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Public

International
Law

Submitted to: Atty.


Porfirio D.G.
Panganiban

Submitted by: Maria Kristina D.


Siuagan
PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 1

What is the Doctrine of Incorporation? What is the Incorporation Clause? Are the two terms
the same? Provide Constitutional basis or application for these doctrines.

Under our jurisdiction, the terms Doctrine of Incorporation and Incorporation Clause are being
used interchangeably. Albeit related in terms of scope and application, nevertheless, each of the two
terms embodies a concept germane on its own.

The Doctrine of Incorporation, as enunciated by Blackstone, holds that the law of nations,
wherever any question arises which is properly the object of its jurisdiction, is here adopted in its full
extent by the common law, and it is held to be part of the law of the law.(Emphasis is mine.) Under
this doctrine, rules of international law form part of the law of the land, and no further legislative
action is needed to make such rules applicable in the domestic sphere. 1 Among the states, which
recognize and affirm principles of international law as part of the law of their land, is the Philippines.
On the other hand, the so-called Incorporation Clause is the specific provision allotted in a states
constitution that shows their amenability and gives emphasis to their acceptance of the application
of the aforesaid doctrine in their domestic or municipal legal system.

The categorical adoption of the Philippines of the principles of international law, as part of its
domestic laws and/or legal system (doctrine of incorporation) is embodied under Section 2, Article II
of the 1987 Constitution, which states, to wit:

The Philippines renounces war as an instrument of national policy, adopts the


generally accepted priniciples of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice, freedom, cooperation and
amity with all nations. (Emphasis on the Incorporation Clause.)

The Supreme Court has long since applied the aforesaid doctrine in resolving certain questions of law
presented before it. One of the known applications of this doctrine could be gleaned from the case
of Kuroda vs. Jalandoni2. The dispute to be resolved in this case was, whether or not the Philippine
courts have jurisdiction to indict the petitioner for acts committed in violation of the Hague
Convention and the Geneva Convention notwithstanding the fact that the Philippines is not a
signatory to the first and signed the second only in 1947. The Highest Tribunal, in ruling against the
petitioner held, to wit:

It cannot be denied that the rules and regulations of the Hague and Geneva
Conventions form part of and are wholly based on the generally accepted
principles of international law. In fact, these rules and principles were accepted by
the two belligerent nations, the United States and Japan, who were then
signatories to the two Conventions. Such rules and principles, therefore, form

1
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila,
Branch 25, and MARK B. JIMENEZ, respondents (G.R. No. 139465. January 18, 2000)
2
42 O.G. 4282

SUBMITTED BY: MARIA KRISTINA D. SIUAGAN


PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 2

part of the law of our nation even if the Philippines was not a signatory to the
conventions embodying them, for our Constitution has been deliberately general
and extensive in its scope and is not confined to the recognition of rules and
principles of international law as contained in treaties to which our government
may have been or shall be a signatory.

The aforestated ruling succinctly exemplifies the operative and binding effect of incorporation
clause, by virtue of which principles of international law become equally situated amongst other
domestic or municipal laws such as the Revised Penal Code, the New Civil Code, and other statutes.

What is the Doctrine of Transformation? Provide the constitutional basis or application of this
doctrine.

The Doctrine of Transformation holds that the generally accepted rules of international law are not
per se binding upon the state but must first be embodied in legislation enacted by the lawmaking
body and so transformed into municipal law.3 This is true by analogy in so far as the treaties
entered into by the Philippines are concerned, which do not become part of the law of our
jurisdiction unless there shall be the concurrence of the Senate. This is pursuant to Section 21, Article
VII, vis-a-vis Section 2, Article II of the 1987 Philippine Constitution.

If it has already been established that the Philippines adopts generally accepted principles of
international law, as enunciated in the incorporation clause embodied in Section 2, Article II of its
1987 Constitution, does the doctrine of transformation still find any place for application in its local
jurisdiction? It is submitted that the answer for the same is in the affirmative.

It may be recalled that one of the declared principles and policies of the Philippine State is its
adoption of generally accepted principles of international law as part of the law of the land. With
regard to customary international laws and such treaties which ripened to customary laws, in
keeping with said declaration, the Philippines affirms the adoption of and gives equally binding
effect as local laws to such sources of international law in its domestic sphere. As an effect, the
Philippine courts and tribunals can then resolve domestic disputes by using such laws in the same
way that they would the other domestic laws found in the local statute books.

Nevertheless, when it comes to treaties entered into by the Philippines with other states, the rule
adopted is different. As provided for by Section 21, Article VII of the 1987 Constitution, No treaty or
international agreement shall be valid and effective unless concurred in by at least two-thirds of all
the Members of the Senate. (Emphasis supplied.) Otherwise stated, treaties become part of the
Philippine laws only by ratification by the Senate. Without such ratification, treaties and other
international agreements may not be transformed into a body of law or instrument which could be

3
page 7, Cruz, Isagani A., International Law, 2003

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PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 3

accorded with the same binding effect as other local legislative enactments. By analogy, thus, the
doctrine of incorporation only applies to customary laws and to treaties that had become such.

What is the Doctrine of Autolimitation? Explain.

The Doctrine of Autolimitation holds that a state by its consent, expressed or implied, submit to a
restriction of its sovereign rights.4 The Supreme Court, in the case of People vs. Gozo, explained, vis:
There may thus be a curtailment of what otherwise is a power plenary in character. That is the concept
of sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property of a state-
force due to which it has the exclusive capacity of legal self-determination and self-restriction." A state
then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence." 5
However, such restriction or limitation does not amount to the complete abrogation of its sovereign
rights.

Distinguish executive agreements from treaties.

Treaties are such international agreements, which require the concurrence of at least two-thirds of
all the members of the Senate in order for the same to be valid and effective 6. On the other hand,
executive agreements are such which may be validly entered into without such concurrence.7
Additional distinctions between the two were likewise enunciated by the Honorable Supreme Court 8,
to wit: International agreements involving political issues or changes of national policy and those
involving international arrangements of a permanent character usually take the form of treaties. But
international agreements embodying adjustments of detail carrying out well-established national
policies and traditions and those involving arrangements of a more or less temporary nature usually
take the form of executive agreements. However, notwithstanding the foregoing distinctions, it
would seem that executive agreements have always been accorded by the Court with validity and
binding effect.9

How is a conflict between international law and municipal law resolved?

To date, as opined by Justice Isagani Cruz, one of the most esteemed and well-known member of the
Philippine Supreme Court, the manner of resolving conflict between municipal law and international
law is yet to be settled. Nonetheless, there should be an attempt to reconcile the apparent

4
People vs. Loreta Gozo (G.R. No. L-36409 October 26, 1973)
5
Ibid.
6
Section 21, Article VII, 1987 Philippine Constitution
7
Commissioner of Customs vs. Eastern Sea Trading, 3 SCRA 351, 355-6 (1961)
8
Ibid.
9
Ibid.

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PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 4

contradiction between the two systems of laws in order to give effect to both of them. 10 Thus,
efforts should first be exerted to harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for the generally accepted principles
of international law in observance of the Incorporation Clause under Section 2, Article 2 of the 1987
Constitution.11 In a situation, however, where the conflict is irreconcilable and a choice has to be
made between a rule of international law and municipal lawmunicipal law should be upheld by the
municipal courts.12

Aside from this approach, which had long been upheld and adopted by the courts of our jurisdiction,
several other viewpoints were likewise assumed depending on what forum or tribunal the question
or conflict is presented to.13 Under the International Rule, which is applicable when the conflict is
brought before an international court or tribunal, the State should ensure the fulfillment of its
obligations arising from treaties or international agreements and other sources of international law,
and it may not invoke provisions in its constitutions or its laws as an excuse for failure to perform
this duty.14 Consequently, the contracting state in a treaty or any other international agreement or
undertaking, should make modifications in its domestic laws in order to make good of the aforesaid
obligations or undertakings. Conversely, when a conflict is sought to be resolved before the
domestic courts, the so-called Municipal Rule dictates that any treaty or international agreement
should yield to the constitution or domestic laws. This rule emanates from the duty of the domestic
courts to apply the local law.15 However, it is to be noted that the Municipal Rule may only be
enforceable within a states domestic sphere. Its adoption exposes the state to certain repercussions
one of which is the probability of having to face reprehensions by the international community.

What is the United Nations? What are the Four (4) Pillars of the United Nations?

The four (4) pillars of the United Nations, which are enunciated in the Preamble of the Charter of
United Nations are: (1) Peace and Security; (2) Human Rights; (3) The Rule of Law; and (4)
Development.16

The Preamble sets the common intentions or aspirations that moved the original members to united
their will and efforts to achieve their common Purposes.17 Peace and Security is embodied in the UNs

10
page 7, Cruz, Isagani A., International Law, 2003
11
Supranote 1
12
Ibid. (The Court citing therein Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova , 9 SCRA 230
[1963]; In re: Garcia, 2 SCRA 984 [1961])
13
page 63, Bernas, Joaquin G., Introduction to Public International Law, 2009
14
Article 13, Declaration of Rights and Duties adopted by the International Law Commission.
15
Supranote 6
16
http://outreach.un.org/mun/guidebook/introduction/un-at-a-glance/4pillars/ (Last visited on February 22, 2016)
17
Page 49, Cruz, Isagani G., International Law, 2003, citing UNCIO, Report of Rapporteur of Committee 1 to
Commission 1 Doc. 944, 1/134(1), 1-2.

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PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 5

determination to save succeeding generations from the scourge of war which twice in our lifetime
has brought untold sorrow to mankind. The UN, in keeping with its commitment to uphold Human
Rights also determines to reaffirm faith in the fundamental human rights, in the dignity and worth
of human person, in the equal rights of men and women and of nations large and small Likewise,
the UN also upholds the Rule of Law by committing to establish conditions under which justice and
repsect for the obligations arising from the treaties and other sources of international law can be
maintained. Finally, one of UNs avowed commitments is its inclination and efforts towards the
promotion of social progress and better standards of life in larger freedom, that is, Development.

Who are the current member states of the United Nations?

The following are the current members states of the United Nations (UN) with their corresponding
date of admission to the Organization18:

COUNTRY DATE OF ADMISSION


Afghanistan 19-11-1946
Albania 14-12-1955
Algeria 08-10-1962
Andorra 28-07-1993
Angola 01-12-1976
Antigua and Barbuda 11-11-1981
Argentina 24-10-1945
Armenia 02-03-1992
Australia 01-11-1945
Austria 14-12-1955
Azerbaijan 02-03-1992
Bahamas 18-09-1973
Bahrain 21-09-1971
Bangladesh 17-09-1974
Barbados 09-12-1966
Belarus* 24-10-1945
Belgium 27-12-1945
Belize 25-09-1981
Benin 20-09-1960
Bhutan 21-09-1971
Bolivia (Plurinational State of)14-11-1945
Bosnia and Herzegovina* 22-05-1992
Botswana 17-10-1966
Brazil 24-10-1945
Brunei Darussalam 21-09-1984
Bulgaria 14-12-1955

18
http://www.un.org/en/members/ Last visited on February 22, 2016

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PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 6

Burkina Faso 20-09-1960


Burundi 18-09-1962
Cabo Verde 16-09-1975
Cambodia 14-12-1955
Cameroon 20-09-1960
Canada 09-11-1945
Central African Republic 20-09-1960
Chad 20-09-1960
Chile 24-10-1945
China 24-10-1945
Colombia 05-11-1945
Comoros 12-11-1975
Congo 20-09-1960
Costa Rica 02-11-1945
Cte D'Ivoire 20-09-1960
Croatia* 22-05-1992
Cuba 24-10-1945
Cyprus 20-09-1960
Czech Republic* 19-01-1993
Democratic People's Republic of Korea 17-09-1991
Democratic Republic of the Congo * 20-09-1960
Denmark 24-10-1945
Djibouti 20-09-1977
Dominica 18-12-1978
Dominican Republic 24-10-1945
Ecuador 21-12-1945
Egypt* 24-10-1945
El Salvador 24-10-1945
Equatorial Guinea 12-11-1968
Eritrea 28-05-1993
Estonia 17-09-1991
Ethiopia 13-11-1945
Fiji 13-10-1970
Finland 14-12-1955
France 24-10-1945
Gabon 20-09-1960
Gambia 21-09-1965
Georgia 31-07-1992
Germany* 18-09-1973
Ghana 08-03-1957
Greece 25-10-1945
Grenada 17-09-1974
Guatemala 21-11-1945
Guinea 12-12-1958
Guinea Bissau 17-09-1974
Guyana 20-09-1966

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PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 7

Haiti 24-10-1945
Honduras 17-12-1945
Hungary 14-12-1955
Iceland 19-11-1946
India 30-10-1945
Indonesia* 28-09-1950
Iran (Islamic Republic of) 24-10-1945
Iraq 21-12-1945
Ireland 14-12-1955
Israel 11-05-1949
Italy 14-12-1955
Jamaica 18-09-1962
Japan 18-12-1956
Jordan 14-12-1955
Kazakhstan 02-03-1992
Kenya 16-12-1963
Kiribati 14-09-1999
Kuwait 14-05-1963
Kyrgyzstan 02-03-1992
Lao Peoples Democratic Republic 14-12-1955
Latvia 17-09-1991
Lebanon 24-10-1945
Lesotho 17-10-1966
Liberia 02-11-1945
Libya* 14-12-1955
Liechtenstein 18-09-1990
Lithuania 17-09-1991
Luxembourg 24-10-1945
Madagascar 20-09-1960
Malawi 01-12-1964
Malaysia* 17-09-1957
Maldives 21-09-1965
Mali 28-09-1960
Malta 01-12-1964
Marshall Islands 17-09-1991
Mauritania 27-10-1961
Mauritius 24-04-1968
Mexico 07-11-1945
Micronesia (Federated States of) 17-09-1991
Monaco 28-05-1993
Mongolia 27-10-1961
Montenegro* 28-06-2006
Morocco 12-11-1956
Mozambique 16-09-1975
Myanmar 19-04-1948
Namibia 23-04-1990

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PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 8

Nauru 14-09-1999
Nepal 14-12-1955
Netherlands 10-12-1945
New Zealand 24-10-1945
Nicaragua 24-10-1945
Niger 20-09-1960
Nigeria 07-10-1960
Norway 27-11-1945
Oman 07-10-1971
Pakistan 30-09-1947
Palau 15-12-1994
Panama 13-11-1945
Papua New Guinea 10-10-1975
Paraguay 24-10-1945
Peru 31-10-1945
Philippines 24-10-1945
Poland 24-10-1945
Portugal 14-12-1955
Qatar 21-09-1971
Republic of Korea 17-09-1991
Republic of Moldova 02-03-1992
Romania 14-12-1955
Russian Federation* 24-10-1945
Rwanda 18-09-1962
Saint Kitts and Nevis 23-09-1983
Saint Lucia 18-09-1979
Saint Vincent and the Grenadines 16-09-1980
Samoa 15-12-1976
San Marino 02-03-1992
Sao Tome and Principe 16-09-1975
Saudi Arabia 24-10-1945
Senegal 28-09-1960
Serbia* 01-11-2000
Seychelles 21-09-1976
Sierra Leone 27-09-1961
Singapore* 21-09-1965
Slovakia* 19-01-1993
Slovenia* 22-05-1992
Solomon Islands 19-09-1978
Somalia 20-09-1960
South Africa 07-11-1945
South Sudan* 14-07-2011
Spain 14-12-1955
Sri Lanka 14-12-1955
Sudan 12-11-1956
Suriname 04-12-1975

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PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 9

Swaziland 24-09-1968
Sweden 19-11-1946
Switzerland 10-09-2002
Syrian Arab Republic* 24-10-1945
Tajikistan 02-03-1992
Thailand 16-12-1946
The former Yugoslav Republic of Macedonia* 08-04-1993
Timor-Leste 27-09-2002
Togo 20-09-1960
Tonga 14-09-1999
Trinidad and Tobago 18-09-1962
Tunisia 12-11-1956
Turkey 24-10-1945
Turkmenistan 02-03-1992
Tuvalu 05-09-2000
Uganda 25-10-1962
Ukraine 24-10-1945
United Arab Emirates 09-12-1971
United Kingdom of Great Britain and 24-10-1945
Northern Ireland
United Republic of Tanzania* 14-12-1961
United States of America 24-10-1945
Uruguay 18-12-1945
Uzbekistan 02-03-1992
Vanuatu 15-09-1981
Venezuela (Bolivarian Republic of) 15-11-1945
Viet Nam 20-09-1977
Yemen* 30-09-1947
Zambia 01-12-1964
Zimbabwe 25-08-1980

How can a state join and be a member of the United Nations?

A state may be eligible for membership in the United Nations (UN) of it is peace-loving, which
accepts the obligations contained in the present United Nations Charter and, in the judgment of the
Organization (the UN) are able and willing to carry out such obligations. This is pursuant to Article 4,
Chapter III of the Charter of the United Nations, which provides for the membership of states. Once
the state is found eligible for membership, it may only be admitted in the Organization through a
decision of the General Assembly upon the recommendation of the Security Council.19

19
Article 5, Chapter III, Charter of the United Nations

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PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 10

How is the membership classified in the United Nations? Are these requirements absolute?

Member states of the United Nations may be classified as either (1) original or (2) elective. The
original member states of the United Nations are those which participated in the United Nations
Conference on International Organization at San Francisco, or having previously signed the
Declaration by the United Nations on January 1, 1942, sign the present Charter, and ratify it in
accordance with Article 110 of the Charter of the United Nations.20 Essentially, the difference
between the two classifications is the manner for which the member states were or had been
admitted in the Organization. Nonetheless, all rights and obligations accorded to all member states
are governed in the same degree by the Charter of the Organization.21

What is meant by a spectator state in the United Nations? What are its significant roles,
privileges, and limitations? Provide the states that are considered spectator states in the UN.

A spectator state is also known as an observer state of the United Nations (UN). Observers, apart
from states may also include organizations, entities that received a standing invitation from the UN
to participate as observers during sessions and the work of the General Assembly. 22 They also have
free access to most meetings and relevant documentation.23 However, being merely observers or
spectators, they lack the ability and the power to vote and propose resolutions.

The following are the entities and/or organizations given the standing invitation to participate as
observes in the sessions and work of the General Assembly and maintain permanent offices at the
latters headquarters24, to wit: (1) Holy See; (2) Palestine; (3) Africa Union; (4) Asian-African Legal
Consultative Organization; (5) Carribean Community, also known as CARICOMM; (6) Central
American Integrated System; (7) Commonwealth Secretariat; (8) Cooperation Council for the Arab
States of the Gulf; (9) Economic Community of Western African States; (10) European Union; (11)
International Criminal Court; (12) International Criminal Police Organization, also known as the
INTERPOL; (13) International Development Law Organization; (14) International Institute for
Democracy and Electoral Assistance; (14) International Organization for Migration; (15) International
Organization of la Francophonie; (16) International Renewable Energy Agency; (17) International
Seabed Authority; (18) International Tribunal for the Law of the Sea; (19) International Union for the
Conservation of Nature and Natural Resources; (20) League of Arab Emirates; (21) Organization of
Islamic Cooperation; (22) Partners in Population Development; (23) University of Peace; (24)
International Committee of the Redcross; (25) International Federation of the Red Cross and the Red

20
Article 3, Chapter II, Charter of the United Nations.
21
page 55, Cruz, Isagani A., International Law, 2003
22
http://www.un.org/en/ga/about/observers.shtml Last visited on February 22, 2016.
23
http://www.un.org/en/members/aboutpermobservers.shtml Last visited on February 22, 2016.
24
http://www.un.org/en/members/intergovorg.shtml Last visited on February 22, 2016.

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PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 11

Crescent Societies; (26) International Olympic Committee; (27) Inter-Parliamentary Union and; (28)
Sovereign Military Order of Malta.

There are likewise such entities and organizations given the standing invitation to participate in the
sessions and work of the General Assembly; however, they do not have permanent office in the
Headquarters. (Please see Appendix A for the roster of said organizations.)25

25
Ibid.

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PUBLIC INTERNATIONAL LAW ARELLANO UNIVERSITY SCHOOL OF LAW 12

APPENDIX A

1. African, Caribbean and Pacific Group of 29. Ibero-American Conference


States 30. Indian Ocean Commission
2. African Development Bank 31. Inter-American Development Bank
3. Agency for the Prohibition of Nuclear 32. Intergovernmental Authority on
Weapons in Latin America and the Development
Caribbean 33. International Centre for Migration Policy
4. Andean Community Development
5. Andean Development Corporation 34. International Conference on the Great Lakes
6. Asian Development Bank Region of Africa
7. Association of Caribbean States 35. International Fund for Saving the Aral Sea
8. Association of Southeast Asian Nations 36. International Humanitarian Fact-Finding
9. Black Sea Economic Cooperation Commission
Organization 37. International Hydrographic Organization
10. Central European Initiative 38. Islamic Development Bank Group
11. Collective Security Treaty Organization 39. Italian-Latin American Institute
12. Common Fund for Commodities 40. Latin American Economic System
13. Commonwealth of Independent States 41. Latin American Integration Association
14. Community of Portuguese-speaking 42. Latin American Parliament
Countries 43. OPEC Fund for International Development
15. Community of Sahelo-Saharan States 44. Organization for Economic Cooperation and
16. Conference on Interaction and Confidence- Development
building Measures in Asia 45. Organization for Security and Cooperation
17. Council of Europe in Europe
18. Customs Cooperation Council 46. Organization of American States
19. East African Community 47. Organization of Eastern Caribbean States
20. Economic Community of Central African 48. Pacific Islands Forum
States 49. Parliamentary Assembly of the
21. Economic Community of West African Mediterranean
States 50. Permanent Court of Arbitration
22. Economic Cooperation Organization 51. Regional Centre on Small Arms and Light
23. Energy Charter Conference Weapons in the Great Lakes Region, the
24. Eurasian Development Bank Horn of Africa and Bordering States
25. Eurasian Economic Community 52. Shanghai Cooperation Organization
26. European Organization for Nuclear 53. South Asian Association for Regional
Research Cooperation
27. Global Fund to Fight AIDS, Tuberculosis and 54. Southern African Development Community
Malaria 55. South Centre
28. Hague Conference on Private International 56. Union of South American Nations
Law 57. West African Economic and Monetary Union

XXX Nothing follows XXX

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