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II. The incidence of the temporal dimension in environmental protection and in human rights protection
1. The temporal dimension in general international law
Time and time again one has stressed the predominantly preventive character of the normative corpus on environmental protection. The temporal dimension, so noticeable in the present domain, is likewise present in general international law. In fact, the element of fore seeability inheres in legal science as such, and is of the essence of law-making activity. That it permeates distinct fields or chapters of international law is undeniable, as a couple of examples may help to illustrate. The notion of time underlies, e.g., almost all basic elements of the law of treaties: the temporal dimension permeates not only the general scope of the treaty-making process, but also the very terms or conditions established for their implementation (e.g., when this latter is to take place by stages, gradually and progressively). Likewise, in the realm of the peaceful settlement of international disputes, distinct methods of settlement have been devised envisaging disputes that may occur in the future; in the settlement of economic disputes in particular, procedures of settlement have been employed even if the damage has not occurred yet, and one has thus spoken of threats of imminent injuries or potential or likely future harm.22
With regard to environmental protection and in the context of the distribution and sharing of resources, it may be recalled that the 1974 UN Charter of Economic Rights and Duties of States contains express references to the inter-temporal dimension.23 In the field of the regulation of spaces, similarly, the intertemporal dimension makes its appearance: the notions of future beneficiaries and future interests (or interests of present and future generations) underlie the basic concept of "common heritage of mankind," which has definitively found its way into the law of the sea (1982 UN Convention on the Law of the Sea, Article 136) and the law of outer space (e.g., 1979 Treaty Governing the Activities of States on the Moon and Other Celestial Bodies, Articles 11 and 4; 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Article 1).24
2. The temporal dimension in environmental protection
In classic international law, considerable attention was given to the interspatial dimension, evidenced by the coexistence of territorial sovereign units. In our day, growing attention is being accorded to the temporal dimension in the whole of international law (supra). The aspect that comes most readily to the fore is that of prevention, increasingly associated with regimes of protection (e.g., of human rights, of the environment). Prevention is resorted to, at first, to avoid unnecessary harm or suffering. But, more than that, prevention seems to impose itself in relation to harm that appears irreversible or that cannot be repaired.
The incidence of the temporal factor in the realm of environmental protection is well-known and widely acknowledged. In that ambit one has spoken of potential victims and drawn attention to the possibility of harm that may arise in the future (out of an activity or an incident, and well after the occurrence), in what may be taken as a warning that the study of the protection of potential or prospective victims is nowadays a real necessity and not a theoretical-academic speculation.25 Endeavours in recent years to develop the study of the configuration of international liability in the present domain have taken into account injuries or harmful consequences that may be either actual or prospective and have considered norms for implementation; one has here spoken of potential victims, and of the general principle of the duty of states to avoid or prevent, or minimize and repair, actual or potential or prospective adverse effects or physical consequences (of acts not prohibited by international law).26
Furthermore, from the Stockholm Declaration until now, the notion of protection of interests of present and future generations has gained considerable ground, stressing the predominance of the underlying temporal dimension. The 1972 Stockholm Declaration on the Human Environment expressly refers to the safeguard of the interests of present and future generations in Principles I and 2 (and see Principles 11 and 18). The preamble of the 1982 World Charter for Nature contains a similar reference. The principles proposed in 1987 by the World Commission on Environment and Development (the Brundtland Commission) include that of intergenerational equity (Principle 2), whereby "States shall conserve and use the environment and natural resources for benefit of present and future generations."
In the same line, the 1974 Charter on Economic Rights and Duties of States provides that the protection, preservation, and improvement of the environment for the benefit of present and future generations is the responsibility of all states (Article 30). Concern for the interests of present and future generations has entered the realm of conventional international law: the 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques envisages in its preamble the improvement of the interrelationship between man and nature and the contribution to the preservation and improvement of the environment for the benefit of present and future generations.
The temporal dimension in environmental protection became prominent in the work of the recent Second World Climate Conference, held in Geneva, 6-7 November 1990. The incidence of the temporal dimension in that domain was acknowledged in unequivocal terms in the Ministerial Declaration of the Conference (paragraph 7), adopted on 7 November 1990, namely:
In order to achieve sustainable development in all countries and to meet the needs of present and future generations, precautionary measures to meet the climate challenge must anticipate, prevent, attack, or minimize the causes of, and mitigate the adverse consequences of, environmental degradation that might result from climate change. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent such environmental degradation. The measures adopted should take into account different socio-economic contexts.27
The matter at issue has lately been attracting growing attention at the doctrinal level as well. The starting point has been the premise that each generation is both a user and a custodian of our common natural and cultural heritage and should thus leave it for future generations in no worse condition than it has received it (encouragement of equality among generations). Hence the principle of intergenerational equity (conservation of options, of quality, and of access), lucidly developed by E. Brown Weiss, as well as the need to sustain life-support systems, ecological processes, environmental conditions, and cultural resources necessary for the survival of the human species, and the need to sustain a healthy human environment.28
So-called generational rights - accompanied by the corresponding obligations of use29 - are by definition group or collective rights, held by one generation in relation to other generations and defined ultimately by the position of each generation in time. Hence their marked temporal dimension. Moreover, the notion of common interest (bien commun) of mankind, acknowledged in some environmental law treaties (see supra), appears at the basis of the concept of "common heritage of mankind," as propounded in space law and in the law of the sea; the concept of common heritage of mankind enlarges the circle of beneficiaries so as to encompass future generations.30 Kiss perspicaciously identifies in this "transtemporal" concept the fundamental idea whereby
ceux qui vivent aujourd'hui ne vent qu'un élément d'une chaîne qui ne doit pas être interrompue. II existe done une solidarité mondiale non seulement dans l'espace entre les peuples du monde, mais aussi dans le temps, entre les générations qui se succèdent.31
As from the adoption in 1945 of the UN Charter, which already in its preamble refers to succeeding generations, the temporal factor has become increasingly present in international law, e.g., in the gradual implementation of treaties; with the emergence and crystallization of the concept of common heritage of mankind, Kiss adds, "le temps devient un élément de finalité. Ce n'est plus un temps limité, mais un temps indéterminé, celui des générations futures qui devront se succéder."32
Environmental protection has contributed significantly to reveal and clarify this new perspective. Perhaps it can benefit further from the experience accumulated in a longer period of operation of experiments of international supervision in human rights protection, insofar as the incidence of the intertemporal dimension is concerned. To this we shall now turn.
3. The temporal dimension in human rights protection
The temporal dimension, so preponderant in international environmental law, marks its presence also in the realm of international human rights law. Awareness of the temporal dimension can be detected in the legislative phase (travaux preparatoires and resulting texts) as well as the implementation phase (interpretation and application) of international instruments of human rights protection, even though the matter has not attracted enough attention and has not been sufficiently explored so far. Thus, already in the preparatory work of such instruments as the UN Covenant on Civil and Political Rights (and Optional Protocol), amongst others, there were traces of an awareness of their intertemporal dimension, i.e., of the fact that those instruments were intended for the use and benefit of future generations, who were to transform them into social reality and further develop them.33
The underlying intertemporal dimension can in fact be perceived in the very conception of several of those human rights instruments, and ensues from some of their provisions. A few examples can here be pointed out. The 1968 Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity, e.g., refers in its preamble also to the prevention of crimes against humanity - a provision that was reiterated by the UN General Assembly resolution 3074 (XXVIII) of 1973 (§3). The 1948 Convention on the Prevention and Punishment of the Crime of Genocide inter alia deals, in its Article VIII, with the prevention of that crime, referring to that effect to possible preventive action by UN organs called upon by States Parties to the Convention. Likewise, the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid contains a similar provision (Article VIII) whereby States Parties to the Convention may call upon UN organs to take action under the UN Charter for the prevention of the crime of apartheid.
The Compilation of International Instruments on human rights, undertaken by the UN Centre for Human Rights, in fact lists not less than 13 international instruments turned to prevention of discrimina tion of distinct kinds.34 Recently the UN Commission on Human Rights proceeded to a reassessment of the question of the prevention and punishment of the crime of genocide, and a study (following previous reports) was undertaken on the matter, with the assistance of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. This revised and updated study set as its purpose "to deter future violence by strengthening collective international responsibility and remedies,"35 and stressed from the start the primacy of the right to life. It pointed out that, in the present context, one had in mind, rather than one (individual) victim, human groups or collectivities, victim groups, that could also be potential victims (in case of threats to life).36
The study recalled the Sub-Commission debates as to the possibility of expanding the definition of genocide so as to encompass "ethnocide" or cultural genocide (e.g., in case of destruction of surviving indigenous communities or cultures) and also "ecocide" (e.g., in case of irreparable alterations to the environment threatening the existence of entire populations); in those debates opinion was also advanced that cultural ethnocide and ecocide constituted crimes against humanity, rather than genocide.37 As to the enforcement of the 1948 Convention against Genocide, the above-mentioned 1985 study further recalled the argument advanced by some experts in the Sub-Commission discussions in favour of the urgent establishment of international early-warning and fact-finding systems, and the constructive role that a UN High Commissioner for Human Rights could contribute to preventing and investigating allegations of genocide.38
The three recent Conventions against Torture disclose an essentially preventive nature. This is revealed from the start by the titles of the 1985 Inter-American Convention to Prevent and Punish Torture (see in particular Articles 1 and 6) and the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (see particularly Article 1). Likewise, the 1984 UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment discloses, especially in Articles 2 (1) and 16, its essentially preventive character (see also articles 10 and 11).
Besides the harmonization and coordination among those instruments, and of those with other human rights instruments, attention has been drawn also to the need to go further, in devising other complementary means of prevention of tortured The 1987 European Convention, in particular, institutes a non-judicial system of a preventive character, consisting of continuous monitoring and ex officio visits at any time by the Committee set up by the Convention.40 This advanced technique of inspection - which, prior to the adoption of the European Convention for the Prevention of Torture, had application in the field of peaceful uses of nuclear energy - presents the advantage of not only effectively checking but also "forestalling violations, at least before they occur on any significant scale."41 By means of its technique of supervisory and preventive inspection (of prisons, detention centres, and other places where persons are deprived of their liberty), the Committee is enabled to assist and bring relief to "otherwise helpless victims and potential victims of torture and other forms of ill-treatment."42
Another illustration of the temporal dimension is provided by the elements for the very definition of "refugee" under the 1951 Convention Relating to the Status of Refugees (Article 1[A]) and the 1967 Protocol Relating to the Status of Refugees (Article 1): the key factor of that definition lies in the element of "well-founded fear of being persecuted," disclosing the deliberately subjective nature of the determination of the quality of refugee, rendering it sufficient that there exists threats or risks of persecution, and a well-founded fear of the individuals concerned of becoming victims of persecutions.
The temporal dimension being present in the very conception of various human rights instruments and in the philosophy of some of their key provisions (supra), it is not surprising to detect its ineluctable incidence in the process of interpretation and application of those instruments. The development of international human rights law through interpretation is nowadays widely acknowledged. Human rights treaties embody "evolutionary" concepts that have called for an essentially dynamic interpretation, so that human rights treaties are always properly taken as living instruments. The meaning of provisions of human rights treaties has evolved in response to changed social conditions; account has been, and ought to continue to be, taken of the path of general social change, in an essentially dynamic process of evolution of international human rights law through interpretation.43
As for application, the practice of international supervisory organs affords illustrations of the temporal dimension in human rights protection. At the global level, the Human Rights Committee, operating under the UN Covenant on Civil and Political Rights and its Optional Protocol, in its views in the S. Aumeeruddy-Cziffra and 19 Other Mauritian Women versus Mauritius case (1981), accepted that the author of a communication under the Optional Protocol to the Covenant could challenge a law or practice as being contrary to the Covenant in the event of its being applicable in such a way that the alleged victim's risk of being affected was "more than a theoretical possibility."44 At the regional level, the Inter-American Court of Human Rights, in its Advisory Opinion in the case of the Proposed Amendment to the Naturalization Provisions of the Constitution of Costa Rica (1984), held the view that if it were to decline to hear a government's request for an advisory opinion because it concerned "proposed laws" and not laws duly promulgated and already in force, that would "unduly limit" the advisory function of the Court.45
Particularly rich on this point is the jurisprudence of supervisory organs under the European Convention on Human Rights. After an initial period of some uncertainty and hesitation (see, e.g., the Belgian Linguistics cases, 1964), concentrating first on direct victims and later also on indirect victims of violations of the Convention,46 the European Commission and Court of Human Rights came more recently to uphold the notion of "potential victims," or victims claiming a valid potential personal interest under the Convention. Thus, in a significant decision, in the Kjeldsen versus Denmark case (1972), the Commission allowed the two applicants, prospective or future victims, to raise the issue of the compatibility with the Convention (and the First Protocol) of the introduction (by an Act of Parliament of 1970) of compulsory sex education in public schools in Denmark.47 Shortly afterwards, in the Donnelly and Others versus United Kingdom case (1973), the Commission allowed the applicants - who were seeking not only a decision to the effect that their rights under the Convention had been violated but also protection from future abuses of their rights- to raise the issue of the compatibility with the Convention of an administrative practice (of ill-treatment by security forces in Northern Ireland in 1972) in breach of the Convention.48
In subsequent cases the Commission dwelt further upon the matter. In the H. Becker versus Denmark case (1975), the applicant complained on behalf of Vietnamese orphans who were running the risk of being returned to Vietnam in view of the Danish Government's policy of repatriation; the Commission found that in the case the orphans were "alleged potential victims" and the applicant was an "indirect victim" in that he had a "valid personal interest in the welfare of the children."49 Here the interrelationship between "indirect" and "potential" victims became apparent. One has thus gone beyond the immediate requests and interests of the individual applicants themselves. The way was thereby paved for the Commission to be concerned with the protection not only of victims of past violations of the Convention, but also of those who may in the future- in circumstances like those of the cases above - suffer likely violations of their rights (material or moral prejudice). Respondent states would thus be placed under the duty to forbid legislative or administrative acts that might result in likely violations of human rights.
In a landmark judgment in the G. Klass and Others versus Federal Republic of Germany case (1978), the European Court, in its turn, significantly found that a law might by itself violate the rights of an individual if the individual concerned was directly affected by the law "in the absence of any specific measure of implementation." Thus, in the Court's ruling, under certain conditions an individual might claim to be the victim of a violation "occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him."50 The Court admitted the right of recourse to the Commission "for per sons potentially affected by secret surveillance," and concluded that each of the applicants was entitled to claim to be the victim of a violation of the Convention even though he was "not able" to allege in support of his application that he had been subjected to a concrete measure of surveillance.51 Shortly afterwards, in the Marckx versus Belgium case (1979), the Court confirmed that Article 25 of the Convention entitled individuals to contend that a law (in the case, several articles of the Belgian Civil Code) violated their rights "by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it."52 From then onwards, the Court's position became jurisprudence constante in successive cases in recent years (see infra).
In the same jurisprudential line of other recent decisions (see supra), the European Court of Human Rights, in its judgement in the Dudgeon versus United Kingdom case (1981), found that in the circumstances of the case the "very existence" of the legislation complained of "continuously and directly" affected the applicant's private life. To the Court, the maintenance in force of the impugned legislation constituted a "continuing interference" with the applicant's right to respect for his private life (which included his sexual life); "the threat hanging over him was real," pondered the Court, before concluding that the applicant had suffered and continued to suffer "an unjustified interference with his right to respect for his private life" in breach of Article 8 of the Convention.53 In fact, the threats of modern scientific and technological developments to the protection of the right to privacy help to disclose the seemingly temporal dimension of this latter.54
In subsequent cases (Adolf versus Austria, 1982, and Eckle versus Federal Republic of Germany, 1982-1983), the Court insisted that the existence of a violation was conceivable even in the absence of prejudice.55 Again, in its judgement in the De Jong, Baljet, and van den Brink versus the Netherlands case (1984), the Court referred to its own "well-established case-law,' to the effect that the existence of a violation of the Convention was "conceivable even in the absence of detriment."56 This was further confirmed by the Court in its judgement in the case of Johnston and Others versus Ireland case (1986), where it maintained that Article 25 of the Convention entitled individuals "to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it."57 In the present case the applicants had raised "objections to the effects of the law on their own lives" (inability to divorce and remarry and question of respect for family life), and the Court found that in the circumstances they were entitled to claim to be victims of the breaches of the Convention that they alleged.58
More recently, the notion of potential victim was again, and under new circumstances, dwelt upon by the European Commission and Court in the J. Soering versus United Kingdom case. The applicant, a national of the Federal Republic of Gemany, complained that if he was extradited from the United Kingdom to the United States (to face trial in Virginia on a charge of capital murder) he would run the risk of being sentenced to death and spending a protracted period in prison awaiting execution, in violation of the European Convention (Article 3, prohibition of torture or inhuman or degrading treatment or punishment). The Commission, recalling its findings in the Kirkwood versus United Kingdom case (1984), in its 1989 report on the Soering case pondered that the serious risk run by the applicant raised the direct responsibility of the respondent state under Article 3 of the Convention; thus, to the Commission, an applicant who was faced with "an imminent act of the Executive" that might expose him to inhuman treatment could claim to be a victim of an alleged violation of Article 3 of the Convention.59
The commission drew attention to the "anticipatory nature of the present proceedings" and to the need to proceed to an "assessment of run by the applicant on the basis of an objective evaluation of conditions in the country concerned.60 The Commission added that Article 13 of the Convention - on the right to an effective remedy also applied "in respect of 'arguable' claims under Article 3 of the Convention which are prospective or anticipatory in nature"; in the ponderation of the Commission, "the examination of such a complaint after extradition has taken place would hardly be consonant with an effective system of individual application."61 The Commission found that the applicant had no effective remedy under the law of the United Kingdom in respect of his complaint under Article 3, and concluded that there had in the case been a violation of Article 13 (but in the circumstances not of Article 3) of the Convention.62
In its turn, in its judgement of 1989 in the same Soering case, the Court admitted that in the present case, where the applicant claimed that a decision to extradite him would, if implemented, "be contrary to Article 3 by reason of its foreseeable consequences in the requesting country," it had to pronounce on the existence or otherwise of a potential violation of the Convention, in view of "the serious and irreparable nature of the alleged suffering risked," in order to ensure the effectiveness of the safeguard provided by Article 3 of the Convention.63 The Court, after considering the applicant's "real risk" of treatment contrary to Article 3 (if extradited), the "likelihood of the death penalty being imposed," and the "anticipatory nature" of the alleged violation of the Convention - i.e., after an inquiry on whether the applicant ran a "real risk" of being sentenced to death in the United States64 - held that, in the event of the UK Secretary of State's decision to extradite the applicant to the United States being implemented, "there would be a violation of Article 3" of the Convention.65 Thus, in the unique circumstances of the present Soering case, the Court's decision upheld the state's duty to assess the risk run by the applicant and the likelihood of harm in another state, and to measure that against its further duty to protect human rights and to prevent the occurrence of the irreparable harm at issue. In short, and in a language reminiscent of that proper to environmental protection, the state was to assess the applicant's risks (abroad) and thus to exert its duty of due diligence, in the discharge of its basic function of protection of human rights.
The above jurisprudence constante of the supervisory organs under the European Convention today leaves no room for doubt that the notion of potential or prospective victims - i.e., victims claiming (under Article 25) a valid potential personal interest - has become crystallized in the case-law under the Convention, thus enhancing the condition of individual applicants. This is in keeping with the marked and significant tendency under coexisting human rights instruments to enlarge the circle of persons entitled to submit complaints of alleged human rights violations, thus ultimately benefiting far more people than the complainants themselves. An influential doctrinal trend has argued that, by lodging an application under Article 25 of the European Convention, the individual concerned is not only pursuing a droit subjectif but also initiating an action publique under the European Convention: and this latter works out not only as a means to obtain reparation for particular injuries, but also - in cases of legislative measures and administrative practices - as a preventive measure of protection, in an identification between the individual and the general interest. The supervisory organs' task is then no longer confined to that of redressing a tort, but of ensuring the observance of the engagements undertaken by the parties to the Convention. The same applies in other human rights experiments, where, in addition to concrete results achieved in numerous individual cases, an important preventive function has been performed by supervisory organs (e.g., the inter-American Commission on Human Rights), in obtaining, for example, the derogation or modification of legislation affecting negatively the effective exercise of human rights and the establishment and strengthening of mechanisms of protection at the level of domestic law.66
It may be added that the temporal dimension is clearly present, and emphatically so, in the recent judgements, of 1988, of the lnter-American Court of Human Rights, in two of the three Honduran cases where it found that there had been a breach of the obligation to ensure the right to life set forth in Article 4 (read in conjunction with Article 1 0 of the American Convention on Human Rights) (the Velasquez Rodriguez and Godinez Cruz cases).67 After stating that "the forced disappearance of human beings is a multiple and continuous violation" of rights guaranteed under the Convention,68 the Inter-American Court recalled and stressed the States Parties' duty to prevent, investigate, and punish any violation of the rights recognized by the Convention.69 In a language reminiscent of that employed in the realm of international environmental law, the Inter-American Court, in those two judgments of 1988, repeatedly insisted on the states' duty of due diligence to prevent violations of protected human rights, in particular their duty of reasonable prevention of situations that could lead to suppression of the inviolability of the right to life70 foreseen in Article 4 of the American Convention.
The Court went on to explain that the duty of prevention, in the context of the Velasquez Rodriguez and Godinez Cruz cases, was an obligation de comportement, which comprised "all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts."71 The court added that the duty of investigation, which, like that of prevention, is also an obligation de comportement, is to be "assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initia tive of the victim or his family or upon their offer of proof, without an effective search for the truth by the government."72
The incidence of the temporal dimension can be detected not only in the interpretation and application of norms pertaining to guaranteed rights but also in the conditions of their exercise. An example is afforded by the reference to public emergencies "threatening the life of the nation" in Article 15 (on derogation) of the European Convention on Human Rights. The point has been raised in a few cases under the European Convention (Lawless versus Ireland, 1957; First Greek case, 1969; Ireland versus United Kingdom, 1978; Francel Norway/Denmark/Sweden/Netherlands versus Turkey, 1983); according to the European Commission on Human Rights, the element of imminent public danger envisaged by Article 15 of the Convention comprises four characteristics, namely, the exceptional character of such danger, its repercussions on the whole of the nation, the requisite that the danger be present or imminent, and that it constitutes a threat to the organized life of the nation.73 Here the temporal factor is manifest; it also underlies such ground for permissible derogations, under the European Convention, to the exercise of guaranteed rights.
The incidence of the temporal dimension can be detected in the protecting not only of civil and political rights (as under, e.g., the European and the American conventions on human rights) but also of economic, social, and cultural rights. It has in fact recently been suggested that rights pertaining not only to individuals but in particular to groups or communities, such as economic, social, and cultural rights (e.g., right to education, right to cultural integrity - or else the right to development and the right to a healthful environment) may find a "unifying basis" precisely in their temporal dimension, since such groups or communities inherently extend over time.74 It is probable that the temporal dimension, identifiable in the implementation of civil and political rights (see supra), becomes even more pronounced in the implementation of economic, social, and cultural rights, or, in short, of group rights.
Manifestations of the intertemporal dimension in distinct fields of international law (supra) constitute a phenomenon no longer to be minimized. Those manifestations become quite concrete especially in the field of the international protection of human rights, where they do not appear as soft law. Probably more clearly than in other chapters or fields of international law, the evolving jurisprudence, e.g., on the notion of "victim" under the European Convention on Human Rights, added to the recent judgements of the Inter-American Court of Human Rights in the Honduran cases, seems to afford safe and solid ground for the study of the intertemporal dimension in human rights protection in particular, which may serve as inspiration also for environmental protection, and be of interest for international law in general.
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