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Writer's pictureAdrian Waters

EU enlargement and rule of law promotion in the Western Balkans



Introduction

One of the key aspects of the European Union’s enlargement policies is the promotion of the rule of law as an essential condition for candidate countries to become member states. Since the early 2000s, the EU has been spreading its influence in the Western Balkan region, which comprises Bosnia-Herzegovina, Serbia, Montenegro, Albania, [North] Macedonia, and Kosovo, especially because all but the last one are candidates for eventual membership of the Union. The relationship between these countries and the EU institutions also focused on the implementation of judicial reforms in order to reinforce the rule of law in the former since they were transitioning from socialist regimes to liberal capitalist democracies and exiting from deadly conflicts that shaped such transition [^1]. An abundant amount of scholarly material has been published on the topic which has provided a mixed assessment. Although some progress has been made in certain areas related to the rule of law throughout the region thanks to the EU’s soft power, there are still many issues that plague the judicial systems. The purpose of this research article will be to evaluate the role played by EU enlargement policies and conditionality in strengthening or undermining the rule of law in the above-mentioned states. It will start by providing an overview of the concept of the rule of law and explaining how and why the EU promoted it in the Western Balkans. Afterwards, it will outline the advances that have been made in the region thanks to the EU-inspired judicial reforms before providing the reasons as to why the rule of law is still weak, explaining to what extent this is due to EU enlargement policies.


How and why the EU promotes the rule of law in the Western Balkans


The rule of law can be defined as “a state in which law is supposed to limit the exercise of power and is not - only - an instrument for the exercise of power” [^2]. Although this concept is interpreted differently in every country [^3], its basic form entails “the impartial enforcement of legal rules against both private citizens and public officials” [^4]. In any case, it is seen as a crucial element of modern-day constitutionalism and democratic forms of government [^5]. The rule of law principle is normally executed by the courts, public prosecutors, and the police forces, and these institutions require four elements in order to be successful: accountability, efficiency, professional competence, and political and economic independence and impartiality [^6].


Although the rule of law was not explicitly mentioned in the founding documents of the European Economic Community and the European Union, it was already an established procedure in the organisation’s judicial and political practice[^6]. It became a formal part of the EU legal framework thanks to the 1997 Amsterdam Treaty in which it was recognised as a founding principle of the Union and its adherence was set as a prerequisite for any country wanting to become a member state. Moreover, the development and strengthening of the rule of law was added to the aims of the EU’s Common Foreign and Security Policy (CFSP) and, as confirmed by the 2001 Nice Treaty, of its “economic, financial and technical cooperation with third countries” [^7]. Therefore, at least in theory, the Union’s external action is supposed to bolster the rule of law across the world. Indeed Article 21 of the Lisbon Treaty states that the EU in its foreign relations shall work on consolidating and supporting the rule of law, as demonstrated by its backing of judicial reforms in non-member states [^8]. However, because the rule of law is a flexible concept, the EU has been criticised for not being clear about its nature and scope, especially since the EU treaties do not have a precise definition. The Copenhagen criteria for candidate countries affirm that respecting the rule of law is fundamental but do not have standards that enable comparisons. For example, the EU’s acquis does not say how states should organise their judiciary in order to guarantee their independence. In 2012, the European Commission tried to resolve this issue by introducing what is known as the ‘New Approach’ by which it reinforced its position as a watchdog of the rule of law in aspiring member states via a benchmarking system that gives more comprehensive assessments and recommendations. However, the benchmarks are seen as too broad, ill-defined, and not adaptable to different national circumstances. They also do not have indicators that would facilitate the monitoring of how judicial reforms are enacted. These flaws allow the governments of Western Balkan countries to shape and present their judicial reform achievements in whichever way they prefer [^9].


After the Yugoslav wars of the 1990s, the EU has focused on preventing conflict and establishing a sustainable peace in the Western Balkans. To achieve these aims, the judicial systems of the region had to be made accountable and effective. So the EU-inspired judicial reforms that are supposed to reinforce the rule of law in Western Balkan states also allow the Union to achieve its security goals [^10]. As a matter of fact, since the Yugoslav wars the EU member states have made the Western Balkans the focal point of their security interests because the effects of those conflicts impacted many of them and so they wanted to pursue policies that would guarantee stability in the region [^11]. In this context, the EU attempted to promote the rule of law using three policy instruments: the Stabilisation and Association Process (SAP), enlargement, and the CFSP. The SAP was launched at the Zagreb Summit in 2000 and it was a strategy that was supposed to establish better political and economic rapports between the EU and the Western Balkans. Although it was not strictly a pre-accession scheme, it provided a basis within which EU enlargement in the region was eventually delineated. As part of this Process, every Western Balkan country had to sign Stabilisation and Association Agreements (SAAs) with the Union in which the latter gave political and economic incentives and assistance to the former if the rule of law was upheld. As mentioned above, respect for the rule of law is one of the key conditions for entering the EU and this is evident in the Union’s enlargement strategies and negotiating frameworks. Finally, the promotion of the rule of law was a staple of CFSP and European Security and Defence Policy (ESDP) operations, such as the EULEX civilian mission in Kosovo that was started in February 2008 “to support—through monitoring, mentoring and advising, while retaining certain executive responsibilities—the development of democratic institutions based on the rule of law” [^12]. What must be kept in mind is that the EU’s transformative power can be either boosted or hindered by domestic mediating factors (e.g. informal practices and national institutions), particularly in post-communist states where domestic actors are an essential element of institutional changes [^13].


The experience of the accession of Romania and Bulgaria into the EU prompted the European Commission to adopt a new approach to the rule of law in 2012, that places the concept at the core of the enlargement process and requires candidate countries to adopt reforms to improve it. This need to ensure the correct functioning of the institutions that guarantee the rule of law was reconfirmed in the 2015 EU Enlargement Strategy [^14]. Eventually, in 2018, the Commission approved a new EU-Western Balkans strategy that set out flagship initiatives on matters of mutual interest between the Union and the countries within the region, including the rule of law, which provided a framework and foundation for future joint action plans arranged via political and technical dialogues on reforms associated with EU standards [^15]. Later in 2020 the Council of the European Union accepted a Commission proposal calling for a new enlargement methodology which would make the accession process more dynamic and also ensure that candidate states are trustworthy in their respect for the rule of law[^16]. However, this new methodology has been criticised for lacking “ideas on how existing measurements of levels of progress and preparedness will be modified in line with the need for the overall enhancement of the process” [^17].


Apart from these ever-changing strategies, the Commission employs a variety of tools to reinforce the rule of law in countries that wish to join the Union, such as frequent monitoring via joint bodies under the SAAs, expert assessment missions, the Technical Assistance and Information Exchange instruments (TAIEX) and projects that bring together public administration officials and other law enforcement experts from both the EU member states and candidate countries. Lastly, the rule of law in the Western Balkans is aided via other EU instruments by projects that provide financial support and promote democracy and human rights at national, regional, or global levels, e.g. the Instrument Contributing to Peace and Stability, as well as political and policy dialogues [^18].


How the EU’s rule of law promotion strengthened the rule of law in the Western Balkans


In the period from 2000 onwards the Western Balkan countries had judicial systems that were weakened by factors such as corruption and badly equipped facilities. Hence, the EU-led reforms in this sector concentrated on three aims: redrafting laws so that they introduce provisions linked to the “European standard”; making rule of law institutions stronger in accordance with accountability, efficiency, and effectiveness criteria; and increasing the adherence of governments to the law [^19]. To a certain extent these goals have been achieved as evidenced by a 2019 report which acknowledged that the EU’s support for the rule of law in the Western Balkans has fuelled some positive developments that comprise “institutional capacity-building, and greater independence, accountability and access to justice” [^20]. Strong conditionality clauses on behalf of the EU have also helped to deliver some results since they are “a major asset in applying reform pressure and can mitigate the risks of insufficient political will or administrative capacity” [^21]. In fact, numerous empirical studies show that clear and credible requests from the EU increase the chances of EU norms being effectively transferred to candidate countries [^22].


It can be argued that conditionality was a useful instrument when it came to promoting the rule of law in Serbia. Indeed it is the main mechanism used by the EU so far for this aim to stimulate judicial reform [^23]. In the early 2000s, the EU encouraged Serbia to deal with the unresolved problems related to corruption and organised crime, leading Belgrade to act in a timely manner as demonstrated by the adoption of strategies against corruption and for judicial reform in 2005 and 2006 respectively. This was followed by the Serbian government’s signing of international conventions against corruption and organised crime. Therefore, the country was able to enforce law and order and diminish the influence of interlinked criminal and security networks at least for a brief period of time [^24]. There have also been reforms that contributed to making advances in efficiency and the reduction of backlogs [^25]. When it comes to financial assistance, EU funds have also enabled major improvements in the institutional framework for countering corruption, such as the approval of better amendments and legislation and addressing conflict of interest issues in the public administration [^26]. EU projects have also been beneficial for strengthening the rule of law in Serbia. For example, a recent EU project has largely accomplished its goal of ameliorating the efficiency of Serbian courts by standardising working processes and procedures and introducing new and better methodologies, resulting in a reduction of the backlog of cases by 60 per cent [^27].


The effect of EU conditionality was also clear in other Western Balkan states. One of the principal conditions for Bosnia-Herzegovina to sign a Stabilisation and Association Agreement with the EU was the acceptance of a Justice Sector Reform Strategy (JSRS), which is regarded as one of the most important successes of the EU’s rule of law promotion, especially because it was unimaginable for a country that had a divided legal system and judiciary. The Strategy established a framework as well as priorities for the reform of the judicial institutions and this contributed to the adoption of legal guarantees for judicial independence and mechanisms and institutions to monitor the accountability, efficiency, effectiveness and independence of the Bosnian judiciary. EU-funded projects were also key in the informatisation of the judicial system and the rebuilding of some judicial facilities [^28]. Moreover, collaboration with EU member states has aided the country’s progress in combating organised crime as seen by the success of certain large scale convictions [^29].


In Macedonia, EU conditionality was essential to initiating reforms for the country’s judicial sector, which were supported by advice, expertise and financial assistance from the Union’s institutions. These have helped to improve the Macedonian judiciary’s independence (to some extent), but most importantly its efficiency [^30]. Judicial independence was formally ensured by the country’s legal framework which is in line with EU standards and has fostered the formation of self-appointed judicial and public prosecutors’ councils that can nominate and remove judges and prosecutors. The efficiency of the Macedonian judicial system was improved by the reduction of backlogs [^31]. A similar phenomenon occurred in Montenegro where work on generating a smoothly functioning judiciary increased the more the country progressed in its accession talks with the EU. Indeed the European Commission commended Montenegro’s progress in decreasing the backlog of cases and the publication of court decisions [^32]. Recently an EU multi-country project was crucial in refining the Montenegrin Supreme State Prosecutor’s Office framework for “implementing ethical rules and integrity plans for its prosecution of economic crimes” [^33]. There have also been limited achievements in developing “an initial track record of investigation, prosecution and final convictions in high-level corruption cases” [^34]. This was the result of some progress made in bolstering the institutional and legislative framework associated with the prevention and restraint of corruption [^35].


Albania and Kosovo also experienced some positive changes vis-à-vis the rule of law due to EU enlargement policies, although not to the same levels as the other countries in the region. Since 2000 Albania has been subjected to the Union’s pre-accession mechanisms and conditionality, particularly after the country signed a Stabilisation and Association Agreement in 2006 [^36] and obtained candidate status in 2014 [^37]. The country had a low rule of law score in the 1990s, but this grew steadily during the 2000s due to a series of measures that sought to make the judicial system more efficient, including the approval of legislation that ensured a quicker implementation of civil court rulings and the establishment of a Magistrates’ School that provided specialised training for judges and prosecutors as well as programmes on topics related to the EU’s accession agenda [^38]. Since 2005 there have been positive developments with regards to the fight against organised crime as the Albanian government brought about new legal instruments and changes to anti-mafia laws and the Criminal Procedure Code that resulted in stronger judicial cooperation, more effective criminal investigations and the appropriation of the profits of crime. As a matter of fact, the country took part successfully in international police activities together with EU member states [^39]. Despite the fact that Kosovo is not a candidate country per se, the possibility of eventual membership has been the main stimulus behind judicial reform [^40]. The above-mentioned EULEX (European Union Rule of Law) mission was the most expensive and most ambitious operation carried out by the Union. Together with its Kosovar counterparts, some advances have been made in relation to the accountability, sustainability and multi-ethnic inclusiveness of the judicial institutions, including conformity to the European best practices [^41]. The mission also gave “valuable assistance and training to the Kosovo police” [^42]. Positive achievements were seen in other areas such as the adherence of criminal law provisions on corruption to European standards and the creation of “a tracking mechanism for high-profile corruption” that has led to progress in the investigation and prosecution for such crime and the confiscations of assets[^43]. To sum up, it is undeniable that all Western Balkans have made changes to their judiciaries which made them more efficient and more capable of tackling organised crime thanks to the EU’s enlargement policies, conditionality and financial assistance via projects. One may wonder if these reforms would have happened at all were it not for the Union’s influence over the region.


How the EU enlargement policies have undermined the rule of law in the Western Balkans


Despite the advances that have been made in the Western Balkans with regards to operational and technical areas with the help of the EU, the overall impact of the Union’s actions has been limited and fundamental problems persist as seen by the low rule of law scores of the countries in the region[^44]. Indeed corruption levels are still high in these states and this damages the capability of law enforcement bodies and the judiciary to sustain the rule of law [^45]. This is because in recent years the governments of the Western Balkan states have become increasingly authoritarian notwithstanding their formal progress towards EU integration. Indeed all these countries have been labelled as transitional or hybrid regimes that are supposedly democratic and in favour of joining the EU, but simultaneously display informal authoritarian behaviours [^46]. Such regimes are ruled by leaders who have almost total control over their respective societies since checks and balances and the separation of powers between the judicial, legislative and executive branches are weak. Therefore it is difficult to bolster the rule of law in these circumstances. Although there are EU conditions that require the fight against corruption and guaranteeing the political independence of the state institutions (especially those belonging to the judiciary), Western Balkan governments do not have the will to reinforce the rule of law as it is against their interests [^47]. Such vested interests are often regarded as obstacles to the EU’s rule of law conditionality because it would compromise their power and so the regions’ political elites adopt simulated or partial reforms that do not improve democratic deficiencies [^48]. Even when in the past some advances were made it was clear that there were still issues related to corruption, the implementation of reforms and the politicisation of the judiciary. It can be said that historical legacies have played a role in the extent to which the Western Balkan states enacted judicial reforms. None of these countries have historical experiences with political systems that enforced the rule of law. They were already emerging from authoritarian governments and during their transition to liberal democracy the executive placed its authority over the parliamentary and judicial branches of power. This sidelining of legal tools and formal institutions led to clientelism, corruption and state capture becoming rampant in the Western Balkan states [^49].


It is undeniable that domestic factors have undermined the EU’s rule of law promotion, but it can also be argued that the Union’s conditionality and enlargement policies were flawed and hence they did not help to strengthen the role of the judiciary in the Western Balkans. As mentioned above, one of the principal issues with the EU’s conditions for membership is the lack of clarity vis-à-vis the nature and the range of the rule of law [^50]. This is worsened by other aspects, such as the non-existence of a sole European judicial model that can be applied in candidate countries and the use of benchmarks in accession negotiations that focus more on “political principles and constitutional values” rather than the acquis communautaire [^51]. This is due to the fact that EU member states have divergent views regarding the Copenhagen criteria and the significance of the rule of law for candidate countries, which leads to the latter questioning the Union’s credibility in promoting the concept [^52]. Moreover, the clarity of the EU’s conditions is also weakened by the fact that “the accession system is only loosely rooted in the EU treaties” and that it is not easy to verify quantitatively the level of compliance to the Union’s Copenhagen criteria due to the abstract nature of the rule of law concept [^53]. This is why during the enlargement process the EU deals mainly with “technical issues related to legislative improvement and the smart design of formal institutions aiming to improve the rule of law reforms in candidate countries” [^54]. Indeed the progress that has been made in the Western Balkans has essentially been more technical and less about politically sensitive matters. Such a technical approach can “not only limit impact on the ground, but also create perverse incentives and superficial outcomes” [^55]. Hence although EU-driven rule of law reforms can be instrumental in improving judicial capacity and substantive legality [^56], they also involve a superficial adoption of EU norms that do not transform the political reality of a country [^57]. In fact the Western Balkan governments often produce simulations of reform via vague statistics which do not provide an accurate picture [^58].


Another issue related to the EU’s enlargement policies is that the country reports published by the European Commission concentrate on the formal rubber-stamping of reforms, instead of their enactment. When there are problems these documents just assert that no progress has been made and any general assessment of reform-driven advances or critiques towards the political leadership of the Western Balkan states is usually absent. This is explained by the lack of willingness on behalf of the EU to give rewards for substantial progress (due to disagreements among member states), but also to employ its policy instruments when there are complications with the rule of law or even publicly denounce the region’s political leaders who do nothing to strengthen the judicial system in their country. In fact, the former Enlargement Commissioner Johannes Hahn and his successor Olivér Várhelyi have been lambasted for having minimised rule of law issues [^59]. Instead the Union has praised self-proclaimed pro-EU elites with almost unchecked power, thus allowing for further regression of the rule of law in the Western Balkans [^60]. Consequently this external legitimacy has provided a blank cheque for the ruling parties in the region to proceed with state capture. In the case of Serbia for example, the EU endorsed the country’s former prime minister and incumbent president Aleksandar Vučić while ignoring his controversial rule of law record, thus allowing him to consolidate his dominance and undermine domestic opposition [^61]. Not only that, the Union’s top-down conditionality and its overburdening of the political agenda with stringent deadlines and criteria has enabled the establishment parties in the Western Balkan states to undermine internal mechanisms of accountability and change laws and rules in order to safeguard their interests [^62]. An example of this is the recent approval of a new Criminal Code by the current Macedonian government that would reduce the penalties for politicians guilty of abuse of office. This reform was passed using an EU flag procedure in which debates were shortened and filibustering was disallowed. Opposition representatives highlighted that this procedure was violated since it should only be for proposals that align Macedonian with EU legislation. The EU ambassador to Macedonia, David Geer, also expressed concern about how the new Code was adopted and claimed that it would increase the risk of impunity [^63].


The EU’s disregard for the dire condition of the rule of law in the Western Balkans is considered to be part of a broader phenomenon known as stabilitocracy. This is a term used to define regimes whose undemocratic practices are ignored by the West (including the EU) as long as they provide some form of stability and satisfy geostrategic interests [^64]. Since the late 2000s the Union and its member states have been engulfed in multiple crises, such as the Eurozone crisis, Brexit and the refugee/migrant crisis, that have persuaded them to minimise the promotion of democracy and the rule of law in favour of matters that are more pressing for them. In this context, the EU has facilitated the rise of leaders claiming to be pro-European democrats whose misdeeds are downplayed as long as they continue to have a pro-Western foreign policy and serve the needs of the member states on issues such as border control, the fight against Islamic fundamentalist terrorism or ensuring regional stability. Examples of such leaders include the former Montenegrin premier and president Milo Djukanović (whose poor rule of law reputation was ignored because he recognised Kosovo’s independence and placed sanctions on Russia after the Ukrainian crisis began in 2014), the ex-Macedonian prime minister Nikola Gruevski (who was embroiled in a corruption scandal, but was praised by the former Austrian foreign minister Sebastian Kurz for closing the Western Balkan migration route in 2016) and his successor Zoran Zaev (a politician heavily implicated in corruption scandals who rubber-stamped via unconstitutional means the EU-supported Prespa Agreement which changed Macedonia’s constitutional name into North Macedonia). Although the EU has continued to engage in the Western Balkans in order to contrast the influence of other great powers, e.g. Russia and China, and has adopted a new enlargement methodology that focuses more on reforms in order to supposedly revive the accession process, the fact remains that EU enlargement is now determined more by national interests than by norms and standards, which will further legitimise the Western Balkan stabilitocracies [^65]. This is demonstrated by Bulgaria’s veto in 2020 against the start of accession negotiations with [North] Macedonia, meaning that the impact of the new methodology will be null as long as enlargement is utilised for domestic political goals [^66].



Conclusion


The promise of EU membership to the countries in the Western Balkan region has without a doubt been a catalyst for judicial reforms that have helped to strengthen their judicial capacity and efficiency, as well as their ability to tackle organised crime to some extent. These were achieved due to the EU’s conditionality, financial assistance and sponsored projects. Despite some advances, the Union’s promotion of the rule of law was always of a technical nature and it was impaired by factors such as the lack of a clear definition of the concept and the tendency of EU actors to ignore any significant judicial problems in each Western Balkan state as long as the political leaders of the latter provided some kind of stability in the region or served geopolitical interests. The backsliding related to the rule of law in the region was also due to domestic reasons such as the widespread phenomenon of state capture and clientelism, these being consolidated further thanks to the EU’s policies which legitimised authoritarian rulers and their contentious judicial practices. Over the years the EU has altered its enlargement methodology in order to emphasise the need for effective reforms. Nevertheless, it is not certain that these will bring tangible results since they do not have the means to measure progress. Furthermore, the enlargement process can be compromised by individual member states who see it as a means of promoting their own national interests at a European level. If there is any possibility of bolstering the rule of law in the Western Balkans it has to come from a reinvigorated EU methodology and stringent monitoring of judicial reform progress as well as greater efforts from the individual countries in the region to ameliorate their legal practices.


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[^1]: European Union, n.d.; Kmezić, 2017.

[^2]: Marko, 2019, p.13.

[^3]: Fleiner & Basta Fleiner, 2009.

[^4]: Allan, 2013, p.90.

[^5]: Appicciafuoco, 2010.

[^6]: Marko et al, 2004.

[^7]: Appicciafuoco, 2010, pp.744-745.

[^8]: Memeti, 2014.

[^9]: Zweers et al, 2022.

[^10]: Ioannides & Collantes-Celador, 2011.

[^11]: Cavoski, 2015.

[^12]: Appicciafuoco, 2010, pp.758-762.

[^13]: Mendelski, 2013.

[^14]: Matić Bošković & Kostić, 2021.

[^15]: Hoxhaj, 2021.

[^16]: Matić Bošković & Kostić, 2021.

[^17]: Zweers et al, 2022, p.37.

[^18]: Kmezić, 2019; European Court of Auditors, 2022.

[^19]: Kmezić, 2014, p.226.

[^20]: European Court of Auditors, 2022, p.32.

[^21]: Ibid, p.22.

[^22]: Kmezić & Kmezić, 2014.

[^23]: Ibid.

[^24]: Mendelski, 2013.

[^25]: Matić Bošković & Kostić, 2021.

[^26]: Haider, 2018.

[^27]: European Court of Auditors, 2022.

[^28]: Kadribašić, 2014.

[^29]: Haider, 2018.

[^30]: Misev, 2014.

[^31]: Haider, 2018.

[^32]: Bibežić & Kmezić, 2014.

[^33]: European Court of Auditors, 2022, p.27.

[^34]: Haider, 2018, p.42.

[^35]: Đurišić, 2022.

[^36]: Noutcheva & Senem Aydin-Düzgit, 2012. 

[^37]:European Neighbourhood Policy and Enlargement Negotiations, n.d.

[^38]: Noutcheva & Senem Aydin-Düzgit, 2012.

[^39]: Mendelski, 2013; Haider, 2018.

[^40]: Anon, 2014.

[^41]: Haider, 2018.

[^42]: Zweers et al, 2022, p.29

[^43]: Haider, 2018, p.34-35.

[^44]: European Court of Auditors, 2022.

[^45]: Hoxhaj, 2021.

[^46]: European Court of Auditors, 2022.

[^47]: Hoxhaj, 2021.

[^48]: Zweers et al, 2022.

[^49]: Noutcheva & Senem Aydin-Düzgit, 2012; Mendelski, 2013; Haider, 2018; Kmezić, 2020.

[^50]: Zweers et al, 2022.

[^51]: Kmezić, 2014, p.258.

[^52]: Zweers et al, 2022.

[^53]: Kmezić, 2019, pp.104-105.

[^54]: Ibid.

[^55]: Haider, 2018, pp.4-5.

[^56]: Ibid.

[^57]: Zweers et al, 2022.

[^58]: Marović, 2018.

[^59]: Zweers et al, 2022.

[^60]: Marović, 2018.

[^61]: Richter & Wunsch, 2020.

[^62]: Ibid.

[^63]: Republika English, 2023a; Republika English, 2023b; Republika English, 2023c

[^64]: Pavlović, 2016; Pavlović, 2017; Bieber, 2018.

[^65]:Della Sala & Belloni, 2019; Vankovska, 2019; Belloni, 2020; Bieber, 2020; Hoxhaj, 2021; Matić Bošković & Kostić, 2021; Waters, 2021.

[^66]: Zweers et al, 2022.




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