Abstract The concept of “vulnerability” has become all-pervasive in EU asylum law and the ECtHR case law on asylum seekers and migrants, where it has acquired various legal meanings and functions. But many controversies remain on the legal nature, definition, and consequences of “vulnerability.” Based on lessons learned in the process of establishing the overall research design of the Horizon 2020 VULNER project and coordinating its implementation, this article identifies the contribution that anthropological knowledge can bring to ongoing legal debates and reflects on the conceptual and practical challenges that emerge when engaging in such an endeavor. First, the article shows the potential of anthropological research methods and concepts to shed light on the experiences of vulnerability as they are lived by migrants, and to reveal and question the underlying social and political dynamics behind the increased success of vulnerability in legal reasoning. Second, it argues that anthropology can only bring a useful contribution to legal debates on “vulnerability” if the knowledge it produces is adequately translated into legal reasoning—which requires acknowledging the differences between the goals of anthropological analyses, which are all-encompassing and seek to depict human experiences in all their complexities, and legal conceptualizations, which require establishing clearly defined notions that can be operationalized in—relatively—certain ways by decision-makers on the ground and that allow them to strike a balance between competing interests.
{"title":"Lost in Translation? The Promises and Challenges of Integrating Empirical Knowledge on Migrants’ Vulnerabilities into Legal Reasoning","authors":"Luc Leboeuf","doi":"10.1017/glj.2022.62","DOIUrl":"https://doi.org/10.1017/glj.2022.62","url":null,"abstract":"Abstract The concept of “vulnerability” has become all-pervasive in EU asylum law and the ECtHR case law on asylum seekers and migrants, where it has acquired various legal meanings and functions. But many controversies remain on the legal nature, definition, and consequences of “vulnerability.” Based on lessons learned in the process of establishing the overall research design of the Horizon 2020 VULNER project and coordinating its implementation, this article identifies the contribution that anthropological knowledge can bring to ongoing legal debates and reflects on the conceptual and practical challenges that emerge when engaging in such an endeavor. First, the article shows the potential of anthropological research methods and concepts to shed light on the experiences of vulnerability as they are lived by migrants, and to reveal and question the underlying social and political dynamics behind the increased success of vulnerability in legal reasoning. Second, it argues that anthropology can only bring a useful contribution to legal debates on “vulnerability” if the knowledge it produces is adequately translated into legal reasoning—which requires acknowledging the differences between the goals of anthropological analyses, which are all-encompassing and seek to depict human experiences in all their complexities, and legal conceptualizations, which require establishing clearly defined notions that can be operationalized in—relatively—certain ways by decision-makers on the ground and that allow them to strike a balance between competing interests.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46422073","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}
Abstract This reflective article maps out the findings of a socio-legal study on language use in administrative settings in Belgium’s Dutch-language area. It explains how the author arrived at a socio-legal approach to this study object. Thereafter the article focuses on the methods used and the conceptual framework. It discusses the various methodological choices regarding data collection and the use of methods stemming from anthropology in this study. It also illustrates how anthropological literature on concepts such as discretion and multiple embeddedness provide conceptual tools for building a framework around which to structure and present the empirical data. The last part of the article sketches the findings of this socio-legal study. Drawing on the conceptual framework, it illustrates that even when practice deviates from statutory law, the relationship between the law and the practice cannot be easily captured in a dichotomic relationship. The author furthermore deduces some relevant findings in light of general human rights. The article concludes with some reflections on research that combines law and anthropology, both as separate disciplines and as a combined endeavor.
{"title":"A Socio-legal Approach to Language Use in Administrative Settings in Belgium’s Dutch-Language Area","authors":"Jonathan Bernaerts","doi":"10.1017/glj.2022.63","DOIUrl":"https://doi.org/10.1017/glj.2022.63","url":null,"abstract":"Abstract This reflective article maps out the findings of a socio-legal study on language use in administrative settings in Belgium’s Dutch-language area. It explains how the author arrived at a socio-legal approach to this study object. Thereafter the article focuses on the methods used and the conceptual framework. It discusses the various methodological choices regarding data collection and the use of methods stemming from anthropology in this study. It also illustrates how anthropological literature on concepts such as discretion and multiple embeddedness provide conceptual tools for building a framework around which to structure and present the empirical data. The last part of the article sketches the findings of this socio-legal study. Drawing on the conceptual framework, it illustrates that even when practice deviates from statutory law, the relationship between the law and the practice cannot be easily captured in a dichotomic relationship. The author furthermore deduces some relevant findings in light of general human rights. The article concludes with some reflections on research that combines law and anthropology, both as separate disciplines and as a combined endeavor.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49483240","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}
M. Foblets, Jean-François Gaudreault-Desbiens, Michele Graziadei
Abstract This special issue of the German Law Journal showcases through concrete examples the conceptual and methodological toolbox that social anthropology has to offer and the added value of applying an anthropologically informed approach to legal thinking, argumentation, and practice. The contributions address a wide variety of highly topical, controversial social issues that are at the heart of the human condition, including gender recognition for non-binary people, family disputes brought before international courts, non-majoritarian language use in administrative settings, forced migration, and the impact of climate change and infrastructural development on local communities worldwide. This introduction outlines the research program into which the contributions gathered here fit; the choice of topics; and finally, the challenges the authors face in the process of integrating their intellectual encounter with anthropology into their reflections on law. The article concludes that taking recourse to anthropology can help jurists trained in state law to develop a more refined understanding of today’s societal complexity and challenges and, ultimately, to reach more nuanced, sensitive, and just decisions.
{"title":"Legal Scholars Engaging with Social Anthropology: Hardships and Gains","authors":"M. Foblets, Jean-François Gaudreault-Desbiens, Michele Graziadei","doi":"10.1017/glj.2022.66","DOIUrl":"https://doi.org/10.1017/glj.2022.66","url":null,"abstract":"Abstract This special issue of the German Law Journal showcases through concrete examples the conceptual and methodological toolbox that social anthropology has to offer and the added value of applying an anthropologically informed approach to legal thinking, argumentation, and practice. The contributions address a wide variety of highly topical, controversial social issues that are at the heart of the human condition, including gender recognition for non-binary people, family disputes brought before international courts, non-majoritarian language use in administrative settings, forced migration, and the impact of climate change and infrastructural development on local communities worldwide. This introduction outlines the research program into which the contributions gathered here fit; the choice of topics; and finally, the challenges the authors face in the process of integrating their intellectual encounter with anthropology into their reflections on law. The article concludes that taking recourse to anthropology can help jurists trained in state law to develop a more refined understanding of today’s societal complexity and challenges and, ultimately, to reach more nuanced, sensitive, and just decisions.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42305126","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}
Abstract This article contributes to the debates on the role of anthropology in refugee law research by showing the added value of an interdisciplinary approach to the understanding of complex asylum claims related to cultural and religious beliefs that are unfamiliar to the Western perspective. Based on the analysis of asylum claims in UK courts involving witchcraftbased persecution in the country of origin—both applicants who feared becoming victims of witchcraft practices and those who could be accused of having engaged in witchcraft practices—I demonstrate how anthropology can provide the tools for bridging the gaps between the law in the books and its implementation in practice and solving issues that are beyond the scope of the law. In particular, anthropology can feed into a broader legal conceptualization that accounts for the realities of our diverse societies and helps explain how fear of persecution due to witchcraft can indeed be real and connected with serious human rights violations. Moreover, cultural expertise can assist in assessing asylum claims in their cultural, historical, and political contexts, affording the claimant a fairer and better adjudicated outcome. Nevertheless, the use of anthropology inevitably comes with some challenges related to the different fields’ epistemologies, languages, and styles, as well as a lack of appreciation for interdisciplinarity in some areas of academia.
{"title":"An Illustration of Anthropology’s Contribution to Refugee Law Research","authors":"Katia Bianchini","doi":"10.1017/glj.2022.67","DOIUrl":"https://doi.org/10.1017/glj.2022.67","url":null,"abstract":"Abstract This article contributes to the debates on the role of anthropology in refugee law research by showing the added value of an interdisciplinary approach to the understanding of complex asylum claims related to cultural and religious beliefs that are unfamiliar to the Western perspective. Based on the analysis of asylum claims in UK courts involving witchcraftbased persecution in the country of origin—both applicants who feared becoming victims of witchcraft practices and those who could be accused of having engaged in witchcraft practices—I demonstrate how anthropology can provide the tools for bridging the gaps between the law in the books and its implementation in practice and solving issues that are beyond the scope of the law. In particular, anthropology can feed into a broader legal conceptualization that accounts for the realities of our diverse societies and helps explain how fear of persecution due to witchcraft can indeed be real and connected with serious human rights violations. Moreover, cultural expertise can assist in assessing asylum claims in their cultural, historical, and political contexts, affording the claimant a fairer and better adjudicated outcome. Nevertheless, the use of anthropology inevitably comes with some challenges related to the different fields’ epistemologies, languages, and styles, as well as a lack of appreciation for interdisciplinarity in some areas of academia.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49123603","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}
Abstract This Article offers an anthropologically informed rereading of the landmark case Neulinger and Shuruk v. Switzerland, decided by the European Court of Human Rights (ECtHR) in 2010. This rereading is undertaken by “going beyond judgments” temporally—i.e., reconstructing the case from its origins to present—and spatially—i.e., looking at different sources of data and putting them into conversation with one another. This approach draws on anthropology both conceptually and methodologically. Not only does it address “case law” and “litigation” as creations of a variety of social and legal agents, constantly and meaningfully interacting with one another, but it also adopts a “litigant’s perspective” and creates space for acknowledging aspects of the lived experience of the applicants that have been marginalized in legal reasoning. By doing so, this Article shows that, from being strongly imbued with religious considerations, Neulinger and Shuruk came to assume a neutral framing when entering and progressing through the ECtHR. “Going beyond judgments” ultimately foregrounds the image of the Court as an institution addressing and doing different things to different audiences and stakeholders, and showcases some of the ways through which multi-perspectivity and efforts to “humanize the law” may be incorporated into case-law analyses.
{"title":"Re-reading Neulinger and Shuruk v. Switzerland: Bringing the Religious Dimension into View","authors":"A. Margaria","doi":"10.1017/glj.2022.64","DOIUrl":"https://doi.org/10.1017/glj.2022.64","url":null,"abstract":"Abstract This Article offers an anthropologically informed rereading of the landmark case Neulinger and Shuruk v. Switzerland, decided by the European Court of Human Rights (ECtHR) in 2010. This rereading is undertaken by “going beyond judgments” temporally—i.e., reconstructing the case from its origins to present—and spatially—i.e., looking at different sources of data and putting them into conversation with one another. This approach draws on anthropology both conceptually and methodologically. Not only does it address “case law” and “litigation” as creations of a variety of social and legal agents, constantly and meaningfully interacting with one another, but it also adopts a “litigant’s perspective” and creates space for acknowledging aspects of the lived experience of the applicants that have been marginalized in legal reasoning. By doing so, this Article shows that, from being strongly imbued with religious considerations, Neulinger and Shuruk came to assume a neutral framing when entering and progressing through the ECtHR. “Going beyond judgments” ultimately foregrounds the image of the Court as an institution addressing and doing different things to different audiences and stakeholders, and showcases some of the ways through which multi-perspectivity and efforts to “humanize the law” may be incorporated into case-law analyses.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41529971","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}
Abstract Climate change is profoundly modifying the earth’s environment, making certain territories uninhabitable. Faced with this known phenomenon, this article outlines a research approach for assessing the law’s role in encouraging states to preemptively protect individuals who live in deteriorating territories, notably by enabling mobility. The question is, however, far from simple, insofar as most of the ways to adapt to climate change—and particularly mobility, which has important human and social implications—require profound societal choices that anthropology has the tools to study. I therefore accompany my legal research with an anthropological approach centered around ethnography conducted at three sites—France, Guadeloupe, Senegal—where state-sponsored mobility is either being considered or already being used as an option to confront the progressive disappearance of land that is being swept away by the sea.
{"title":"“To Leave Is to Die”: States’ Use of Mobility in Anticipation of Land Uninhabitability","authors":"Marie Courtoy","doi":"10.1017/glj.2022.69","DOIUrl":"https://doi.org/10.1017/glj.2022.69","url":null,"abstract":"Abstract Climate change is profoundly modifying the earth’s environment, making certain territories uninhabitable. Faced with this known phenomenon, this article outlines a research approach for assessing the law’s role in encouraging states to preemptively protect individuals who live in deteriorating territories, notably by enabling mobility. The question is, however, far from simple, insofar as most of the ways to adapt to climate change—and particularly mobility, which has important human and social implications—require profound societal choices that anthropology has the tools to study. I therefore accompany my legal research with an anthropological approach centered around ethnography conducted at three sites—France, Guadeloupe, Senegal—where state-sponsored mobility is either being considered or already being used as an option to confront the progressive disappearance of land that is being swept away by the sea.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48061070","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}
{"title":"GLJ volume 23 issue 7 Cover and Front matter","authors":"","doi":"10.1017/glj.2022.70","DOIUrl":"https://doi.org/10.1017/glj.2022.70","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49223267","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}
Abstract Gender recognition is a crucial achievement for non-binary people. To better understand this right, this article combines comparative law with theoretical insights from anthropology to offer a discussion of non-binary recognition in European fundamental rights law. It identifies three approaches to such a right and critically assesses each of them. The first approach is denial, with the non-binary option being explicitly or implicitly rejected, as has occurred in French and Italian courts. The next approach is limited recognition, whereby a non-binary option is granted under specific limitations, such as when certain physical characteristics are present or when a claimant permanently identifies with the non-binary gender. This is the course of action that has been taken in German law. The third approach is gender self-determination, whereby individuals can obtain recognition on the basis of their declaration alone. This solution has been offered by the Belgian Constitutional Court. On the strength of findings from anthropology, the article argues that the first two models are incapable of genuinely engaging with gender diversity, while the third one offers more robust legal protection. The analysis presented here serves as an example of how anthropological insights can be effectively used to advance comparative law research.
{"title":"When Comparative Law Walks the Path of Anthropology: The Third Gender in Europe","authors":"Stefano Osella","doi":"10.1017/glj.2022.65","DOIUrl":"https://doi.org/10.1017/glj.2022.65","url":null,"abstract":"Abstract Gender recognition is a crucial achievement for non-binary people. To better understand this right, this article combines comparative law with theoretical insights from anthropology to offer a discussion of non-binary recognition in European fundamental rights law. It identifies three approaches to such a right and critically assesses each of them. The first approach is denial, with the non-binary option being explicitly or implicitly rejected, as has occurred in French and Italian courts. The next approach is limited recognition, whereby a non-binary option is granted under specific limitations, such as when certain physical characteristics are present or when a claimant permanently identifies with the non-binary gender. This is the course of action that has been taken in German law. The third approach is gender self-determination, whereby individuals can obtain recognition on the basis of their declaration alone. This solution has been offered by the Belgian Constitutional Court. On the strength of findings from anthropology, the article argues that the first two models are incapable of genuinely engaging with gender diversity, while the third one offers more robust legal protection. The analysis presented here serves as an example of how anthropological insights can be effectively used to advance comparative law research.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46085251","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}
Dirk Hanschel, Mario G. Aguilera Bravo, Bayar Dashpurev, A. K. Idris
Abstract Environmental rights such as the right to a sound environment and rights of nature, while playing an increasingly important role in global environmental governance and protection, frequently do not correspond to articulations of fundamental experiences of injustice by communities particularly affected by serious environmental degradation caused by, for example, extractive activities or major infrastructure projects. We present three empirically grounded case studies that employ concepts and methods from anthropology to demonstrate this. The work is still in progress, but sufficiently well advanced to present some findings. Our ethnographic research in Ethiopia and Mongolia reveals that vulnerable local communities take recourse to constitutional environmental rights far less often than expected. The reasons for this range from rule-of-law issues to local perceptions of vulnerability and relevant norms. Conversely, where environmental rights are demanded or claimed at the local level, they are often not translated adequately into the law of the state. Our case study on Ecuador, where rights of nature as a specific type of environmental rights have been included in the constitution, shows that transfers from local practice, while potentially having a transformative effect, may lead to conceptual selectivity, ambiguity, lack of clarity, and overlaps with existing state norms and, hence, redundancies. Environmental rights are, therefore, a moving target whose concrete added value hinges on context—as methods of law and anthropology serve to illustrate.
{"title":"Environmental Rights Between Constitutional Law and Local Context: Reflections on a Moving Target","authors":"Dirk Hanschel, Mario G. Aguilera Bravo, Bayar Dashpurev, A. K. Idris","doi":"10.1017/glj.2022.68","DOIUrl":"https://doi.org/10.1017/glj.2022.68","url":null,"abstract":"Abstract Environmental rights such as the right to a sound environment and rights of nature, while playing an increasingly important role in global environmental governance and protection, frequently do not correspond to articulations of fundamental experiences of injustice by communities particularly affected by serious environmental degradation caused by, for example, extractive activities or major infrastructure projects. We present three empirically grounded case studies that employ concepts and methods from anthropology to demonstrate this. The work is still in progress, but sufficiently well advanced to present some findings. Our ethnographic research in Ethiopia and Mongolia reveals that vulnerable local communities take recourse to constitutional environmental rights far less often than expected. The reasons for this range from rule-of-law issues to local perceptions of vulnerability and relevant norms. Conversely, where environmental rights are demanded or claimed at the local level, they are often not translated adequately into the law of the state. Our case study on Ecuador, where rights of nature as a specific type of environmental rights have been included in the constitution, shows that transfers from local practice, while potentially having a transformative effect, may lead to conceptual selectivity, ambiguity, lack of clarity, and overlaps with existing state norms and, hence, redundancies. Environmental rights are, therefore, a moving target whose concrete added value hinges on context—as methods of law and anthropology serve to illustrate.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44203236","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}
{"title":"Anything Goes in Private Law Theory? On the Epistemic and Ontological Commitments of Private Law Multi-Pluralism – ERRATUM","authors":"M. Hesselink","doi":"10.1017/glj.2022.61","DOIUrl":"https://doi.org/10.1017/glj.2022.61","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2022-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41339666","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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