Pub Date : 2022-01-28DOI: 10.1093/law/9780190222345.003.0022
Hennebel Ludovic, T. Hélène
This chapter focuses on Article 22 of the American Convention on Human Rights (ACHR), which is a very dense provision insofar as it contains several rules and is addressed to different categories of holders. Indeed, it guarantees freedom of movement and circulation, protection against arbitrary and collective expulsion, as well as the prohibition of non-refoulement, and the right to seek and to receive asylum. This provision alone contains several substantive rights that are not always protected as such by other general human rights conventions, with the exception of the African Charter on Human and Peoples' Rights. The structure of the provision is based on a balance between the individual rights' approach—the right of the individual in general, the right of the national of the State Party, and the right of the alien—and the prerogatives of the State, including the right to control the entry and stay of individuals on its territory. In order to respect this fragile balance, some of the rights and freedoms protected by Article 22 may be subject to limitations.
{"title":"Part I State Obligations and Rights Protected, Ch.II Civil and Political Rights, Art.22: Freedom of Movement and Residence","authors":"Hennebel Ludovic, T. Hélène","doi":"10.1093/law/9780190222345.003.0022","DOIUrl":"https://doi.org/10.1093/law/9780190222345.003.0022","url":null,"abstract":"This chapter focuses on Article 22 of the American Convention on Human Rights (ACHR), which is a very dense provision insofar as it contains several rules and is addressed to different categories of holders. Indeed, it guarantees freedom of movement and circulation, protection against arbitrary and collective expulsion, as well as the prohibition of non-refoulement, and the right to seek and to receive asylum. This provision alone contains several substantive rights that are not always protected as such by other general human rights conventions, with the exception of the African Charter on Human and Peoples' Rights. The structure of the provision is based on a balance between the individual rights' approach—the right of the individual in general, the right of the national of the State Party, and the right of the alien—and the prerogatives of the State, including the right to control the entry and stay of individuals on its territory. In order to respect this fragile balance, some of the rights and freedoms protected by Article 22 may be subject to limitations.","PeriodicalId":22363,"journal":{"name":"The American Convention on Human Rights","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86499127","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-28DOI: 10.1093/law/9780190222345.003.0067
Hennebel Ludovic, T. Hélène
This chapter looks at on Article 67 of the American Convention on Human Rights (ACHR). The main purpose of Article 67 of the ACHR is to specify one of the qualities of a judgment of the Inter-American Court, namely, its non-appealable character. The provision is to be read in conjunction with Articles 66 and 68, which refer to other qualities attached to the Court's judgment, that is, their “reasoned” and binding nature for the States concerned. Article 67 of the ACHR is structured around two rules. The first deals with the finality of the Court's judgments and the second with the Court's jurisdiction to interpret them in the event of disagreement between the parties.
{"title":"Part II Means of Protection, Ch.VIII Inter-American Court of Human Rights, s.3 Procedure, Article 67","authors":"Hennebel Ludovic, T. Hélène","doi":"10.1093/law/9780190222345.003.0067","DOIUrl":"https://doi.org/10.1093/law/9780190222345.003.0067","url":null,"abstract":"This chapter looks at on Article 67 of the American Convention on Human Rights (ACHR). The main purpose of Article 67 of the ACHR is to specify one of the qualities of a judgment of the Inter-American Court, namely, its non-appealable character. The provision is to be read in conjunction with Articles 66 and 68, which refer to other qualities attached to the Court's judgment, that is, their “reasoned” and binding nature for the States concerned. Article 67 of the ACHR is structured around two rules. The first deals with the finality of the Court's judgments and the second with the Court's jurisdiction to interpret them in the event of disagreement between the parties.","PeriodicalId":22363,"journal":{"name":"The American Convention on Human Rights","volume":"35 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90966440","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-28DOI: 10.1093/law/9780190222345.003.0078
Hennebel Ludovic, T. Hélène
This chapter investigates Article 78 of the American Convention on Human Rights (ACHR). Echoing Article 58 of the European Convention on Human Rights (ECHR), the ACHR reflects the conventional freedom of the State. The Convention is one of these “free conventions,” “in the sense that no State is obliged to become a party to it.” The latter may choose to commit, but as one author points out, it does not necessarily wish to be “prisoner” of this conventional relationship. The State must also be free to leave, hence the importance of regulating this “right of exit,” in particular for reasons of legal certainty in relations between the parties. In the law of treaties, denunciation thus constitutes “the normal procedure by which a State withdraws from a treaty.” This is a unilateral mode aimed at putting an end, for the party concerned, to the treaty commitment and Article 78 of the ACHR is therefore merely an adaptation of the principle pacta sunt servanda of general international law reflected in Article 54 of the Vienna Convention on the Law of Treaties (VCLT), since it organizes the “consensual termination of treaty relationship” in this particular framework.
{"title":"Part III General and Transitory Provisions, Ch.X Signature, Ratification, Reservations, Amendments, Protocols, and Denunciation, Article 78","authors":"Hennebel Ludovic, T. Hélène","doi":"10.1093/law/9780190222345.003.0078","DOIUrl":"https://doi.org/10.1093/law/9780190222345.003.0078","url":null,"abstract":"This chapter investigates Article 78 of the American Convention on Human Rights (ACHR). Echoing Article 58 of the European Convention on Human Rights (ECHR), the ACHR reflects the conventional freedom of the State. The Convention is one of these “free conventions,” “in the sense that no State is obliged to become a party to it.” The latter may choose to commit, but as one author points out, it does not necessarily wish to be “prisoner” of this conventional relationship. The State must also be free to leave, hence the importance of regulating this “right of exit,” in particular for reasons of legal certainty in relations between the parties. In the law of treaties, denunciation thus constitutes “the normal procedure by which a State withdraws from a treaty.” This is a unilateral mode aimed at putting an end, for the party concerned, to the treaty commitment and Article 78 of the ACHR is therefore merely an adaptation of the principle pacta sunt servanda of general international law reflected in Article 54 of the Vienna Convention on the Law of Treaties (VCLT), since it organizes the “consensual termination of treaty relationship” in this particular framework.","PeriodicalId":22363,"journal":{"name":"The American Convention on Human Rights","volume":"72 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73599622","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-28DOI: 10.1093/law/9780190222345.003.0061
Hennebel Ludovic, T. Hélène
This chapter analyzes Article 62 of the American Convention on Human Rights (ACHR), which is a fundamental and essential provision of the inter-American human rights protection system. Article 62 of the ACHR deals with the modalities for the recognition of the contentious jurisdiction of the Inter-American Court of Human Rights. It establishes the main feature of the exercise of this jurisdiction, namely, a State’s consent-based jurisdiction. In other words, the Court is granted an optional contentious jurisdiction, while the Inter-American Commission holds a compulsory jurisdiction to examine individual petitions on the basis of Article 44 of the ACHR. Article 62 must be analyzed in conjunction with other provisions of the Convention, including Article 61, which deals with the entities entitled to bring cases before the Court, namely, the States Parties and the Commission.
{"title":"Part II Means of Protection, Ch.VIII Inter-American Court of Human Rights, s.2 Jurisdiction and Functions, Article 62","authors":"Hennebel Ludovic, T. Hélène","doi":"10.1093/law/9780190222345.003.0061","DOIUrl":"https://doi.org/10.1093/law/9780190222345.003.0061","url":null,"abstract":"This chapter analyzes Article 62 of the American Convention on Human Rights (ACHR), which is a fundamental and essential provision of the inter-American human rights protection system. Article 62 of the ACHR deals with the modalities for the recognition of the contentious jurisdiction of the Inter-American Court of Human Rights. It establishes the main feature of the exercise of this jurisdiction, namely, a State’s consent-based jurisdiction. In other words, the Court is granted an optional contentious jurisdiction, while the Inter-American Commission holds a compulsory jurisdiction to examine individual petitions on the basis of Article 44 of the ACHR. Article 62 must be analyzed in conjunction with other provisions of the Convention, including Article 61, which deals with the entities entitled to bring cases before the Court, namely, the States Parties and the Commission.","PeriodicalId":22363,"journal":{"name":"The American Convention on Human Rights","volume":"22 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83298341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-28DOI: 10.1093/law/9780190222345.003.0049
Hennebel Ludovic, T. Hélène
This chapter evaluates Article 49 of the American Convention on Human Rights (ACHR). Article 49 of the ACHR complements Article 48-1(f), addressing the noncontentious procedure that may be applied in an individual petition or interstate communication. It describes the steps to be followed by the Inter-American Commission on Human Rights when a friendly settlement is reached by the parties. Under Article 49 of the ACHR, the Commission must approve the amicable settlement. To do so, it has to verify that the conditions of validity are met, in particular as regards the consent of the parties and the content of the agreement, which must be fully compatible with human rights. Therefore, the approval procedure described briefly under Article 49 (and detailed under Article 40-5 of the Commission's Rules of Procedure) is far from purely formal or technical. Quite the opposite, the noncontentious phase is the subject of a particular attention by the Commission that provides not only an assessment of the terms of the agreement, but also of its status of implementation by the State's authorities.
{"title":"Part II Means of Protection, Ch.VII Inter-American Commission on Human Rights, s.4 Procedure, Article 49","authors":"Hennebel Ludovic, T. Hélène","doi":"10.1093/law/9780190222345.003.0049","DOIUrl":"https://doi.org/10.1093/law/9780190222345.003.0049","url":null,"abstract":"This chapter evaluates Article 49 of the American Convention on Human Rights (ACHR). Article 49 of the ACHR complements Article 48-1(f), addressing the noncontentious procedure that may be applied in an individual petition or interstate communication. It describes the steps to be followed by the Inter-American Commission on Human Rights when a friendly settlement is reached by the parties. Under Article 49 of the ACHR, the Commission must approve the amicable settlement. To do so, it has to verify that the conditions of validity are met, in particular as regards the consent of the parties and the content of the agreement, which must be fully compatible with human rights. Therefore, the approval procedure described briefly under Article 49 (and detailed under Article 40-5 of the Commission's Rules of Procedure) is far from purely formal or technical. Quite the opposite, the noncontentious phase is the subject of a particular attention by the Commission that provides not only an assessment of the terms of the agreement, but also of its status of implementation by the State's authorities.","PeriodicalId":22363,"journal":{"name":"The American Convention on Human Rights","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83764118","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-28DOI: 10.1093/law/9780190222345.003.0044
Hennebel Ludovic, T. Hélène
This chapter reviews Article 44 of the American Convention on Human Rights (ACHR). Article 44 of the ACHR is one of the core provisions of the Inter-American Human Rights complaint mechanism. It determines the standing of the individual petitioners (jus standi) before the Inter-American Commission on Human Rights and recognizes two procedural rights of action: the international procedural right to denounce and the international procedural right to complain. The distinction between the types of actions is important. The right to denounce is open in favor of a vast scope of beneficiaries and is closely linked to the concept of collective guarantee, while the right to complain is more strictly recognized in favor of the alleged victim of a violation of their rights by a State Party. Article 44 explains that the ACHR is a fertile ground for actions similar to actio popularis, allowing anyone and any group of persons to act in order to ensure the collective guarantee of the ACHR.
{"title":"Part II Means of Protection, Ch.VII Inter-American Commission on Human Rights, s.3 Competence, Article 44","authors":"Hennebel Ludovic, T. Hélène","doi":"10.1093/law/9780190222345.003.0044","DOIUrl":"https://doi.org/10.1093/law/9780190222345.003.0044","url":null,"abstract":"This chapter reviews Article 44 of the American Convention on Human Rights (ACHR). Article 44 of the ACHR is one of the core provisions of the Inter-American Human Rights complaint mechanism. It determines the standing of the individual petitioners (jus standi) before the Inter-American Commission on Human Rights and recognizes two procedural rights of action: the international procedural right to denounce and the international procedural right to complain. The distinction between the types of actions is important. The right to denounce is open in favor of a vast scope of beneficiaries and is closely linked to the concept of collective guarantee, while the right to complain is more strictly recognized in favor of the alleged victim of a violation of their rights by a State Party. Article 44 explains that the ACHR is a fertile ground for actions similar to actio popularis, allowing anyone and any group of persons to act in order to ensure the collective guarantee of the ACHR.","PeriodicalId":22363,"journal":{"name":"The American Convention on Human Rights","volume":"27 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81733950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-28DOI: 10.1093/law/9780190222345.003.0021
Hennebel Ludovic, T. Hélène
This chapter details Article 21 of the American Convention on Human Rights (ACHR), which protects the right to private property. Article 21 of the ACHR is structured in three paragraphs that aim at protecting existing private property. The first paragraph provides that everyone has the right to the use and enjoyment of their property and admits that the law may subordinate the use and enjoyment of the property to “social interest.” Although no one shall be deprived of their property, the second paragraph authorizes restrictions under three conditions: upon payment of just compensation; for reasons of public utility or social interest; and in the cases and according to the forms established by law. Finally, Paragraph 3 specifically requires that usury and other forms of exploitation are prohibited by law.
{"title":"Part I State Obligations and Rights Protected, Ch.II Civil and Political Rights, Art.21: Right to Property","authors":"Hennebel Ludovic, T. Hélène","doi":"10.1093/law/9780190222345.003.0021","DOIUrl":"https://doi.org/10.1093/law/9780190222345.003.0021","url":null,"abstract":"This chapter details Article 21 of the American Convention on Human Rights (ACHR), which protects the right to private property. Article 21 of the ACHR is structured in three paragraphs that aim at protecting existing private property. The first paragraph provides that everyone has the right to the use and enjoyment of their property and admits that the law may subordinate the use and enjoyment of the property to “social interest.” Although no one shall be deprived of their property, the second paragraph authorizes restrictions under three conditions: upon payment of just compensation; for reasons of public utility or social interest; and in the cases and according to the forms established by law. Finally, Paragraph 3 specifically requires that usury and other forms of exploitation are prohibited by law.","PeriodicalId":22363,"journal":{"name":"The American Convention on Human Rights","volume":"36 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90523064","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-28DOI: 10.1093/law/9780190222345.003.0081
Hennebel Ludovic, T. Hélène
{"title":"Preamble","authors":"Hennebel Ludovic, T. Hélène","doi":"10.1093/law/9780190222345.003.0081","DOIUrl":"https://doi.org/10.1093/law/9780190222345.003.0081","url":null,"abstract":"","PeriodicalId":22363,"journal":{"name":"The American Convention on Human Rights","volume":"152 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80324987","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-28DOI: 10.1093/law/9780190222345.003.0002
Hennebel Ludovic, T. Hélène
This chapter examines Article 2 of the American Convention on Human Rights (ACHR), which prescribes and requires specific conduct from States Parties regarding the domestic implementation of the rights and freedoms enshrined. Article 2 is located in the first chapter of the ACHR, entitled “General obligations”; it cannot be read without referring to the pivotal Article 1. Both provisions illustrate the principle of subsidiarity of the inter-American system, according to which the State is primarily in charge of the domestic implementation of human rights. Accordingly, in combination with Article 2 of the ACHR, States may be required to adopt positive measures in order to ensure rights and freedoms as to amend or reverse discriminatory situations to the detriment of certain groups of persons. Therefore, under certain circumstances, the provisions may be invoked in conjunction before the inter-American organs. The jurisprudence on Article 2 is pivotal in the transformative potential of the American Convention within the domestic systems of the States Parties.
{"title":"Part I State Obligations and Rights Protected, Ch.I General Obligations, Art.2: Domestic Legal Effects","authors":"Hennebel Ludovic, T. Hélène","doi":"10.1093/law/9780190222345.003.0002","DOIUrl":"https://doi.org/10.1093/law/9780190222345.003.0002","url":null,"abstract":"This chapter examines Article 2 of the American Convention on Human Rights (ACHR), which prescribes and requires specific conduct from States Parties regarding the domestic implementation of the rights and freedoms enshrined. Article 2 is located in the first chapter of the ACHR, entitled “General obligations”; it cannot be read without referring to the pivotal Article 1. Both provisions illustrate the principle of subsidiarity of the inter-American system, according to which the State is primarily in charge of the domestic implementation of human rights. Accordingly, in combination with Article 2 of the ACHR, States may be required to adopt positive measures in order to ensure rights and freedoms as to amend or reverse discriminatory situations to the detriment of certain groups of persons. Therefore, under certain circumstances, the provisions may be invoked in conjunction before the inter-American organs. The jurisprudence on Article 2 is pivotal in the transformative potential of the American Convention within the domestic systems of the States Parties.","PeriodicalId":22363,"journal":{"name":"The American Convention on Human Rights","volume":"42 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77651114","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-28DOI: 10.1093/law/9780190222345.003.0051
Hennebel Ludovic, T. Hélène
This chapter focuses on Article 51 of the American Convention on Human Rights (ACHR). Article 51 of the ACHR closes up Section 4 of the Chapter VII dedicated to the “Procedure” before the Inter-American Commission on Human Rights, applied when dealing with an individual petition (Article 44) or an inter-State communication (Article 45). The provision describes the potential results of the procedure, that is, the adoption of a report that would contain the “opinion,” “conclusion,” and “recommendations” of the Commission. The article must be understood in light of Article 49 (Friendly settlement) and Article 50 (“preliminary report”). An Article 51 report is adopted when the friendly settlement process has failed, and in case of violations stated by the Commission, when the case is neither brought to the Court nor fixed by the Commission itself. Accordingly, the Article 51 report is said to be “final,” as it terminates the litigation proceeding before the Inter-American organs.
{"title":"Part II Means of Protection, Ch.VII Inter-American Commission on Human Rights, s.4 Procedure, Article 51","authors":"Hennebel Ludovic, T. Hélène","doi":"10.1093/law/9780190222345.003.0051","DOIUrl":"https://doi.org/10.1093/law/9780190222345.003.0051","url":null,"abstract":"This chapter focuses on Article 51 of the American Convention on Human Rights (ACHR). Article 51 of the ACHR closes up Section 4 of the Chapter VII dedicated to the “Procedure” before the Inter-American Commission on Human Rights, applied when dealing with an individual petition (Article 44) or an inter-State communication (Article 45). The provision describes the potential results of the procedure, that is, the adoption of a report that would contain the “opinion,” “conclusion,” and “recommendations” of the Commission. The article must be understood in light of Article 49 (Friendly settlement) and Article 50 (“preliminary report”). An Article 51 report is adopted when the friendly settlement process has failed, and in case of violations stated by the Commission, when the case is neither brought to the Court nor fixed by the Commission itself. Accordingly, the Article 51 report is said to be “final,” as it terminates the litigation proceeding before the Inter-American organs.","PeriodicalId":22363,"journal":{"name":"The American Convention on Human Rights","volume":"145 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86217024","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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