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Les enfants peuvent-ils s'exprimer

Children 
as Rights Holders

Current Debate and Challenges
Les enfants comme sujets de droit. Enjeux et questions en débat
Roberta Bosisio et Paola Ronfani
p. 28-35

Résumés

La Convention internationale des droits de l’enfant (CIDE) a été ratifiée par tous les pays reconnus par l’ONU, à l’exception des États-Unis, mais le débat qui a précédé son approbation n’a jamais pris fin. Les freins à la mise en œuvre des droits des enfants demeurent et le paradigme et les stratégies adoptés jusqu’à présent sont mis en question. Dans cet article, nous souhaitons identifier les points d’achoppement de l’application des droits des enfants tels que définis par la CIDE. Ces difficultés sont en grande partie, mais pas exclusivement, imputables à l’hétérogénéité des systèmes juridiques des pays signataires dans un monde globalisé. Particulièrement, l’écart de pouvoir entre les enfants et les adultes change d’une culture à une autre et selon les conditions socio-économiques, notamment au sein des familles. Deux points clés méritent d’être abordés par les études et les recherches sur les droits des enfants. Le premier porte sur la nécessité d’identifier de nouvelles conceptualisations des droits des enfants transformant l’approche descendante en une approche ascendante. Le deuxième questionne la pertinence de l’approche juridique pour aborder les droits des enfants et leur bien-être.

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Texte intégral

1Thirty years since the United Nations Convention on the Rights of the Child (UNCRC) was promulgated, legal scholars and social scientists are reviewing the progress made. Though significant improvements have been made at the legal level, an authentic implementation of children’s rights still seems very hard to achieve.

2At the legal level, the UNCRC unquestionably created a rights dynamic concerning “the ways in which ideas about rights have acted as a catalyst or tinder within countries and societies” (Jones, Welch 2018: 19). This evolution has led, at a macro level, to the introduction (or the change) of treaties, laws and policies in different areas: from the justice system to family policies, from education to the health system. At a micro level, it has brought about changes in family relationships and professional practices relating to children in courts, schools, health and social services (Jones, Welch 2018).

  • 1 “In France, international treaties, including the CRC, have a superior authority to that of nationa (...)

3Concerning treaties at a regional level, we can mention the African Charter on the Rights and Welfare of the Child (adopted in 1990, entered into force in 1999) and the European Convention on the Exercise of Children’s Rights (adopted in 1996, entered into force in 2000). Concerning the national level, Beatrice Duncan estimated in 2008 that the constitutions of well over 20 countries “possess the characteristic of ‘child rights’ constitutions, with provisions dedicated to the protection of the rights of the child” (Duncan 2008: 42). However, a 2015 report by the EU Committee on Social Affairs, Health and Sustainable Development notes that three EU member states—France, Norway and the United Kingdom—have no constitutional provisions regarding children rights.1 Moreover, although some states do not incorporate children’s rights in their constitutions, they do recognize some or many such rights in other ways.

4Though the UNCRC was ratified by all states, USA excepted, an intense debate—which set enthusiasts against critics—preceded the treaty’s approval. This debate has continued afterwards, from time to time “taking up previously discussed issues, opening up new questions and creating new interpretative approaches” (Ronfani 2013: 107). The debate shows the starkly contrasting views of the Convention’s scope held by scholars from different backgrounds, as well as experts and practitioners involved in childhood issues (King 2004, Ronfani 2001).

5We can broadly identify two positions that more generally reflect the debate on human rights. One position holds that the 1989 Convention and the rights it proclaims are a major milestone on the road to the full recognition of children’s rights and dignity. By contrast, the other position maintains that the real recognition of children’s needs is still very much a challenge, even in the states which signed the UNCRC. And this challenge is not confined to economically disadvantaged countries.

6Indeed, the treaty’s near-unanimous ratification was followed by problems in its concrete application. There can be no doubt that the UNCRC’s ratification and incorporation in regional and national laws did not automatically improve children’s rights, because it does not address the issue of the transposition of rights from paper to real life.

7The unquestionable idea of children’s rights clashed with the contradictions and tensions in the implementation of the UNCRC (Tobin 2013). Even recently, scholars and practitioners alike have emphasized the difficulties in enforcing children’s rights, and are questioning the paradigm and strategies that have been adopted to date. The adherents of the critical approach to children’s rights caution “not to overestimate the transformative potential” of this approach, but recommend adopting a “critical legal scholarship to increase insight in the complex ways in which children’s rights law and social realities interact” (Vandenhole et al. 2015: 12).

8The difficulties in making children’s rights a reality stem from a number of factors. In the opinion of the scholars the most important are:

  1. The meanings assigned to the concept of children’s rights. There is little consensus about how the notion of children’s rights should be interpreted. In particular, the weight given to the best interests of the child (Article 3 of the UNCRC) and his or her views in all matters affecting the child (Article 12) have differed, with changes depending on time, place and culture.

  2. The interpretation of children’s protection and children’s participation and how these two concepts are interrelated.

  3. The “top-down” approach—a critical aspect of the UNCRC since it was enacted—which does not provide full recognition of children’s agency and cultural diversity.

  4. The scarce financial resources for developing child and family policies, due to a systematic neglect of children’s rights and family issues, which are not a priority on the political agenda.

  5. The adoption by an increasing number of governments of neo-liberal models that «base their policies on the principle that the key to economic success is the reduction of funding in favour of the welfare state”, as Michael King emphasized back in 1997 (King 1997: 233).

  6. Poor socio-economic conditions, especially, but not only, in developing countries.

9All these critical factors are largely due to the uneasy coexistence of plural legal orders in a globalized world, where the power gap between children and adults, especially in family relations, changes from culture to culture and according to the different socio-economic conditions (Corradi and Desmet 2015).

Approaches and Interpretations of Children’s Rights: An Overview of Strengths and Weaknesses

10The first weakness attributed to the UNCRC is the so-called phenomenon of “decoupling”, i.e., the mismatch between principles, laws and policies (law in the books) on the one hand, and practices (law in action) on the other. As for the other international human rights treaties, ratification—first of all—has a symbolic and ritual function: “no government wants to be considered an opponent of children’s rights or even just indifferent to them” (King 1997: 233). However, as mentioned above, ratification does not ensure that states “endors(ing) human rights principles” actually implement them. It is often the case that many states do not comply because of practical difficulties (i.e. lack of resources), but also because they do not intend to implement human and children’s rights (Gran 2017: 80-81).

  • 2 The kiddy libbers is the popular name for the American child liberation movement. Two of whose most (...)

11The second weakness is closely connected to the previous one, and concerns the two contrasting interpretations of children’s rights. One view emphasizes that children’s protection must be the first concern, coming before their freedom and autonomy, while the other claims that children’s rights to freedom and autonomy must come first. More specifically, regarding the rights to freedom and autonomy, the debate originates with the kiddy libbers of the Seventies.2 The kiddy libbers rejected the child savers’ idea that children are innocent and in need of protection, and saw them as oppressed by adults because of their lesser power. In addition, the kiddy libbers maintained that the solution to reducing this power differential between children and adults did not consist in passing protective laws, but in recognizing that children have the same rights as adults (Ronfani 2001).

12As we will see below, neither of these positions, which lie at opposite extremes, is relevant today. In fact, the attention is currently focused on striking a balance between the two, and on the importance of giving children their autonomy without neglecting to protect them.

Children’s Rights and the “Top-down” Approach

13The rights enshrined in the UNCRC regard every aspect of children’s lives, and a number of attempts have been made to classify them. One of the better-known classifications is the so-called “three Ps”, whereby the Convention is structured around three core groups: the rights to Protection, the rights to Provision of basic needs and welfare in general, and the rights to Participation and autonomy (see, e.g., Sgritta 1997).

14Regarding Provision, politics and policies in Western countries paid little attention to children’s socio-economic rights. It was believed that, on the whole, Europe and—more generally—the north of the world had succeeded in granting their children rights in this area: the right to housing, health, food and education, etc.

15However, apart from a certain improvement in the last 5 or 6 years, figures show that social conditions for children and youths have deteriorated in most EU countries, (Bosisio and Vincenti 2018, OECD 2017, 2019). Between 2007 and 2013, the EU-28 percentage of children at risk of poverty or social exclusion (AROPE) rose from 26.5% to 27.9%. It then began to drop, levelling off at 24.3% in 2018. However, this downward trend has not been equally pronounced in all countries. In Italy, for instance, the percentage of AROPE children was 28.6% in 2007, rose to 34.1% in 2012, and fell to 30.6% in 2018 (Eurostat 2019).

16Despite these recent improvements, children continue to be the category at greatest risk in this respect. According to Eurostat data, 22.2% of adults between 18 and 64 years of age and 18.6% of those over 64 were at risk in 2018, significantly below the 24.3% of children in that year (Eurostat 2019).

17For children, these deteriorating socio-economic conditions mean that they are deprived of: a) educational opportunities, b) access to healthcare, c) access to a proper diet, d) access to adequate housing, as well as e) access to family support and protection against violence. Moreover, a consequence of children’s poverty is the loss of friends, as poor children may not be able to afford to do what their friends do (Save the Children 2014, European Union Agency for Fundamental Rights 2018). In Italy in particular, the issue of child poverty, and more generally of child well-being, has never received sufficient attention. Even today, though the economic and debt crisis hit children and young people hardest, there is no “systematic attention” to it, and it is not a priority in government programs and policies (Saraceno 2015: 69).

18These situations highlight the erosion of social rights (and welfare), and especially the fragility of child and family policies, as scholars were already pointing out many years ago. Even among children’s rights scholars, more attention has been given to the other two Ps: Protection and Participation (civil and political rights in the broad sense as well as the strict sense), and the tension between these two groups of rights.

19Traditionally, children’s rights to protection and their rights to freedom and autonomy have been considered mutually contradictory. Most of the debate on children’s rights has revolved around attempts to reconcile the tension between the protection/nurturance perspective and the autonomy/freedom perspective. To reconcile these two perspectives, introducing the principle of participation and the right of the child to be consulted and to take part in decision-making was a useful compromise. More recently, participation and listening to children’s views and opinions have been considered fundamental tools for implementing not only children’s freedom and autonomy, but also their protection rights, and for defining and achieving their well-being (Bissel et al. 2008). The current mainstream considers protection and participation rights “as complementary rather than competitive” because, in order to better protect children, we need to involve them in their own protection (Bissell et al. 2008: 5).

20As Bissell et al. emphasize:

children needing special protection from dire circumstances also tend to be the ones whose rights are being most flagrantly violated. […] children in such circumstances cannot be effectively protected by focusing only on the specific abuse they are subjected to or by acting in isolation from the cultural and social context in which they live. Dealing with contexts brings up the issues of their rights. When the immediate concern is for child protection, a rights approach opens up the issues to a broader perspective. There are, concurrently, more possibilities for intervention, because of the requirement that children be treated holistically, with due regard for their specific circumstances, strengths and susceptibilities. […] Such a perspective also underscores the importance of recognizing children’s own agency in protecting themselves, their families and their peers. […] children play an active role in shaping their own development and the environment in which they live and can bring their own insights, experience and creativity to bear to ameliorate their difficulties (Bissell et al. 2008: 5, emphasis added).

21Making children participate in their protection makes it possible to overcome another aspect that has drawn criticism from the supporters of rights to freedom and autonomy: the “top-down” approach. Most of the debate on children’s rights implementation focuses on the “responsibilities of the states (…) and the legal procedures” (Liebel 2012: 1), looking at the way the rights codified in the UNCRC are implemented and exercised in “technical terms”, but paying little attention to the real meaning of the conceptualizations of children and childhood, and the implications and impact for children living in different social and cultural situations (Liebel 2012).

22Defining children’s participation is difficult, too. It is an ambiguous concept, subject to continuous redefinition, re-conceptualization and critique. For this reason, participation is at the centre of debates as one of the most widely investigated issues relating to the UNCRC (Reynaert at al. 2009, Thomas 2007, Wyness 2015). In some scholars’ opinion, participation includes actions ranging from simply being consulted to exerting agency, i.e., “children’s ability to act autonomously from external conditions”; in the opinion of others, we do not have participation when children are not able to influence the outcome of the decision-making process, but can only “have a say” (Baraldi and Cockburn 2018: 9).

23Social and cultural differences play an important role in defining child protection as well as participation. Concerning protection, “(t)he views on how best to protect children are similarly different”, given that the “values and objectives of child rearing and development, the nature of care arrangements, children’s competences and vulnerabilities” all vary within and across cultures. Practices considered appropriate in some cultures are not accepted in others. For example, Western culture might disagree with an approach to protection that consists in teaching children to learn to handle danger rather than to avoid it (Bissell et al. 2008: 7).

24For this reason, rigid models and classifications based on ethnocentric and adult-oriented assumptions and stereotypes can be detrimental to children in certain circumstances, and thus fail to protect them. A typical example is that of international child labour standards: as they have been developed in Western societies on the basis of their own historical experience, applying these standards in other cultures puts children at a greater risk of exploitation and increased poverty (Bissell et al. 2008, Liebel 2012). In the countries that are hardest hit by poverty and social inequality, prohibiting children from doing any kind of work without introducing programs to fight poverty, far from improving children’s conditions, may aggravate the socioeconomic situation of the family as a whole and thus have even more negative consequences for its members, the children in particular. Nor should we forget that in many cultures, work is part of children’s daily lives and the means whereby culture, knowledge and skills are handed down, and thus guarantees children’s progressive participation and integration in society (Bourdillon 2017).

  • 3 Participation has been included among the indicators used to compare children’s well-being at inter (...)

25Notwithstanding its ambiguous and critical character, participation is considered essential to ensuring children’s well-being because it should at least give children the power to express their views, display preferences, and to receive and provide information (Baraldi and Iervese 2012, Olagnero and Rei 2011).3 As mentioned previously, children’s participation—variously interpreted in different social and cultural contexts—becomes an essential ingredient for the protection of their rights.

Material Socio-Economic Conditions, Local and Global Norms and Children’s Rights

26Another essential factor influencing the realisation of children’s rights lies in the socio-economic conditions of a country and the resources available for planning children’s rights interventions and policies. This awareness should stop us from giving only a cultural interpretation to violations of children’s rights. Violations often arise from insufficient material resources, and from a lack of goods and services rather than from cultural factors or norms. Indeed, there is interplay between a lack of financial resources and normative orders (Corradi and Desmet 2015). Corradi and Desmet, for instance, cite the example of a study conducted by Heather Montgomery (2001) on child prostitution in Thailand, explaining that she

is cautious about seeing the clash between global and local norms as a matter of culture only, as the material specificities which arise from Thailand’s position in globalised political and economic relations are as important as cultural factors in perpetuating sexual exploitation. Overall, however, more attention continues to be paid to ‘culture’ and ‘tradition’ as factors that underpin normative orders, rather than socio-economic structures (Corradi and Desmet 2015: 235).

27Lastly, it should be stressed that Article 4 of the UNCRC states that “With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources […]” (italics added). And this could be an alibi for states who are not taking action in favour of children’s rights.

Children’s Rights and Parent-child Relations

28As mentioned in the introduction, the power imbalance between adults and children in family relationships is essential to understanding the meaning and practices of children’s rights in everyday life in different social and cultural contexts. In this section, we will therefore focus our attention on parent-child relationships to show the interplay between normative prescriptions and socio-cultural and economic environments on the one hand, and family and parental authority practices on the other. To this end, we will report on findings from research conducted in different socio-economic and cultural contexts.

Normative prescriptions on parent-child relationships

29Since the Sixties, Western countries, and Europe in particular, have witnessed what has been called a process of democratization in family relationships, especially those between parents and children. The current representation of children as subjects of all fundamental rights such as those of freedom and participation, has contributed to changing generational relationships. This normative, cultural and social change relaxes the hierarchical order and allows children to practice their participation and agency, in line with the new representation of childhood and children’s rights. This change in generational relationships holds that children should be treated on an equal footing with adults (Elias 1982, Giddens 1992, Pocar and Ronfani 2008, Baraldi and Cockburn 2018).

30Therefore, the current idea of parental authority reflects the representation of children as subjects of rights, the greater symmetry of the roles in parent-child relationships, and the greater democratization of decision-making inside the family. This does not mean that adults and children are equal, but entails recognizing that children are entitled to all human rights despite the differences between them and the adults, and their greater vulnerability in particular.

31From a legal point of view, the notion of parental responsibility is gradually replacing the notion of parental authority in the great majority of European and Western countries. This concept, used for the first time in the Children Act (UK, 1989), is broadly mentioned in the 1989 UN Convention on the Rights of the Child (UNCRC) and in the 1996 European Convention for the Exercise of Children’s Rights (ECECR).

  • 4 With regard to disciplinary practices, physical punishments are banned in most European countries, (...)

32Parental responsibility refers to the duties, power and authority held by parents in order to orient children in the exercise of their rights according to their capacity, age, competence and autonomy. Today’s most common representations of parental responsibility assign significant importance to the dimension of taking care with solicitude and affection (Jonas 2002, Tronto 2006), through negotiation but also by exercising supervision and control,4 in order to meet children’s needs and expectations in their daily life (Smart and Neale 1999). In the current orientation of contemporary legal culture, parental responsibility is to be exercised solely for the benefit and in the interests of the children.

33It should be emphasized that in addition to the law, parental responsibility has implications for other disciplines (e.g., philosophy, ethics, psychology, pedagogy, sociology, anthropology), which entails that there are different “theories” of parental responsibility (Eekelaar 2006), and of “virtuous” educational practices. Nevertheless, according to the most recent representations of “good parenting” in Western countries, it is a shared opinion among experts that parents should not only hand down the norms, values, and experiences of their own generation, but should also equip children with the ability to build their own world and discover their own personal nature (de Singly 2004).

Parent-child relations in practice

34Parental responsibility is also a social practice taking place in the concrete relations between mothers, fathers and children in their daily routines (Morgan, 2011), which may vary according to styles of care, education and discipline, and in relation to socio-economic background, cultural level, ethnicity and family composition.

35Scholars have long investigated how parenting styles differ according to the family’s social economic status (SES) and cultural background (Bronfenbrenner 1958, Sears, Maccoby and Levine 1957), developing a number of typologies of parenting styles based on these two factors. One such typology which is now regarded as classic is that formulated by Diana Baumrind in 1966 (Baumrind 1966), which posited four parental patterns: authoritative, authoritarian, permissive, and neglectful. This typology has been used in a large number of studies carried out in a variety of cultural settings, which found that as SES increases, parenting styles and parent-child relationships tend to become “more accepting and egalitarian”, thus showing the characteristics of authoritative parenting.

36Likewise, in a meta-analysis of studies of parenting styles carried out in a number of settings—including North America, Egypt and China— Hoff, Laursen and Tardiff (2002) found that on the whole, higher parental education, especially of mothers, is more frequently associated with authoritative and child-centered parenting.

37If we look at other more recent research on family practices in Western countries, we find that middle-class families tend to share current representations of “good parenting” stemming from psychology and educational sciences, and that their family practices reflect these representations, which hold that parents should reinforce children’s autonomy, reasoning, and negotiation abilities. By contrast, lower-class families give priority to caretaking and protection.

38This is what emerged, for example, from the analysis conducted by Val Gillies (2008) in England and Scotland starting from the results of two qualitative and quantitative studies on parental responsibilities. Findings showed the interdependence of cultural, social and personal resources in parents’ child-rearing practices.

39Similar findings emerged from a study of parenting practices adopted by middle-class and poor working-class families in the US with children aged 9-10 conducted by Annette Lareau. She found that middle-class children are engaged in what she calls “concerted cultivation”, which aims to develop their potential and attitude and generate a sense of entitlement and self-esteem. By contrast, poor and working-class children experience less structured lives and spend most of their free time with their extended families. Like Gillies, Lareau found that lower-class parents exert their parental responsibilities by taking care: keeping their children safe, feeding them and providing a basic education (Lareau 2003).

40Divergence from the educational styles that are currently considered more virtuous is particularly obvious among migrant families. To give just a few examples, some studies show that migrant, as well as poor families, appear to give more attention to respect for authority and obedience (especially among Asian families), to extended family needs (among Afro-American and Hispanic families), and to punishment practices (including corporal punishment) as an instrument for socialization (Arendell 1997).

Discussion

41This brief review of the most obvious issues underlying the complex question of children’s rights and their implementation in daily life is, of course, not exhaustive. However, it highlights at least two key points to be addressed in by children’s rights studies and research.

42The first key point is related to the “theoretical construct” of children’s rights. Some scholars suggest that new conceptualizations of children’s rights should reflect “a shift from a top-down understanding towards a bottom-up approach” (Reynaert et al. 2015: 1).

43To this end, greater empirical knowledge based on studies of both adults’ and children’s perceptions and representations about childhood, children’s rights, parents’ responsibilities, and parenting practices, could help. More specifically, research on children’s legal consciousness is needed to bridge the gap between rights as they are stated in the UNCRC and children’s “living rights” (Hanson and Nieuwenhuys 2013). More knowledge about how children (and adults) conceptualize and experience children’s rights in their everyday life, and in the different environments where they spend their life together with adults and their peers (family, school, work place, leisure time, etc.), would make it possible to overcome the shortcomings of the dominant theoretical paradigms that interpret children’s rights as “an objective set of goals applicable for any contest” (Reynaert et al. 2015: 1). It would also make it possible to plan better policies and local measures to promote children’s welfare and rights, taking the specific context into account.

44The second key point concerns the position which considers that the legal approach, and therefore the enhancement of children’s legal position, is a better way to address social problems involving children. On this issue, the representatives of a critical approach to children’s rights again emphasize the importance of the children’s perspective, asking “which social problems become visible when looking at children’s lives from a children’s rights perspective and how these social problems are defined. In their opinion, this question requires an ethical stance rather than a technical position” (Reynaert, et al. 2015: 10). Reynaert et al. (2005) give various examples to show how addressing children’s social problems technically, using exclusively legal instruments, can lead us to ignore the fact that some parents’ problematic behavior—corporal punishment, for example—arise from the family’s difficult living conditions. They also add that in order to understand and implement children’s rights in actual fact, everyone who is in any way involved—children, parents and adults, local administrators, governments—must be engaged in a “dialectic process” to “understand and interpret the lifeworlds of children by using the framework of children’s rights as a ‘sensitizing concept’”, a frame of reference that presupposes respect for human dignity (Reynaert et al. 2015: 11).

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Notes

1 “In France, international treaties, including the CRC, have a superior authority to that of national legislation; the United Kingdom does not have a written constitution, however, through the 1998 Human Rights Act and national jurisdiction, finds other ways of giving effect to children’s rights; Norway’s constitution for its part remains silent on children’s rights until now but possible reforms are currently being discussed” (Committee on Social Affairs, Health and Sustainable Development 2018, p. 10).

2 The kiddy libbers is the popular name for the American child liberation movement. Two of whose most prominent adherents Richard Farson (1974) and Bob Franklin (1986). The kiddy libbers advocated self-determination for children, and their liberation from what they saw as adult domination. The movement alleged that the freedom thus achieved would enable children to develop more autonomy and responsibility, and thus finally gain control over their own lives. See, among others, Peleg (2019).

3 Participation has been included among the indicators used to compare children’s well-being at international level (Olagnero 2016).

4 With regard to disciplinary practices, physical punishments are banned in most European countries, <https://www.coe.int/en/web/children/corporal-punishment - {"12441097":[3]}>.

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Légende Abolish child slavery, 1909, New York,
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Roberta Bosisio et Paola Ronfani, « Children 
as Rights Holders »Revue des sciences sociales, 63 | 2020, 28-35.

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Roberta Bosisio et Paola Ronfani, « Children 
as Rights Holders »Revue des sciences sociales [En ligne], 63 | 2020, mis en ligne le 15 juin 2020, consulté le 10 juillet 2020. URL : http://journals.openedition.org/revss/4767; DOI: https://doi.org/10.4000/revss.4767

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Auteurs

Roberta Bosisio

Dipartimento di Culture, Politica e Società
Università degli Studi di Torino
roberta.bosisio[at]unito.it

Paola Ronfani

Dipartimento di Studi Internazionali, Giuridici e Storico-Politici
Università degli Studi di Milano La Statale
paola.ronfani[at]unimi.it

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