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The Durban Declaration and Xenophobia Foreword In Malmo, in Sweden, a ‘race-gunman’ had been active for over a year before he was caught last October. Immigrants in Malmo were forced to live in fear and uncertainty for more than a year. Undoubtedly, such blatant discrimination is deplorable; being harmed because of one’s race is unfair and in violation of major human rights treaties. However, such treatment is becoming widespread despite the provisions of international treaties and existing human rights norms. Therefore, the international community is still in need of a strategy for preventing racism and an incentive for the adoption and implementation of anti-discrimination norms. Ten years ago the Durban Declaration on Racial Discrimination, Racism, Xenophobia and Related intolerance was adopted. Yet, since then, the political climate in Europe has shifted towards harboring anti-immigrant attitudes, and discrimination remains a reality in a majority of UN Member States. Therefore, this Background Paper will address the problem of discrimination, focused on minorities (immigrants and ethnic minorities) with the Durban Declaration as its guideline.

Abbreviations OECD

Organization for Economic Cooperation and Development

UDHR

Universal Declaration of Human Rights

UNHCHR

United Nations High Commissioner on Human Rights

WCAR

World Conference Against Racism

OHCoHR

Office of the High Commissioner on Human Rights

OECD

Organization for Economic Cooperation and Development

Introduction Undeniably the political spectrum in many countries has changed over the last decade. The abovementioned is significant in light of the discussion regarding Xenophobia and Racism. In the recent decades, far-right parties with a nationalist premise have gained votes all over Europe. In Switzerland, Austria, Belgium, Hungary, Denmark and the Netherlands, rightwing parties obtained around 20 percent of the votes in recent elections. 1 In the USA, the up and coming Tea Party movement’s position on immigrants resembles those of the right-wing parties of Western Europe, even though it is uncertain whether their views amount to racism or if they are merely nationalistic in nature. However, it is clear that both the right-wing parties in Europe and the Tea Party movement in the US, are trying to create a division between “us and them" .2 Furthermore what is worrying is that attitudes seem to have changed, but for the worse concerning immigrant communities. Islamophobia and Anti-Semitism are on the rise as adequately demonstrated by an opinion poll published in the Economist in 2008. The opinion poll asserts that “46% of Spaniards, 36% of Poles and 25% of Germans have negative views of Jews; and 52% of Spaniards, 50% of Germans, 46% of Poles and 38% of French people have negative views of Muslims”.3 Certainly, the topic of racism and xenophobia is also on the Agenda of the United Nations. The UN has organized a series of World Conferences 4 to address racism and xenophobia. The outcomes of these conferences continue to serve as guidelines for further implementation by Member States and UN bodies. The most recent of these conferences organized in 2001, the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, was concluded with the adoption of Durban Declaration and Programme of Action, which will serve as the reference point for our discussion on effectively curtailing xenophobia and racism.

1

The Economist, “The European Far Right: Dark tales from the Vienna woods” 2-10-2008 <http://www.economist.com/node/12341809?story_id=E1_TNPQTRDJ> retrieved: 19-03-2011. 2 The Economist, “Far Rights Populism: Tea Parties and a party for Freedom” 10-3-2011, http://www.economist.com/blogs/democracyinamerica/2011/03/far-right_populism retrieved: 19-03-2011. 3 The Economist, “The European Far Right: Dark tales from the Vienna woods” 2-10-2008 http://www.economist.com/node/12341809?story_id=E1_TNPQTRDJ. 4 Meetings of representatives of states, non-governmental organizations (NGO) and UN-agencies

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This introductory paper will first discuss recent trends and developments regarding racism and xenophobia. Following that, the paper will address the content of the Durban Declaration, and the adverse conditions under which it materialized will be outlined. Subsequently, the paper will continue with a discussion on the UN Conventions and Bodies relevant for the Principle of Non-discrimination. The paper will then be concluded with outlining possible questions for the debate.

Xenophobia and Racist attitudes in the public opinion Measuring attitudes, especially concerning a contested concept as xenophobia or racial discrimination is complicated, since the definitions themselves can be contested. For that reason, this paper will firstly cite the relevant definitions before going on with an overview of discriminatory practices that still prevail. And lastly, it will present some figures regarding the public opinion on migrants, and include two graphs on violence and discrimination. Article 1 of the the International Convention on the Elimination of All Forms of Racial Discrimination defines of racial discrimination as: “1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”5

Although there is a standard definition of racial discrimination as provided above, there is not a specific definition laid out for xenophobia in international law. However, one of the regional Preparatory Meetings for the World Conference (2001) held in Tehran formulated it as follows: “Xenophobia describes attitudes, prejudices and behavior that reject, exclude and often vilify persons, based on the perception that they are outsiders or foreigners to the community, society or national identity.” Other definitions speak of Xenophobia as denoting

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The Convention on the Eridication of All Racial Discrimination, Vienna:1965, <http://www2.ohchr.org/english/law/cerd.htm>

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behaviour that is “based on the perception that the other is foreign to or originates from outside the community or nation.”6 At this point, it should be noted that this paper focuses on Xenophobia and racial discrimination, and not on all forms of possible discrimination. With that in mind, the following is a short summary of the Human Rights Watch World Report which mentions the following practices of discrimination (this list is not meant to be exhaustive).7 •

In the European Union, over the last year outrage has occurred out political level on the expulsion of Roma’s from France. But also in Italy, Ukraine, Kosovo, Serbia, Poland discrimination of the Roma is severe.

•

In the Nordic Countries, the Netherlands, Belgium and Germany discrimination towards Muslims and Islamophobia is widespread. Proposals for laws banning headscarves and the political rhetoric on the failure of the multi-cultural society ignite Islamophobia.

•

In Eastern Europe discrimination towards historical ethnic minorities is present. For example: in Belarus Polish are discriminated, in Ukraine people with a non-Slavic appearance are often the victim of hate-crimes. In Russia violence towards migrant workers, exploitation and discrimination is reported on a daily basis. The problem is exacerbated due to the attitude of the police and the absence of legal remedies against racially motivated violence, as in for example Georgia.

•

In the Middle East (Saudi Arabia, Kuwait, Iran) discrimination is directed towards non-Muslims, and respectively Shiites and Sunnites. Other faiths are not allowed to practice their religion. Even stronger, minority groups are often victims of hate-crimes and harassments, as for example the violence against Coptic Christians in Egypt.

•

In India and Nepal, the practice of the Caste system and the position of the Dalits, is sometimes compared to an Apartheid regime. In law special provisions for Dalits are made for positive discrimination. Within society, however, discrimination against the ‘untouchables’ is deeply rooted.

6

Declaration on Racism, Discrimination, Xenophobia and Related Intolerance against Migrants and Trafficked Persons. Asia-Pacific NGO Meeting for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance. Teheran, Iran. 18 February 2001 as cited in: International Labour Organization, International Migration, Discrimination, and Xenophobia, (2001) http://www.ilo.org/public/libdoc/ilo/2001/101B09_218_engl .pdf. 7 Human Rights Watch, The World Report 2011, 2011 <http://www.hrw.org/en/world-report-2011>

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•

In China the society itself is forcefully made egalitarian, in spite of this; ethnic minorities are still mistreated and denied their cultural rights, especially the Tibetans and Uyghur people.

•

From Africa little data is available on discrimination against minorities. Reports come in only from South Africa. The picture they sketch is alarming: Xenophobic attitudes are on the rise.

As seen by the summary, in many States, both policies towards minorities, and the attitude of their respective peoples is alarming from a perspective of xenophobia and racial discrimination. This is confirmed by reports from the OECD (Organization for Economic Cooperation and Development) which finds that the attitudes towards migrants are in general hostile. How this translates into anti-immigration rhetoric in politics and tight immigration policies depends on the electoral system, and whether the extremist parties can gain substantial support in the parliament.8 Yet, migration and integration policies do not sketch the whole picture of attitudes towards minorities. To illustrate attitudes more thoroughly three graphs are presented here: The first graph is based on data from the European Social Survey on perceptions of Immigrants’ contribution to economic and cultural life. Here, the relatively low perception in the United Kingdom and in Eastern European countries is striking.

Source: OECD, Migration Outlook 2010, 27. 8

OECD, Migration Outlook 2010, Paris:2010.

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The next graph is taken from the European Union Minorities and Discrimination Survey 2009, and compares self reported prevalence of discrimination in the private as well as in the public domain for various ethnic groups in specific European countries (exact research question can be found in the legend of the graph). The percentage of Roma reporting discrimination is alarmingly high and shows the special social position of this group.

Source: European Union Agency for fundamental rights ‘Main Results Report’, EU-MIDIS, European Union Minorities and discrimination surveys, 2009, 36. Whereas the first two graphs and statistics are based on cross-country comparisons of perceptions, the last graph demonstrates that also within counties, the number of reported crimes with an extremist right wing motive increased in the past years. This is the case especially in Germany and France where a substantial increase in the number of registered crimes per year between 2000 and 2006 can be observed.

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Source: FRA, Report on Racism and Xenophobia in the member states of the EU, 2007, 125.

The Durban Declaration The Durban Declaration and the Program of Action is the outcome of “The United Nations World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance�.9 It was the third of the World Conferences on Racial Discrimination and Racism, which are intended to create a broad consensus by incorporating both civil society representatives and states in their deliberations. As a result the outcomes are useful in serving as guidelines for further efforts by states and UN-bodies with regards to the eradication of racism and xenophobia. This paper initially discusses the content of the Durban Declaration and then outlines the drafting process of the Durban Declaration. The latter is done to demonstrate that even in cases of a generally supported cause as the battle against racism, the discussions can be politicized, and the outcomes are often a compromise.

9

WCAR, Durban Declaration and Program of Action, 2001. http://www.un.org/WCAR/durban.pdf

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Durban Declaration – the content The Durban Declaration and the Programme of Action are two lengthy documents with 122 and 219 clauses respectively. The document touches upon almost every facet of Racial Discrimination, Racism, Xenophobia, and Related Intolerance. The Declaration itself discusses the root causes of racism and racial discrimination, and thus, pays due attention to the continuing effects of the trans-Atlantic slave trade and connects contemporary racism to it, which is remarkable. Furthermore, the document singles out African peoples and people of African decent and Asian peoples and people of Asian descent as being especially victimized by trans-Atlantic slave trade and asserts that these groups are still especially prone to being victims of Racism and Racial Discrimination. Further groups the declaration identifies as being vulnerable for racism are refugees, migrants, and traveling people. The other issues mentioned by the declaration are remedies and measures against racism. However, the latter is discussed in greater detail in the program of action.10 The program of action, similar to the Declaration itself, commences with identifying the causes, roots, and victims of racism; however, in a less detailed manner than the declaration. The remedies formulated in the program of action are especially extensive. It calls upon states to implement measures against racism in almost every aspect of society. The international component of the remedies are first to call upon all states to sign and ratify all related Conventions and United Nations documents, as discussed in clauses 75 to 83.

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Furthermore

states are called upon to promote anti-discrimination in all international bodies they are a party to. Relevant and significant with respect to this paper’s topic is the follow-up to the Durban Declaration in the UN context as asserted in clause 191. In this clause states are urged to present the United Nation High Commissioner for Human Rights with a national plan of action to combat racism. Additionally, the UNHCHR is invited to set up a follow up committee, to produce annual progress reports, as well as a database for exchanging information about anti-discrimination measures and best practices. Clause 193-198 requests the Office of the United Nations High Commissioner for Human Rights to pay special attention to racism and racial discrimination in its deliberations and its cooperation with governments and other UN bodies.12 Clause 199 mentions the predecessor of the Human 10

ibid. ibid. 12 WCAR, Durban Declaration and Program of Action, 2001 http://www.un.org/WCAR/durban.pdf 11

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Rights Council and is therefore important for our discussion: “Recommends that the Commission on Human Rights prepare complementary international standards to strengthen and update international instruments against racism, racial discrimination, xenophobia and related intolerance in all their aspects;”13

Behind the Scenes: The Third World Conference The third world conference against Racism and Racial discrimination was held in 2001 in Durban, South Africa. Preparations for the conference commenced in 1998. In 2000 the first preparatory conference took place in Geneva, intended to set the agenda. Contrary to expectations, debates were lengthy and complicated. Different blocks stood in opposition to each other; the Western countries and others (EU, United States, Canada, Australia and New Zealand) presented opposing views to those expressed by Asian, African and Latin American countries. Unlike the initial draft and the proposed agenda, not only the integration of migrants, but also trans-Atlantic slave trade, the Palestinian-Israeli conflict and the problems of Palestinian refugees were on the agenda.14 Accordingly, the two most controversial debates focused on the trans-Atlantic slave trade and the question whether to recognize this as a crime against humanity; and the conflict in the Middle East and Israeli practices concerning Palestine. This caused Israel and the United States to leave the conference after four days and not to recognize nor sign the outcome. The input of NGOs, much applauded upon in light of the cooperation with civil society, was even more controversial. The Chair of the conference refused to read out the final document to the plenary session and major NGOs, such as Amnesty International, distanced themselves from the declaration.15 Was the conference then a failure? On one hand, Israel and the United states walked out, and the outcome document was deemed a compromise that made neither party happy. On the other hand, many states have signed the Durban Declaration. More importantly, it is still used as the document on which further action is taken. Monitoring systems, best practices, databases and a follow-up committee are in place. The UNHCHR has taken up the appeals to 13

Article 199, WCAR, Durban Declaration and Program of Action, 2001. Camponovo, C. N., “Disaster in Durban: The United Nations World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance” George Washington International Law Review, 2003. 15 Ibid. 14

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its office to pay extra attention to the issues of racism, racial discrimination and xenophobia seriously and has established the bodies as requested in the Declaration. Most countries, also in the western block, have written plans of action and deposited them at the UNHCHR for follow up and monitoring.16

The Process Behind: The Review Conference in Geneva The legacy of the conference in Durban still prevailed over the review conference in Geneva in 2009. Israel and Canada were the first to announce their boycott of the conference, followed by the United States and several European countries. They stated that they did not believe the conference would be different from a forum expressing Anti-Semitist sentiments. Although the Durban Declaration itself does not contain explicit condemnation of Israel, nor Zionism, the accompanied NGO forum and their statements led to outrage and caused these countries to refrain from participating in a new World Conference. The boycotting countries accused some regimes of hijacking the subject of anti-discrimination and the world forum for their own political purposes.17 The best remembered moment of the conference was the speech by Iranian President Mahmoud Ahmadinejad. The Iranian president expressed outrage regarding the treatment of the Palestinian people in the occupied territories. This caused 23 European delegates to walk out, of which only the Czech delegation did not return. The aforementioned incident clearly demonstrates how controversial and politicized these conferences can be. 18 Just as the Durban Declaration, the outcome document of the Geneva conference was modest. It calls upon nations to adhere to their duties under different conventions and to work alongside different UN bodies, especially the Office of the High Commissioner for Human Rights, to battle discrimination through best practices and measures proposed in the plan of action of the Durban Declaration.19

16

Ibid. The Economist, “UN conference on racism: Avoiding the worst� 23-4-2009 <http://www.economist.com/node/13527953> 18 Ibid. 19 Ibid. 17

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The Non-Discrimination-Principal within the United Nations This section will present the UN Conventions and bodies relevant for the Principle of Nondiscrimination. One of the basic principles of Human Rights Law is the principle of nondiscrimination, it can be found in the first article of the Universal Declaration of Human Rights (UDHR): ‘All human beings are born free and equal in dignity and rights’ 20, as well as Article 7 of the UDHR codifying equality before law.21 The Human Rights Council, which was founded in 2006, as the successor of the Human Rights Committee. It discusses human rights issues, reports to the General Assembly, and receives annually monitoring reports on the human rights situation in all countries. Accordingly, one of its functions is to safeguard the Universal Declaration of Human Rights, and therefore the non-discrimination principle. Hence, in the Durban Declaration, the Human Rights Council is also included in the implementation mechanism and is asked to put emphasis on Racial Discrimination and Xenophobia in its annual country reports. 22 In close collaboration with the Human Rights council, the United Nations High Commissioner for Human Rights (UNHCHR) is endowed with the protection and promotion of all human rights for all. The post was established by the Vienna Declaration on Human Rights in 1993. The UNHCHR is the principal representative concerning Human Rights in the United Nations. In this function UNHCHR is also the primary negotiator between governments and UN bodies concerning Human Rights. For this reason UNHCHR chairs the World Conferences, and intergovernmental committees, and monitors the special rapporteurs under her auspices.23 The Durban declaration is one of the declarations established under the auspices of the High Commissioner, therefore the established committees and bodies for monitoring and follow-up on the declaration are under the office of the UNHCHR. The group of independent experts, founded by the Durban Declaration, works with the UNHCHR on the follow up of the Conference to monitor the implementation of the Durban Declaration and helps prepare the annual reports for the HRC and the GA.

20

http://www.ohchr.org/en/issues/Pages/WhatareHumanRights.aspx Shaw, M, International Law 6th edition, Cambridge: CUP, 2008, 279. 22 Ibid. 23 Ibid. 21

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The Intergovernmental Working Group on the effective implementation of the Durban Declaration and the program of action also monitors the effective implementation of the Durban Declaration. In addition, they develop international standards ‘to strengthen and update international instruments …’24 In article 199 of the Durban declaration ‘complementary standards’ are mentioned. These standards were to be developed by the Intergovernmental Working Group, which appointed an Ad Hoc Committee on the elaboration of complementary standards. With the help of a group of experts to close legal gaps, the process of elaboration of these standards is ongoing. 25 Another working group elaborating on a specific part of the Durban Declaration is the Working Group of Experts on People of African Descent. They elaborate on rights and measures especially directed towards people of African descent.26 The Durban Declaration, its working groups and experts, are not only founded on the principle of non-discrimination and the Universal Declaration of Human Rights. It also builds upon the Vienna Convention on the Elimination of All Forms of Racial Discrimination, signed in 1965, entered into force in 1969. This Convention forms the backbone of following declarations, decades and world conferences on racial discrimination and xenophobia. With the ratification of the Convention, a committee of independent experts was founded: the Committee on the Elimination of Racial Discrimination. All parties to the treaty are obliged to report within two years on the status of Racial Discrimination in their state. Regular reports are further requested on the process of implementation of the convention. The committee can receive inter-state complaints and individual complaints; the latter only if the country signed the additional protocol allowing so. So far, only 25 states are liable for individual complaints to the committee.27 In 1993 early warning measures and urgent procedures were established. The latter is to respond to immediate violations of the Convention by the parties, the early warning procedure is to prevent violations, or prevent

24

The intergovernmental working group, <www2.ohchr.org/English/issues/racism/groups/index.htm> The adhoc committee on the elaboration of international standards, <http://www2.ohchr.org/english/issues/racism/adhoccommittee.htm> 26 Working group of experts on the people of African descent, <http://www2.ohchr.org/english/issues/racism/groups/african/4african.htm> 27 The committee of eminent experts, www2.ohchr.org/English/bodies/cerd/index.htm 25

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violations from escalating. The committee can take decisions, statements and resolutions, in these matters.28 Also in 1993, a Special Rapporteur on contemporary forms of racism, racial discrimination, and xenophobia and related intolerance was appointed. He reports to the Human Rights Council, communicates in cases of discrimination to the countries, and receives and investigates individual complaints. National authorities are asked to take necessary measures, if the allegation is found to be grounded.

Conclusion and Questions for Debate This Background paper has considered the practice of discrimination and xenophobia and the institutionalization in the international community of anti-discrimination norms. This shows us two things. First, discrimination and xenophobia prevail and are even amplified in the recent years, in Europe and in the rest of the world. Europe is highlighted, because the increase of xenophobia is a turn-around in the public debate for many European countries. Second, the Durban Declaration sets guidelines for further action and monitoring, especially focused on all types of discrimination. In the description of the different UN bodies, we have seen that several monitoring procedures, and reporting obligations are in place. At the same time the Durban Declaration, the plan of action, and the standards it wishes to set, are still under development. The Geneva conference, the different working groups, and the ongoing procedures show this clearly. An anti-discrimination norm has developed, and the International Community is working on its implementation. Yet, discrimination is not on the decline, anywhere in the world. Then the question is how one can explain this discrepancy and what the international community can do to battle this inconsistency. Does the current monitoring system suffice? If not, how can it be improved?

28

The early warning system of the committee of eminent experts www2.ohchr.org/English/bodies/cerd/early-warning.htm

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Furthermore, it was pointed out in the discussion of the process leading up to the Durban Declaration and the Geneva conference that discussions relating to racism and discrimination can be highly politicized. In addition, public opinion towards migrants is generally hostile. These two factors should be taken into account. To what extent does this affect the outcome of the norms? How feasible is the effective implementation of these norms, in a hostile climate? Should we first change the xenophobic attitudes, and if so, how?

References Camponovo, C. N., “Disaster in Durban: The United Nations World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance” George Washington International Law Review, 2003. Human Rights Watch, The World Report 2011, 2011 <http://www.hrw.org/en/world-report2011> International Labour Organization, International Migration, Discrimination, and Xenophobia, (2001) http://www.ilo.org/public/libdoc/ilo/2001/101B09_218_engl.pdf. OECD, Migration Outlook 2010, Paris:2010. The Economist, “The European Far Right: Dark tales from the Vienna woods” 2-10-2008 <http://www.economist.com/node/12341809?story_id=E1_TNPQTRDJ> retrieved: 19-032011. The Economist, “Far Rights Populism: Tea Parties and a party for Freedom” 10-3-2011, http://www.economist.com/blogs/democracyinamerica/2011/03/far-right_populism retrieved: 19-03-2011. The Convention on the Eridication of All Racial Discrimination, Vienna:1965, <http://www2.ohchr.org/english/law/cerd.htm> The Economist, “UN conference on racism: <http://www.economist.com/node/13527953>

Avoiding

the

worst”

23-4-2009

Shaw, M, International Law 6th edition, Cambridge: CUP, 2008, 279. WCAR, Durban Declaration http://www.un.org/WCAR/durban.pdf

and

Program

of

Action,

2001.

Bodies: Non-discrimination http://www.ohchr.org/en/issues/Pages/WhatareHumanRights.aspx

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principle:

The intergovernmental working <www2.ohchr.org/English/issues/racism/groups/index.htm>

group,

The adhoc committee on the elaboration of international <http://www2.ohchr.org/english/issues/racism/adhoccommittee.htm> Working group of experts on the people of African <http://www2.ohchr.org/english/issues/racism/groups/african/4african.htm>

standards, descent,

The committee of eminent experts, www2.ohchr.org/English/bodies/cerd/index.htm The early warning system of the committee www2.ohchr.org/English/bodies/cerd/early-warning.htm

15

of

eminent

experts

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