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Index

Published online by Cambridge University Press:  27 August 2021

Edited by
Molly Katrina Land ,
Kathryn Rae Libal  and
Jillian Robin Chambers
Molly Katrina Land
Affiliation:
University of Connecticut School of Law
Kathryn Rae Libal
Affiliation:
University of Connecticut School of Social Work
Jillian Robin Chambers
Affiliation:
University of Connecticut

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Type
Chapter
Information
Beyond Borders
The Human Rights of Non-Citizens at Home and Abroad
 , pp. 213 - 222
Publisher: Cambridge University Press
Print publication year: 2021
Creative Commons
Creative Common License - CCCreative Common License - BYCreative Common License - NCCreative Common License - ND
This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC-ND 4.0 https://creativecommons.org/cclicenses/

Index

Administrative Procedures Act, U.S., 199
Advance Passenger Processing (APP) system, 58
AEDPA. See Anti-Terrorism and Effective Death Penalty Act
Airline Liaison Officers (ALOs), 57–58
American Convention on Human Rights (1969), 205
anti-immigration narratives
through criminalization of immigration, 96–97
in EU, 96–97
from Mexico, 96
in U.S., 96
Anti-Terrorism and Effective Death Penalty Act (AEDPA), U.S. (1996), 98, 103
apartheid. See global apartheid
APP system. See Advance Passenger Processing system
arbitrary detention, in Australia, 68
Arendt, Hannah, 129–130, 147
on equality, 165
on human rights as civil rights, 152
on non-citizens, 161–164
Armenian Genocide
Balakian on, 116–120
belonging and, 115
resettlement after, 116–117
Turkish Revolution of 1908, 116
testimony about, 117–120
Asian Exclusion Act of 1924, U.S., 98
Asylum Cooperative Agreement, 209–210
asylum seekers
in Australia, processing of, 60–64
citizenship for, 4–5
deportation policies for, 5–6
detention policies for, 5–6
Australian extraterritorial border control, 60–64
zero humanity policies for, 37–38, 44–46
Australia. See also extraterritorial border control policies
migrants in, vulnerability of, 104
Migration Act of 1958, 56
Migration Legislation Amendment (Identification and Authentication) Act, 59
Bahamas, birthright citizenship in, limitations of, 26
Balakian, Peter, 114–125. See also belonging; testimony
on Armenian Genocide, 116–120
Black Dog of Fate, 120–125
Ozone Journal, 118, 120
testimony themes for, 117–120
belonging, statelessness and, 114–115
Arendt on, for non-citizens, 164
Armenian Genocide and, 115
history and, 115–125
international migration and, 11–19
Benedict XVI (Pope), 144
Biafra, 117
birthright citizenship
jus sanguinis, 25–26
jus soli, 25–26
limitations on, 26
boat arrivals, of refugees, under Australian extraterritorial border control policies, 60–65
detention of asylum seekers, 60–64
interdiction regimes for, 64–65
“Pacific Solution,” 60
processing of asylum seekers, 60–64
British Overseas Citizens (BOCs), 85–86
Bush, George H. W., 209
Bush, George W., 30–31
Cable Act, U.S. (1922), 73
Canada
birthright citizenship in, limitations of, 26
Citizenship Act, 26–27
citizenship in
birthright, limitations on, 26
under Citizenship Act, 26–27
deprivation of, 32
for ethnic and racial minorities, exclusions from, 27
for Indigenous peoples, exclusions from, 26–27
in North American Free Trade Agreement, 108
care
human rights as vehicle for, 17–18
as political act, 17–18
Central America, immigration from. See Mexico; zero humanity policies
CESEDA. See Code de l’entrée et du séjour des étrangers et du droit d’asile
charity, for non-citizens, 161–162
child migrant detentions, under family separation policy, 41–43
Chile, racist immigration policies in, 106–107
Chinese Exclusion Act, U.S. (1882), 27, 98
citizenship
for asylum seekers, 4–5
attacks against, 6
as birthright
jus sanguinis, 25–26
jus soli, 25–26
limitations on, 26
in Canada
under Citizenship Act, 26–27
deprivation of citizenship, 32
for ethnic and racial minorities, exclusions from, 27
for Indigenous peoples, exclusions from, 26–27
limitations of birthright citizenship in, 26
contemporary, 177–182
international applications of, variations in, 177–179
overseas citizenship, 178–179
in U.K., 178–179
under Convention on Certain Questions relating to the Conflict of Nationality Law, 24–25, 28
Convention on the Reduction of Statelessness and, 28–29
definition of, 24
denial of, 29
deprivation of, 29–34
in Canada, 32
civil denaturalization, 30–31
for criminal behavior, 32
definition and scope of, 29
in Dominican Republic, 33–34
in Myanmar, 33
for national security, 30–32
in United Kingdom, 31–32
deservingness of, 183–184
exclusions, 26–29
for ethnic and racial minorities, 27
for Indigenous peoples, 26–27
for stateless people, 28–29
for women, 27–28
expansion of, 167, 176–177
historical development of
in domestic law, 23–29
in international law, 23–29
as international human right, 25, 167
for international migrants, 4–5
under Montevideo Declaration, 25
nationality and, 25
noncitizenship compared to, 173
under Peace of Westphalia, 24
quasi-citizenship and, 170–171
denizenship and, 170
for refugees, 4–5
residency compared to, 179–180
state construction and, 168
in U.S.
for ethnic and racial minorities, exclusions from, 27
for Indigenous peoples, exclusions from, 27
citizenship revocation, 29
civil denaturalization, 30–31
Code de l’entrée et du séjour des étrangers et du droit d’asile (CESEDA), France, 131–132
colonialism, noncitizenship and, 174
Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment (1984), 37–38, 67
Convention on Certain Questions relating to the Conflict of Nationality Law (1930), 24–25, 28
Convention on the Reduction of Statelessness (1961), 28–29, 74
under international law, 29
Convention on the Rights of the Child (CRC) (1989), 36–37
Convention Relating to the Status of Refugees (Refugee Convention) (1951), 37–38, 72
Australian extraterritorial border control policies and, 66–67
Convention Relating to the Status of Stateless Persons (1954), 73–74
CRC. See Convention on the Rights of the Child
Crimea, noncitizenship in, 181
Crimean War, 117
criminalization of immigration
through anti-immigration narratives, 96–97
in Europe, 96–97
from Mexico, 96
in U.S., 96
global apartheid and, 95
crimmigration, 30
data collection, as governmental practice, 71–73. See also stateless people
UN High Commissioner for Refugees and, 71–73
for stateless people, 78–88
de facto statelessness, 80
de jure statelessness, 80
Deferred Action for Child Arrivals (DACA) status, 16–17
education and, 183, 185–186
under Administrative Procedures Act, 199
after passage of DACA, 193–197
before passage of DACA, 187–193
during Trump administration, 199
denaturalization, 29
civil, 30–31
denial of citizenship, 29
denizenship, 170
Denmark
immigration policies in, 100–101
stateless people in, 91–92
deportation
of asylum seekers, 5–6
of migrants, as threat by government, 102–104
deprivation of citizenship. See citizenship
deservingness, of citizenship status, 183–184
detention practices
of asylum seekers, 5–6
in Australia, 68–70
arbitrary detention, 68
for boat arrivals, 60–64
on Nauru territory, 60–64
poor conditions for, 69–70
domestic law, citizenship under, historical development of, 23–29
Dublin Regulation, 200–201
economic belonging, for non-citizens, 164–166
economic rights
Hayek on, 159–161
Locke on, 154–156
of non-citizens, 152–156
Smith on, 156–159
education
Deferred Action for Child Arrivals status and, 183, 185–186
under Administrative Procedures Act, 199
after passage of, 193–197
before passage of, 187–193
during Trump administration, 199
racialization of, 198–199
equality, 165
EU. See European Union
EU Charter of Fundamental Rights (2012), 145
European Convention on Human Rights (1950), 205
European Court of Human Rights, 208–209
European Union (EU)
anti-immigration narratives in, 96–97
Charter of Fundamental Rights, 145
immigration policies in, 99–101
in Denmark, 100–101
Schengen lists, by race, 99–100
migrant rights in, 130
under EU Charter of Fundamental Rights, 145
Facilitation Directive, 130
migrants in, vulnerability of, 103–104
Treaty on the Functioning of the European Union, 145
extraterritorial border control policies, in Australia
under Australian Migration Act of 1958, 56
for boat arrivals, 60–65
detention of asylum seekers, 60–64
interdiction regimes for, 64–65
“Pacific Solution,” 60
processing of asylum seekers, 60–64
detention in, practices for, 68–70
for boat arrivals, 60–64
on Nauru territory, 60–64
on Papua New Guinea, 60–64
poor conditions of, 69–70
geographical factors, 54
human rights law and, 67–70
international law and
access to territory under, 67–70
legality of, 65–67
under international law, 65–67
refoulement practices and, 67
under Refugee Convention, 66–67
under Universal Declaration of Human Rights, 66–67
under Migration Legislation Amendment (Identification and Authentication) Act, 59
Nauru and, as detention site, 60–64
non-refoulement rights under, 57
Papua New Guinea and, as detention site, 60–64
for plane arrivals, 55–60
Advance Passenger Processing system, 58
Airline Liaison Officers and, 57–58
through carrier sanctions, 55–57
regional movement alert systems and, 58
surveillance technologies and, 58–60
refoulement practices
access to territory and, 67–68
legality of border policies and, 67
for refugees
definition of, 53–54
ethnic and national origins of, 54
government policy for, 53–55
lack of protections for, 37
visa policies as part of, 59
Facilitation Directive, 130
family separations, 38–43
child migrant detention and imprisonment and, 41–43
Flores case, 41–43
“For Cause” version of, 40
negative public response to, 38–39
Flores case, family separation and, 41–43
France
birthright citizenship in, limitations of, 26
migrant rights in
under Code de l’entrée et du séjour des étrangers et du droit d’asile, 131–132
Conseil constitutionnel, 132–134
Herrou and, 126–134, 140–141, 145
Mannoni and, 132
under Schengen Agreement, 131–132
Francis (Pope), 142, 144
fraternity, migrant rights and, 141–144, 147–149
limitations of fraternity in, 143
potential power of fraternity and, 143
free markets, 156–159
free trade agreements, migrant labor under, 108
GCM. See Global Compact for Safe, Orderly, and Regular Migration
GCR. See Global Compact on Refugees
global apartheid, 35–36, 94–97, 109–110
criminalization of immigration as element of, 95
Global South and, immigration from, 95
ideology of, 94–95
principles of, 94–95
U.S. immigration policies and, 99
Global Compact for Safe, Orderly, and Regular Migration (GCM) (2018), 7–8
Global Compact on Refugees (GCR) (2018), 7–8, 51–52
global compacts, zero humanity policies and, as alternative to, 51–52
global justice, non-citizen rights and, 174–177
Hart-Celler Act, U.S. (1965), 98
Hawaii v. Trump, 44
von Hayek, Friedrich, 151
Herrou, Cédric, 126–134, 140–141, 145
High Commissioner for Refugees, UN, 3, 37. See also stateless people
data collection and, 71–73
for stateless people, 78–88
migrant rights and, 136
on refoulement, 67–68
refugee definitions for, 3
Hobbes, Thomas, 156
human rights. See also citizen rights; economic rights; international human rights; migrant rights; non-citizen rights
Armenian Genocide as abuse of, 116–117
in Black Dog of Fate, 123–124
as civil rights, 152
construction and protection of, 200–201
under Dublin Regulation, 200–201
through international treaties, 201
European Convention on Human Rights, 205
failure of, 4–11
Inter-American Convention on Human Rights, 205
limitations of, 207–211
migrant voices as response to, 210–211
loss of, for non-citizens, 163
of migrants, 205–207
non-citizen rights and, 167, 169–170
political approach to human rights, 175
for non-citizens, 152
non-refoulement as, 57
right to have, 161–164
as social practices, 18
Universal Declaration of Human Rights, 11
as vehicle for care, 17–18
human rights law. See also international human rights law
Australian extraterritorial border control policies under, 67–70
failures of, 2
scope of, 1–2
universal, 1–2
humanitarianism, history of, 117
ICCPR. See International Covenant on Civil and Political Rights
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), U.S. (1996), 98, 183
immigrants. See immigration policies; migrants
Immigration Act, U.K. (1971), 83–84
immigration policies. See also anti-immigration narratives; criminalization of immigration; crimmigration; global apartheid; zero humanity policies
border closures, for humanitarian, political, and security reasons, 105–106
in EU, control and restriction of, 99–101
in Denmark, 100–101
Schengen lists, by race, 99–100
migrant vulnerability under, 101–102
racist mechanisms in, establishment of, 105–107
in Chile, 106–107
in Israel, 107
“voluntary” return programs, 106–107
wealth preservation among minority and, 108–109
in U.S., control and restriction of, 98–99
under Anti-Terrorism and Effective Death Penalty Act, 98, 103
under Asian Exclusion Act of 1924, 98
under Chinese Exclusion Act of 1882, 27, 98
global apartheid and, 99
under Hart-Celler Act, 98
under Illegal Immigration Reform and Immigrant Responsibility Act, 98
along Mexico border, 99
“Migrant Caravan” and, 99
during Trump administration, 99
Indian Citizenship Act, U.S. (1924), 27
Indigenous peoples, citizenship exclusions for, 26–27
in Australia, 27
Inter-American Commission on Human Rights, 211
Inter-American Principles on the Rights of All Migrants, Refugees, Stateless Persons, and Victims of Trafficking (2019), 211
interdiction regimes, in Australia, 64–65
Operation Relex, 64
Operation Sovereign Borders, 64–65
International Covenant on Civil and Political Rights (ICCPR) (1966), 37–38, 67, 69–70, 202, 204
International Covenant on Economic, Social and Cultural Rights (1966), 202
International Convention on the Elimination of All Forms of Racial Discrimination (1965), 202
international human rights, citizenship as, 25, 167
international human rights law, 201–205. See also specific conventions; specific covenants; specific treaties
emancipatory approach to, 210
evolution of, 203–205
limitations of, 207–211
migrant voices as response to, 210–211
international law
Australian extraterritorial border control policies under, 67–70
legality of, 65–67
citizenship under, historical development of, 23–29
Convention on the Reduction of Statelessness under, 29
international migration
belonging and, 11–19
citizenship and, 4–5
destabilization of governments and, U.S. role in, 6
global mechanisms for, 7–8
Global Compact for Safe, Orderly, and Regular Migration, 7–8
Global Compact on Refugees, 7–8
International Organization of Migration, 4
zero humanity policies for, 8–9
International Organization of Migration (IOM), 4
Israel, immigration policies in, 107
Italy, migrant rights in, 134–136
hardline policies against, 134
Klemp and, 128–129, 135–136, 140–141, 145
Rackete and, 128–129, 135–136, 140–141, 145
UN High Commissioner for Refugees’ response to, 136
Jordan Compact, 165–166
jus sanguinis (birthright by parentage), 25–26
jus soli (birthright by location of birth), 25–26
Kindertransport, 50
Kuwait, 179
labor markets, economic rights and, 158
law. See human rights law; international law
liberalism, noncitizenship and, 174
Locke, John, 151, 154–155
on economic rights
government protection of, 156
of non-citizens, 154–156
on natural rights, 154
government protection of, 156
on private property, 155–156
Mérida Initiative, 209–210
Mexico
anti-immigration narratives and, 96
in North American Free Trade Agreement, 108
U.S. immigration policies and, 99
U.S. zero humanity policies and, 46–47
“Migrant Caravan,” 99
migrant rights
in EU, 130–131, 145
in France, 126–134, 140–141, 145
fraternity principle as element in, 141–144, 147–149
limitations of, 143
potential power of, 143
government sovereign power over, 128–130
in Italy, 128–129, 134–136, 140–141, 145
necessity principle as element in, 145–149
solidarity principle as element in, 144–145, 147–149
under Treaty on European Union, 145
under Treaty on the Functioning of the European Union, 145
Universal Declaration of Human Rights and, 143
in U.S., 128, 137–140, 143–144
migrant youth. See Deferred Action for Child Arrivals (DACA) status; education
migrants. See also international migrants
under free trade agreements, 108
North American Free Trade Agreement, 108
No More Deaths, 138–139
Sanctuary Movement and, 138
vulnerability of, 101–105
in Australia, 104
through deportation threats, 102–104
in EU, 103–104
during immigration process, 101–102
as labor, 104–105
in U.S., 103
migration. See international migration
Migration Legislation Amendment (Identification and Authentication) Act, Australia (2004), 59
Migration Protection Protocols (MPPs), 45
Mill, John Stuart, 143
Montevideo Declaration (1933), 25
MPPs. See Migration Protection Protocols
Myanmar, citizenship deprivation in, 33
NAFTA. See North American Free Trade Agreement
Namah v Pato, 63
national security, citizenship deprivation as result of, 30–32
nationality
citizenship and, 25
Convention on the Nationality of Married Women, 28
under Universal Declaration of Human Rights, 28
nativism, tropes of, 1
natural rights, Locke on, 154
government protection of, 156
negative rights, 169–170
New Zealand, regional movement alert systems and, 58
No More Deaths, 138–139
non-citizen rights
global justice and, 174–177
goals and purpose of, 168–173
human rights and, 167, 169–170
political approach to, 175
negative rights and, 169–170
quasi-citizenship and, 170–171
denizenship and, 170
recognition of, 176
sources of, 168
statelessness and, 175–176
theoretical approach to, 167–168
Universal Declaration of Human Rights and, 169
non-citizens
Arendt on, 161–164
on belonging, 164
charity for non-citizens, 161–162
loss of human rights, 163
on right to have rights, 161–164
citizenship for, 153–154
definition of, 152
economic belonging of, as right, 164–166
economic rights of, 152–153
human rights for, 152
political tropes about, 1
Special Economic Zones for, 165–166
state construction and, 168
theoretical approach to, 151–154
noncitizenship, 171–173
citizenship compared to, 173
colonialism and, 174
functions of, 172–173
individual relationship with state and, 172
state construction and, 174
liberalism and, 174
non-refoulement rights, 57
North American Free Trade Agreement (NAFTA), 108
Obama, Barack, 30–31
Operation Iowa, for stateless people, in U.K., 84–85
Operation Relex, 64
Operation Sovereign Borders, 64
“Pacific Solution,” in Australian extraterritorial border control policies, 60
Papua New Guinea
as detention site, for Australia, 60–64
Namah v Pato, 63
patriality, 83–84
Peace of Westphalia, 24
Pedro Pan movement, 50
Philippines, regional movement alert systems and, 58
plane arrivals, for refugees, in Australia, 55–60
Advance Passenger Processing system, 58
Airline Liaison Officers and, 57–58
through carrier sanctions, 55–57
regional movement alert systems and, 58
surveillance technologies and, 58–60
precarity, 186–187, 193–199
Programa Frontera Sur, 209–210
quasi-citizenship, 170–171
denizenship and, 170
racism
in immigration policies, 105–107
in Chile, 106–107
in Denmark, 100–101
in Israel, 107
“voluntary” return programs, 106–107
wealth preservation among minority as, 108–109
tropes of, 1
refoulement practices
in Australia
access to territory and, 67–68
legality of border policies and, 67
UN High Commissioner for Refugees on, 67–68
Refugee Convention. See Convention Relating to the Status of Refugees
refugees
in Australia
definition of, 53–54
ethnic and national origins of, 54
government policy for, 53–55
lack of protections for, 37
citizenship for, 4–5
Convention Relating to the Status of Refugees, 37–38
cultural recognition and, 115
definition of, 3, 53–54
Global Compact on Refugees, 51–52
UN High Commissioner for Refugees, 3, 37
regional movement alert systems (RMAS), 58
Rwanda Genocide, 117
Sanctuary Movement, 138
Schengen Agreement, 131–132
Smith, Adam, 151–152
on economic rights
free market role in, 156–159
government role in, 157–158
labor markets, 158
wage-setting and, 158–159
Special Economic Zones, 165–166
stateless people, statelessness and
belonging and, 114–115
Armenian Genocide and, 115
history and, 115–125
international migration and, 11–19
in Black Dog of Fate, 125
citizenship exclusion for, 28–29
as concept, historical development of, 73–77
Convention on the Reduction of Statelessness, 28–29, 74
Convention Relating to the Status of Stateless Persons, 73–74
data collection on, 87–90
development of mechanisms for, 80–87
miscounting populations in, 87–90
operational challenges for, 88–90
politicization of, 87–88
recommendations for, 90–92
by UN High Commissioner for Refugees, 78–88
de facto statelessness, 80
de jure statelessness, 80
definition of, 73–74, 175
for UN High Commissioner for Refugees, 78–87, 91
in Denmark, 91–92
#IBelong campaign and, 87–88
non-citizen rights and, 175–176
population estimates of, by country, 79–80
in U.K., 83–86
for British Overseas Citizens, 85–86
under Immigration Act, 83–84
Operation Iowa, 84–85
patriality and, 83–84
Windrush scandal, 84
UN High Commissioner for Refugees, 75–93
data collection on, 78–88
definitions for, 78–87, 91
overview of, 92–93
politicization of data, 82, 87–88
recommendations for, 90–92
Sphere Project, 76
The State of the World’s Refugees, 75–76
stateless mandates, 93
in U.S., 73
under Cable Act, 73
Temporary Protected Status (TPS), in U.S., 183
testimony, on statelessness, 113–114
Armenian Genocide and, 117–120
legal status of displaced persons influenced by, 114
in refugee camps, 114
theories of, 120
Treaty on European Union (TEU), 145
Treaty on the Functioning of the European Union, 145
Trump, Donald J., 30–31. See also zero humanity policies
Deferred Action for Child Arrivals under, 199
restrictive immigration policies under, 99
United Kingdom (U.K.)
citizenship deprivation in, 31–32
contemporary citizenship in, 178
for Chagos Island residents, 178–179
Immigration Act, 83–84
stateless people in, 83–86
for British Overseas Citizens, 85–86
under Immigration Act, 83–84
Operation Iowa, 84–85
patriality and, 83–84
Windrush scandal, 84
United Nations (UN). See also High Commissioner for Refugees; stateless people
Convention on the Rights of the Child, 36–37
Global Compact for Safe, Orderly, and Regular Migration, 7–8
Global Compact on Refugees, 7–8
on international human rights law, 202–203
on nationality, 25
United States (U.S.). See also immigration policies; zero humanity policies
Administrative Procedures Act, 199
anti-immigration narratives in, 96
Anti-Terrorism and Effective Death Penalty Act, 98, 103
Asian Exclusion Act of 1924, 98
Cable Act, 73
Chinese Exclusion Act, 27, 98
citizenship in
for ethnic and racial minorities, exclusions from, 27
for Indigenous peoples, exclusions from, 27
Deferred Action for Child Arrivals status in, 16–17, 183, 185–186
under Administrative Procedures Act, 199
after passage of, 193–197
before passage of, 187–193
during Trump administration, 199
destabilization of governments by, international migration influenced by, 6
global apartheid and, in immigration policies, 99
Hart-Celler Act of 1965, 98
Illegal Immigration Reform and Immigrant Responsibility Act, 98, 183
Indian Citizenship Act, 27
migrant vulnerability in, 103
in North American Free Trade Agreement, 108
regional movement alert systems and, 58
Temporary Protected Status in, 183
Universal Declaration of Human Rights (1948), 11, 202
Australian extraterritorial border control policies and, 66–67
nationality under, 28
non-citizen rights and, 169
“voluntary” return programs, 106–107
Windrush scandal, in U.K., 84
women
citizenship for, exclusions from, 27–28
Convention on the Nationality of Married Women, 28
Zambia, noncitizenship in, 180–181
zero humanity policies, in U.S., 8–9
for asylum seekers, 37–38
limitations for, as part of, 44–46
development of, 35–36
family separation as part of, 38–43
child migrant detention and imprisonment and, 41–43
Flores case, 41–43
“For Cause” version of, 40
negative public response to, 38–39
as global apartheid, 35–36
Hawaii v. Trump, 44
humanitarian responsibility and, 43–47
Mexican role in, 46–47
Migration Protection Protocols and, 45
for protections from violence, 43–44
under international treaties, 36–38
Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment, 37–38
Convention on the Rights of the Child, 36–37
Convention Relating to the Status of Refugees, 37–38
International Covenant on Civil and Political Rights, 37–38
rights-respecting alternatives to, 47–52
civic intervention programs, 48
global compacts, 51–52
historical precedents for, 50
through regional approaches, 48

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