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ICON Volume 20, Issue 3: Table of Contents

Volume 20 Issue 3

Table of Contents

Editorial

Articles

Veronika Fikfak, Against settlement before the European Court of Human Rights

Alain Zysset, Calibrating the response to populism at the European Court of Human Rights

Orit Fischman-Afori, Taking global administrative law one step ahead: Online giants and the digital democratic sphere

Carolyn Moser and Berthold Rittberger, The CJEU and EU (de)constitutionalization—unpacking jurisprudential responses

David Kershaw, Revolutionary amnesia and the nature of prerogative power

Raffael N. Fasel, Constraining constituent conventions: Emmanuel Joseph Sieyès and the Limits of Pouvoir Constituant

Gonçalo de Almeida Ribeiro, What is constitutional interpretation?

Cristóbal Caviedes, A core case for supermajority rules in constitutional adjudication

Special Section: Small States

Caroline Morris, Anti-defection laws in three small South Pacific Parliaments: A cautionary tale

Maartje De Visser and Elisabeth Perham, Variables shaping participatory constitution-making: Insights from the small state experience

Critical Review of Jurisprudence

Kenny Chng, Micro-contextual considerations in ouster clause analysis—A comparative study of parallel trends in the UK and Singapore

Symposium: Academic Stories of Covid-19 and Its Unequal Impacts

Gráinne de Búrca and Dana Schmalz, Introduction to the Symposium: Academic Stories of Covid-19 and its Unequal Impacts

Marcela Prieto Rudolphy, Between predictability and perplexity

Jaclyn Neo, Constitutionalizing care: How can we expand our constitutional imaginary after Covid-19?

Clare Williams, “Un-Disabled by Covid”: Reflections of a (usually disabled) socio-legal scholar

Ada Fama, When everyday-life troubles get even bigger: Being a young woman with a disability during Covid times

Gertrude Amorkor Amarh, Assessing the impact of Covid-19 on teaching and research: A Ghanaian perspective

Lorenzo Gasbarri, The thin line between farce and tragedy: My Covid story between Italy and Guatemala

Gabriela Rondon,  Debora Diniz,  and Juliano Zaiden Benvindo, Speaking truth to power: Legal scholars as survivors and witnesses of the COVID-19 maternal mortality in Brazil

Pedi Obani, My Covid-19 story: A tale of convergence, divergence, and more than law

Jernej Letnar Černič, Between two worlds: Personal reflections from Slovenia and Spain on the Covid-19 pandemic

Alice Margaria, When the personal becomes political: Rethinking legal fatherhood

Book Reviews

Benedetta Barbisan, Review of Diletta Tega. La Corte nel contesto. Percorsi di ri-accentramento della giustizia costituzionale in Italia

Ondřej Kadlec, Review of Cristina E. Parau. Transnational Networking and Elite Self-Empowerment. The Making of the Judiciary in Contemporary Europe and Beyond

Marten Zwanenburg, Review ofAmichai Cohen and David Zlotogorski. Proportionality in International Humanitarian Law: Consequences, Precautions, and Procedures

Margaret K. Lewis, Review ofWeitseng Chen & Hualing Fu (eds). Authoritarian Legality in Asia: Formation, Development and Transition

Brendan Edgeworth, Review of Rachael Walsh. Property Rights and Social Justice: Progressive Property in Action

Tom Gerald Daly, Review of Mark Tushnet. The New Fourth Branch: Institutions for Protecting Constitutional Democracy

ABSTRACTS

Against settlement before the European Court of Human Rights

Veronika Fikfak

Even though they represent almost 50% of all reported cases before the European Court of Human Rights (ECtHR), settlements of human rights violations escape scholars’ attention. While victims are increasingly expected to resolve their disputes amicably, it is unclear whether applicants will be better off accepting settlement offers rather than proceeding to litigation. The article charts the practice of friendly settlements before the Court from 1980s to today, mapping a shift in approach from seeking bilateral solutions to the proactive role of the Registry as mediator encouraging states and applicants to settle their cases to relieve the Court of the heavy workload. The study of 10,500 cases reveals how strategies adopted by the Registry—from procedural changes to how and when consent is given to settlement, to the framing of settlement offers and a close relationship with representatives of the respondent state—have favored the most frequent violators of the European Convention on Human Rights and sidelined the interests of the applicant. The analysis uncovers that the imbalance between parties and lack of enforcement are very much present in the ECtHR settlement system and that the active role of the Registry has reinforced, rather than redressed these concerns. The findings expose the dangers of pursuing en masse settlement in the human rights context and raise concerns about achieving long-term justice for victims of human rights violations through other means than adjudication.

Calibrating the response to populism at the European Court of Human Rights

Alain Zysset

This article aims to examine the relationship between the populist phenomenon and the European Court of Human Rights (ECtHR) from a normative perspective. It asks whether the Court, given its particular jurisdiction and established practice, is equipped to respond to the attacks of populist governments on European Convention on Human Rights (ECHR) rights and how it should adjust its interpretive apparatus to address these attacks. To this end, this article first reconstructs the ideational structure of populism, distinguishes two ideal-types (an exclusive/naturalized one and an inclusive/aggregative one, respectively), and posits that both ideal-types entertain a distorted account of democracy that fuels antagonism and partisanship. Second, it argues that across this spectrum the notions of pluralism and deliberation offer a vantage point to evaluate the role and practice of the ECtHR in responding to populism. Based on recent empirical studies evidencing populist attacks on democratic rights and structures, the article highlights the prototypical phenomena of media and electoral captures. Turning to the Court’s practice, this article shows how pluralism and deliberation heavily inform its reasoning as to the nature, scope, and justification of the two ECHR-relevant rights—namely freedom of expression and the right to free and fair elections—and the decisive role these notions play in resolving cases in proportionality analysis. The article finally explores whether the Court’s interpretive equipment is tailored to address the populist attacks on these fronts and articulates a practice-induced set of interpretive principles and techniques to better detect populist abuses.

Taking global administrative law one step ahead: Online giants and the digital democratic sphere

Orit Fischman Afori

Societal speech activities are increasingly conducted online, and therefore free speech concerns focus on the digital sphere. Major online service platforms operate speech-moderation practices that constrain digital speech. These platforms are run by a few multinational corporations—the so-called online giants. Online giants, in fact, control the backbone of democracies on a global scale. This article stresses a potential legal path to appropriately regulating digital speech, while preserving the free and thriving global digital culture. The argument introduced here is that the online giants should, to a certain extent, emulate global organizations, and since they control an essential public utility, they should operate under basic administrative legal norms that include accountability, transparency, giving reason, and objective review. To this end, the article inspects the global administrative law movement and proposes to extend its overarching conceptualization of global public procedural principles facilitating “good governance” to the online giants’ procedures, despite their private ownership.  

The CJEU and EU (de-)constitutionalization: Unpacking jurisprudential responses

Carolyn Moser and Berthold Rittberger

The Court of Justice of the European Union has long been considered a steadfast advocate and engine of the constitutionalization of the European Union. More recently, however, critical voices about the Court’s seemingly deferential stance on executive (crisis) governance have amplified among legal scholars and political scientists. We take issue with this claim and show that the Court’s jurisprudence is neither predominantly hard-wired in favor of constitutionalization, nor is it deferential to governments’ wishes. Instead, we show that factors external to the law—the politicization of an issue—and internal to the law—the juridification of an issue—prompt the Court to adopt different jurisprudential responses on issues of constitutional salience, ranging from the expansion of constitutionalization to its retreat. To probe our assertion, we zoom into the European Union’s internal and external security policies—namely Justice and Home Affairs, on the one hand, and the Common Foreign and Security Policy, on the other—which exhibit contrasting constitutionalization trajectories. Based on a qualitative case law analysis, we demonstrate that the Court’s constitutionalization responses are indeed systematically affected by different levels of politicization and juridification.

Revolutionary amnesia and the nature of prerogative power

David Kershaw

What is the nature and source of prerogative power? Where does it come from and how was it created? British constitutional law makes several assumptions in these regards. It assumes that these powers are inherent in or intrinsic to the Crown and it assumes that these powers are common law powers, meaning that they are constituted or conferred by the common law. This article takes issue with these conceptions of the nature of prerogative power. It shows that the idea that prerogative powers are sourced in the common law is derived from the seventeenth century’s theory of the ancient constitution; a theory famously advocated by Sir Edward Coke and embodied in his observation that “the King hath no prerogative but that which the law of the land allows him.” However, as the article shows, this theory of the ancient constitution was not an accepted theory of law in the seventeenth century, but rather an intensely contested political theory. It occupied a battlefield of constitutional ideas along with theories of kingly power sourced in conquest and the divine. Moreover, although these theories disagreed about the source and extent of prerogative power, they all posited a protocorporate Crown wedded to dynastic succession. The article shows that, from the perspective of a corporate Crown, the Glorious Revolution of 1688 resulted in the effective dissolution or dormancy of the kingly corporation embodied in James II, requiring that the Crown and kingly power be remade anew in the United Kingdom’s last “historically first” constitutional event. Through a close reading of the Bill of Rights and the proceedings of the Convention Parliament of 1689, the article evidences the statutory remaking of the Crown and prerogative powers and shows how from 1689 to today prerogative powers should be understood as a grander form of statutorily delegated power.

Constraining constituent conventions: Emmanuel Joseph Sieyès and the limits of pouvoir constituant

Raffael N. Fasel

Constituent power is widely viewed as the people’s legally unlimited power to make constitutions. This Popular Account of Constituent Power, as I call it, has been particularly influential in Latin American constitution-making processes, where it is often invoked as a justification for constituent conventions to ignore limits imposed on them. Although Carl Schmitt’s constitutional theory is a prominent source for the Popular Account, its proponents ultimately believe it to be based on Emmanuel Joseph Sieyès’s theory of pouvoir constituant. In this article, I show that this belief is unfounded. As I argue, Sieyès’s theory is best viewed as a secularized natural law theory that limits constituent power. Focusing on constituent conventions in particular, I demonstrate that Sieyès’s theory imposes two constraints on them: their mandate from the people and the common interest. I show the practical relevance of this finding by applying it to the current constitution-making process in Chile.

What is constitutional interpretation?

Gonçalo de Almeida Ribeiro

Constitutional interpretation is usually assumed to be a particular kind of legislative interpretation—particular, because constitutions have characteristics of their own, yet legislative interpretation all the same, because constitutions are written laws enacted by a (supreme) political authority. This article argues that the legislative paradigm is ill-suited to constitutional interpretation, for it represents an encroachment of the ontology of legality on the realm of constitutionality. Making sense of an object as a constitutional norm presupposes the a priori category of the constitution, understood as a substantive category in its own right, as intimated in the tradition of liberal democratic constitutionalism. It is this presupposition that makes constitutional meaning possible and justifies considering constitutional interpretation as something peculiar to itself, seriously downplaying the significance of contingencies of form, language, structure, and history in constitutional argument.

A core case for supermajority rules in constitutional adjudication

Cristóbal Caviedes

In this article, I present a conditioned argument—also called a “core case”—for using supermajority rules in constitutional adjudication. I hold that, given some assumptions, constitutional courts should replace majority rule with supermajority rules to declare statutes unconstitutional. I assume that (i) there are substantive standards for assessing the constitutionality of legislation; (ii) given reasonable disagreement, statutes should be presumed constitutional; (iii) my claims only apply to some constitutional adjudication systems; and (iv) my claims only apply to “well-functioning democracies.” Given these assumptions, I argue that constitutional courts should use supermajority rules to declare statutes unconstitutional for three reasons: first, supermajority rules may boost judges’ accuracy more than majority rule on mathematical grounds and on deliberative grounds; second, supermajority rules may increase constitutional courts’ reputation by signaling consensus; and third, supermajority rules may embody the presumption of constitutionality of legislation. I finish by tackling some possible objections. Specifically, I tackle the concern that, under supermajority rules, too many statutes that should be declared unconstitutional would stay constitutional; the concern that supermajority rules in constitutional adjudication could be used to erode a democracy; and the concern that, under supermajority rules, some declarations of unconstitutionality that one judges as correct may not have happened.

Antidefection laws in three small South Pacific parliaments: A cautionary tale

Caroline Morris

Antidefection laws seek to punish political party members who depart in some way from their party of election during the legislative term. They have proven to be both popular and problematic in certain South Pacific legislatures in recent decades. This article analyzes the introduction and subsequent fate of these laws in the small jurisdictions of Fiji, Samoa, and the Cook Islands. It concludes that the size of the jurisdiction is a notable factor relevant to both the introduction of these laws and the courts’ response to them. In addition, it is argued that in small jurisdictions antidefection laws not only have a disproportionately negative impact on constitutional principles and political rights, but also have the potential to distort the particular political development and practice of the South Pacific polities where they operate.

Variables shaping participatory constitution-making: Insights from the experiences of small states

Maartje De Visser and Elisabeth Perham

One of the assumptions that undergirds, sometimes implicitly, much of the contemporary push for participatory constitution-making is that meaningful popular involvement is easier to achieve in units with fewer inhabitants. This article critically interrogates that view, using the experience of small states (understood as those with no more than 1.5 million inhabitants) during constitution-making processes. It suggests that population size is not always a decisive or even significant variable when it comes to the type and quality of popular input realized during constitution-making in small states. Instead, five other macrocultural and environmental variables that, either alone or together, may have a greater impact are identified: democratic history and elite stewardship; the enduring presence of traditional orderings of society and approaches to governance; the ethnic and religious make-up of society; the available human capital and state of economic development; and physical geography. Drawing on case studies from the Asia-Pacific region, we show how these variables play out and highlight the need for contextual assessments of participatory constitution-making, also within the small state universe, to avoid falling into the “usual suspect” trap that has long plagued work in comparative constitutional law generally. This article further suggests that the relevance of the five variables mentioned does not appear to be peculiar to small states, which means that these variables can similarly be profitably used in studies of participatory processes generally. 

Microcontextual considerations in ouster clause analysis: A comparative study of parallel trends in the United Kingdom and Singapore

Kenny Chng

The classic legal approach to legislative ouster clauses in the common law was articulated by the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission. However, recent developments in both the United Kingdom and Singapore indicate a judicial desire to shift away from that approach towards a more flexible analysis of an ouster clause’s effect, centered on the rule of law. This article highlights the significance of those parallel developments, especially given the starkly differing constitutional contexts shaping the approach to ouster clauses in the two jurisdictions. Capitalizing on these trends, it proposes a comparative assessment of the materiality of various microcontextual considerations in ouster clause analysis in the two jurisdictions—considerations such as the nature of the subject matter and the characteristics of the decision-maker—and inquires into the normative implications in each jurisdiction of these developments in ouster clause doctrine.

Between predictability and perplexity

Marcela Prieto Rudolphy

This article focuses on the relationship between academia, the gendered division of labor, and the pandemic. After briefly canvassing preliminary research about the effects of the pandemic on academic women, it discusses the gendered division of caregiving responsibilities, both inside the family and in academic institutions. Through the lens of feminist theory, the article aims to understand what can be perceived as a kind of paradox or contradiction: on the one hand, there is something deeply predictable about the fact that women have shouldered relatively disproportionate caregiving responsibilities during the pandemic. On the other hand, and because these gendered effects are so predictable, there is something somewhat perplexing in the lack of institutional response. This article explains what is predictable about the phenomenon as an instantiation of misogyny and the gendered division of labor—a reproduction of already existing issues. The somewhat perplexing nature of the phenomenon comes from the lack of institutional response to deeply predictable effects, but it is also related to how resilient the gendered nature of caregiving obligations has proven to be, even during the extraordinary circumstances of a pandemic. This resilience, the article suggests, might be explained by the intersection of misogyny and economic exploitation.

Constitutionalizing care: How can we expand our constitutional imaginary after Covid-19?

Jaclyn L. Neo

The Covid-19 pandemic has no doubt caused serious disruptions to lives across the globe. These range from minor inconveniences to major consequences to personal, social, political, economic, and constitutional aspects. With the pandemic still present but its biggest effects waning, this framing article for our symposium on Covid-19 seeks to address the question of whether constitutional law should be rethought, recalibrated to create a more resilient, more egalitarian, and more protective constitutional order. It offers a series of provocations centered around the idea of care as a constitutionalist ideal by which to organize a refreshed post-Covid constitutional order. By care, I mean that which is necessary for the health, welfare, maintenance, and safety of persons. The constitutionalization of care could mean a further reorientation of our constitutional focus from the usual “hard” subjects of constitutionalism, i.e., on emergency power, pandemic regulation, the continued working of the legislature towards what may, so far, have been marginalized as “soft” constitutional subjects like social relations and families. These, I argue, are critical as Covid-19 has shown us that it is these “soft” constitutional subjects that have had the widest and deepest impact on the ground. This article therefore seeks to reconsider, as Irving once suggests, the very “idea of a constitution.”

“Un-Disabled by Covid”: Reflections of a (usually disabled) socio-legal scholar

Clare Williams

We have all been disabled by Covid: routines interrupted, interactions curtailed, access denied. For many, this was new and troubling. For some, though, like me, this was normal life. Charting two years of intermittent lockdowns due to Covid and the remote working practices that emerged, this article chronicles my experiences as a (usually) disabled socio-legal scholar who found themselves included on an equal basis for the first time. Covid leveled the playing field, giving us glimpses into how remote and hybrid working might be harnessed to fully include disabled people in the workplace. Legal research and academia are fields that are generally amenable to remote and hybrid working. And yet, the “back-to-normal” narrative urges a return to the built and social environments that imply “back to exclusion.” Additionally, proposals for hybrid or remote working tend to be painted as the choice of the individual—a core neoliberal principle. But for disabled or vulnerable people, an individual choice to work remotely can be neither free nor fair. We risk being segregated once again from society; only this time, the segregation is justified by our individual choice. While disabled communities glimpsed a vision of a more inclusive workplace, narrative trends imply entrenched inequality and the full realization of neoliberal academy.

When everyday-life troubles get even bigger: Being a young woman with a disability during Covid times

Ada Fama

One day I found myself in the middle of thousands of people crowded into a stadium to watch a match. The next day . . . a roaring silence. This was my beginning of it all. On February 21, 2020, Italy experienced the first Covid-positive case. Everything changed within hours; the entire country was frozen in sheer dread. After almost eighty days of lockdown, I started evaluating the implications that the pandemic was going to have in my life of a young, visually impaired woman. Though the long-term consequences of Covid-19 require time to fully process, in this article I examine two main changes that I can already qualify as a direct result of the hard times we just lived through. First, the repeated lockdowns determined an abrupt halt in hiring. At the time of the Spring-2020 lockdown, I was seeking employment, as did many fellow fresh graduates. However, both public and private recruitment was suspended. Therefore, most of us had to wait months before being able to finally get a job. But one year of (forced) gap can be very detrimental to the career of a young person. Second, technology has proved to be very useful in times of isolation. I argue, however, that technology, itself, can determine isolation. For people with a disability, in particular, there is a hidden risk in relying too much on technology, as the hard, real life is gradually replaced by a virtual life, with fewer challenges but, at the same time, with fewer socialization and integration opportunities.

Assessing the impact of Covid-19 on teaching and research: A Ghanaian perspective

Gertrude Amorkor Amarh

The Covid-19 pandemic in diverse ways affected the traditional modes of instruction and learning at all levels of education. Prominent among the innovations necessitated by the pandemic was the increased use of virtual methods of teaching and learning. For many learners and instructors in parts of the world however, expensive internet data costs, lack of digital learning tools and similar other challenges meant that the benefits of virtual teaching and learning could not be fully reaped. This article recounts my experiences of the pandemic as a Ghanaian early career researcher. It shares the experiences of law students in my University, obtained through administered questionnaires. The article also analyses how these experiences unearthed deep socio-economic inequalities among learners and lecturers alike, and how these inequalities impacted effective teaching and learning during the pandemic. Although these disparities had long existed, the conditions created by the pandemic only made them more glaring. While analysing the institutional support received from my University, the article makes a case for the active involvement of all stakeholders in bridging the divide.

The thin line between farce and tragedy: My Covid story between Italy and Guatemala

Lorenzo Gasbarri

In my “Covid story,” I would like to present some reflections on the effects of the pandemic on global structural inequalities. Based on my personal experiences in Italy and Guatemala, I chronologically present the differences between the two countries in tackling the pandemic. In particular, I focus on the right to health, including access to hospitals, testing, and vaccinations. I also discuss how the justice system reacted to the pandemic, including the management of prisons and the investigations on the actions of the two governments. Public demonstrations in the streets and violent protests in prisons are the background against which I present the legislative measures adopted to curb the pandemic. Farce and tragedy are intended to depict the distance between public institutions and the people they represent. Between the failures of temporary hospitals in Guatemala and Italy’s draconian regulations to enter the country, the very concept of law and public institutions assumed different connotations.

Speaking truth to power: Legal scholars as survivors and witnesses of the Covid-19 maternal mortality in Brazil

Gabriela Rondon, Debora Diniz, and Juliano Zaiden Benvindo

The Covid-19 health emergency has placed special demands on legal scholars, particularly on those based in the Global South. Brazil has been one of the epicenters of the pandemic, with over 680,000 deaths as of August 2022. Our narrative emerges from the duality of our positions amid a national tragedy—we are at the same time survivors of the collective threat of a would-be autocrat and a Covid-19-denialist government, and witnesses to how our preexisting privileges put us in a position of readiness “to speak truth to power.” Speaking truth to power means not only to exercise an independent spirit of analysis and judgment with respect to power, but also to interpellate power openly about its wrongdoings. We understand that our responsibility as legal scholars is to embrace the urgency of the moment—to expand our research agendas beyond our previous academic trajectories and work to mitigate situations of rights violations. It also means that our work as legal scholars has had to transcend the traditional academic spaces. We have positioned ourselves as advocates and litigators for those most affected by the pandemic, in particular vulnerable women. In this article, we share one of our key initiatives during the pandemic—a constitutional lawsuit to demand the right of pregnant and postpartum people to access Covid-19 vaccines.

My Covid-19 story: A tale of convergence, divergence, and more than law

Pedi Obani

Over the past couple of years, the Covid-19 pandemic and response measures by governments around the world have significantly impacted existing inequalities and related human rights in most sectors, including education. Beyond the Covid-19 regulations and the implementation processes, the human rights impacts have largely been determined by extraneous factors such as personal characteristics (sex, gender, age, health, employment), the quality of the environment, and social, political, and economic systems within which the regulations are implemented. In this article, I reflect on my personal experience of the human rights impacts of the pandemic response from my position as a female academic having recently joined the higher education sector in the United Kingdom from abroad. Overall, the pandemic has been both an “equalizing” and “divisive” threat, due to a combination of converging responses and divergent outcomes beyond the regulations. This article is also about my concern that there is a real risk of returning to business as usual without institutionalizing the skills and value addition to human rights protection during emergencies affecting academia and healthcare, drawing from the Covid-19 pandemic experience.

Between two worlds: Personal reflections from Slovenia and Spain on Covid-19 pandemic

Jernej Letnar Černič

The global Covid-19 pandemic has disrupted the private, family, and professional lives of individuals worldwide. This article discusses its impact on constitutional values in Slovenia and Spain, drawing primarily on my personal experiences. In the past two years, individuals in both countries have suffered greatly due to the pandemic. Millions lost their lives, whereas many continue to suffer the long-term effects of Covid-19. Since the start of the pandemic, the constitutional values of coexistence, mutual respect, human dignity, freedom, and solidarity have been under stress in both societies. The Slovenian and Spanish authorities have employed various measures and restrictions to curtail the spread of the pandemic, some more successful than others. The statistical data illustrates that the pandemic has more affected Slovenian society than Spanish, based on Covid-19 deaths per million inhabitants. This article posits a hypothesis, based on personal experience and observation of both constitutional systems, that the understanding and implementation of constitutional values during the pandemic depended on each country’s traditions, culture, and customs. The article explores the reasons for such discrepancies between the two European countries. It submits that traditions, culture, and historical legacies have shaped the countries’ approaches to protecting constitutional values during the global Covid-19 pandemic.

When the personal becomes political: Rethinking legal fatherhood

Alice Margaria

Inspired by my personal experience as a working mother during the pandemic, this contribution reflects on the urgent need, and possible ways, to rethink legal fatherhood. If the aim is to make fathers (more) active carers, making family-leave policies more assertive in encouraging fathers’ uptake is certainly an important, first step towards bringing men into the care frame. Yet, to counter the multiple negative effects of the pandemic on women, legal fatherhood must undergo a structural rethinking, which extends to legal regulation more broadly. A legal venue where this rethinking is long overdue, is filiation law, whose rules function as channels through which notions and arrangements of (child)care are created and can, therefore, also be recreated. Driven by the desire to promote a substantive vision of equality, this article argues for a relational rethinking of legal fatherhood, which is mindful of the interconnectedness between the lives of women, men, and children, and places care at its core.

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Published on January 17, 2023
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