle of ex injuria jus non oritur. This policy was mainly implemented by US federal government but later adopted by governments around the world.

Hallstein Doctrine

The doctrine is of that time when Germany was divided into two parts i.e. the Republic of Germany (West Germany) and the German Democratic Republic (East Germany). This doctrine was propounded by Walter Hallstein. The Federal Republic of Germany followed this policy, which lay that the Federal Republic of Germany would not establish or maintain diplomatic relations with any State that recognised the German Democratic Republic (East Germany). Similarly, China followed One China Policy in the context of Taiwan. The country which will recognise Taiwan as a nation, then China will break diplomatic relations with those nations.

Nationality

Nationality is the legal status which represents the country to which an individual belongs. An individual's nationality denotes the country where person is born and is the legal citizen of that country. The status is acquired by different means such as birth, inheritance or naturalization. On the basis of constitutional provision, every State sets the criteria which determines who can be the nationals of a country.

Definition of Nationality

According to Fenwick:
Nationality may be defined as the bond which unites a person to a given State which constitutes his membership in a particular State, which gives him a claim of the protection of that State and which subject him to the obligation created by the law of that State.

In renowned Nottebohm case, the International Court of Justice described nationality as a legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the judicial expression of the fact that the individual upon whom it is conferred either directly by the law or as a result of an act of authorities, is in fact more closely connected with the population of state on conferring nationality than that of any other state.

Importance of Nationality

As pointed out by Starke, the laws relating to nationality have following importance under International Law:

  1. The protection of rights of diplomatic agents is the consequence of nationality.
  2. If a State does not prevent offences of its nationals or allows them to commit such harmful acts as might affect other States, then that State shall be responsible for the acts committed by such a person.
  3. Ordinarily, States do not refuse to take the persons of their nationality. By nationality, we may mean loyalty towards a particular State.
  4. Nationality may also mean that the national of a State may be compelled to do military service for the State.
  5. Yet another effect of nationality is that the State may refuse to extradite its own nationals.
  6. According to the practice of large number of States during war, enemy character is determined on the basis of nationality.
  7. States frequently exercise jurisdiction over criminal and other matters over the persons of their nationality.

Domicile and Citizenship

Domicile

It is referred to the country that a person treats as their permanent home or lives in and has a substantial connection with. A domiciled status of person can be continued even if a person moves from one jurisdiction to another. For example, if a Srilankan citizen moves to the US temporarily for employment purposes, his/her domicile would continue to be Srilankan.

Citizenship

It refers to the status of having the right to participate in and to be represented in politics. Citizenship is based on the concept that an individual owes allegiance to the state and in turn is entitled to its protection. The law of citizenship is different from one country to another, however, there are two basis of citizenship law Jus sanguinis and Jus soli.

Jus sanguinis is based on the principle of blood, descent and heritage play a vital role in defining who is and can become a citizen. The second basis, jus soli says that a person become citizen of a country, if born within the country regardless of the citizenship of the parents.

Modes of Aquisition of Nationality

There are different means of acquiring nationality, which at as follows:

By Birth

It is the most natural way of getting nationality. It is based on the principle of jus sanguinis which is right of plot descent and heritage. At the time of birth, nationality of parents has an impact over the nationality of children. Some countries also follow the principle of Jus soli in extending nationality. For example, we are born in India, hence we get India's nationality.

By Naturalisation

After birth, most preferred way of acquiring nationality is naturalisation. When the nationality of a person changes subsequently and he acquires the nationality of some other State, the process of acquisition is known as naturalisation. The rule and norms of naturalisation vary from one country to another. A candidate who has applied for naturalisation has to promise to obey and uphold that country's law. Marriages, legitimation, aquisition of domicile etc., are some of the ways of acquiring nationality through naturalisation.

By Resumption

This type of mode is rarely followed or seen. Under it, if a person loses his nationality due to some reasons, then person can resume its nationality after fulfilling the procedure enacted by the nation. Person usually takes oath of citizenship in resumption.

By Subjugation

Another method of acquiring nationality is subjugation. This type of acquiring nationality means when a State defeats another State or one State bow in front of another, the citizens of the defeated State automatically acquires the nationality of conquered State.

By Cession

When territory of one State or whole State is ceded to another State, the citizen of former State acquires the nationality of latter State. When Sikkim was integrated with India, all its citizens acquired Indian nationality as a consequence of integration.

By Registration

Registration is also a mode for acquiring nationality. Citizen of one nation can get him/her self registered in another nation and after following instructions and fulfilling basic requirements person can get nationality of that nation. Terms and conditions for registration are distinct from one jurisdiction to another.

Modes of Losing Nationality

According to Oppenheim, there are five modes of losing nationality, which are as follows:

By Release

In some States, such as Germany, law provides that the Citizens may lose the nationality by release. In the loss of nationality by release, it is necessary to submit an application for the same. If the application is accepted, the person concerned is released from the nationality of the state concerned.

By Deprivation

States have framed some municipal laws, the breach of which by its nationals results in the deprivation of their nationality. Under the American laws, service in the armed forces of a foreign State also results in deprivation of citizenship.

By Expiration

In certain states, on account of legislation, citizenship expires due to long stay abroad. For example, A naturalist American citizen loses his nationality by having continuous residence for three years in the territory of a foreign State of which he was formerly a national or in which the place of his birth is situated.

By Renunciation

A person may also renounce his nationality. The need for renunciation arises when a person acquires the nationality of more than one State. In such a condition, he has to make a choice as to of which country he will remain national. Finally, he has to renounce the nationality of one State. In the case of double nationality of children, the municipal law of certain States like Great Britain gives them a right on coming of age to declare whether they wish to cease to be citizens of any one State.

By Substitution

Some States provide for the substitution of nationality. According to this principle, a person may get nationality of a State in place of the nationality of another State. This is called nationality by substitution whereby he loses nationality of a State and acquires the nationality of another State. The British Nationality Act 1948 does not automatically entail loss of British nationality on the naturalisation of a British subject in a foreign state.

Statelessness

According to United Nations High Commissioner for Refugees (UNHCR), Legal definition of a stateless person is a person who is not considered as a nationali by any state under the operation of its law. In simple terms, this means that a stateless person does not have a nationality of any country. Some people are born stateless, but others become stateless. Stateless people suffer a lot of problems while accessing basic rights such as education, healthcare, employment and freedom of movement. They even face exploitation while migrating from one place to another. UNHCR has set 2024 as a dead line to end statelessness. As per the data of UNHCR, there are around 12 million stateless people in the world.

Immigrant

An immigrant is a person who comes to live permanently in a foreign country. On the other hand, the process through which individuals become residents or citizens of another country is known as immigration where as emigration is the act of leaving one's own country to settle permanently in another country.

Some Common Causes of Immigration
  1. To ensure their safety from past or future prosecution based on race, religion and nationality.
  2. Marriages are most prominent social reasons behind immigration.
  3. For better job and business opportunities, people migrate from one country to another.
  4. In order to secure good education, people opt for immigration.
  5. Sometimes push factors like poverty, poor living conditions etc., force people for immigration.
  6. Due to persistent conflict or violence, people are forced to migrate to other places. Recently European countries are facing immigration crisis due to turbulence in Middle East and North Africa.

Consequences of Immigration
  1. It provides new opportunities for immigrants, but on the other hand, enhances competition for resources.
  2. Immigrant improves socio-economic condition of their countries by sending remittance.
  3. It leads to creation of cosmopolitan society.
  4. Immigrant people act as an agent of cultural diffusion. Thus, leads to inter-mixing of cultures.
  5. Immigration on high scale results in political tension between the nations.
  6. Immigration above carrying capacity of destination place has an adverse impact on the ecological conditions. It degrades the environment and causes pollution.

International Convention for Migrant Workers

It is the international convention on the protection of the right of all migrant workers and member of their families. It is a United Nations multilateral treaty which aims to protect the right of migrant worker and their families. It was signed in 1990 and enforced from 7th July, 2003. Currently, it has 54 member nations. The nation which ratify, it has a moral obligation to implement its provisions. This convention has categorised rights of migrant worker into two types i.e. human and other rights.

Committee on Migrant Workers (CMW) monitors implementation of the convention. This convention aim to create better conditions for the migrant worker and their families.

Rights entitled by this act to migrant workers and their families are as follows:
  1. The right to leave and enter the State of origin.
  2. The right to life shall be protected by rule of law.
  3. They shall not be subjected to torture or to cruel human or degrading treatment or punishment.
  4. They shall have freedom of thought, conscience and religion.
  5. They shall not be arbitrarily deprived of Property whether owned individually or in association with others.
  6. They have the right to equality with nationals of the State, concerned before the courts and tribunals.
  7. Each child of a migrant worker shall have the basic right to a name, to registration of birth and to, nationality.
  8. They shall have the right to be informed by the state of origin.

Refugee

According to UNHCR, A refugee is someone who has been forced to flee his or her country because of persecution, war or violence. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. Most likely, they cannot return home or are afraid to do so. War and ethnic, tribal and religious violence are leading causes of refugees fleeing their countries.

Countries which contribute to major percentage of refugees around the world are Syria, Afghanistan, South Sudan, Myanmar and Somalia. Push factors such as war, persecution climate change are responsible for this problem.

The 1951 Geneva Convention of Refugee

It is based on the Article 14 of the Universal Declaration Human Rights 1948, which recognises the right of person to seek asylum from prosecution in other countries. The UN convention relating to the status of refugees adopted in 1951 is the centre piece of international refugee protection. It has been ratified by 145 State parties and contains 46 Articles. India has not ratified it due to some contentious issues.

Major Provisions of Convention
  1. It gives definition of refugee.
  2. Every refugee has duties in which he finds himself. The State should apply the provision of this convention without discrimination as to race, religion or country of origin.
  3. A contracting State shall accord to refugees the same treatment as is accorded to alien generally.
  4. The personal status of a refugee shall be governed by the law of the country to his domicile or, if he has no domicile, by the law of the country of his residence.
  5. A refugee shall have free access to the courts of law on the territory of all contracting States.

Refugee Crisis

At present world is facing biggest refugee crisis of the world. In layman language, refugee crisis refers to the problem faced by refugees in course of their movement from one place to another and also it encompasses economic, social, political problems arise up in host country due to influx of refugees. According to the UN High Commissioner for Refugees, as of January 2019, 70.8 million were displaced worldwide. Thousands of people have died while crossing Mediterranean Sea to reach Europe.

Internally Displaced Person

According to UNHCR, an internally displaced person or IDP is someone who has been forced to flee their home but never cross an international border. These individuals seek safety anywhere they can find it in nearby towns, schools, settlements, internal camps, even forests and fields. IDPs, which include people displaced by internal strife and natural disasters, are the largest group that UNHCR assists. Unlike refugees, IDPs are not protected by international law or eligible to receive many types of aid because they are legally under the protection of their own government. Countries with some largest internally displaced populations are Colombia, Syria, Democratic Republic of the Congo and Somalia.

There are various reasons which force a person to become IDP such as armed conflict, drought etc. IDPs suffer significantly higher rate of mortality. Among IDPs, women and children are at greater risk of abuse of their basic rights. International community has very limited role in solving the problem of IDP as they are not allowed to interfere in internal matters of sovereign nation until asked for help.

Extradition

In the International law, extradition is referred to as the surrender of an alleged or convicted criminal by one State to another. Many times, a person after committing a crime run away from one jurisdiction to another through legal or illegal ways, so in order to punish that person for his/her act, one country can make a request of extradition after showing sufficient proof. Extradition plays an important role in the battle against crime. Extradition treaties between nations help in facilitating extradition of a criminal.

Definitions of Extradition

According to Starke:
the term extradition denotes the process whereby under treaty or upon a basis of reciprocity, one state surrenders to another State, at its request, a person accused or convicted of a criminal offence committed against the law of requesting State, such requesting State being competent to try alleged offender.

According to Oppenheim:
Extradition is the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have been convicted of a crime, by the State on whose territory the alleged criminal happens to be for the time.

According to Lawrence:
The surrender, by a or State to another, of an individual who is found within the territory of the former and is accused of having committed a crime within the territory of the later or who having committed crime outside the territory of its subjects and as such by its law amenable to its jurisdiction.

Importance of Extradition

At the global level, extradition plays a vital role in fight against crime and ensuring justice.

Following are some important or salient features of extradition:
  1. Its main objective is to prevent criminals who flee from one State to another from punishment for their criminal offence.
  2. It is based on the principle of reciprocity (States that favours, benefits or penalties that are granted by one State to the citizen of another, should be return in kind).
  3. Bilateral extradition treaties between nations are base of extradition procedure.
  4. It is important to extradite accused or criminals to the country in whose jurisdiction crime has been committed, because that country has a proof to punish those persons.
  5. It acts as a deterrent to criminals as hand of law will catch even if they run away into another jurisdiction.
  6. It will play significant role in curbing cross border trafficking, organised crime, terrorism etc.
  7. It will ensure peace and security around the world.

Extradition Treaty

According to Business Dictionary:
It is a bilateral and usually reciprocal treaty between sovereign States which (upon request) provides for the surrender of person(s) accused of a crime under the laws of the requesting State. Extradition may be barred for offences other than those punishable in the surrendering State, and commonly, its courts must be convinced that a prima facie criminal case exists.

It helps in deciding legal framework for the return of criminals between States. Currently, India has signed bilateral extradition treaties with 43 nations and extradition agreement with 10 nations.

Role of Interpol in Extradition

The International Criminal Police Organisation (ICPO Interpol) is an international organisation which plays a vital role in extradition procedure. Its chief task is to facilitate worldwide police cooperation and crime control. It was the first international organisation to recommend to member countries a draft general agreement for the extradition of offender.

Later in the year 1948, the General Assembly of organisation adopted draft as Integration Criminal Police Commission. Since its inception, the General Secretariat of the ICPO Interpol has taken two main initiatives to facilitate international police co-operation in matters relating to extradition.

The first initiative provides for the publication of circulars, formulating provisional measures, easing identification and arrest of a person wanted on a warrant of arrest.

The second initiative taken by the ICPO-Interpol consist the dissemination of national extradition law.

In this regard, a resolution was passed in 1967 in Tokyo. The pre-extradition circular and the text of extradition laws of the member countries received from the General Secretariat are being maintained in the Interpol wing.

Extradition in India

India enacted Indian Extradition Act, 1962 which govern the extradition of a fugitive from India to a foreign country or vice versa. The act was substantially modified in 1993.

Article 34 (b) of the Indian Extradition Act, 1962 provides procedure for the arrest and extradition of fugitive criminal, under certain conditions which includes receipt of the request through diplomatic channels only and under the warrant issued by a Magistrate having a competent jurisdiction.

Section 41(1) (g) of the Cr.P.C, 1973 authorizes the police to arrest a fugitive criminal without a warrant, however, they must immediately refer the matter to Interpol Wing for onward transmission to the Government of India for taking a decision on extradition or otherwise.

As per Section 188 of Cr.P.C, 1973 as if the offence has been committed at any place in India at which he may be found, the trial of such a fugitive criminal can only take place with the previous sanction of the Central Government.

India has also signed many regional extradition treaties such as London scheme (non binding in nature) etc. In 2011, Two UN Conventions i.e. the United Nations Convention against Corruption and the United Nations Convention against Transnational Organised Crime and its three protocols have been ratified by India. Article of these conventions can be used for the purpose of extradition.

The European Convention of Extradition

It is one of the most prominent conventions at international level to facilitate extradition between states. It is a multilateral extradition treaty signed in 1957. Council of Europe has played instrumental role in the enaction of this convention. This convention is also available for signature to a non-member. There are four additional protocols to the convention that vary the conditions signed by individual. The convention does not apply to political or military offence and any party may refuse to extradite its own citizen to a foreign country.

Asylum

In layman language, asylum refers to status of a person, when a Government grants shelter and active protection to people who are at risk of harm in their countries. There can be multiple reasons behind seeking an asylum such as religion, political opinion, sexual orientation or ethnicity. According to Institute of International Law:
Asylum is the protection which a State grants on its territory or in some other place under the control of certain of its organs to a person who comes to seek it. The process of seeking the asylum is complicated and it depends on the merit of the case and on the country which has to decide about asylum. Mainly, political leaders and activists apply for asylum.

Asylum Seeker

A person who applies or makes a request for asylum is referred as asylum seeker. A person becomes asylum seeker by making formal application for the right to remain in another country and keeps that status untills the application has been concluded. At the end of 2018, there were approx 3.5 million people around the world waiting for a decision of their asylum claim.

Right to Asylum

According to international law, a person has a right to asylum. In this regard, Article 14 of the Universal Declaration of Human Rights says that everyone has a right to seek and enjoy in other countries asylum from prosecution. Right to asylum is also supported by the 1951 convention relating to the status of refugees and 1967 protocol relating to the status of refugees.

Types of Asylum

Territorial Asylum:

When a State grants asylum to any one on its territory, then it is referred as territorial asylum. When any nation gives this type of asylum, it is considered as a manifestation of territorial sovereignty. The General Assembly of the UN unanimously adopted a resolution 2312 on 14th December, 1967, a declaration on territorial asylum.

Extra Territorial Asylum:

In extra territorial asylum, a State provides asylum to a person outside its own territory. Extra territorial asylum includes asylum in legation and consulates on warships etc.

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