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BY 4.0 license Open Access Published by De Gruyter August 4, 2022

Contested Civic Spaces in Liberal Democracies

Rupert Graf Strachwitz and Stefan Toepler ORCID logo
From the journal Nonprofit Policy Forum

Abstract

In this introductory essay for the special issue on contested spaces in liberal democracies, we review how and to what extent the closing or shrinking space debate that has influenced the civil society discourse in authoritarian contexts presents an appropriate mode of analysis for similar, disconcerting developments that have been observed in liberal democracies. In particular, recent changes in Germany, Austria, Israel, and Greece are covered in this issue. We suggest that while shrinking space mechanisms are observable, civil society is nevertheless experiencing new activism and growth. In contrast to authoritarian regimes, spaces in liberal democracies are increasingly contested reflecting both a politization of issues that nonprofits, NGOs or CSOs are working on, such as migration and climate change, but also a new civic agency that expands the political dimensions of civil society, embracing its more political functions beyond traditional service delivery.

1 Introduction

In retrospect, the year 1975 may be seen as a point of no return. While voluntarily formed collective actors, or communities of choice, have been part of the public sphere for millennia, their relationship with the established power centres was never clear so that it remained the political regimes’ choice what status they would accord to them and how they would interact with them. The UN Charter, adopted in 1946, for the first time accorded nongovernmental organisations a role in formal intergovernmental deliberations, but did not specify how the interplay should function. The CSCE (Conference on Security and Cooperation in Europe) Final Act, signed by 33 European governments plus those of Canada and the United States in Helsinki on 1st August 1975, changed this in that advocacy for human and civil rights was granted international protection, irrespective of whether a national government approved of an organisation’s activities or not. The result, often labelled the Helsinki process, is history.

The democratization of the former Warsaw Pact countries and South Africa in the early 1990s accelerated a worldwide boom of civil society—Salamon’s (1994) associational revolution—that created and expanded entirely new spaces for nonprofits or non-governmental or civil society organizations (NGOs, CSOs), as they are variously known. Extensive Western assistance helped build civil society to promote democracy and ensure good governance around the world (Fisher 2013; Quigley 1997), and sought to establish CSOs as legitimate participants in the democratic political process, with, for example, South Africa mandating CSO participation in the development planning process (Nwauche and Flanigan 2022).

The world-wide revolution in communication greatly aided this process, as CSOs were increasingly able to communicate their debates, positions, and actions without having to convince media gate keepers. As a result, governments and public authorities were losing public attention to their critics. At the same time, a globalized market was also crowding out national governments in international affairs, with business leaders assuming roles hitherto reserved exclusively for politicians. The growing clout of civil society was therefore not to everyone’s liking, and it is hardly surprising that both professional politicians and leaders in business began to think about how to curb its influence. Furthermore, the push towards democratization through civil society participation began to generate authoritarian counterforces early in the 2000s, leading to a considerable democratic pushback as a new wave of authoritarianism gathered momentum.

As the contributions in this special issue on Germany (Hummel 2022), Austria (Simsa 2022), Israel (Katz and Gidron 2022) and Greece (Makrides 2022) demonstrate, established liberal Western democracies have not been entirely immune to aspects of this global phenomenon (Alscher et al. 2017; Anheier, Lang, and Toepler 2019; Swiney 2019), although the literature has largely focused on new democracies in the Global South and specific countries like China and Russia where the concept of liberal democracy had never gained ground. While in Western democracies, civic spaces shrink by softer means and in more unexpected places (Bouchet and Wachsmann 2019; Phuong Dinh and Heiss 2020), outright repression and blatant infringements on human and civil rights have become regular features of public life in an increasing number of countries world-wide (Freedom House 2022). The activities of civil society organizations are being limited through actions such as overregulation, invasive anti-terror and money-laundering regulations or the failure to reform outdated policy frameworks (Anheier and Toepler 2019; Ayvazyan 2019).

In the following, we first consider concepts of civic space and civil society as well as key roles that civil society plays within the civic space. As we will then show, the literature on the closing or shrinking space for NGOs and civil society establishes the range of measures used to restrict civil society in authoritarian contexts, as a point of comparison. On this basis, we finally discuss how the space for civil society is currently contested in liberal democracies.

2 Civil Society and Civic Space

The perception of what we now call civil society has not only widened, but also shifted significantly over the last generation. Whereas in the past the focus was on helping the needy, and the promotion of culture and sport were further important areas of action oriented towards the common good, since the late 1960s new social movements that exercise rights of freedom and pursue goals of social change, political participation or the denunciation of grievances, have become much more central (della Porta 2020). Since the 1980s, we have been able to observe the rebellion against repressive regimes paving the way for transformation processes as a core element of civil society action (e.g. Foley and Edwards 1996).

Today, we not only associate civil society with worldwide humanitarian aid, but also with the confrontation of global as well as local challenges and spontaneous civic action. The more traditional fields of activity of CSOs live on to a large extent, although they have changed in part. Civil society can be stronger or weaker compared to other arenas, such as the state and the market. The focus of its work may differ and its relationship to these areas can be shaped by cooperation or conflict. In any case, just like the other arenas, it participates in the struggle for the distribution of power in a society and in this sense always has a political dimension. Its actors have fewer material resources than those in other arenas and no special instruments of power; but it can draw attention to and prompt reactions to a challenge, an emergency or a shortage more than others today. As a result, it is now an essential component of civic space and an area of civic engagement.

Given that civil society fulfils several crucial roles or functions—some of which are seen as more desirable by the state than others, the closing/shrinking civic space literature tends to use the terms civic space or space for civil society (or NGOs) broadly and variously (Dupuy, Fransen, and Prakash 2021; Strachwitz 2021a). In the American nonprofit context, Kramer had long proposed four distinctive functions: service delivery; innovation; value guardianship; and advocacy (see, e.g. Toepler and Anheier 2020). Building on a distinction first introduced by the European Commission (1997), a broader approach in the modern civil society context would extend the range of crucial functions to eight (Strachwitz, Priller, and Triebe 2020).

  1. services (e.g. helping the needy and vulnerable),

  2. advocacy (e.g. advocacy for nature conservation),

  3. watchdog (e.g. consumer protection),

  4. intermediary (e.g. charitable foundations),

  5. self-help (e.g. patient self-help);

  6. community building (e.g. amateur music groups),

  7. political participation (e.g. protest movements),

  8. personal growth (e.g. religious communities).

Many civil society actors pursue several of the functions simultaneously, suggesting that multi-functionality is a common feature of these organizations (Zimmer 2010).

Crouch (2011) put particular emphasis on the watchdog function. Based on his observation – shared by many – that the checks and balances within the state are no longer functioning, he proposed that the role of watchdog pass to civil society. As parliaments lose their ability to effectively check the government, Crouch (2011) calls on players in the civic space to assume this crucial task for a democracy to prevent it from sliding down the slippery slope at the end of which the rule of the people by the people is no more than a stale formula.

Other important distinctions have also been introduced (Strachwitz 2021b): CSOs can be differentiated according to

  1. their relationship to society (Hirschman 1970), that is loyalty (e.g. complementing/replacing state action), exit (e.g. associations of minority groups), or voice (e.g. human rights groups);

  2. their relationship with the other arenas, either corporatist (part of an overarching system, often associated with dependencies) or pluralistic (acting independently);

  3. their form of organization: membership organisations (associations), foundations/trusts, organisations owned by external parties (companies);

  4. their aims, such as welfare, research and education, culture, environmental protection, sports, human and civil rights, or religion;

  5. their degree of organisation and consistency, that is, spontaneous civil society, movements, organisations, and institutions.

Only by combining the different methods of classification does one gain an impression of the scope of civil society action. Many civil society actors believe that only those actors who belong to the same sub-sector and take a position similar to their own on certain social issues belong to civil society. In the public sphere, too, often only certain actors are considered as belonging to civil society (Srachwitz 2021a). However, this is not correct. Nor, while obviously any analysis relies on some normative backdrop, does the concept of civil society as such appear as a normative one. In almost all serious publications in recent years, civil society is perceived as an analytical approach that has little to do with civility and other normative categories. It therefore also has a dark side (Ben-Ner 2022).

It would be nonsensical to assert that civil society organisations were “good” in a normative sense by definition (Strachwitz 2018). Nor would it be appropriate to assume that they could all be relied upon to operate on generally acceptable and morally unquestionable standards. On the contrary, their qualifications vary to the same degree as those of actors in the arenas of the state and the business sectors, and regulation and instruments of conflict resolution are of essence here just as much as elsewhere in society. Assuming that regulating in the sense of setting mandatory standards and granting licences to operate comes under the tasks delegated to the state by the citizens as principals, it is proper that the state should act on this responsibility, set a framework and oversee its observance.

It is therefore not the act of setting rules as such that may be seen as contesting civic space. The question is, if and to what extent the existence of an independent civic space is guaranteed in principle, and whether the extent of regulation conforms to principles of human and civil rights, and most particularly freedom of association, freedom of assembly, freedom of speech, freedom of religion, and other basic freedoms. In most Western liberal democracies, this may be assumed in general, but it needs to be permanently monitored whether all details of government regulation and public attitudes and actions actually correspond to a strict observance of this principle. In most Western countries there have been cases of violation and in some, systematic efforts to curb the activities of CSOs have been registered. Following the steady rise of the “soft power” (Nye 1990) of civil society since the early 1990s, and the anxieties of national governments whether they would be crowded out of the driver’s seat, the issue whether these governments use the powers and resources vested in them to further their own authority and silence critical observers, is of no mean importance. Thus, closing/shrinking measures are not restricted to authoritarian governmental regimes, neither in theory nor in practice.

3 Closing and Shrinking Spaces

Those parts of civil society that represent liberal Western values or regime-critical voices in emerging democracies, were among the first targets of the authoritarian pushback. While some countries, like Egypt, had long sought to exercise some control over the flow of foreign funds to NGOs by routing them through government ministries, autocrats quickly diagnosed foreign funding as the Achilles heel of advocacy NGOs that generally have little opportunity to raise funds domestically. The foreign funding restrictions first introduced with Russia’s NGO Law in 2006 and later extended with the Foreign Agent Act of 2012 (Benevolenski and Toepler 2017; Flikke 2018) launched a new era in which growing numbers of governments across the Global South jumped on the bandwagon to introduce similar restrictions (Carothers 2016; Christensen and Weinstein 2013; Dupuy, Ron, and Prakash 2016; Dupuy and Prakash 2020). These efforts to defund certain NGOs by cutting off international support drew the closing space for civil society metaphor (Carothers and Brechenmacher 2014).

Limiting foreign funding has proven to be a highly consequential and quite effective way to silence NGOs, but authoritarian regimes are using a variety of other forms of repression as well, as part of what van der Borgh and Terwindt (2012) labeled a shrinking operational space for NGOs. These include

  1. physical harassment and intimidation;

  2. criminalization;

  3. legal restrictions and the use of administrative discretion to repress NGO activities;

  4. stigmatization; and

  5. limiting civic discourse.

The closing and shrinking labels are, of course, closely intertwined. Russia’s Foreign Agent Law is a legal restriction that also aimed at stigmatizing targeted NGOs as “foreign spies” and opened the door for both bureaucratic harassment through the security services and intimidating vandalism of NGO offices by non-state actors. The latter highlights another significant facet by pointing to the role of civil society actors that are loyal to, and supportive of, repressive regimes and their mostly conservative value discourses (Pousadela and Perera 2021; Toepler et al. 2020).

Tracing shrinking space in the context of liberal democracies has considerably lagged behind the burgeoning literature on closing civic spaces in Post-Soviet countries and the Global South. Individual country studies (e.g. Simsa 2019) and systematic comparative analyses, such as Swiney’s (2019) survey of legal restrictions in established democracies and Anheier et al.’s (2019) measures of declining participation and growing government control and suppression, still remain exceptions, but clearly demonstrate that shrinking spaces are an issue of concern in democratic contexts.

To what extent are shrinking space measures similar or different in democratic and autocratic practice? Clearly, Vladimir Putin’s assertion that Russia’s Foreign Agents Act is essentially patterned after the U.S. Foreign Agents Registration Act (FARA) of 1938 is no more than a false analogy (Laufer 2017). Yet, several of van der Borgh and Terwindt’s (2012) five shrinking operational space measures are in evidence, as the contributions to this special issue suggest:

  1. Physical harassment and intimidation of NGOs and NGO employees by extreme right activists has become quite common. Right-wing political parties, such as Germany’s Alternative for Germany (AfD) and Greece’s New Dawn (Makrides 2022), instigate the harassment politically. For the AfD, for example, “questioning the credibility of CSOs that work in refugee aid, human rights, gender equality, or climate protection, is part of its daily business in the parliament” (Hummel 2022). Under Austria’s former government dominated by a right-wing party, “the government frequently directly attacked CSOs and their representatives in the media” breaking existing taboos (Simsa 2022). NGOs also faced political harassment and intimidation attempts in the US, where conservative politicians, f.i., attempted to weaponize FARA against environmental groups (Holtkamp 2018; Lardner 2018).

  2. Stigmatization is a related issue. In Germany, right-wing politicians vilify NGOs and frame civil society as “a trope of the cosmopolitan enemy” (Hummel 2022). In Austria, “delegitimization of civil society activities took place, for example, through the insinuation of profit interests, devaluation of the work of CSOs, and a generally negative, exclusionary rhetoric” (Simsa 2022). Likewise in Israel, where the right-wing, former government and its allied NGOs launched smear campaigns against liberal NGOs, such as the New Israel Fund, which it saw “as a major “enemy of the state,” and engage[d] very often in depicting it as such” (Katz and Gidron 2022).

  3. In the context of the 2015 refugee crises, Italy was at the forefront of pushing the criminalization of NGOs engaged in the sea rescue of refugees in the Mediterranean (Cusumano and Villa 2021; Strachwitz 2019). This also happened to an extent in Greece where charges of trafficking, criminal organization and other legal violations were filed against some foreign NGOs working with refugees (Makrides 2022).

  4. The use of legal restrictions and administrative discretion is particularly evident in Greece’s introduction of registration and certification requirements for foreign and domestic refugee NGOs, which were heavily criticized “because of the vague reasons for refusing NGO authorization; the unrestrained discretion of state authorities to deny registration for an NGO; the excessive requirements and complex procedures for NGO registration; and the arbitrariness, non-proportionality and inflexibility of related state decisions” (Makrides 2022). Austria’s former right-wing government adopted “a more unfavourable application of current laws [where] a lot of room for interpretation increased the possibility of arbitrary state action,” while also instituting ideologically driven public funding cuts for disfavored CSOs (Simsa 2022). Quite differently in Germany, it was tax courts that have started to cancel tax benefits of NGOs that are primarily engaged in political advocacy (Hummel 2022), as will be discussed below. In the U.S., cases include the long-running effort to defund Planned Parenthood, that is the withdrawal of federal funding eligibility from the women’s and reproductive health organization because it also offers abortions. Internationally, the on-again, off-again, so-called global gag rule or Mexico City Policy bars all U.S. and foreign NGOs that receive USAID funds from providing any abortion related services, even with private funds (see Toepler 2018). Limiting the activities of liberal NGOs and seeking to block foreign funding for them was the aim of several pieces of legislation brought forward by the former Netanyahu government in Israel (Katz and Gidron 2022).

4 Additional Considerations and Examples

That governments and state bureaucracies differ in their views on various forms of civil society action both on grounds of their attitude towards pluralisms and civil rights and on grounds of what should be the business of governments only, is becoming more and more apparent. While civil society’s watchdog function is near-universally seen as an infringement on government prerogatives, views of advocacy, most particularly for civil rights, freedom of assembly and religious freedom, will differ considerably in line with attitudes towards pluralism and an open society. Service provision is more often than not gratefully accepted in liberal democracies, but with differences. While nearly 60% of Dutch secondary school children attend non-governmental schools, only 8% do so in Germany, due to a constitutional prerogative accorded the government-regarding schools. On the other hand, health and social services are predominantly and undisputedly in the hands of CSOs in Germany.

Recent crises (migration in 2015; floods in 2002, 2013, 2016, and 2020; the Covid pandemic; and the war in Ukraine in 2022) have demonstrated that civil society action is crucial for meeting the accompanying challenges (e.g., Barreto et al. 2022) and is highly respected by citizens. On the other hand, the Covid pandemic has generally limited civic discourse through restrictions on meetings. Public protests by extremist and undemocratic forces arguably further restricted the public space for other CSOs unwilling to be drawn into confrontations (Simsa 2022). These restrictions have had a devastating effect on the community-building function in that leisure activities like sports and cultural organisations were not permitted to meet and subsequently lost a substantial part of their membership (Breuer, Joisten, and Schmidt 2020; Schrader 2021).

While in this case, a shrinking civic space may be attributed to negligence and a failure to recognize the challenges, other measures have been more pro-active. A fairly recent publication issued by the Charity Commission for England and Wales, a governmental regulatory body, attempted to give guidance for charities on their “campaigning and political activity” (Charity Commission for England and Wales 2017). It provides little if any reference to the law of the land, and bases its regulatory directions on “What does the commission mean by ‘campaigning’ and ‘political activity’?” It does not even mention the Lobbying Act passed by Parliament in 2014, which restricts organisations from engaging in “activities that could reasonably be perceived as being intended to influence an election.” In an age when political parties are prone to include a statement on virtually everything of even remote public interest in their election programmes, this wording is an open invitation to regulators and administrators to obstruct any activity in the civic space that the party or parties in power or, better still, the established political parties as a whole, do not approve of. This took place in the oldest existing democracy in the world, which has been an important champion of human and civil rights. What in fact happened was that the established political parties had hijacked a joint monopoly on influencing public opinion to the detriment of an independent civic space. Add to this that the CEO of the Charity Commission, traditionally a civil servant, is now a political appointee.

Matters are no better in Germany, a country with a mixed history of local communities boasting centuries-old vibrant civic spaces on the one hand, and since the nineteenth century and the overbearing influence of political theorists like Hegel, a tendency to establish a strong and increasingly totalitarian national state, on the other. For the last 75 years, West Germany has been a stable liberal democracy, which East Germany joined in 1990 after civil society had been instrumental in overturning the totalitarian communist regime. Yet, in recent years, members of the federal and state parliaments have been quoted as referring to civil society as the ‘indignation business,’ the ‘compassion business,’ and, very recently, as ‘just a different sort of lobbyists.’ The concerning aspect of this is that the private sector has been extremely active and put large sums of money in fuelling politicians to adopt this kind of derogatory vocabulary. There can be no doubt that the contempt for civil society is shared by a considerable percentage of decision makers and influencers in politics, public administration, business, and the media (see also Simsa 2022).

In April of 2014, the charitable status of the German branch of ATTAC was removed by the local tax authority, which based its ruling on a regulatory provision originally introduced in the 1980s to curb fund-raising activities of organisations established for the sole purpose of giving political parties financial support beyond the options established by law. This obscure piece of regulation, long forgotton, was suddenly used in an attempt to silence an outspoken critic of the strong state-market alliance. When the organisation complained to the Federal Ministry of Finance, the answer was very clear: “The political parties are the place for political action,” thus referring to and totally misinterpreting a clause in the constitution that indeed grants the parties a say, but certainly not a monopoly, in shaping citizens’ political opinions. The case of ATTAC went to the courts, and ATTAC finally lost it. Other CSOs also lost their charitable status (Hummel 2022). To be fair, however, the (new) government recently introduced regulations that will make it more difficult for public authorities to silence uncomfortable dissenters on the basis of this rule. Also, it should be mentioned that the ATTAC case has prompted a discussion over whether civil society should consider charitable status awarded by government a prerequisite for an organisation to be accepted as a fellow CSO. The transparency initiative chaired by the German branch of Transparency International decided it should not.

These two examples, and the following contributions in this issue, show that the illiberal turn in established democracies is real and is not restricted to the countries we usually think of. In fact, an increasing attitude of non-acceptance and in many cases contempt of the civic space prevails in many nations, despite the fact that political leaders will, of course, resort to words of praise when timely. This has a lot to do with the survival of a 300–500-year-old state-orientated image of society that Europe continues to entertain – to the extent that some people would readily admit to the existence of a state as a cornerstone of human collectivity, but not to society in a sense that it may be composed of a number of different arenas, viz. the state, the market, and civil society. Margaret Thatcher’s famous quip in the 1980s, “There is no such thing as society,” may seem even more strange today than it did then, but in talking to senior civil servants, judges, and business leaders, you can hear statements, in particular if they are talking in private, that are not far removed. People, to mean individuals, should periodically be invited to cast their vote at the ballot box, but there is little sense of being a permanent space where citizens join in what Habermas described (1989) as deliberative democracy, i.e. an opportunity for each and everyone to assist in shaping policy.

Moreover, business leaders in particular, but other decision makers and influencers too, while embracing the idea of democracy in principle, will still contend, at least in private, that processes of decision making are inordinately drawn out, if and when citizens are permitted to voice too many concerns, take to the streets or have legal instruments at their disposal by which to “stop things from happening.” China’s progress in modernizing the country is not infrequently quoted as a shining example of what good may happen by adopting a strictly top-down approach. Argueably though, these voices from the centre of society against an active and politically engaged civic space are more destructive than voices heard from the fringes, even if and when these are loud and unpleasant, and may become absolutely explosive when joining forces, as may be observed to a certain degree in France with the yellow vest protests. To use a model developed by British author Jon Alexander, one gets the impression that the shift from a subject paradigm to a consumer paradigm has been undertaken but not accomplished, and that the necessary shift to the new citizen paradigm has yet to be inaugurated (Alexander 2022).

5 Conclusion: Contested Spaces

There is ample proof that the rise of civil society in the public space observed since the 1980s has been halted in recent years in Western Europe and other countries of the West, and that governments’ fears of being pushed out of the driver’s seat once more – after having been forced to effectively share this seat with the market – is the reason for this (Strachwitz 2021a). It seems governments have made use of the instruments they have at their disposal to curb, limit, and in some cases obstruct the activities of other players in the public sphere, tentatively but not usually successfully including those of global business conglomerates.

Taken together, shrinking civic spaces are clearly in evidence across a broad variety of liberal democratic societies. Yet the constraining measures, while restrictive and concerning, do not rise to the level of repression common in authoritarian regimes. Moreover, reviewing developments in democratic regimes highlights a different aspect of the overall phenomenon: a growing politization of civil society. This politization can be observed on two levels. On the one hand, there is a politization of issues and fields of activities in which NGOs and CSOs are active which is driven by a value-laden, mostly right-wing populism. Refugees, migration, climate change and reproductive rights are some of the fields on which fierce political battles are fought that draw even apolitical nonprofit service providers into the melee.

On the other hand, there has also been a significant growth of civic activism, as citizens reclaim political agency vis-à-vis the state, that contrasts sharply with the relative pacificity of government/nonprofit relationships of the post WW II era with its corporatist relations. New movements and new forms of organizing force their issues onto the political agenda with climate change activism, such as Greta Thunberg’s Fridays for Future, and its countervailing networks (Ruser 2022) as prime examples. This new politicalness of emerging CSOs reintroduces activism into the third sector, counters its growing technocratic managerialism, and may even be the harbinger of a social movementization of nonprofits, as della Porta (2020) has suggested. At the same time, the new forms of activism transcend the outmoded legal and especially fiscal frameworks for activities for the common good that still largely reflect nineteenth century visions of public benefit. This is behind the challenges to the tax-exempt status such as ATTAC, the Association for the Taxation of Financial Transactions and Citizen’s Action, whose modern watchdog function is not well reflected in outdated fiscal law in Germany (Anheier and Toepler 2019; Hummel 2022).

As such, the closing or shrinking space notions drawn from authoritarian contexts are not entirely transferable to Western contexts. Although aspects of shrinking spaces can be observed, the underlying issue is one of a re-emergence of political contestation within pluralistic liberal democracies (della Porta and Steinhilper 2021; Hummel 2020; Strachwitz 2021a). As Hummel (2022) notes in this issue, new spaces for civic agency are emerging, as civic engagement opportunities keep expanding, both within civil society and through participatory mechanisms of the state. At the same time, reactionary political forces driven by populism attempt to push back and contain this expansion. Anti-democratic pushback, in turn, may launch counter-mobilization efforts (Katz and Gidron 2022). Thus, in a way it is both the best and the worst of times, as civil society negotiates its contested spaces.


Corresponding author: Stefan Toepler, Professor, Schar School of Policy and Government, George Mason University, Arlington, VA, USA, E-mail:

Acknowledgments

We much appreciate Alan Abramson’s and Mirae Kim’s feedback and suggestions on this paper.

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Received: 2022-06-27
Accepted: 2022-07-04
Published Online: 2022-08-04

© 2022 the author(s), published by De Gruyter, Berlin/Boston

This work is licensed under the Creative Commons Attribution 4.0 International License.

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