DOMESTICATION OF INTERNATIONAL LAW IN INDIA: A CONNUBIAL OR A ‘CONCUBINE’-AL INDULGENCE? – PART I

Hakim Yasir Abbas

“But, sir! How can we regard international law as law when we cannot enforce it?”

Introducing ‘international law’ to law students is a tough task. No matter how stalwartly you argue a case in favour of international law, the deficiency of an effective enforcement mechanism will always butcher it for you. Some may use Article 51(c) of the Indian Constitution to tone down the rote-learning process slightly, however, most of the time it backfires.

“So, you admit that it cannot be enforced because it falls within the Directive Principles of State Policy which are non-justifiable.”

The only exception to this seems to be those students who have participated in a moot court competition involving international law. For them (as it has been for me) international law is the new and future world order. The unfortunate outcome of the neglect that international law receives in law schools and in the courts is the peripheral treatment of international law in comparison to municipal law. Even though international law has comprehensively evolved as a normative system over the last few decades, the majority of Indian legal fraternity (maybe excluding practitioners involved with private international law) continues to treat it as a “waning fraction of contemporary legal jurisprudence”.

This current blog post and all the subsequent ones [Hereinafter referred to as “Series”] will try to demonstrate otherwise. However, I will not use the traditional methodology or stockpile of arguments to do the same. There is enough of that out there. My intention is to use a different methodology with the object of showing a different picture of international law. A picture where international law and domestic law do not turn up at the two ends of a spectrum, but a picture in which they, rather than being polarised, work together to serve a common legal purpose. Moreover, these blog posts are also not going to be about how domestic courts engage in matters involving conflict of laws. They are going to be about the intermingling of public international law and domestic law, specifically international law and constitutional law. To that extent I will use these posts for following purposes:

  1. Providing empirical data to highlight the use of public international law by Indian constitutional courts as a ‘constructive’ tool of interpretation;
  2. Using the same data to identify patterns, within the jurisprudence of Indian constitutional courts, which they follow while applying principles of public international law;
  3. Identifying legal, philosophical and ethical challenges and issues surrounding the exercise of using international law as a tool of constitutional interpretation;
  4. Identifying existing literature regarding the same and use the same with the above mentioned data to conceptualise theories and principles of such activity;
  5. Underscoring the debate regarding the same outside India.

The constitutional jurisprudence in India is disseminated with the use of international law as a vital tool of interpretation.  A large portion of Indian constitutional jurisprudence reflects the nature and extent to which constitutional courts in India have used international law.[i] The use of international law not only as a constructive tool of interpretation but also as a tool for determining government’s liability is an established legal fact and same will be reflected in this blog series. It seems that the title needs a little explanation as well. The use of international law as canon of interpretation has certain challenges. Some of them are legal and raise serious issue about the legitimacy of using international law for ‘domestic purposes’. The title reflects this dilemma. It raises the issue as to whether intermingling (union) of international and municipal law (notwithstanding the extent of such union) is a connubial (legal) or concubine-al (illegal) indulgence.

Hence this being an introductory blog post, I will use the same for two purposes:

  • To show that Indian constitutional courts rely on international as a tool of constitutional interpretation by tracing the same in few important constitutional cases and also by highlighting the relevant jurisprudence regarding the same, and,
  • To provide statistical data to highlight the frequency with which same has been done. In this regard, I will refer to a paper written by Adam M. Smith.[ii]
  1. We Use International Law in Constitutional Interpretation.

The employment of foreign law and international law as interpretive tools has gained a lot of momentum around the world. The jurisprudence related to countries like Ireland[iii], Brazil[iv], South Africa[v], Germany[vi], Canada[vii], Australia[viii], Hungary[ix], Singapore[x], Taiwan[xi], South Koreaxii, Netherlands[xii], Israel[xiii] and New Zealand[xiv] perfectly highlights the same. India is not new to this phenomenon. Constitutional courts in India consider foreign law as well as international law as an important[xv] but persuasive tool of interpretation.[xvi] Unlike USA, where the debate surrounding the practice of citing foreign law and international law seems to be polarised[xvii], India has engaged in the same enthusiastically.[xviii]

  • Important Cases

Part III of the Constitution is the perfect place to analyse the manner and the extent to which the constitutional courts in India have used public international law as a constructive tool of interpretation. In this regard, reference can be made to case law related environmental law jurisprudence in India. A huge part of environmental law jurisprudence in India has been developed by the Supreme Court through the Constitution. The Supreme Court has developed a reputation of being an activist Court[xix] that has, since mid-1980s, transformed itself into a guardian of India’s natural environment. The existing international environmental law principles have been enshrined in a number of international law instruments such as the Stockholm Declaration, the Rio Declaration and various framework conventions. Moreover, a number of international institutions have also spelled out principles in resolutions or declarations such as the 1978 UNEP Draft Principles of Conduct on Natural Resources Shared by Two or More States (UNEP Draft Principles). The Supreme Court has referred to most of these international instruments to develop environmental jurisprudence in India. In this regard, the Supreme Court while highlighting the importance of international environmental principles, stated in Vellore Citizens Welfare Forum v. Union of India[xx] as follows:

The traditional concept that development and ecology are opposed to each other is no longer acceptable. Sustainable Development is the answer. In the international sphere Sustainable Development as a concept came to be known for the first time in the Stockholm Declaration of 1972….During the two decades from Stockholm to Rio, Sustainable Development has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. ‘Sustainable Development’ as defined by the Brundtland Report means ‘Development that meets the need of the present without compromising the ability of the future generations to meet their own needs’[xxi]

Moreover, the Hon’ble Supreme Court has also referred to other principles of international environmental law like precautionary principle[xxii], polluter pays principle[xxiii], and principle of inter-generational equity[xxiv].

  • Literature

There is a lot of literature which highlights the use of international law by constitutional courts in India. This part will refer to four articles in order to highlight the nature of scholarship which exists in relation to comparative constitutionalism in India. The literature analyzed in this section is not the entire collection on the concerned subject. This blog-post only analyses some of the important literature on the same. However, a comprehensive annotated bibliography (in relation to India as well as abroad) will be provided in the subsequent blog-posts.

  1. Adam M. Smith, Making Itself at Home – Understanding Foreign Law in Domestic Jurisprudence: The Indian Case, 24 Berkeley J. Int’l L. 218 (2006).

The article is an essential piece of empirical study on the extent and the manner of comparative constitutional engagement by the Supreme Court of India. It tries to use the Indian position about comparative constitutionalism in order to argue the necessity of revisiting the discourse on cross-border judicial dialogue in USA. Raising concern regarding the oversimplification of issues involved in comparative constitutionalism in USA and outside, the author tries to bring back these issues to the forefront. One of these issues raised and discussed herein is in relation to definition of foreign law for the purpose of engaging in a comparative study. Arguing that it is crucial for an effective comparative engagement to properly define what it considers “foreign” and what it considers “law”, any fault in the same would seriously compromise the quality of the same.

  1. Madhav Khosla, Inclusive Constitutional Comparison: Reflections on India’s Sodomy Decision, 59 Am. J. Comp. L. 909 (2011).

The article considers certain aspects of the debate regarding the use of foreign law as a tool for constitutional interpretation. It considers the need to revisit the boundary question in comparative constitutional law so as to determine the jurisdictions with whom such engagement should be carried.  Assessing the role of the foreign authorities (including international law) cited by the High Court of Delhi in Naz Foundation v. Government of NCT of Delhi[xxv], this essay “draws on the distinction between content-independent and content-dependent reasons to illustrate the nature of force that foreign law may exert and demonstrate as to why an inclusive approach towards constitutional comparison may not only be beneficial but perhaps necessary.”

  1. Saptarishi Bandopadhyay, Because the Cart Situates the Horse: Unrecognised Movements Underlying the Indian Supreme Court’s Internationalization of International Environmental Law, 50 Indian J. Int‘l. L. 204 (2010).

The author highlights the extensive use of international environmental law by the Supreme Court of India in order to create a comprehensive domestic environmental protection regime. However, he also highlights the dangers of engaging in such activity without proper methodology and guidelines. He argues that engaging international environmental jurisprudence for domestic purpose may lead to ‘doctrinal’ shift in the application of domestic principles and rules.

  • Sam F. Halabi, Constitutional Borrowing as Jurisprudential and Political Doctrine in Shri D.K. Basu v. State of West Bengal, 3 Notre Dame J. Int’l & Comp. L. 73 (2013).

This article discusses an important constitutional case decided by the Supreme Court of India and uses the same to highlight the debate regarding cross-border judicial discourse in USA. It applies the existing theories of comparative constitutional interpretation to the Supreme Court of India’s judgment in Shri D.K Basu v. State of West Bengal[xxvi], confirming and expanding basic rights attaching to arrest and detention and compensatory remedies for violations of those rights.

2. Statistical substantiation: Empirical Research by Adam M. Smith

“Foreign law was defined as any law not emanating from the Indian parliament.[xxvii] Specific foreign systems examined included Britain[xxviii], United States, Commonwealth, Canada, Australia, and international law (including specific treatise as well as customary international law), religious law and academic treatise. The author assessed 14,778 Supreme Court cases heard from 1950-2004.[xxix]  Out of these, 3629 cases cited foreign law amounting to 24.6%.

Untitled

 

168 out of 14,778 cases cited international law amounting to 1.1%.  The following table and chart describe the jurisdictional wise contribution of foreign law.

Untitled 3

 

Untitled 2

                      3. Conclusion

Engaging international law for the purpose of constitutional interpretation is a legal reality in India. How, when and to what extent it is done is a legal mystery. At some place, it has been used to highlight the importance of an already existing legal principle and at another it has been used to lay down guidelines. In a globalised society, no court can run away or hide from the international law. The only thing that needs to be done is to identify the problems, tackle them and develop an effective methodology for engaging international law for the assistance of domestic law.

_______________________________________

(Hakim Yasir Abbas is a guest faculty at Faculty of Law, Jamia Millia Islamia and is currently pursuing Ph.D. in comparative constitutional law from National Law University, Delhi. Before joining Jamia, he taught at Faculty of Law, Kashmir University and School of Legal Studies, Central University of Kashmir. )

_______________________________________

[i] Constitutional courts in India have, in issues like right to privacy [Kharak Singh v. State of Uttar Pradesh & Ors., AIR 1963 SC 1295], freedom of press [Bennett Coleman v. Union of India, AIR 1973 SC 106], restraints on foreign travel [Maneka Gandhi v. Union of India, AIR 1978 SC 597], constitutionality of death penalty [Bachan Singh v. Union of India, AIR 1980 SC 898], protection of women against sexual harassment at workplace [Viskhaka v. State of Rajasthan, AIR 1997 SC 3011], prior restraints on publication [R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264] and environmental matters[Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647:AIR 1996 SC 2715 (Hereinafter Vellore 1996); Indian Council for Enviro-Legal Action v. Union of India 1996 (3) SCC 212; T.N. GodavarmanThirumulpad v. Union of India &Ors.(1997) 2 SCC 267], constructively relied on international law to formulate judicial opinions; See also K.G. Balakrishnan, The Role of Foreign Precedents in a Country’s Legal System,  Lecture at North-Western University, Illinois [October 28, 2008]. Retrieved from http://www.supremecourtofindia.nic.in/speeches/speeches_2008/28%5B1%5D.10.08_Northwestern_University_lecture.pdf on 14. 01. 2013.

[ii] Adam M. Smith, Making Itself at Home – Understanding Foreign Law in Domestic Jurisprudence: The Indian Case, 24 Berkeley J. Int’l L. 218 (2006) [Hereinafter Smith 2006].

[iii] Bruce Carolan, The Supreme Court, Constitutional Courts and the Role of International Law in Constitutional Jurisprudence: The Search for Coherence in the Use of Foreign Court Judgments by the Supreme Court of Ireland., 12 Tul. J. Comp. & Int’l L. 123 (2004).

[iv] Alonso Reis Freire, Evolution of Constitutional Interpretation in Brazil and the Employment of Balancing “Method” by Brazilian Supreme Court in Judicial Review, Paper presented at 7th World Congress of the International Association of Constitutional Law.

[v] Andrea Lollini, The South African Constitutional Court Experience: Reasoning Patterns Based on Foreign Law, 8 Utrecht L. Rev. 55 (2012); Charles Manga Fombad, Internationalization of Constitutional Law and Constitutionalism in Africa, 60 Am. J. Comp. L. 439 (2012); Christa Rautenbach & Lourens du Plessis, In the Name of Comparative Constitutional Jurisprudence: The Consideration of German Precedents by South African Constitutional Court Judges, 14 German L.J. 1539 (2013); Jacob Foster, The Use of Foreign Law in Constitutional Interpretation: Lessons from South Africa., 45 U.S.F.L. Rev. 79 (2010); Ursula Bentele, Mining the Gold: The Constitutional Court of South Africa’s Experience with Comparative Constitutional Law, 37 Ga. J. Int’l & Comp. L. 219 (2008-2009).

[vi] Riley J. Graebner, Dialogue and Divergence: The Vienna Convention on Consular Relations in German, American, and International Courts, 42 Geo. J. Int’l L. 605 (2011).

[vii] David Schneiderman, Exchanging Constitutions: Constitutional Bricolage in Canada, 40 Osgoode Hall L.J. 401 (2002); Rebecca Lefler, A Comparison of Comparison: Use of Foreign Case Law as Persuasive Authority by the United States Supreme Court, The Supreme Court of Canada, and the High Court of Australia, 11 S. Cal. Interdisc. L. J. 165–191 (2001) [Hereinafter Lefler 2001].

[viii] Lefler 2001, supra note vii; Nicholas Aronery, Comparative Law in Australian Constitutional Jurisprudence, 26 U. Queensland L.J. 317 (2007).

[ix] Duc. V. Trang, Beyond the Historical Justice Debate: The Incorporation of International Law and the Impact on Constitutional Structures and Rights in Hungary, 28 Vand. J. Transnat’l L. 1 (1995)

[x] Victor V Ramraj, Comparative Constitutional Law in Singapore, 6 Singapore J. Int’l & Comp. L. 302 – 334. (2002).

[xi] Wen-Chen Chang, The Convergence of Constitutions and International Human Rights: Taiwan and South Korea in Comparison, 36 N.C. J. Int’l L. & Com. Reg. 594 (2010).

[xii] Elaine Mak, Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands : Explaining the Development of Judicial Practices., 8 Utrecht L. Rev. 20–34 (2012).

[xiii] Leonard M. Hammer, Reconsidering the Israeli Courts’ Application of Customary International law in the Human Rights Context, 5 ILSA J Int’l & Comp L 23 (1998).

[xiv] James Allan, Grant Huscroft, and Nessa Lynch, The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite? 11 Otago L. Rev. 433 (2007).

[xv] Smith 2006, supra note ii; Hakim Yasir Abbas, Critical Analysis of the Role of Non-Indian Persuasive Authorities in Constitutional Interpretation, 1.2 C.A.L.Q. 46 (2013) [Hereinafter Abbas 2013]; Jean-Louis Halpérin, Western Legal Transplants and India, 2 Jindal Global L. Rev. 14-40 (2010); Madhav Khosla, Inclusive Constitutional Comparison: Reflections on India’s Sodomy Decision, 59 Am. J. Comp. L. 909 (2011); Sam F. Halabi, Constitutional Borrowing as Jurisprudential and Political Doctrine in Shri D.K. Basu v. State of West Bengal, 3 Notre Dame J. Int’l & Comp. L. 73 (2013). Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759; Centre for Public Interest Litigation and Ors. v. Union of India & Ors.(2012) 3 SCC 1; Minerva Mills Ltd. & Ors. v. Union of India & Ors. 1980 AIR 1789; State Trading Corporation v. Commercial Tax Officer & Ors. 1963 AIR 1811; Rev. Mons. Sebastiao Francisco Xavier Dos Remedios Monteriov. State of Goa 1969 (3) SCC 419; Bangalore Water Supply & Sewerage Board v. A. Rajjapa& Ors. (1978) 2 SCC 213; Vinod Kumar Shantilal Gosalia v. Gangadhar Narsingdas Agarwal & Ors. (1981) 4 SCC 226; Chandra Bhavan Boarding and Lodging Bangalore v. The State of Mysore & Anr. (1969) 3 SCC 84.

[xvi]Ran Hirschl, In Search of an Identity: Voluntary Foreign Citations in Discordant Constitutional Settings, 62 Am. J. Comp. L. 547 (2014); Arun K. Thiruvengadam, The Use of Foreign Law in Constitutional Cases in India and Singapore: Empirical Trends and Theoretical Concerns, VIII World Congress of the International Association of Constitutional Law.

[xvii] Anthony J Bellia Jr & Bradford R Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev. 729 (2012); Austen L. Parrish, Storm in a Teacup: The U.S. Supreme Court’s Use of Foreign Law, Uni. Ill. L. Rev. 637 (2007); Daniel J. Frank, Constitutional Interpretation Revisited: The Effects of a Delicate Supreme Court Balance on the Inclusion of Foreign law in American Jurisprudence., 92 Iowa L. Rev. 1037 (2007); Ernesto J. Sanchez, A Case Against Judicial Internationalism, 38 Conn. L. Rev. 185 (2005); G. Brinton Lucas, Structural Exceptionalism and Comparative Constitutional Law, 96 Va. L. Rev. 1965 (2010); Gunter Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26 Harv. Int’l L. J. 411 (1985); Jacob J. Zehnder, Constitutional Comparativism: The Emerging Risk of Comparative Law as a Constitutional Tiebreaker., 41 Val. U. L. Rev. 1739 (2007); Janet Koven Levit, The Supreme Court, Constitutional Courts and the Role of International Law in Constitutional Jurisprudence: A Tale of International Law in the Heartland: Torres and the Role of State Courts in Transnational Legal Conversation., 12 Tul. J. Comp. & Int’l L. 163 (2004); Jason Chandler, Foreign Law – A Friend of the Court: An Argument for Prudent Use of International Law in Domestic, Human Rights Related Constiututional Decisions., 34 Suffolk Transnat’l L.J.117 (2011); John O Mcginnis, Contemporary Foreign and International Law in Constitutional Construction, 69 Alb. L. Rev.801–808 (2006); John O. McGinnis & Ilya Somin, Global Constitutionalism: Global Influence on U.S. Jurisprudence: Should International Law Be Part of Our Law?, 59 Stan. L. Rev. 1175 (2007); Mark Tushnet, The Inevitable Globalisation of Constitutional Law, 49 Va. J. Int’l L. 985 (2008-2009); Matthew S. Raalf, A Sheep in Wolf’s Clothing: Why the Debate Surrounding Comparative Constitutional Law is Spectacularly Ordinary, 73 Fordham L. Rev. 1239 (2004); Melissa A. Waters, The Supreme Court, Constitutional Courts and the Role of International Law in Constitutional Jurisprudence: Justice Scalia on the Use of Foreign Law in Constitutional Interpretation: Undirectional Monologue or Co-Constitutive Dialogue?, 12 Tul. J. Comp. & Int’l L.  149 (2004); Melissa A. Waters, Getting Beyond the Crossfire Phenomenon: A Militant Moderate’s Take on the Role of Foreign Authority in Constitutional Interpretation., 77 Fordham L. Rev635 (2008); Michael P Socarras, International Law and the Constitution, 4 The Federal Courts L. Rev. 1 (2011); Norman Dorsen, The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice Stephen Breyer, 3 Int’l J. Const. L. 519 (2005); Osmar J. Benvenuto, Reevaluating the Debate Surrounding the Supreme Court’s Use of Foreign Precedent, 74 Fordham L. Rev. 2695 (2006); Peter McCorimick, Waiting for Globalization: An Empirical Study of the Mclachlin Court’s Foreign Judicial Citations, 41 Ottawa L. Rev. 209 (2009-2010); Po-Jen Yap, Transnational Constitutionalism in the United States: Toward a Worldwide Use of Interpretive Modes of Comparative Reasoning, 39 U. S. F. L. Rev. 999 (2005); Vicki C. Jackson, Ambivalent Resistance and Comparative Constitutionalism: Opening up the Conservation on “Proportionality,” Rights and Federalism, 1 U. Penn. J. Const. L. 583 (1999); Vicki C. Jackson, Narratives of Federalism: Of Continuities and Comparative Constitutional Experience., 51 Duke L. J. 223 (2001);; Vicki C Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement., 119 Harv. L. Rev. 109 (2005); Vicki C. Jackson, The International Migration of Constitutional Norms in the New World Order: Constitutions as “Living Tree”? Comparative Constitutional law and Interpretitive Metaphors., 75 Fordham L. Rev. 921 (2006); Vicki C Jackson, Methodological Challenges in Comparative Constitutional Law., 28 Penn. St. Int’l L. Rev. 319 (2009); Vincent J. Samar, Justifying the Use of International Human Rights Principles in Amercian Constitutional Law., 37 Colum. Hum. Rts. L. Rev. 1 (2005); Yitzchok Segal, The Death Penalty and the Debate over the U.S. Supreme Court’s Citation of Foreign and International Law, 33 Fordham Urb. L. J. 1421 (2006); Yuval Shany, How Supreme is the Supreme Law of the Land? Comparative Analysis of the Influence of International Human Rights Treaties Upon the Interpretation of Constitutional Texts by Domestic Courts, 31 Brooklyn J. Int’l L. 341 (2006); Zachary Larsen, Discounting Foreign Imports: Foreign Authority in Constitutional Interpretation & the Curb of Popular Sovereignty, 45 Williamette L. Rev. 767–798 (2009); Roger P. Alford, Misusing International Sources to Interpret the Constitution, 98 Am. J. Int’l. L. 57 (2004); Andrew R. Dennington, We Are the World?: Justifying the U.S. Supreme Court’s Use of Contemporary Foreign Legal Practice in Atkins, Lawrence, and Roper, 29 B.C. Int’l & Comp. L. Rev. 269 (2006); Harold Hongju Koh, International Law as Part of Our Law, 98 Am. J. Int’l L. 43, 56 (2004); David S. Law & Wen-Chen Chang, The Limits of Global Judicial Dialogue, 86 Wash. L. Rev. 523 (2011); Michael D. Ramsey, International Materials and Domestic Rights: Reflections on Atkins and Lawrence, 98 Am. J. Int’l L. 69 (2004); Mark Tushnet, When Is Knowing Less Better than Knowing More? Unpacking the Controversy over Supreme Court Reference to Non-US. Law, 90 Minn. L. Rev. 1275 (2006);

[xviii] Vicki C. Jackson, Transnational Discourse, Relational Authority, and the US Court: Gender Equality., 37 Loy. L. A. L. Rev. 271 (2003) [The author cites the case of D.K. Basu v. State of West Bengal to highlight the Supreme Court of India’s general willingness to use international law and foreign precedent to inform constitutional meaning].  Id. at 294.

[xix] Upendra Baxi, „The Avatars of Indian Judicial Activism: explorations in the Geographies of [In]Justice, in S.K. Verma , et. al. eds., Fifty Years of the Indian Supreme Court: Its Grasp and Reach, Oxford University Press, New Delhi, 2000, p. 156-21 [hereinafter Avatars].

[xx] (1996) 5 SCC 647:AIR 1996 SC 2715.

[xxi] Ibid.at 657-60.

[xxii] See Vellore 1996, supra note i.

[xxiii] See Indian Council for Enviro-Legal Action v. Union of India 1996 (3) SCC 212; See also Government of India, National Environmental Policy, 2006, viewed on 16 September 2013,<http://envfor.nic.in/sites/default/files/introduction-nep2006e.pdf&gt;.

[xxiv] T.N. GodavarmanThirumulpad v. Union of India &Ors. (1997) 2 SCC 267.

[xxv] WP (C) No. 7455/2001 decided on 02.07.2009.

[xxvi] (1997) 1 SCC 416; AIR 1997 SC 610.

[xxvii] This seems to be an incorrect definition of “foreign law” because by its’ very definition the judgments of the Supreme Court and the High Courts of various states also become “foreign law”. However, the author has not considered them so subsequently.

[xxviii] This included the Privy Council, regardless of whether India was a party in the cited case.

[xxix] Smith 2006, supra note ii at p. 239.

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