Written Submission to the House of Commons

Environmental Audit Committee

Biodiversity and Ecosystems

 

(as a complement to the oral evidence provided by Prof Elisa Morgera, University of Strathclyde, on 22 October 2020)

 

20 November 2020

By the Elisa Morgera, Sian Rees and Senia Febrica of the UKRI GCRF One Ocean Hub

 

 

The One Ocean Hub is an independent programme for collaborative research for sustainable development that is funded by UK Research and Innovation (UKRI) through the Global Challenges Research Fund (GCRF). GCRF is a key component in delivering the UK AID strategy and puts UK-led research at the heart of efforts to tackle the United Nations Sustainable Development Goals. The Hub specifically addresses the challenges and opportunities of South Africa, Namibia, Ghana, Fiji and Solomon Islands, and will share knowledge at regional (South Pacific, Africa and Caribbean) and international levels. The One Ocean Hub is led by the University of Strathclyde and comprises 126 researchers from 24 research partner institutions, and 35 project partner organisations (Grant Ref: NE/S008950/1): https://oneoceanhub.org

 

 

 

This written submission complements the oral evidence provided by Prof Elisa Morgera, Director of the One Ocean Hub, to the UK House of Commons Environmental Audit Committee on 22 October 2020, for an inquiry into biodiversity and ecosystems and the upcoming international negotiations on a global post-2020 biodiversity framework. This brief provides further details on what would make a successful Biodiversity Conference in China in 2021 (CBD COP) and how the UK’s negotiating position and other action (diplomatic activities, funding, etc) can contribute to that success.

 

The brief explores the following themes:

  1. the need to integrate the inter-dependencies of human rights and biodiversity;
  2. the benefits of marine protected areas (MPAs) and Indigenous and Community Conserved Areas, as well as the need to conserve biodiversity beyond MPAs;
  3. the need for partnership-based approaches to fair and equitable benefit-sharing from genetic resources and digital sequence information (DSI), including in the context of the UN negotiations of a new legally binding instrument on marine biodiversity of areas beyond national jurisdiction (BBNJ); and
  4. the integration of the nexus between the ocean, climate change, biodiversity and human rights across all relevant international processes.

 

 

 

 

1. Integrating the inter-dependencies of human rights and biodiversity

 

Our understanding about how much human well-being depends on biodiversity and ecosystems has increased, while conversely our efforts to protect biodiversity have continued to fall short.

As a result, according to the Global Assessment report of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, current negative trends in biodiversity and ecosystems will undermine progress towards 80 % (35 out of 44) of targets assessed within the Sustainable Development Goals (SDGs) related to poverty, hunger, health, water, cities, climate, oceans and land (SDGs 1, 2, 3, 6, 11, 13, 14, and 15: Diaz et al., 2019). Accordingly, the Global Assessment report also underscored the need to address human rights concerns such as inequalities, especially regarding income, race and gender, which undermine: capacity for sustainability; inclusive decision-making; fair and equitable sharing of benefits arising from the use of biodiversity and its conservation; and the respectful inclusion of the knowledge of indigenous peoples and local communities in environmental governance (Diaz et al., 2019).

 

The next CBD COP is thus a crucial opportunity to reflect the understanding that the full enjoyment of everyone’s human rights to life, health, food and water depend on healthy ecosystems and their benefits to people (Knox, 2017, para 5; and Boyd, 2020).

 

The more systematic consideration of the inter-dependencies of human rights and biodiversity can provide the following benefits:

 

The following key points derive from the recognition of the inter-dependencies of human rights and biodiversity, as articulated by the UN Special Rapporteur on Human Rights and the Environment. These points correspond to the need to co-develop biodiversity conservation and sustainable use approaches in contextual ways, which has been repeatedly identified in academic research as necessary to achieve both equity and sustainability goals (Woodhouse et al, forth):

 

 

In addition, more specific obligations concern the conservation and sustainable use of lands, territories and resources that are traditionally owned, occupied, or used by indigenous peoples. These include those lands to which they have had access for their subsistence and traditional activities, even when they do not have formal recognition of property rights or delimitation and demarcation of boundaries. State obligations are to:

 

 

2. Benefits of, and cautions around, Marine Protected Areas

The CBD’s Aichi biodiversity targets, for the period 2011-2020, call for countries to implement effective and equitable protection of marine and coastal areas, particularly those important for biodiversity and ecosystem services, with a target of ten per cent marine protected areas (MPAs) by 2020. The benefits of MPAs have been documented in the literature: commercial fisheries are critically dependent on healthy functioning marine ecosystems, with many of the features of conservation interest (within MPAs) vital in supporting fish and shellfish during essential life history stages. Equally, in his 2020 report on biodiversity and human rights, the UN Special Rapporteur on Human Rights and the Environment, David Boyd, emphasized the importance of MPAs from a human rights perspective:

“When governed and managed equitably and effectively, [protected areas] also support human rights, contributing to health, well-being, food and water security, disaster risk reduction, climate mitigation and adaptation and local livelihoods. Well-managed marine protected areas protect and restore biodiversity, increasing yields in adjacent fisheries. In marine protected areas, species richness is 21 per cent higher and the biomass of fish is six times greater than in adjacent unprotected areas.” (Boyd, 2020).

Current proposals to increase the ambition with regard to the establishment of protected areas and MPAs, however, need to take into account key factors to ensure the effectiveness of these areas, as well as their legitimacy (notably in the light of the need to respect human rights – see point 1 above). Accordingly, academic research emphasizes that MPAs should not be viewed as a competitor of other sectors, but as a precondition for all the other sectors of society to flourish. A study on MPAs in Cabo Delgado, Mozambique, demonstrates that multiple use of locally managed marine areas which respond to fisherfolks’ needs and targeted biodiversity conservation, could contribute to the achievement of specific SDGs on food security, poverty elimination, and resilient ecosystems (see Diz et.al., 2018). Cabo Delgado is a region with high marine biodiversity, high levels of poverty, and coastal communities dependence on marine biodiversity for their livelihood (Diz et.al., 2018). The locally managed marine areas have increased octopus and fish catch, contributed to return of species that were not previously present in these highly degraded and overfished area, increased presence of small fish in the intertidal zone and quantity of bivalves, and improved coral quality (Mussa, 2015 as cited in Diz et. al., 2018).

 

This is particularly true if one should consider that fishing often overlaps with MPAs and, in many instances, predates their designation. As fishing effort displacement from MPAs remains a key narrative in the fisheries and conservation debate, academic research emphasizes the importance to co-develop ecosystem-based fisheries management that integrate MPAs as critical components, rather than a competing interest (Rees et.al., 2020).

 

Text box 1: An example of ecosystem-based fisheries management that integrate MPAs as its critical component could be seen from the Lyme Bay MPA fisher-science partnership. The Lyme Bay MPA is the largest area of reef habitat in the UK to receive full protection from the damaging impacts of bottom towed fishing gear. Interdisciplinary, evidence-based research by Dr Sheehan and Rees has provided the basis for the long-term sustainable management of the Lyme Bay MPA, overcoming conflict and mistrust in marine conservation from the fishing sector. Evidence has formed the basis of a fisher-science partnership. Fishermen involved in the partnership support reef protection, trust the science and feel supported. The ‘Lyme Bay model’ has been promoted by the Blue Marine Foundation as a win-win model. The principles of the model combine a well-managed marine protected area, low-impact artisanal fishing methods, a ‘Reserve Seafood’ market brand, a fishermen’s code of conduct, and a community-wide engagement process. Research is used to monitor change, measure social and ecological impact, and adapt management (University of Plymouth, 2020; Rees et al, forth).

 

Furthermore, there is a need to ensure that the creation of new protected areas around the world respects human rights, particularly those of indigenous peoples and local communities. The 2019 Global Assessment of Biodiversity and Ecosystems Services noted that biodiversity is generally declining less rapidly in indigenous peoples’ lands than elsewhere, which cover at least a quarter of the global land area, including approximately 35 % of formally protected and approximately 35 % of all remaining terrestrial areas with very low human intervention. So efforts to create and manage protected areas on those lands needs to respect international obligations to respect relevant international human rights, which have been recently summarized by the UN Special Rapporteur Boyd as follows:

“States have particular obligations to indigenous peoples and local communities and peasants. The top priority involves recognizing their land titles, tenures and rights, acknowledging the existence of different customs and systems, including collective ownership and governance models. States must ensure the effective participation of indigenous peoples in the creation of protected areas, their continued access to and use of traditional territories, including those within the protected areas (for … fishing…and cultural activities consistent with sustainable use) and a fair share of the benefits arising from conservation activities” (Boyd, 2020).

 

In addition, Parties to the Convention on Biological Diversity have increasingly recognised the role of Indigenous and Community Conserved Areas (ICCAs; see Jonas, 2017), calling for recognising, respecting and supporting community-based approaches to conservation and the integration of communities in governance and management arrangements (CBD Decisions X/31/B (2010) para 31, XII/19 (2014) para 4(f); and X/33 (2010) para 8(i)). Recognition of ICCAs has also been recommended by the former UN Special Rapporteur on Human Rights and the Environment (Knox, 2017). In effect, while CBD decisions do not usually use human rights language, they incorporate equity considerations that provide an entry point for respecting human rights in biodiversity decision-making and management (Morgera, 2020). For instance, CBD Parties have already agreed that ensuring equity in protected areas’ governance entails appropriate mechanisms for: the full and effective participation of indigenous peoples and local communities; gender equality in the establishment, governance, planning, monitoring and reporting of protected and conserved areas on their traditional territories (lands and waters); the recognition of customary tenure and governance systems in protected areas; transparency and accountability; and fair dispute or conflict resolution (CBD, Decision XIV/8, 2018, Annex II).

 

Finally, biodiversity conservation efforts need to go beyond MPAs. The functional integrity and health of marine ecosystems is dependent not only on the protection provided though MPA management measures, but also on the ecological, economic and social interactions with surrounding areas (including terrestrial landscapes). MPAs alone cannot meet all the needs of society (jobs, ecosystem services, climate resilience, water purification) without being fully integrated into sustainable development planning within the wider seascape and linked to coastal communities. Sustainable management of 100% of the ocean requires an ambition that MPAs are integrated into the marine planning framework not as a sectoral or competing interest within the seascape but as a key functional life support system (Rees et al, 2020). Transitioning towards a decision-making process based on marine plans that underpins the functional integrity and health of marine ecosystems, as well as realising benefits to society, requires a distinction between areas that are important for biodiversity (species-rich, functionally diverse or are important for an iconic aspect of biodiversity) and areas that are important for ecosystem services (realised benefits such as recreation services, flood protection and food). The two (areas important for biodiversity and areas important for ecosystem services) are not always commensurate or co-located (Rees et al, 2017). Marine Planning exists as a tool to underpin the triple bottom-line of sustainable development with benefits for economy, ecology and society. However, the planning process has been criticised for supporting political expedience and blue growth opportunities that are not commensurate with healthy functioning ecosystems with benefits accruing to coastal communities.

 

Ambitious approaches to the management of biodiversity and ecosystems beyond MPAs include commitments to:

1) Evaluate the performance of marine plans to determine whether the marine planning framework have supported a balance between socio-economic and cultural needs and protection of the environment.;

2) Develop strategic plans for incorporating other effective area-based conservation measures’ (OECMs) across the seascape. The CBD adopted a definition of OECMs as ‘a geographically defined area other than a Protected Area, which is governed and managed in ways that achieve positive and sustained long-term outcomes for the in situ conservation of biodiversity, with associated ecosystem functions and services and where applicable, cultural, spiritual, socio–economic, and other locally relevant values. From an international perspective, OECMs may align with management measures initiated by sectoral organisations such as Regional Fisheries Management Organisations (overlapping with Vulnerable Marine Ecosystems - VMEs), International Maritime Organization (overlapping with Particularly Sensitive Sea Areas, Special Areas) and the International Seabed Authority (overlapping with Areas of Particular Environmental Interest). Areas defined as Locally Managed Marine Areas (LMMAs) with biodiversity objectives also potentially fit within this OECM bracket; and

3) Initiate processes that join up conventional administrative, sectoral and geographical boundaries across air, sea and water (including in areas beyond national jurisdiction) that are required to ensure long-term benefit sharing.

 

This type of governance approach depends on the integration of natural capital approaches and strong partnership working that brings together diverse organisations who agree to collaborate (across disciplines) closely to solve problems of common concern.

 

3.  Fair and Equitable Benefit-Sharing

 

The third objective of the Convention on fair and equitable benefit-sharing remains a key item on the CBD COP agenda. The theme fair and equitable benefit sharing goal is captured with Goal E in the zero draft of the CBD’s post-2020 global biodiversity framework. There is a general recognition in the discussion of the post-2020 global biodiversity framework of the need to monitor and measure progress in benefit-sharing that include capacity-building and active involvement of stakeholders. In addition, it should be noted that negotiations of a post-2020 global biodiversity framework have been more politically complex by continued disagreement on the need for fair and equitable benefit-sharing from digital sequence information.

 

International norms on benefit-sharing, in effect, remain difficult to implement and continue to raise polarized Global North/Global South negotiations (Morgera, 2016), to the detriment of more effective international scientific cooperation for the conservation and sustainable use of biodiversity. While access and benefit-sharing obligations are often read in a logic of exchange, the key to fairness and equity in benefit-sharing is building an equal partnership among researchers, indigenous peoples, local communities, and the private sector. An interpretation based both on international biodiversity law and international human rights law (see point 1 above), in effect, supports the view that fair and equitable benefit-sharing is an iterative and concerted dialogic process in identifying and allocating economic and non-economic benefits among State and non-State actors, with an emphasis on the vulnerable (Morgera, 2015: 809).

 

It should be also stressed that fair and equitable benefit-sharing is part and parcel of the CBD, ecosystem approach, which calls for recognizing and incentivizing the good management practices of indigenous peoples and local communities that are responsible for the production and sustainable management of ecosystem functions (CBD Dec V/6 (2000) and VII/11 (2004)). Benefit-sharing in this context combines an equity concern for those that devote their efforts to, and bear the risks of, the conservation and sustainable use of biodiversity, and for the larger community (including the international community, when global benefits arise from community practices) that benefits from conservation and sustainable use but does not pay the costs associated with them. In addition, it points to practical concerns about counterbalancing short-term gains that would derive from ecosystem degradation by creating a stake in conservation for those that more closely interact with nature, thereby aiming at ensuring compliance with environmental protection law. This conceptualization of the ecosystem approach has inspired CBD guidance on intra-State benefit-sharing in the context of biodiversity-based tourism (CBD Decision V/25 (2000)), the creation and management of protected areas (CBD Decision VII/27 (2004) and IX/18 (2008)), and the conduct of environmental and socio-cultural impact assessments regarding natural resources traditionally owned or used by indigenous peoples and local communities (CBD Decision VII/16 (2004)).  “Sharing” principally conveys the idea of agency, as opposed to the passive enjoyment of benefits, and therefore a shift away from unidirectional (likely, top-down) or one-off flows of benefits. To that end, benefit-sharing usually relies on a menu of benefits, the nature of which can be economic and non-economic: this arguably allows taking into account, through the concerted, dialogic process of sharing, the beneficiaries’ needs, values, and priorities through a contextual selection of the combination of benefits that may best serve to lay the foundation for partnership and to address power imbalances.

 

Text box 2: The UKRI Global Challenges Research Fund provides an innovative example of how ODA can be specifically and strategically channelled into fair partnerships to support equitable and effective conservation of marine biodiversity. The funding call for research hubs, for instance, contained several key criteria that supported researchers in building fair partnerships from the outset, such as the need to: demonstrate that research agenda was co-developed; ensure a balanced budget allocation and administrative resources across regions (and between the Global North/South); demonstrate mutual learning and mutual benefits between Global North and Global South partners; and explicitly address power imbalances by 1) developing a code of conduct to address explicitly fairness in publication strategy and data management, safeguarding for to own and control research results, and strategies for addressing problems and conflicts, and 2) carrying out regular reviews of the health of the partnership. (See https://www.ukri.org/wp-content/uploads/2020/10/UKRI-22102020-GCRF-Hub-booklet-June-2019.pdf).

 

Funded by the UKRI Global Challenges Research Fund, the One Ocean Hub (OOH) is developing fair research partnerships between the Global North and the Global South, as a key approach to tackle the disconnections in ocean science that preclude integrated, inclusive and transformative approaches in ocean governance. The Hub’s Code of Practice, which was co-developed by researchers in the UK, South Africa, Kenya, Ghana, Namibia, the Caribbean and the South Pacific, started from the recognition that international research collaborations are not neutral due to power dynamics that have both the force of history and contemporary material effects behind them (unequal distribution of resources, responsibilities and decision making). Among other things, the Hub’s Code of Practice provides guidance on fair and equitable benefit-sharing among researchers and research partners as co-producers of knowledge, recommending an iterative dialogue to identify benefits and sharing modalities. The Code of Practice was made legally binding by being cross-referenced in all Collaboration Agreements.

Under the principle “Multiple dimensions of fairness under the Hub”, the Code of Practice says:

 

Hub researchers will consider explicitly multiple considerations of fairness within the Hub, with a view to identifying collective approaches to fairness, including towards: vulnerable groups (“partnership” implies, for instance, being able to respond to the questions “when are you coming back?” and “how can we keep in touch between this visit and the next?”); each region and across regions; each researcher; partners (including previous trust-based relationships between specific partners and specific researchers under the Hub); the funders and tax-payers vis-à-vis Hub budget and in-kind contributions (One Ocean Hub, 2019).

 

Specific applications of these principles have then been spelt out in terms of publications, data sharing, support to early-career researchers, research ethics and safeguarding (One Ocean Hub, 2019).

 

In addition, the One Ocean Hub’s Code of Practice includes the following section on benefit-sharing as part of its Research Ethics:

 

Hub researchers acknowledge that they derive material benefit and feelings of accomplishment from the project and are committed to seek to expand the benefits of the research programme to the community in which the research is being conducted. We will do so proactively, but responsively. This means maintaining an awareness that benefit sharing is a requirement and engaging in a concerted dialogue to identify benefits, sharing modalities and beneficiaries as early in the consent process as possible and iteratively throughout the knowledge co-production process. This is with a view to deciding together which benefits will be shared and how. The goal is to empower research participants, rather than act on their behalf or create transactional relations.” (One Ocean Hub, 2019)

 

On these bases, the One Ocean Hub seeks to identify, as one area of research, good practices in building and nurturing relations between UK and Global South-based researchers involved in marine bio-discovery and bio-based innovation.

 

 

The same understanding of fair and equitable benefit-sharing can be applied to the polarized question of Digital Sequence Information. In 2016, the CBD COP recognised for the first time the relevance of, and potential issues surrounding, digital sequence information on genetic resources (‘DSI’) for the achievement of the CBD’s three objectives (CBD Dec XIII/16) and the issues has been debated ever since, thereby remaining a critical topic at CBD COP15 as well as in other international fora, including current UN negotiations for a legally binding instrument on marine biodiversity of areas beyond national jurisdiction (BBNJ). Difficulties in achieving progress on DSI stem from the technical complexity of the subject, but also from the increasingly politicized nature of the debate. The current negotiating impasse is expected to have an impact on the negotiations for a post-2020 Global Biodiversity Framework and may undermine other international cooperation efforts on biodiversity more broadly, both under the CBD and in other fora. To bridge and balance developed and developing countries’ demands for equity in this context, as well as the need to support scientific research and scientific cooperation to realize holistically the three CBD objectives, it is recommended against excluding DSI from the scope of the CBD, as it would be contrary to the international law principles of effectiveness and good faith. It could also undermine legal certainty. That said, the application of existing benefit-sharing rules without additional measures is likely to run into problems of valuation and mismatch with current scientific practices. Instead, an approached based on fair and equitable benefit-sharing as a partnership-building process is recommended, which allows to focus on beneficiaries’ agency, as well as the need for continuous dialogue and learning across disciplines and sectors. This could be achieved through a multilateral approach to benefit-sharing through the creation of an international platform for dialogue, learning, oversight and priority-setting to ensure the integration of local and indigenous knowledge in decision-making procedures, as well as scientists from different geographies and capacities, database managers, and experts from different sectors that utilize DSI. The platform could start with a participatory exercise of peer-learning and peer-review of the relationship between overall costs and benefits for providers and users, and also consider concerns for conservation, equity, public health, and open science underpinning the current approach, as well as of the benefits and costs that are likely to result from moving to a system of multilateral benefit-sharing. This could be the first step in an iterative process of participatory evaluation and due diligence that will set a paradigm-shift from the current simplistic, and predominantly bilateral, approach to benefit-sharing under the CBD (Morgera, Switzer, and Geelhoed, forth).

 

Finally, this approach to fair and equitable benefit-sharing is also considered key in advancing the negotiations of a new legally binding agreement on marine biodiversity of areas beyond national jurisdiction, including by better joining up the different elements of the package of issues under negotiation (marine genetic resources, environmental impact assessment, area-based management including MPAs, capacity building and technology transfer). The key elements of a benefit-sharing-inspired multilateral approach are the following:

 

 

4. The Nexus between the Ocean, Climate Change, Biodiversity and Human Rights

 

Over 70% of the earth's surface is ocean. As a global population, we are entirely reliant upon a healthy ocean: it contributes to the renewal of freshwater; it absorbs over a quarter of global carbon dioxide, and it produces half the oxygen we breathe. While the connection between terrestrial ecosystem, biodiversity loss, and climate change has featured in academic works and made media headlines around the world for many years, the nexus between the ocean, climate change, and biodiversity has only recently been placed on the agenda of the international climate change process. On the other hand, under the Convention on Biological Diversity a series of guidance documents, negotiated and agreed upon by 196 Parties have already addressed a variety of issues at the intersection of climate change, biodiversity and human rights, which relate directly or implicitly also to ocean management. There is therefore an opportunity for the UK Government to contribute to policy coherence by supporting the application of these guidance in international climate change negotiations, as well as at the national level (at home and abroad).

 

CBD Parties have systematically identified potential and actual threats that climate change and climate change response measures pose to the conservation and sustainable use of biodiversity, along with ways to assess and prevent negative impacts on biodiversity through mutually supportive interpretation and application of international climate and biodiversity law (Morgera, 2013). These contributions have been based on the CBD ecosystem approach and have (often implicitly) contributed to defining a rights-based approach to climate change adaptation and mitigation, mainly with regard to the human rights of indigenous peoples and local communities (Morgera, 2018; Morgera, 2020).

 

CBD Parties have committed to:

 

With regard to climate change adaptation, CBD Parties have adopted voluntary guidelines for the design and effective implementation of ecosystem-based approaches to adaptation and disaster risk reduction (CBD Dec. XIV/5). These should be aimed at contributing to the well-being of societies, including indigenous peoples and local communities, together with maintaining as well as increasing the resilience of ecosystems and people. The guidelines should be read in conjunction with the CBD short-term action plan on ecosystem restoration (CBD Dec. XIII/5). Together, these guidelines call for:

 

On coral reefs and closely associated ecosystems (such as mangroves and seagrasses), CBD Parties have adopted voluntary guidelines that can support socio-ecological resilience to the impacts of climate change, as well as respect for human rights to subsistence and culture, by:

 

 

 

 

For any follow-up request, please email senia.febrica@strath.ac.uk

https://oneoceanhub.org/about/

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References

 

D Boyd (2020), Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc A/75/161.

 

S Díaz et al (2019), Summary for Policymakers of the Global Assessment Report on Biodiversity and Ecosystem Services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, IPBES.

 

H Jonas (2017), Indigenous Peoples and Community Conserved Territories and Areas (ICCAs): Evolution in International Biodiversity Law in Morgera and Razzaque (eds), Encyclopedia of Environmental Law: Biodiversity and Nature Protection Law (Edward Elgar) 145.

 

JH Knox (2017), Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc A/HRC/34/49.

 

E Morgera (2020), “Biodiversity as a Human Right and its Implications for the EU’s External Action”, Report to the European Parliament, https://www.europarl.europa.eu/RegData/etudes/STUD/2020/603491/EXPO_STU(2020)603491_EN.pdf

 

E Morgera (2020b), Corporate Environmental Accountability in International Law (Oxford University Press).

 

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E Morgera (2016), The Need for an International Legal Concept of Fair and Equitable Benefit-sharing 27 European Journal of International Law 353-383.

 

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