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BASIC RESEARCH REPORT

One Size Fits All?
Prospects for a Global Convention
On Illicit Trafficking by 2000


Chapter 4: Recommendations

All parties committed to controlling small arms and light weapons must ensure that the negotiations on the Firearms Protocol produce a robust and enforceable text relevant to as many nations and institutions as possible. Properly formulated and implemented, the Firearms Protocol will progressively reduce light weapons proliferation and misuse in the new millenium. The agreement of an effective and implementable Firearms Protocol represents a crucial opportunity not only to tackle the illicit trade in arms but also to increase transparency and accountability in light weapons transfers. Such achievements were inconceivable five years ago. At that time, the consensus was that the issues being addressed today were unsolvable.

In this context, states should urgently consider the recommendations outlined below.95 Detailed recommendations are organized according to the following three categories:

  • changes and additions to existing draft Firearms Protocol language; (see pp. 29-32)

  • associated measures to be pursued in concert with the Firearms Protocol; (see p. 33) and

  • cooperative efforts, including ensuring that sufficient funds are available to facilitate effective implementation of the agreed commitments. (see pp. 34-36)

Step One:  Make Changes and Additions to Existing Draft Firearms Protocol

BASIC recommends the following changes to strengthen the current draft Firearms Protocol. These issues are within the remit of the Crime Convention and will increase its effectiveness.

1. DEFINITIONS

  • 1.1 Ensure a Comprehensive Definition of Firearms. The current draft Firearms Protocol utilizes a fairly comprehensive definition of firearms, thereby increasing the utility of the Firearms Protocol as a vehicle for positive and dramatic change to global practices. Supporters of the Firearms Protocol must not succumb to alarmists who warn that a wide definition could be an obstacle to ratification. Rather negotiators must preserve this inclusive terminology.

Recommendation:

- Support the addition proposed by Mexico and the United States to add a second clause under Article II (c), Definitions, to read as follows: "any other weapons or destructive device such as any explosive, incendiary or gas bomb, grenade, rocket, rocket launcher, missile, missile system or mine"

  • 1.2 Include Explosives. Although explosives were a formidable technical challenge for negotiators on the OAS Convention, states did finally reach agreement on appropriate text. However, in an effort to skirt this contentious but vital aspect of illicit trafficking, a number of states objected to a Mexican proposal calling for inclusion of explosives in the Firearms Protocol. In recent talks, the delegations of Algeria, Colombia, Ecuador and Italy supported Mexico's proposal while the delegations from Austria, France, Germany, Norway, Pakistan, Spain, the Russian Federation, the Sudan, Sweden and the United States opposed it.

Recommendation:

- Include explosives by revising the title and all references to the scope of the Firearms Protocol. Accept Mexico's proposal to add a paragraph under Article II, Definitions, defining explosives as follows: "any substance or article that is made, manufactured, or used to produce an explosion, detonation, or propulsive or pyrotechnic effect, except: a) substances and articles that are not in and of themselves explosive; or b) substances and articles listed in the Annex to this Convention."96

  • 1.3 Formulate a Definition of "Illicit Trafficking" Consistent with International Law. Under international treaty law, any new treaty provision that conflicts with international legal norms is automatically void. Therefore the framers of the Firearms Protocol must consider the implications of existing legal commitments.

    The current draft Firearms Protocol defines an illicit arms transfer as the "import, export, acquisition, sale, delivery, movement or transfer" of arms "if any one of the State Parties concerned [in the transfer] does not authorize it." This weak definition confers broad powers on one or two state authorities to determine what is internationally unlawful with no explicit reference to international legal standards. Under international customary law, a state cannot lawfully authorize arms transfers to a recipient unless it can be reasonably argued that the proposed transfer will not be used to commit international crimes (e.g. slavery, apartheid, genocide, serious breaches of the right of peoples and nations to self-determination) or crimes by individuals covered by international law (e.g. crimes against humanity, war crimes).

    By definition, the responsibility of states to observe existing international law applies to all transfers equally - including state-to-state transfers, state-to-non-state transactions or transfers for purposes of national security. Although governments may attempt to create a loophole in order to exempt these transfers, international law dictates that transfers likely to be used in the commission of international crimes (whether by state or non-state actors) are, by definition, illegal. The Firearms Protocol's definition of illicit trafficking should acknowledge these legal obligations.

Recommendation:

- Use the existing UN definition of illicit arms trafficking as set out in the UN Guidelines adopted in May 1996 and again in the UN Small Arms Panel Report in 1997. Under Definitions, Article II (e), revise the text to define "Illicit trafficking" to include the following: "international trade in conventional arms which is contrary to the laws of States and/or international law."97

2. SCOPE

  • 2.1 Eliminate Loophole for Weapons Transfers Carried Out by States. The draft Firearms Protocol only addresses commercial transactions, thereby exempting the entire category of government transfers which include state-to-state transactions, state-to-non-state transfers and transfers for the purposes of national security. This creates a dangerous loophole for unscrupulous or corrupt authorities that may facilitate transfers to private traders in order to avoid prohibitions. It also gives the green light to government-authorized weapons transfers to recipients for use in the commission of illegal acts. Removing this double standard will also add credibility to the initiative.

Recommendation:

- Support the Colombian proposal under Article IV, Scope, requesting that the Firearms Protocol apply to all transactions including state-to-state transactions and transfers for the purposes of national security. The proposed text should be revised to clarify that the Firearms Protocol applies to all government transactions, including state-to-non-state transactions as well as state-to-state transfers.

  • 2.2 Address Crime in Armed Conflict. The draft Firearms Protocol characterizes light weapons proliferation as a problem restricted to crime control and law enforcement. However, since criminal organizations are involved in arms trafficking to conflict regions, transnational organized crime cannot be addressed in isolation from violent conflict.

Recommendations:

- Drawing from language agreed by the EU states, include the following clause in the preamble to the Firearms Protocol: "Convinced that peace and security are inextricably inter-linked with economic development and reconstruction."98

- Add a clause to the preamble recognizing the need to take weapons out of circulation immediately.

- Add a clause to the preamble reaffirming the signatory states' commitment to combat the destabilizing accumulation of firearms and small arms as defined by the UN Panel of Governmental Experts on Small Arms.99

- Incorporate language into the preamble encouraging states to accept responsibility and increased accountability for the legal trade in small arms through measures such as the EU Code of Conduct on Arms Exports.

- Endorse alternative language proposed by the delegation from Colombia under paragraph (b) of the preamble: Concerned that a sizeable portion of all transfers of firearms and ammunition is illicit, having destabilizing effects closely linked to other transnational criminal activities, the high levels of crime and violence in many cities and communities and the incidence of interstate conflict, and that the illicit manufacturing of and trafficking in firearms, ammunition and other related materials constitute serious obstacles to the culture of peace and to meaningful development cooperation.

- Support alternative language proposed by the delegation from South Africa under paragraph (d) of the preamble: "Stressing the need, during a peace process and in a post-conflict situation, to maintain effective control of firearms, ammunition and other related materials in order to prevent them from entering the illicit market."

- Support additional language proposed by Pakistan stating that, "The provisions of this Protocol shall not be construed or applied either directly or indirectly to undermine the inalienable right to self-determination of peoples struggling against colonial or other forms of alien domination and foreign occupation, a right, that is enshrined in the Charter of the United Nations and in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations."100

3. PRACTICAL MEASURES

  • 3.1 Incorporate Model Regulations. The CICAD model regulations outline detailed harmonized mechanisms for monitoring and controlling the movement of weapons. At present, debate continues over whether to include the model regulations in the main body of the Firearms Protocol, thereby making them legally binding. These regulations contribute practical measures vital to the Firearms Protocol's effectiveness.

Recommendation:

- Include the model regulations within the main framework of the Firearms Protocol. Because they are extremely detailed, it will be necessary to allot sufficient time to incorporate the regulations before the final Firearms Protocol is agreed. States should also contribute funds for technical meetings to discuss implementation. Funding may also be necessary to ensure that experts representing all participating member states are able to be present at such meetings.101

  • 3.2 Develop and Adopt a Common End User Certificate. Evidence shows that arms brokers often forge end-user certificates. The Firearms Protocol should require that all arms transfers, including those conducted by brokers, be subject to the provision of a valid end-use certificate.

Recommendations:

- Add an additional paragraph to Article XI, General requirements for export, import and transit licensing or authorization systems, stating that: "States Parties shall not permit the import, export or transit of firearms without ensuring that a valid end-use certificate has been provided. A valid end-use certificate shall specify that the items listed may not be used for the commission of serious crimes by the recipient, failing which the recipient will be ineligible to receive further similar items and will be subject to criminal prosecution." The end-use certificate should stipulate that if the items supplied are subsequently found to be misused, either under the terms of domestic or international law, or diverted, the contract is rendered null and void.

- Elaborate the CICAD model regulations within the main body of the Firearms Protocol to include provisions for adopting a harmonized end-use certificate.

  • 3.3 Destroy Illicit Weapons. Destruction is the most practical, inexpensive and effective method of breaking the cycle of weapons proliferation. The Firearms Protocol must not repeat the OAS Convention's grave mistake by failing to include any provisions for destruction or safe storage of seized weapons. The Firearms Protocol should outline a process of mandatory destruction for all illicit weapons captured, seized or surrendered.

Recommendation:

- In line with alternative language proposed by Germany and the Republic of Korea, revise point 2 of Article VII, Confiscation and forfeiture, to read: "States Parties shall prevent illegally manufactured and trafficked weapons from falling into the hands of criminals by seizing and destroying such firearms and ammunition." A further clause should also be added stating that destruction shall be carried out within 30 days of seizure and all information related to the seizure and destruction shall be recorded in a central database. Although there are a number of inexpensive and safe methods to destroy weapons, it should be recommended that weapons be melted down for scrap metal. All destruction methods should also be verifiable.102

  • 3.4 Develop Measures for the Secure and Safe Storage of Weapons. As the crisis in Albania testifies, theft from storage facilities is a significant source of illicit weapons for insurgents and criminals, especially in regions of tension and instability.

Recommendation:

- Add an additional clause under Article VII, Confiscation and forfeiture, calling for verifiable record keeping with regard to states' weapons inventories as well as increased measures for guarding and securing storage facilities.

  • 3.5 Ensure that an Effective System of Marking Weapons is in Place at the Point of Manufacture and Every Point of Import. Marking weapons makes it possible to increase accountability for weapons transfers and also increases transparency. Although marking is often regarded as a technological challenge, a recent study by the Canadian Department of Foreign Affairs suggests that an international system is feasible. Based on an assessment of the costs and durability of various marking techniques, the report recommends that weapons be marked on the "weapon frame or receiver using a combination of stamping, engraving and casting techniques."103 These methods are particularly effective in "post-production application," such as marking at the point of import.104

Recommendations:

- Under Article IX, Marking of firearms, specify that all firearms be marked with serial number, model, city and country of origin, manufacturer's code and importer's code.

- Extend Article IX to require marking of ammunition and explosives through the use of tracers and taggants. Switzerland has developed an inexpensive, reliable and verifiable system for marking plastic explosives which could be used as a starting point for developing an international system.

4. EXTENDING THE REMIT

  • 4.1 Regulate Weapons Brokers.105 Weapons brokers and shipping agents play a key role in illicit transfers by facilitating arrangements between suppliers and customers or by making the practical arrangements for the supply of the goods. Additional language is required in order to ensure that the activities of brokers and shippers are subject to adequate controls. These provisions should extend to include third parties who are citizens of any State Party or located in the territory of a State Party, regardless of whether the weapons in question ever pass through that territory.

Recommendations:

- Revise the definition of "illicit trafficking" under Article II (e), Definitions, to include: "the business of brokering and shipping activities with respect to the manufacture, export, import, or transfer of firearms, ammunition, explosives and other related materials undertaken by any person who is a citizen of any of the States Parties, wherever located, or any person located in the territory of any of the States Parties or otherwise subject to the jurisdiction of the States Parties."

- Add an additional paragraph to Article XIV, Exchange of information, stating that: "States Parties shall establish a central database of all persons engaged in the business of brokering activities with respect to the manufacture, export, import, or transfer of firearms, ammunition, explosives and other related materials. The database shall include information on financial transactions and shipping arrangements used."

- Consider a UK proposal to establish brokering of illicit firearm deals abroad as a new offence under Article V, Criminalization.106

- Support the inclusion of an additional article proposed by the United States and supported by South Africa stating that "Any person, wherever located, who engages in the business of brokering activities with respect to the manufacture, export, import or transfer of any firearms is required to register with and receive approval from his or her country of nationality."

- Support language proposed by United Kingdom under Article VI, Jurisdiction, "allowing States Parties to maintain jurisdiction over their nationals who commit no offence in their home country but engage in illicit arms trafficking abroad."107

- Add the following paragraph to Article XI, General Requirements for export, import, and transit licensing or authorization systems: "States Parties shall require all arms brokering agents and arms shipping agents to register with a central national authority. Grounds for refusal to grant such registration are to include providing false or misleading information regarding arms transfers and any previous incidents of breaking the law of any country regarding international commerce, fraud and acts of violence."

Step Two: Pursue Associated Measures

Negotiations on the Firearms Protocol provide an excellent opportunity for states to address key issues and controls that fall outside the specific remit of this agreement but are essential to the reduction of the overall number of weapons in circulation. States should introduce language into the preamble of the Firearms Protocol acknowledging the need to pursue associated measures at the national, sub-regional and regional levels.

5. LEGISLATIVE MEASURES

  • 5.1 Adopt Codes of Conduct on Legal Arms Transfers. It is impossible to stem illicit weapons trafficking without addressing the overlap with legal transfers. In addition to strengthening and enforcing existing legislation and regulations, governments must develop new laws and more stringent criteria to govern "authorized" weapons exports. Controls on legal transfers lower the risk of diversion by creating a clearer, more comprehensive arms export system. They also help prevent the transfer of weapons that might be used for internal repression, external aggression, escalation of conflicts or destabilization.

    Although the EU Code of Conduct on Arms Exports requires strengthening, agreement among the fifteen EU states and endorsement by its partners should be regarded as a starting point for international controls. Similarly stringent criteria must be adopted at the national level by individual states, at the regional level by organizations such as the OAS, the Organization for Security and Cooperation in Europe (OSCE) and the OAU and ultimately at the global level through agreement on an International Code of Conduct.
    108

  • 5.2 Strengthen National Laws on Brokering. States should strengthen domestic legislation on arms brokering. In March 1997, the United States closed a loophole in US law which previously exempted US citizens brokering arms deals in other countries from US laws and regulations. The new legislation requires any US citizen, wherever located, and any foreign person located in the US or subject to US jurisdiction, who engages in such brokering activities involving military goods or services to first register with the US Department of State. Each transaction also requires prior written approval from the Department of State.

  • 5.3 Collect and Destroy Surplus Weapons During Peace Support Operations. During peacekeeping missions, continued weapons flows can endanger the success and even the very survival of these costly operations. Destroying all illicit weapons when seized is clearly the most effective means of reducing the number of weapons in circulation in both post-conflict demobilization and civil society. States should prioritize destruction in demobilization processes and peacekeeping mandates in order to prevent military and other weapons from entering or being retained in civil society. They should also provide training and technical assistance for destruction efforts and increase coordination between short-term disarmament programs and long-term peace-building programs.109

  • 5.4 Review and Strengthen Domestic Legislation Governing Civilian Possession of Weapons. The global nature of weapons trafficking implies that regulating domestic trade is an essential element in controlling light weapons. Much like the trade in drugs, the low weight and high dollar value of these weapons makes them extremely attractive to smugglers; lax domestic legislation only serves to encourage trafficking. States should review and strengthen domestic regulation, especially in post-conflict societies or in countries with high levels of gun violence.

6. PRACTICAL COOPERATION

  • 6.1 Share Information. Countries should pool information on illicit arms transfers in a central agency with the assistance of INTERPOL and the International Customs Union. They should also develop cooperative efforts with UN agencies, NGOs and individual researchers who are in positions to collect field data and anecdotal accounts from local witnesses regarding possible cargoes of illicit weapons. A central database of illicit transfers could help predict future trafficking patterns and assist in crisis early warning.

  • 6.2 Develop Stronger Customs Measures. States should institute routine checking of cargo manifests against actual cargo, as well as flight plans against flight directions, times and registration numbers. They should also work together to develop a more robust regulatory regime and controls at airports, seaports and cross-border roads where arms deliveries are likely to occur or originate.

Step Three:  Pool Resources and Expertise Through Increased Coordination

It is now widely acknowledged that light weapons proliferation and accumulation is a complex problem requiring high-level governmental involvement in concert with regional and international institutions as well as civil society. Although the high degree of political support for the issue is encouraging, resource allocation remains minimal and ad hoc. Failure to coordinate intra- and inter-state action has also been problematic. Unless governments improve communication at the national, regional and international levels, further contradictions and duplications of effort will result, depleting scarce resources. This section attempts to identify potential avenues for improving coordination.

7. INTERNATIONAL:  WORKING WITH THE UN SYSTEM

Within the UN system, the Mechanism for Coordinating Action on Small Arms (CASA) is beginning to address this gap between political will and the allocation of resources for implementation. Established in mid-1998, CASA established what UN Under-Secretary-General Jayantha Dhanapala called a "focal point" within the Department for Disarmament Affairs (DDA) in order "to coordinate on a UN-wide basis all action on small arms."110

CASA consolidated UN action on light weapons by emphasizing inter-departmental communication and cross-fertilization of ideas among the different bodies concerned with how the various aspects of light weapons proliferation affect their own work. These departments include: the UN Development Programme (UNDP), the UN High Commissioner for Refugees (UNHCR), the Office for the Coordination of Humanitarian Affairs (OCHA), the Department of Peacekeeping Operations (DPKO) and the UN Children's Fund (UNICEF).

CASA also links the efforts being carried out in these departments and agencies with the work of the UN Group of Governmental Experts on Small Arms, a panel made up of representatives from 23 UN Member States. However, perhaps because ECOSOC is based in Vienna, whereas the DDA is based at UN Headquarters in New York, efforts being undertaken within the context of the Firearms Protocol often appears to fall outside CASA's realm of interest.

The work of ECOSOC is central to the development of the UN agenda on small arms control. CASA should regularly consult with key players in the Firearms Protocol negotiations regarding the proposed UN Conference on illicit trafficking "in all its aspects" scheduled to take place in 2001. Because it is expected that the Firearms Protocol will be signed in advance of the 2001 conference, the agenda should include discussion of issues such as associated measures and common standards on legal transfers. It is also vital that the conference devote sufficient time and resources to the examination of practical measures designed to enhance and implement the Firearms Protocol.

BASIC Proposes that the United Nations Take Up Coordinated Action on the Following Agenda Items:

  • 7.1 Support INTERPOL. With 179 Member States, INTERPOL is second only to the United Nations in terms of membership. Its mandate has included illicit trafficking for decades. Moreover, the INTERPOL Weapons and Explosives Tracking System (IWETS), covering weapons from small arms to anti-tank missiles, is the only existing international database for stolen and recovered weapons.

    While the UN, the EU and the G-8 praise INTERPOL and emphasize the need for its expertise and cooperation in the international fight against trafficking, funding has been less generous. Currently, INTERPOL has just one analyst working on firearms trafficking. States must help strengthen the work of INTERPOL both in Lyon and in the field.

    Given proper funding, INTERPOL is well-placed to serve a variety of functions, including: assisting states with training through its international network of regional offices; providing developing countries with computers, software packages and training; and developing safeguards against corruption and misuse of police equipment and powers.

  • 7.2 Contribute to Capacity Building. As the OAS example demonstrates, many countries lack the capacity and infrastructure to implement the practical measures (e.g. record keeping, border monitoring, weapons destruction) envisioned by such an agreement. Since regional institutions such as the OAS, the OSCE or the OAU are unable to foot the bill alone, international assistance is required to provide practical support for countries in need. Areas that urgently need funding include training and technical assistance on issues such as identification, detection, tracing and intelligence gathering for border control, customs and law enforcement officials. Donated funds could also be allocated to improving national communication systems, upgrading technology used for tracing and identifying weapons and acquisition of sophisticated x-ray machines.

  • 7.3 Provide Development Assistance. The security sector is a main source of legal weapons leaking onto the illicit market. For former combatants with limited employment opportunities and few marketable skills, weapons are often a form of currency that can be used in crime or traded on the illegal market for other commodities. In post-conflict societies, this leakage of weapons endangers reconstruction and development efforts. International assistance can help support comprehensive programs for demobilization and re-integration of former combatants into civil society.

8. REGIONAL:  STRENGTHEN CAPACITY AND INCREASE COOPERATION

Building consensus by increasing cooperation and controls at the regional level has proven to be one of the most successful approaches to implementing practical change. There are a number of high profile initiatives to combat trafficking already underway. In addition to the OAS's accomplishments, the European Union, the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC) have all agreed important regional measures to tackle illicit weapons flows.

Whereas consensus often eludes larger institutions, the smaller size and regional commonalities of these groups often facilitate agreement on controversial issues, thereby pushing forward the global debate. These institutions are also better placed to: develop specific control measures tailored to the dynamics of weapons flows in a particular region; address light weapons trafficking in the context of shared regional concerns such as crime, drugs or conflict; and implement cross-border issues by building on existing regional dialogue and confidence- and security-building measures.

Regional cooperation works well in organizations such as the European Union that are equipped with the necessary technical expertise as well as adequate financial and human resources. In less well-financed organizations, more funding is required in order to match political will with the capacity to implement change.

Recent cooperation between the EU and SADC offers a model for cooperation and assistance. Within the context of the EU Programme on Preventing and Combating Illicit Trafficking in Conventional Arms, the UK organized a seminar in South Africa in mid-1998. Designed to bring together relevant officials from Southern Africa and the European Union, the meeting explored potential forms of EU assistance to Southern Africa in the region's efforts to tackle illicit trafficking.111 The subsequent "Southern African Regional Action Programme on Light Arms and Illicit Arms Trafficking" set out a detailed agenda for action in four key areas:

  • combating illicit trafficking;

  • strengthening regulation of and controls on the accumulation and transfer of weaponry;

  • promoting the removal of weapons from society and the destruction of surplus arms; and

  • enhancing weapons-related transparency, information exchange and consultation in Southern Africa.112

The EU/SADC agreement demonstrates that political will and practical assistance can be achieved at relatively low cost. Donor countries should consider employing this approach in other regions. For instance, shortly after the OAS Convention was signed, a number of officials proposed that donor countries consider providing funding to specific countries or regions in order to assist them with implementation of the OAS agreement. As yet, such funding commitments have not materialized. Donors should also consider offering assistance to organizations such as the OSCE, OAU and the Association of South East Asian Nations (ASEAN).

9. NATIONAL:  INCREASE INTER-DEPARTMENTAL COOPERATION

Increased coordination at the national level will be critical to ensure effective development and implementation of control policies. Coordination should be undertaken at both the political and practical levels. Efforts to control light weapons must provide for coordinated action by all relevant agencies, including those tasked with justice, interior affairs, international development, foreign affairs, defense, trade, law enforcement and customs.

The Netherlands, the United Kingdom and the United States all recently established inter-departmental committees in order to share information and facilitate cooperation on policies related to light weapons. Such coordination efforts are low cost, practical measures that can be instantly implemented. Countries seeking to control and reduce small arms flows should adopt such measures.

10. FIND THE MONEY TO BACK COMMITTMENTS

Cynics will likely argue that the recommendations outlined above read like a wish list, that such measures are cumbersome, unrealistic and even na‹ve. Yet the range of influential governments and organizations that have already voiced their support and responsibility for controlling these flows demonstrates that the desirability of rigorous action should no longer be at issue. The need to conclude as far-reaching an agreement as possible becomes clearer when one considers the realities of light weapons proliferation and its consequences on affected populations, peacekeepers and aid workers. What remains unsettled is how and when leading governments will move from rhetoric to reality by providing the necessary funds to implement strong controls.

In many fora - including the United Nations, ECOWAS, OAS, OAU, OSCE, SADC - states have demonstrated interest and support for tackling light weapons. These organizations have the influence to engender political support and develop control and reduction policies. However, they are notoriously under-funded and their existing resources are already over-stretched. Yet NATO, the European Union, the G-8 and the Wassenaar Arrangement -whose memberships comprise many of the world's wealthiest countries - have also added light weapons control to their agendas. Since these bodies include many of the world's major weapons suppliers, they have a special responsibility to allocate sufficient funds to match the political will demonstrated by recipient states that have long suffered the consequences of state-to-state, state-to-non-state and illegal weapons supplies.

Go to Conclusion

Executive Summary | Chapter 1 | Chapter 2 | Chapter 3
Chapter 4 | Conclusion | Endnotes

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