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The 2016 Defence White Paper describes a rules-based global order as a “fundamental strategic interest”. 

This project, supported by the Department of Defence’s Strategic Policy Grants Program, aims to lead a national debate on the rules-based order and its implications for Australian security and defence. It will connect the legal, political, and historical debates about the nature of the global order with the practical realities of Australia’s strategic environment. It will address how the order can evolve to meet new technological challenges and modes of warfare, including grey zone operations.

Cover image: Official U.S. Navy / Flickr

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What does America think the rules-based order is for?

This week we launched the latest project to emerge from the Lowy’s Institute’s Australia’s Security and the Rules-Based Order project, a debate feature on America and the Rules-Based Order. It’s a textbook example of constructive public debate. Each of the six expert participants state their case plainly and respond directly to objections and counter-arguments. Mercifully, none of them are pre-occupied with definitions. 

It’s tempting to think of definitions as a pre-condition for debate. We have to agree on what we are talking about before we can argue the merits. But I think of it the opposite way: the debate is itself a struggle to work towards a definition. In this case, what does America think the rules-based order is for?

For some in the debate, the purpose is to entrench and even sanctify an American-led international system. Realists might put it less politely, that the rules-based order is a fig leaf, a polite fiction that masks the harsh realities of power. Others say the rules-based order can protect US interests as its power wanes relative to China, or that it can help democratic nations collectively defend themselves against China and other authoritarian rivals. 

But none of the participants explicitly argue for the rules-based order as a tool to expand American ideals and ideology, specifically into China. Patrick Porter makes the case against such a definition of the order (“Washington would be better advised to steer clear of grandiose doctrines and schemes to domesticate the world to its values”), but it’s not clear who he is debating. He mentions that President Joe Biden wants to call a “Summit for Democracy”, but like many of the participants in this debate feature, Biden couched that idea in essentially defensive terms. The aim seems to be to protect democracies against backsliding and foreign interference, not democratise America’s rivals.

A daily press briefing resumes at the US Department of State under the Biden administration (US Department of State/Flickr)

Biden may yet have expansive plans for democracy promotion in Asia, but the intellectual tide in Washington is against him. There’s a new conventional wisdom which argues that efforts to use free trade and the internet to encourage political liberalisation in China, ideas which were popular during the Clinton administration and even under George W. Bush, were hopelessly naïve and have failed utterly. 

I tend to think such judgments are still premature (the internet is the greatest information revolution since the printing press, and it is barely 30 years old), but that’s beside the point. More important is that Americans in power seem to believe it. In fact, it was entrenched in the Trump administration’s National Security Strategy, and two leading Asia advisers in the Biden team, Kurt Campbell and Ely Ratner, have said much the same thing.

Raising the ideological stakes of the most important bilateral relationship on earth would only make America’s already precarious position in Asia worse. It should be aiming to lower the stakes.

In turn, this suggests that Washington foreign policy elites implicitly acknowledge the long-term sustainability and legitimacy of China’s authoritarian model. When it comes to liberalism and democracy, then, the US is in a defensive crouch rather than in an expansionary mood. That suits the times. Raising the ideological stakes of the most important bilateral relationship on earth would only make America’s already precarious position in Asia worse. It should be aiming to lower the stakes.

And so should Australia. Its foreign and security policy should be geared towards encouraging the US to think about the relationship with communist China not as an ideological contest or a struggle for supremacy, but as a permanent accommodation between two great powers in which China will have significant advantages – not only will it be economically larger, but it is also the resident power in Asia.

Australia is being forced to think about its security in a new way. Australia is no longer a rich nation surrounded by poverty, allied with the world’s only superpower, but a rich, relatively small country in a region of rapidly growing wealth, and home to a nation set to overtake the US by many measures of national power. 

But that’s not Australia’s biggest problem. So great are China’s advantages that Australia should prepare itself for the possibility that America may choose to give up its position in Asia rather than compete with China. That would leave us with the biggest foreign and security policy challenge of all: defending ourselves and our interests without the help of the United States.


Main image via Flickr user Thomas Hawk

Bringing space law into the 21st century

Throughout 2020, a renewed debate has taken hold over international legal frameworks and the governance of outer space. A flurry of outer space activities has ensured this debate has gained extra attention. These include China’s Chang’e-5 mission, which in December landed an unmanned craft on the moon to collect rock and soil samples; the recent Japan Aerospace Exploration Agency (JAXA) capsule, which returned to earth in South Australia after having captured rocks from an asteroid; and the launch in November of SpaceX’s NASA-crewed Dragon spacecraft “Resilience”.

Ongoing space discoveries have also driven a desire to set the rules of play. NASA announced in October that water had been found on the Moon, which raised expectations that the Moon may be capable of being used as a base for future space exploration.

But there has also been a competitive aspect. The launch of the United States Space Force (USSF) underscored the role that the militaries play in space. The development of anti-satellite capabilities in recent years by China, Russia and India has also shown why outer space is increasingly seen as a contested domain. The US sought this year to promote the Artemis Accords, described as “a shared vision for principles, grounded in the Outer Space Treaty of 1967, to create a safe and transparent environment which facilitates exploration, science and commercial activities for all of humanity to enjoy”. Australia signed up to this initiative in October.

A critical space law issue is the division between civil exploration and use of outer space and military activities in outer space.

When combined, these developments are fuelling debate as to whether the existing outer space legal regime is sufficiently robust to deal with 21st-century challenges or whether alternate frameworks are required. While the norms, principles and treaties in a number of international common spaces are under challenge, outer space is especially contested as new public and private entities become more active and assertive.

The legal and governance challenge that exists with respect to outer space is that the core legal frameworks for space law were all agreed upon during the Cold War. The 1967 Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (aka the Outer Space Treaty) is the founding treaty, and was supplemented by the separate 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement). While both treaties have been in force since 1967 and 1984, respectively, adoption has been variable, with 110 parties to the Outer Space Treaty and only 18 parties to the Moon Treaty. Australia has adopted both. While the five permanent members of the UN Security Council are all parties to the Outer Space Treaty, none have adopted the Moon Treaty.

Satellite tracking dishes at the Instituto Nacional de Tecnica Aerospacial (INTA), at Montaña Blanca in the Canary Islands (European Space Agency/Flickr)

Under the existing law, states do not exercise sovereignty over outer space. While the Outer Space Treaty makes clear that the moon and other celestial bodies are not subject to national appropriation (Article II), that the exploration and use of space shall be “the province of all mankind” (Article I), which is to be used exclusively for peaceful purposes in which military activities are forbidden (Article IV), these principles are being tested by new space activities.

One of the overarching international law principles that applies in outer space is “common heritage”. The common heritage principle was first promoted in the 1960s and applied to the deep seabed. Similar terms are found in the Outer Space Treaty and Moon Agreement. The common heritage principle includes non-appropriation of resources, benefit sharing and associated principles such as the freedom of scientific research, freedom of access and environmental stewardship.

Governance of outer space is also problematic, given that traditional notions of state sovereignty do not apply, and there is no overarching governing body.

Governance of outer space is also problematic, given that traditional notions of state sovereignty do not apply, and there is no overarching governing body. Within the UN, the General Assembly established in 1959 the Committee on the Peaceful Uses of Outer Space (COPUOS). The Committee has a mandate to review “international cooperation in peaceful uses of outer space, studying space-related activities that could be undertaken by the United Nations, encouraging space research programs and studying legal problems arising from the exploration of outer space”. However, the focus of COPUOS has been on peaceful uses of outer space, and not current concerns such as the militarisation of outer space.

While there at least exists a broad legal and governance framework for peaceful activities in outer space, there is ambiguity with respect to military activities. This has sparked a flurry of activity among international lawyers seeking to identify and clarify what laws apply to military activities in outer space, including the Woomera Manual project, which aims to develop a manual that “objectively articulates and clarifies existing international law applicable to military space operations”. Parallel initiatives include proposals for the development by the Conference on Disarmament of a Prevention of an Arms Race in Space Treaty, which has been subject to UN debate in various forums since 1985.

Australia’s modern engagement with developments in space through the Australian Space Agency and an Australian Civil Space Strategy, creates a clear need to robustly assess the Outer Space Treaty and the Moon Agreement, including implications for the Australian Defence Force. There is also an active debate as to whether Australia should be engaged in space mining.

Milky Way at Sugarloaf Rock, Dunsborough, Western Australia (Trevor Dobson/Flickr)

What role then can Australia play in seeking to bring greater certainty and clarity to this discourse over space law? It may simply be a question of either supporting the status quo or proposing new international legal instruments and mechanisms.

Australia could commence a diplomatic strategy to get others to sign up to the Moon Agreement. Although in force, with only 18 parties it lacks credibility within the international community. That task would be significant and one that Australia would need to undertake alongside a like-minded Moon Agreement partner.

Promoting a new international legal framework would be just as challenging, especially at a time when multilateralism is under strain.

Australia’s adoption in October of the Artemis Accords is something of a middle ground and points to how Australia may seek to act in what increasingly appears to be a fluid outer space discourse. NASA launched the Artemis Accords initiative in May, and the first signings took place in October. To date, in addition to Australia, nine countries have signed up, including Canada, Italy, Japan, Ukraine and the UK. The Accords seek to reaffirm peaceful purposes, transparency in information sharing, interoperability, emergency assistance, registration of space objects, space resources, the deconfliction of space activities and orbital debris. However, they do not take the form of a new treaty, and are rather stated to form a “political understanding regarding mutually beneficial practices for the future exploration and use of outer space”.

A critical space law issue is the division between civil exploration and use of outer space – as reflected in the Artemis Accords – and military activities in outer space. More needs to be done in both of these arenas – first, to provide clarity as to whether the established Cold War treaties are fit for purpose with respect to an expanding array of civil activities, including space mining and the application of common heritage principles; and second, with respect to militarisation of outer space and how comfortably that sits with an area traditionally seen as reserved for peaceful purposes.


Main photo courtesy NASA’s Marshall Space Flight Center/Flickr

Who was Hugo Grotius and what is a “Grotian world”?

On Monday, the UK-based think tank Policy Exchange awarded Australian Prime Minister Scott Morrison the inaugural Grotius Prize “in recognition of his work in support of the international rules-based order”. In his acceptance speech, Morrison spoke of the award’s namesake, the 17th-century Dutch thinker Hugo Grotius.

“More than 400 years ago,” Morrison said, “Grotius dreamt of a new framework for inter-state relationships.” Morrison went on to present his vision for a world that is “more Grotian”, a world in which international relations are shaped by common rules, laws and understandings, and “like-minded nation-states can make a difference”.

But who was Hugo Grotius? What was his dream? And what would a more Grotian world actually look like?

Grotius is a writer more cited than read and more mythologised than understood. There are good reasons for this. Much of his work was unoriginal, inconsistent, and written in an almost impenetrable style. Most of what people know of Grotius comes not from his own works but from the 20th-century writings of the Australian international relations theorist Hedley Bull, his “English School” counterpart, Martin Wight, and, before them, the German-British international lawyer Hersch Lauterpacht, all of whom had their own agendas and ideas of what it might mean to be “Grotian”.

Although he published more than 60 texts in his lifetime, Grotius is best known for his 1625 work The Rights of War and Peace (De Jure Belli ac Pacis). This work is often said to have been composed in response to the Thirty Years’ War that ravaged Europe from 1618 to 1648, but Grotius himself confirmed that this was not the case. Rather, many of its central ideas had already appeared in earlier works commissioned by the Dutch East India Company and the States of Holland to address key issues of trade and territorial control stemming from Spain’s imperial ambitions.

The Rights of War and Peace, 1758 edition (Yale Law Library/Flickr)

These earlier works drew on the overarching idea that the relations of states ought to be based on a set of commonly held rules or laws, derived from the law of nature. While defending the Dutch East India Company, Grotius made his most direct contribution to the development of international law by establishing the freedom of the seas and trade, a contribution noted in Morrison’s speech. To justify the Dutch Revolt against Spanish rule (1568–1648), he employed existing ideas about sovereignty to establish the legitimacy of Dutch rule over its territory and people. In both cases, he also drew on the just war tradition, a well-accepted set of rules devised to govern the conduct of war, to defend the actions of the Dutch East India Company and the States of Holland in repelling the Spanish.

These arguments formed the basis of The Rights of War and Peace. Written while Grotius was imprisoned in Loevestein Castle for his role in the politico-religious controversies of the time, it was intended both as a wide-ranging response to the general climate of conflict in Europe and an attempt to win back the support of the Dutch state and end his incarceration (and later exile).

Although it is rarely referred to today, the moral aspect of Grotius’s work speaks to the idea of common understanding that is too often pushed aside by the emphasis on laws, agreements and institutions in accounts of the contemporary rules-based order.

To the extent that it presented a “dream” for future international relations, The Rights of War and Peace expounded Grotius’s earlier idea that the relations of states should be governed by commonly agreed rules and laws, derived from natural law and manifested in the just war tradition. To be clear, Grotius did not espouse the idea of a rules-based international order or develop a framework for its operation. Nor did he discuss the idea of “international society” in any real detail. That all came much later, with the development of the “Grotian tradition” of international law and international relations in the 20th century.

Rather, what Grotius was interested in, alongside minimising the horrors of war, was identifying the principles of moral conduct that would support and enable international relations founded on common agreement. Foremost among them were moderation in the exercise of rights (even the right to go to war), respect for common humanity, altruism and charity. Although he conceived them in religious terms – contrary to the common assumption that he “secularised” international law, Grotius was also a theologian whose ideas about religious toleration and doctrinal unity drove his account of international law – he also argued that these values should guide the moral conduct and treatment of all, regardless of faith.

Although it is rarely referred to today, the moral aspect of Grotius’s work speaks to the idea of common understanding that is too often pushed aside by the emphasis on laws, agreements and institutions in accounts of the contemporary rules-based order. Yet, this is what Grotius thought would bind states together, motivate them to uphold rules and agreements and avoid the excesses of war.

What, then, would a more Grotian world actually look like? In the absence of inter-state war, it would be a world in which states upheld their commitments to international law, took seriously their duties to uphold principles of common humanity, and treated those over whom they have power with altruism, charity and care.

If this is a world that Australia is genuinely committed to, then a focus on upholding our international legal and moral obligations on issues from climate change to asylum seekers would be a very good place to start.
 

Renee Jeffery is Professor of International Relations at Griffith University and author of Hugo Grotius in International Thought (Palgrave, 2006).

But what does “rules-based order” mean?

Although the “rules-based international order” is central to Australian strategy, what exactly this concept means remains a work very much in progress. For Australia to achieve its objectives for the order, it will have to get more specific.

A hardy perennial

The importance to Australia of the rules-based order concept is clear from the warm embrace it has received from both sides of the political aisle ever since Prime Minister Kevin Rudd first used the term in 2008 – despite our rapid turnover of prime ministers since then.

Tony Abbott used the phrase less often in his time as prime minister, but only because he preferred different three-word terms, often speaking against “might is right” and in favour of being a “good international citizen” – a concept popularised by former foreign minister Gareth Evans.

Doubts about Prime Minister Scott Morrison’s enthusiasm for the rules-based order flickered after he attacked “negative globalism” in his 2019 Lowy Lecture. In that speech, Morrison – fresh back from the UN General Assembly in New York – also announced that the Department of Foreign Affairs and Trade would undertake a “comprehensive audit of global institutions and rule-making processes”.

Support for the concept has been further tested by the more Hobbesian world revealed and accelerated by Covid-19. For hard-headed realists who always doubted the concept, this would be an ideal moment to eject it from Australian strategic discourse.

Middle powers such as Australia must do more to build a framework for managing US-China competition.

But in June, Foreign Minister Payne reported that the audit of multilateral institutions commissioned by Morrison had “affirmed that multilateral organisations, especially international standard-setting bodies, create rules that are vital to Australia's security, interests, values and prosperity”.

The next month, Morrison launched the 2020 Defence Strategic Update, describing a world that is “poorer, more dangerous and more disorderly”.

Patterns of cooperation that have benefited our prosperity and security for decades are now under increasing – and I would suggest almost irreversible – strain.

Despite that strain, in August the Prime Minister voiced full-throated support for the “rebuilding of international society”. He took that term from the Anglo-Australian scholar Hedley Bull, saying Bull’s 1977 book The Anarchical Society remains one of the most influential works on global politics of the last 50 years. “I’ve got a copy on my bookshelf behind me,” Morrison said.

This was the first time an Australian Prime minister had publicly cited the work of Bull. The image of Australia’s “daggy-dad” Prime Minister gesturing towards his copy of Bull’s rarefied tome captures the resilience of the rules-based order concept in Australian strategy.

Multiple meanings

But what does “rules-based order” mean?

The unsatisfying answer is that the concept is used in official discourse to mean many different things, and they’re not always complementary. Although the term “rules-based international order” was only coined after the Cold War, Canberra typically dates it to the aftermath of the Second World War and the institutions and norms – centred on the UN – that were established then. It is often credited with having delivered 70 years of peace and security.

Other recurring propositions are that the rules-based order has both constrained the use of power and depends on US power; that it could shape China’s rise and be shaped by China; and that it must be saved and must change.

To be fair, Australian discourse has evolved across the last 12 years, and there have been some efforts at greater specificity. Indeed, although Payne’s speech in June was all about the rules-based order, she didn’t use the phrase once.

But Payne also missed an opportunity to be more precise about the focus of Australian efforts. Her list of “three fundamental parts of the multilateral system” that Australia will focus on preserving was so sweeping that nothing much was left out. She cited:

  • the rules that protect sovereignty, preserve peace and curb excessive use of power, and enable international trade and investment;
  • the international standards related to health and pandemics, to transport, telecommunications and other issues that underpin the global economy, and which will be vital to a post-Covid-19 economic recovery;
  • and thirdly, the norms that underpin universal human rights, gender equality and the rule of law.

Payne extended the concept by highlighting – correctly – the importance of often-overlooked technical bodies. They set ostensibly apolitical standards on “civil aviation, maritime transport, intellectual property, telecommunications, agriculture”. Unfortunately, there was little detail provided about her department’s audit of multilateral institutions, but Payne clearly recognised that these bodes are now frequent sites of ideological competition (chiefly with China, although she wasn’t that specific). She declared that “we must stand up for our values and bring our influence to bear in these institutions to … preserve the open character of international institutions based on universal values and transparency”.

Managing great power relations

Payne’s framing of the rules-based order as the site of ideological competition would accord well with a Biden administration in the US. But the rules-based order can also be understood, less ideologically, as a mechanism for managing competition between states with divergent values. The arms control agreements that helped keep war cold between the US and the USSR owed little to democratic values. The US and China don’t dominate global politics as did the US and the USSR during Hedley Bull’s time. In the modern era, Australia needs an international order than can bound US-China rivalry and forestall conflict.

Of course, managing great power relations is primarily a job for the great powers. According to Hedley Bull, the norms of the international order could be derived from the way in which the great powers managed their competition. But as he put it, great powers could “fulfil their managerial functions in international society only if these functions are accepted clearly enough by a large enough proportion of the society of states to command legitimacy”.

Prime Minister Scott Morrison (on screens) addresses the general debate of the UN General Assembly’s 75th session, 25 September 2020 (UN Photo)

This is even more true in today’s more multipolar world than it was in Bull’s time. Middle powers such as Australia must do more to build a framework for managing US-China competition. Michèle Flournoy, widely touted as a Secretary for Defence in a future Biden administration, has recognised at least one half of this problem. She told the US Studies Centre that:

We don’t have a real risk-reduction framework with China, we don’t have an “incidents at sea” agreement, we don’t have the kinds of measures that were put in place back in the days of US-Soviet tensions … this is not something that I think will be well received if it is just the US approaching China. I think a number of countries need to approach China together to say “look, the risk is too high, we need to agree on some standards, some norms, some procedures to reduce the level of risk and miscalculation.

As the international order has been assailed from all sides, its importance has become clearer to Australian leaders, important enough to overcome Australian suspicion of such abstract-sounding notions. But the time has come to turn that understanding into a more concrete, and more public, plan of action. Working with like-minded countries to defend democratic values is one part of the job. But to produce an order that can forestall catastrophic US-China conflict, Australia will have to work more with larger groups, including many differently minded countries.

Smart China choices

Australian commentators often appear eager to paint Australia’s China choices in stark binaries. “The money or our sovereignty: China leaves us no choice” is one representative headline.

Continued bilateral escalation could prove them right. But both states have an interest in trying to get the most out of mutually beneficial cooperation – especially on trade and investment – even as the relationship’s adversarial edge grows sharper.

It’s not just Australia and China. In the more competitive post–Covid-19 world, all countries are facing tougher decisions about how to interact with one another. The most successful states will find ways to balance the benefits of continued international engagement with the protection of public health, economic resilience and national security. Countries that tilt too far in one direction or the other will fall behind. China’s bid to rebalance looks to be its new “dual circulation” strategy.

As Australia and China compete to get the most out of their bilateral relationship, Canberra should produce better decisions than Beijing is able to.

How can Australia get the most out of the bilateral relationship? Canberra needs to do more than simply “step back from anything that looks confrontational and wait until a more cooperative atmosphere evolves” as former foreign minister Bob Carr advises. But insisting on “reciprocity”, as former prime minister Tony Abbott recommends is not the answer either. The relationship is unavoidably asymmetric. China dwarfs Australia on almost every economic and military metric. And Australia can benefit from unreciprocated Chinese activity – including the inflow of Chinese investment, students and tourists.

Rather, Australia should play to it asymmetric strengths. Aside from its wider network of partners and allies, Australia’s core advantage is its democratic political system. It won’t be possible for Australia to avoid hard trade-offs in its relationship with China, especially between economic and security interests. But transparent and contestable processes should produce the best balance. As Australia and China compete to get the most out of their bilateral relationship, Canberra should produce better decisions than Beijing is able to.

China’s response to Covid-19 has, admittedly, showcased its extraordinary capacity to implement government edicts. But it has also demonstrated the shortcomings of Beijing’s top-down decision making. China has kicked a series of own goals, first by suppressing initial reports of the coronavirus and then by pushing out aggressively on fronts from India to Japan all at once.

Like ambitious great powers before it, China will keep making bad decisions as it seeks to reshape the world. Beijing is even more likely to do so, because many of its preferred tools are difficult to wield. Geo-economics – the use of economic power for strategic purposes – is hard to practice. Because the international economy is fluid, cause and effect is not always linear. Because economic interdependence is mutual, it can be hard to leverage. And new technologies – which China is trying to dominate – are inherently unpredictable. History suggests that those who develop new technologies benefit less than the inventors.

Faced with this blundering giant, Australia should be judicious about attempting to counter Chinese moves. Canberra should take advantage of China’s mistakes where possible and, at the very least, avoid interrupting them.

Optimal decisions require rigorous analysis. Decision makers should be leery of threat inflation and alluringly simple templates, such as the claim that once you understand the pattern of behaviour by the People’s Republic you will see it in operation everywhere. Exaggerated claims that China’s Belt and Road Initiative is driven by “debt trap diplomacy” don’t hold up to scrutiny and – being easy to refute – hand Beijing an easy propaganda win. In practice, the Belt and Road Initiative is likely to produce a mix of beneficial infrastructure, white elephants and genuine strategic threats to Australia.

Unable to afford playing whack a mole, Australia needs to focus limited resources on countering the most serious threats. The poorly-funded and technically-insecure Huawei-funded data centre in Port Moresby is, for example almost certainly neither “built to spy on PNG” nor an example of debt trap diplomacy. China’s construction of an airport on Manus Island could be a threat to the neighbouring naval base. Or it could be an example of China mistakenly devoting resources to military infrastructure that could be used to counter it.

The massive state resources China is pouring into cutting edge technologies – including biotech, wireless networks, artificial intelligence and big data processing will produce great inefficiencies and major breakthroughs. Australia’s exclusion of Chinese telcos from participation in our 5G networks was based on world class analysis. But the blanket ban should be the exception rather than a guideline for future Australian engagement with Chinese technology. In the 5G case, it was not possible to mitigate the security risk. Australia will need to work hard to find ways to avoid denying itself the benefits of future Chinese technology. That will entail acceptance that risk must be managed rather than eliminated in a more technology-dependent world.

The government is, wisely, applying a national security lens to decisions that were previously viewed as purely economic, including through major reforms slated for the Foreign Investment Review Board. But the risk of over-correction and opacity is ever present. The best decision requires the best analysis. Part of the solution is to boost the level of technical expertise inside government. But Canberra should also seek more expert input from outside government. Transparent and contestable decision-making is central to Australia’s competitive edge.

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