China, Hong Kong

As silence is imposed, freedom is a whisper in Hong Kong

6 July 2020

Martin Purbrick looks at the impact of the Safeguarding National Security law in Hong Kong

At 11.00pm on 30 June 2020, Hong Kong people were silenced by the Chinese Communist Party and the concept of One Country Two Systems ended.

At that time the new national “Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” was promulgated by Carrie Lam, the Chief Executive. The new law was implemented directly by the Central People’s Government, passed by the Standing Committee of the National People’s Congress (NPC), added to the Annexes of the Basic Law (the constitution of Hong Kong) as a national law to take effect in the Special Administrative Region, and then signed into effect by Carrie Lam.

The implementation was direct and without consultation with Hong Kong citizens. Even the government and business elite were not shown the text of the law in advance of it being approved by the NPC. This illustrated the feeling of the Central People’s Government that not only could the population of Hong Kong not be trusted to be loyal, but the governing elite could not be trusted to competently implement law and maintain order.  Jean Pierre Cabestan, political science professor of the Hong Kong Baptist University has said that “There was a mood among mainland officials that we needed a second handover of Hong Kong to China, and we’re moving toward that”, and that “I don’t think Beijing trusts the Hong Kong elites any more.” [1]

The Safeguarding National Security law takes effect 17 years after the government of Tung Chee Wah, then Chief Executive of Hong Kong, failed to pass a less harsh form of national security legislation and was eventually forced to resign after hundreds of thousands of Hong Kong people protested against the proposed law. The new Safeguarding National Security law is far more strict in its terms and severe in its punishments, with some deeply disturbing sections that undermine One Country Two Systems as well as established rights in Hong Kong.

Article 12 requires that a new Committee for Safeguarding National Security must be formed by the Hong Kong Government, but this is to be “under the supervision of and accountable to the Central People’s Government.” [2]  Luo Huining, director of the Liaison Office of the PRC, has been appointed as the National Security Advisor to the Central People’s Government on the Committee, chaired by the Chief Executive. This is another example of the Communist
Party of China senior representative in Hong Kong, Luo, being in a position of authority over the executive government.

Article 16 requires that the Hong Kong Police will create a new department for safeguarding national security, the head of which must be approved by the PRC office for safeguarding national security. “Qualified professionals and technical personnel” from outside Hong Kong may be recruited to provide assistance in safeguarding national security, which will lead to PRC intelligence and law enforcement staff being placed inside the Hong Kong Police. The Police have been given wide powers of search, confiscation of travel documents, restraining property, deleting published information, intercepting communications, and requiring people to answer questions (i.e. no right to silence), without needing authority from a Judge or Court.

There are new criminal offences of Secession (Article 20), Subversion (Article 22), Terrorist activities (Article 24), and Collusion with a foreign country or with external elements to endanger national security (Article 29).  These offences are not clearly defined and left vague enough for them to be applied based on widely varying circumstances. Life imprisonment can be given to persons found guilty of them.

The Central People’s Government will establish an Office for Safeguarding National Security (Article 48), whose staff will be from the Central People’s Government “national security authorities”. The new office has a wide remit to oversee Hong Kong efforts, to collect intelligence, and to handle complex cases involving foreign countries or serious situations. Most worryingly, such cases will be prosecuted in mainland China (although there is no mention of what legal power will be used to transfer suspects). The staff of the Office will not be subject to any checks by Hong Kong law enforcement and have immunity to local laws.

The leaders of the new Office for Safeguarding National Security indicate what approach this organisation is likely to take. The new head of the Office is Zheng Yanxiong, with Li Jiangzhou and Sun Qingye appointed as deputy heads of the office. [3]  Zheng is best known for his work leading a crackdown on the villagers of Wukan in Guangdong Province in 2011, and his last post is as secretary general of the Guangdong branch of the Chinese Communist Party. [4]  Li Jiangzhou, one of the deputies in the Office, is a senior official of the Ministry of Public Security, experienced working with the Hong Kong Police from the Liaison Office,
who reportedly was previously head of the 1st Bureau, known for domestic security and the pursuit of dissidents, terrorists, and subversives. [5]  Sun Qingye, the other deputy, is believed to be an officer from the Ministry of State Security, which engages in espionage, counter intelligence, and political security. [6]

Taken together, the leadership group of the Office for Safeguarding National Security has experience of Communist Party discipline (Zheng), political policing (Li), and political intelligence (Sun). This suggests the most likely structure of the Office and their priorities.

The content of the law has shocked many Hong Kong people into silence and is likely to inhibit protests against the Hong Kong or Central People’s Governments. The silencing of dissent was swift. Joshua Wong, Agnes Chow, and Nathan Law, the leading members of Demosisto, a pro-democracy youth activist group, resigned from their party positions and the group disbanded. Nathan Law fled from Hong Kong before the law came into effect as he feared that he would be prosecuted for testifying before the US Congress in relation to the situation in Hong Kong. There are many reports of Hong Kong people deleting their social
media histories on Twitter, WhatsApp, and Telegram, and many switching to Signal (which is reportedly more secure).

Fear is the intended outcome of the Safeguarding National Security law. Steve Tsang, director of the China Institute at London’s School of Oriental and African Studies, said that the law is “a bloodless version” of China’s 1989 Tiananmen Square massacre, and that the objective is to intimidate and terrify the people so that people don’t even think about protesting again, hence avoiding a repeat of the 2019 pro-democracy protests. [7]

But on 1 July 2020, the first day of the Safeguarding National Security law, despite the refusal of the police to give permission for the long-held protest on the 1 July public holiday, “the Hong Kong Special Administrative Region Establishment Day”, a few thousand people protested on the streets and in shopping malls.

The Hong Kong Police said on Twitter that “Around 370 arrests, including 10 (6M & 4F) for breaching #National Security Law, have been made today. A total of 7 officers were injured on duty. Among the serious injuries, one was stabbed by a rioter with a dagger and three were hit by a rioter driving a motorcylce” (sic).

A police officer was stabbed in the shoulder when he ran alone to chase fleeing protesters. That is a crime and the person who stabbed the young officer should be charged with wounding if he is identified and arrested.  It is certainly not, however, “terrorism”, which is what the Hong Kong Police have been labelling some actions by protesters. A protester who rode his motorcycle through a group of police officers has been arrested for “Terrorism” under the National Security law. The motorcycle was flying a flag with the words “Liberate Hong Kong Revolution of our Times”, a popular protest slogan that the Hong Kong Government said on 2 July is illegal to state openly, as it refers to secession and is hence an offence under the National Security law.

To reiterate how people break the law by dissenting, the Hong Kong Police used new flags which state “This is a police warning. You are displaying flags or banners / chanting slogans / or conducting yourself with an intent such as secession or subversion, which may constitute offences under the “HKSAR National Security Law”. You may be arrested and prosecuted.”  Hence the intent of the National Security law is made clear.

The creativity of Hong Kong people was shown on 1 July, the first day of enforcement of the National Security law.  The Hong Kong Police proudly announced on their Twitter feed that “A man was arrested for holding a Hong Kong Independence flag in Causeway Bay, Hong Kong, violating the National Security Law. This is the first arrest made since the law came into force.”  What the Police did not say (or realise) was that the flag had the word “No” in tiny letters written before “Hong Kong Independence”.

Other people protesting sought to avoid being accused by the Police of the offence of Secession by holding blank sheets of white paper in the air whilst protesting .

Several restaurants that were part of the “Yellow Economy”, referring to the colour associated with the protest movement and the shops that support it, have taken down yellow post-it notes that had pro-democracy and anti-government messages and replaced them with blank notes.

The blank post-it notes summarise the situation that Hong Kong people find themselves in. They can think for themselves, they can dream, but they cannot speak out their views. The Safeguarding National Security law has the effect of silencing a vibrant civil society in Hong Kong that could contribute to the development of China. This is clearly not desirable to the hard-liners of the Chinese Communist Party who dominate policies at the moment. The appointment of PRC officials such as Luo Huining, Zheng Yanxiong, with Li Jiangzhou and Sun Qingye, is indicative of the hard line approach from the administration of Xi Jinping. These are not the pragmatic officials in the mould of Zhou Zhiyang, Wen Jiabao, and Zhu Rongji who led the political and economic opening up of China from the 1980s.

The law is intended to strike fear into people so that they do not protest, and to set an example for others that dissent is futile.  As silence is imposed by the Chinese Communist Party, Hong Kong people must whisper their freedom as they wait patiently for the liberalisation of China that many of us hope will come.

Martin Purbrick

[1] New York Times, In seizing control, China sidelines its allies in Hong Kong, 20 June 2020 ( https://www.nytimes.com/2020/06/27/world/asia/china-hong-kong.html )

[2] The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, Chapter II, Part 2, Governing Bodies, Article 12.

[3] Xinhua, State Council appoints officials for central gov’t national security office in HKSAR, 3 July 2020 ( http://www.xinhuanet.com/english/2020-07/03/c_139185578.htm )

[4] South China Morning Post, National security law: Beijing appoints tough-talking party official Zheng Yanxiong to lead powerful new agency in Hong Kong, 3 July 2020 ( https://www.scmp.com/news/hong-kong/politics/article/3091664/beijings-top-hong-kong-official-luo-huining-will-be-city )

[5] Matthew Brazil, Hong Kong: Chinese security officials arrive, 4 July 2020 ( https://www.linkedin.com/pulse/hong-kong-chinese-security-officials-arrive-matt-brazil/?trackingId=Q%2FuH656KrcL6WIcQrIrHpQ%3D%3D )

[6] Ibid.

[7] The Atlantic, Hong Kong is a colony once more, 1 July 2020 ( https://www.theatlantic.com/international/archive/2020/07/hong-kong-china-national-security-colony/613711/ )

 

 

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China

China’s Responsibility for the Covid-19 Crisis – Should we be cautious about pursuing it through the courts? – Nick Kenny

Nick Kenny holds a master’s degree from the University of Oxford, and is now studying at the University of Law in London

The UK is approaching 40,000 deaths, the USA has passed 100,000, and the world has reached the 350,000 mark. Recession and severe economic downturn seem inevitable, if not already here. Individuals and leaders have been looking for someone to hold responsible, and around the world blame has quickly attached to our governments whose policies are affecting our lives so radically.

In turn these governments have sometimes sought to shift the blame elsewhere. In the United States, the Trump administration has been quick to brand Covid-19 the ‘Chinese virus’, laying responsibility at the door of their geopolitical opponent. Is there any legal basis by which this blame game can be played out, and could it result in meaningful compensation for this terrible loss?

Various commentators have in recent months been suggesting that China may have some responsibility, under international law, for the crisis the world is suffering. There seems to be some evidence that China may have, in the early days of the virus, under-played or under-reported its danger, even repressing those who raised the alarm. Oft-cited has been the case of Li Wenliang, a Wuhan-based doctor based who, after voicing concerns about the new virus online, was forced by the police to retract his statements and acknowledge he had ‘severely disturbed the social order’. He sadly died in early February, and his family have since received an apology from the Chinese Communist Party.

Others allege there is further evidence of a wilful failure on China’s part to properly report the virus. It seemingly withheld information from the World Health Organization (WHO), while delaying information about human-human transmission and waiting until February 14th to announce the infection of 1,700 healthcare workers. The latest example is the disappearance of Chen Qiushi, an activist who had been publishing reports detailing and criticising the Chinese government’s response. He was last heard from on February 6th, and to this date his whereabouts and condition remain unknown.

What might have been the effect of this delay? As always, it is difficult to work out the counter-factual, but a model from the University of Southampton suggested that if China had taken stronger measures one, two, or three weeks earlier the number of cases might have reduced by 66%, 86%, and 95% respectively.

Yet, even should these failures be proven on the facts – which the Chinese government would surely dispute vigorously – could there be any legal remedy against the Chinese government?

There do seem to be some rules of international law that China may have breached. First, let us return to 2005 and the aftermath of the SARS epidemic, which claimed 774 lives from 2002-2004. Under international pressure China accepted, along with the other WHO members, the revised International Health Regulations (IHR), a binding treaty designed to prevent another similar outbreak.

Under Article 6 of the IHR, China has an obligation to notify the WHO of a potential ‘public health emergency of international concern’ within 24 hours, and to continue sharing with the WHO timely and accurate information about it. Under Article 7, if it has evidence of an unexpected public health event within its borders that might constitute a ‘public health emergency of international concern’, it must promptly inform the WHO.

On the evidence as we have it, it seems likely that China has not fully complied with these obligations, especially in the first few weeks of January. As Professor John Mackenzie, adviser to the WHO emergency committee, told the FT:

“there must have been more cases happening that we weren’t being told about … I think there was a period of very poor reporting, or very poor communication … There was a period there, I think had [Beijing] been a bit stronger earlier on, they might have been able to restrict the number of cases not only in China but also overseas.”

However, even if there is a case for the breach of these obligations, how could such a lawsuit be pursued? The IHR themselves have a dispute-resolution mechanism under Article 56, whereby the parties may submit to arbitration to resolve the problem. However, the chances that China would be willing to consent to such arbitration seem slim.

There is also some possibility that China’s alleged failings could be pursued at the International Court of Justice (ICJ), as one writer, Peter Tzeng, has suggested. Article 75 of the WHO Constitution stipulates that any dispute about its interpretation or application may be submitted to the ICJ. Can a case be made that China has breached any part of this Constitution?

It is possible that China’s alleged delay in reporting the virus may engage Articles 63 and 64 of the Constitution. The former requires that states communicate promptly to the WHO any official reports pertaining to health published in the state, and the latter requires it to ‘provide statistical and epidemiological reports in a manner to be determined by the Health Assembly’. The problem is, Article 63 only creates an obligation to communicate reports that are ‘published’, yet the main allegations are precisely that the Chinese government failed to publish this information in the first place.

There would be similar difficulties in arguing a breach of Article 64. The ‘manner’ in which these reports are to be communicated under Article 64 has been expressly stated by the Health Assembly to be the Nomenclature Regulations (Article 6 Nomenclature Regulations), not the IHR. Perhaps it could be argued that the reporting requirements of the IHR impliedly fall under the remit of Article 64, but it would be difficult to thread that needle.

If we move beyond international law, there may be the possibility China could be pursued in domestic litigation, as a report from the Henry Jackson Society has claimed. Broadly speaking, states are immune from claims in domestic courts under the principle known as ‘state immunity’. In the UK the State Immunity Act 1978 does contain certain exceptions whereby a state’s immunity will be lifted, generally for wrongs committed on UK territory, but it would be difficult to fit a claim against China for its coronavirus response into this.

Meanwhile, in the United States a claim has already been filed in the Florida courts against China for alleged mishandling of the crisis. This claim attempts to get around the US’s own ‘state immunity’ law, the Foreign Sovereign Immunities Act (FSIA), by arguing that there is an exception in that act for commercial activities, but it seems doubtful whether this will work.

However, there is some hope for such a suit from the recent past. In 2016, so as to allow claims against foreign states accused of sponsoring terrorism, Congress passed the Justice Against Sponsors of Terrorism Act, which narrowed ‘state immunity’ in US courts so countries alleged to have sponsored terrorism, like Saudi Arabia, could be sued. Perhaps Congress would be willing to do this again and lift China’s state immunity here, but this is far from its priorities for the moment, and will probably stay that way for a while.

Even if these international or domestic courts did agree to give such lawsuits a substantive hearing, it seems highly unlikely China would abide by any judgment requiring it to pay out. We can compare here what happened in 2016, when China was found by an arbitral tribunal to have breached the United Nations Convention on the law of the Sea (UNCLOS). The case was brought by the Philippines, who were disgruntled at China’s expansive claims over swathes of the South China Sea. In 2016 the tribunal made an unequivocal ruling in favour of the Philippines, but China has flatly refused to acknowledge or abide by the decision to date.

Indeed, this is the general problem with most of the legal avenues discussed above. A fundamental issue with international law is that there is no stringent enforcement method when states are found to have committed some wrongdoing. It usually rests on countries’ good behaviour, plus diplomatic pressure when other states are willing to apply it. As China’s disregard for the UNCLOS arbitral award shows, there can be few consequences when a country as diplomatically powerful as China wishes to ignore inconvenient judgments.

There is one further remedy countries could impose on China, however. Should a case manage to reach somewhere like the ICJ, and should an order for compensation be awarded that China disregards, states have the final remedy of ‘self-help’. This is the principle under international law that injured states may, should another state be in breach of an international law obligation (like failing to comply with a judgment of the ICJ), suspend its own legal obligations towards the offending party (Article 49 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)). Such countermeasures may not breach human rights or humanitarian obligations, or take the form of a threat of force (Article 50 ARSIWA). Most other measures are ‘fair game’, however.

Should they wish, then, countries could therefore suspend their obligations under the World Trade Organization towards China, or even, as one commentator suggests, broadcast Western media or the mistakes of the CCP in China.

This would clearly be a drastic move, and would rest on the strength of the diplomatic and political ‘backbone’ of other countries to take these steps towards China. It remains to be seen whether any country would be willing to be so confrontational towards its political and military might.

Perhaps this would nevertheless be possible, however, and perhaps it might force China to pay out to those who have suffered so terribly from this virus. However, it would be a long and tortuous process, taking many years to bring a suit to an international judicial forum, prove the case on the facts, and then successfully enforce the judgment. Stepping back from the legal basis of such a challenge, therefore – would it be a good idea?

Even if a state confident enough to bring such a case could be found and it proceeded to a substantive hearing, the factual arguments would be highly contentious and politically explosive. Though few disagree that a sober analysis of what went wrong in the global response, and how we can improve in the future, would be valuable, it seems doubtful that the contentious space of a courtroom would be the best place to do this. China would no doubt dispute the facts energetically and aggressively. Therefore, proving that China has breached its international legal obligations may turn out to be more trouble than it is worth.

It would also only be possible to claim compensation for loss that China’s breaches had caused. In the Bosnian genocide case the ICJ stressed that an injured state must show a ‘sufficiently direct and certain causal nexus’ between the breach and its own loss before being able to claim compensation. Determining quite how far global suffering can be said, in this legal sense, to have been ‘caused’ by China’s alleged failings would be a herculean challenge.

In arguing these issues in court, China would inevitably use the opportunity to publicise what this endeavour may have aimed to avoid in the first place: other governments’ culpability for Covid-19 suffering. Part of the purpose of bringing China to court would be to put blame at their door. However, the factual arguments, in determining whether other countries’ losses were caused by China’s failures in the virus’ early stages, would surely bring out the vital question: how effective were other countries’ responses to Covid-19?

In the realm of policy responses to the crisis, no country is wholly blameless. Every state can likely have some of its decisions criticised. Having, it seems, successfully controlled the virus, China has in recent weeks seen a dramatic increase in cases imported from other countries that have seen less success. Therefore, if states started suing China for their Covid-19-related losses, China could see it as an open invitation to do the same. It might argue that, if other countries had controlled the virus better, Chinese citizens would have suffered less as well.

In other words, once the door is open to such lawsuits, the allegations could go both ways. This is surely not what any actor on the international stage wants. Adding fuel to the fire of a fractious international order in the crisis’ aftermath would not be in anyone’s interests.

The same goes for the outcome if a judicial award for compensation were, against all the odds, obtained against China. Given its history with the 2016 UNCLOS award in the Philippines case, it seems doubtful it would abide by such an order, meaning other states may have to resort to suspending their own obligations towards China to bring it to ‘justice’.

Would this be a good idea, however? To have effect, such measures would need to seriously harm China’s political or economic interests, such as suspending trade obligations towards it. However, these measures would of course harm the rest of the world that relies on supply-chains passing through, or originating in, China. China would also probably take reciprocal measures in response, causing even further global harm.

Overall, this would most likely isolate China while driving a wedge in the international order at a time, in the crisis’ aftermath, when greater co-operation and negotiation would surely be needed.  The irony is that pursuing the strict application of international law could lead to the very thing international law was designed to prevent – namely the fracturing of the international order and decline in global co-operation.

Perhaps, then, it would be best to pursue remedies for the enormous suffering and loss from this crisis in the diplomatic, rather than the legal, sphere. Certainly, any state thinking of pursuing China in international judicial fora should think very hard about the path it is choosing. Though they may have good legal grounds, the practicalities involved, along with the damage such a route could do to international relations, should not be taken lightly. As in every legal issue, the different sides must be balanced carefully before any decision is made.

 

Nick Kenny

 

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China

Stephen Green: The Changing Face of China

Stephen Green (Lord Green of Hurstpierpoint) was Group Chairman of the HSBC Group from 2006-2010. He was subsequently until December 2013 a Minister of State for Trade and Investment in both the Department for Business, Investment and Skills and also the FCO. He is also an ordained priest in the Church of England. This is an edited version of the speech he gave at the RSAA Biennial Dinner on 20 May 2015.

My starting point has become familiar to us all: the extraordinary rise of China and the way it is changing the world. The transformation has been under way for roughly a generation now.

We now recognise that a historic convergence is under way. In 1820 the size of an economy relative to the world total output was roughly equal to that country’s share of world population. Then as now, China had the largest population, and its economy was the largest in the world. We all know what happened thereafter. The industrial revolution meant that for the first time in human history, some economies were able to produce consistently above subsistence level, thus creating a gap between the two ratios (Malthus was wrong – at least once industrialisation and urbanisation had begun to destroy older social structures). First the Europeans, then the Americans, and later the Japanese, thus achieved enormous increases in world market share. At the peak of their relative outperformance, these developed countries represented less than a fifth of the world’s population, but created around three quarters of world GDP. China was left behind.

The gap is now closing again, as China – and also country after country in Asia (and elsewhere in the emerging world) – starts to catch up with the standards of living which Europeans have come to take for granted. By 2020, on present trends, China will probably be the world’s largest economy again. China is already the largest exporter, the largest builder, largest consumer of steel, the largest emitter of carbon. This much we are familiar with.

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China, Hong Kong

China and Hong Kong in Asian Affairs March 2015: Comment

Kenneth C. Walker, an academic and former diplomat who sits on the Editorial Board of the Asian Affairs Journal, takes issue with articles on Hong Kong and China in the March 2015 issue of Asian Affairs. He puts a different point of view here, and Dr Stephan Ortmann, author of the article on the Democracy Movement in Hong Hong, makes a reply below.

Ken Walker:

I was surprised by some points in two articles in the March 2015 issue of Asian Affairs.

In Stephan Ortmann’s article on Hong Kong I wondered how he could have formed the view that the Chinese “were able to dictate most of the conditions” in the 1984 Sino-British Joint Declaration. China’s decision to “resume the exercise of sovereignty” in 1997 and the main principles of its policy on Hong Kong were stated in the 2nd and 3rd paragraphs of the Declaration. But Annexes which are integral to the Declaration set out in detail measures to protect Hong Kong’s system and the freedoms enjoyed by its citizens. It was well-known at the time that these measures resulted from intensive negotiations in which the input of the senior British diplomats representing Hong Kong’s interests was crucial. Moreover, it is obvious from the amount of detail that the wording could only be the result of intricate negotiations to protect Hong Kong’s interests. Hence my surprise at Dr Ortmann’s view.

Dr Ortmann rightly says that the Joint Declaration did not provide for “full democracy”. Clearly, there was no chance of achieving that.  Continue reading

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China, Kyrgyzstan

The silent hand: China in Bishkek, Kyrgyzstan

James Willsher was until recently co-publisher of the Times of Central Asia, and has lived in Bishkek.

I become an acquaintance of an Uighur student in King’s Lynn, Norfolk, a decade ago; he pronounces his ethnic nomenclature as Oi-ghur, not Weegerr, as news reports do at the time of Uighur riots taking place in western China around the time of the Beijing Olympics.

Eight years later and I am a guest in a restaurant owned by someone who can be described only as an Uighur Alan Sugar, in Bishkek, Kyrgyzstan. I am in the process of ruining my tie and shirt with spicy noodles and an array of exotic dishes from his ancestral homeland over the border with China.

The restaurant is the cornerstone of his Uighur business centre premises in the Kyrgyz capital, providing countless jobs and a focus for trade and culture. The world empties its pockets for Chinese herbal remedies, so why not traditional Uighur herbal remedies? A new business venture. The enormous, intricately-decorated tea urn outside is exquisitely alien and resembles nothing I have seen previously, nor since. Continue reading

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