VI. ICJ cases where Parties Resolved the Dispute or Withdrew Applications Before the ICJ could make a Final Determination (1984 – 2017)

This post summarizes those situations where the parties withdrew the applications made to the ICJ requesting a judicial resolution of the disputes.

In some cases, the initiation of proceedings before the ICJ triggered the resolution of the immediate dispute or triggered discussions to resolve the dispute. In these cases, the ICJ played a constructive role resolving disputes in a peaceful manner.

For example, after parties ignited the proceedings and before the Court could decide on the merits of the case (1) in Timor-Leste v Australia, seized documents, which formed the subject matter of the dispute, were returned, after the initiation of proceedings, (2) in Ecuador v Colombia, parties agreed to create a joint negotiation commission to resolve the dispute, where previous negotiations had proved unsuccessful,  (3) in Belgium v. Switzerland, Switzerland provided assurances to preserve Belgium’s interests, (4) in the Lockerbie cases, parties negotiated a settlement outside the ICJ, which had for previous several years been difficult to reach, (4) in the Islamic Republic of Iran v. United States of America case relating to the shooting of an Iranian airbus, the parties settled on the payment of compensation, (5) Guinea-Bissau v. Senegal, parties entered into a “accord de gestion et de coopération”, (6) in Nauru vs Australia, the parties entered into a settlement on a dispute concerning the rehabilitation of certain phosphate lands mined under Australia, and (7) in Finland vs Denmark, the parties entered into negotiations, following the ICJ’s recommendation to do so on a dispute concerning a project relating to certain proposed constructions of Denmark across the strait of the Great Belt.

Some cases parties withdrew the cases, without providing for a reason, and it was not possible to find these reasons in the public domain. For example, (1) Congo v. France on a dispute relating to the immunity of its officials; (2) Honduras v. Brazil and (3) Commonwealth of Dominica v. Switzerland on disputes relating to diplomatic relations, (4) DRC’s cases against Rwanda and Burundi related to alleged unlawful use of force, (5) Nicaraguan cases against Honduras and Costa Rica, also on the border and trans-border use of force, and (6) Paraguay v. United States of America relating to consular protection of Paraguay nationals in the US.

This is the sixth post, in a series of blog posts, categorizing ICJ decisions as it relates to a particular theme, using the summaries provided in the ICJ website. Other themes include, decisions on maritime time and territorial boundaries, and the use of force. These summaries are not intended to be comprehensive, but to give an overview on the ICJ’s deliberations in that case, as it relates to the topic. The list is not yet comprehensive, and other cases will continue to be added.

1. Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia).

The dispute concerned the seizure and detention, by Australia, of confidential documents and data of Timor Leste (click here for more details). Before the Court hearings, Australia and Timor Leste requested the Court to adjourn the hearing in order to enable them to seek an amicable settlement”. Timor-Leste claims that the items seized include documents and data containing correspondence between the Government of Timor-Leste and its legal advisers relating to a pending arbitration under the 2002 Timor Sea Treaty between Timor-Leste and Australia. On 03 March 2014, the ICJ indicated provisional measures requested by Timor-Leste and requested Australia, inter alia, to preserve the confidentiality of the documents. 

By letter of 25 March 2015, Australia, indicated its willingness to return the seized documents.

By an Order of 22 April 2015, the Court  ordered Australia to ensure that the confidentiality of the documents are preserved and that Australia does not interfere “in any way in communications between Timor Leste and its legal advisors… in connection with… any (legal) procedure between the two States (…)”.

By a letter of 2 June 2015, Timor-Leste informed the Court that it wished to discontinue the proceedings following the return of the documents and data. It held that, “[f]ollowing the return of the seized documents and data by Australia on 12 May 2015, Timor-Leste [has] successfully achieved the purpose of its Application to the Court, namely the return of Timor-Leste’s rightful property, and therefore implicit recognition by Australia that its actions were in violation of Timor-Leste’s sovereign rights”. Australia, also agreeing to the discontinuance stated that, “Australia’s request to return the material was an affirmation of [its] commitment to the peaceful settlement of the dispute in a constructive and positive manner in order to put it behind the Parties…(n)o other implication should be drawn from Australia’s actions”.

2. Aerial Herbicide Spraying (Ecuador v. Colombia).

The dispute concerning the alleged aerial spraying by Colombia of toxic herbicides at locations near, at and across its border with Ecuador. Ecuador stated that “the spraying has already caused serious damage to people, to crops, to animals, and to the natural environment on the Ecuadorian side of the frontier, and poses a grave risk of further damage over time” and that “repeated and sustained efforts” to negotiate proved unsuccessful.

By letters dated 12 September 2013, Ecuador and Colombia, called for the discontinuation of the case further to an agreement entered into by the parties (Agreement of 9 September 2013).

This Agreement of 9 September 2013 established, inter alia, “an exclusion zone, in which Colombia would not conduct aerial spraying operations, created a Joint Commission to ensure that spraying operations outside that zone had not caused herbicides to drift into Ecuador and, so long as they had not, provided a mechanism for the gradual reduction in the width of the said zone ; according to the letters, the Agreement set out operational parameters for Colombia’s spraying programme, recorded the agreement of the two Governments to ongoing exchanges of information in that regard, and established a dispute settlement mechanism.”

3. Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland)

On 21 December 2009, Belgium initiated proceedings against Switzerland in respect of a dispute concerning primarily the interpretation and application of the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters.  Belgium argued that Switzerland was breaching the Lugano Convention and other international obligations by virtue of the decision of its courts to refuse to recognize a decision in a Belgian court on the liability of the Swiss shareholders to the Belgian shareholders.

Between 4 February 2010 and 18 February 2011 the parties went through the motions of the process.

By a letter dated 21 March 2011, Belgium requested the Court to discontinue the proceedings because “Switzerland states . . . that the reference by the [Swiss] Federal Supreme Court in its 30 September 2008 judgment to the ‘non-recognizability’ of a future Belgian judgment does not have the force of res judicata and does not bind either the lower cantonal courts or the Federal Supreme Court itself, and that there is therefore nothing to prevent a Belgian judgment, once handed down, from being recognized in Switzerland in accordance with the applicable treaty provision”.

4. Certain Criminal Proceedings in France (Republic of the Congo v. France)

Excerpts of the summary of the ICJ:

“On 9 December 2002, the Republic of the Congo (DRC) filed an Application instituting proceedings against France seeking the annulment of the investigation and prosecution measures taken by the French judicial authorities further to a complaint concerning crimes against humanity and torture allegedly committed in the Congo against individuals of Congolese nationality filed by various human rights associations against the President of the Republic of the Congo, Mr. Denis Sassou Nguesso, the Congolese Minister of the Interior, General Pierre Oba, and other individuals including General Norbert Dabira, Inspector-General of the Congolese Armed Forces, and General Blaise Adoua, Commander of the Presidential Guard. The Congo contended that, by  “attributing to itself universal jurisdiction in criminal matters and by arrogating to itself the power to prosecute and try the Minister of the Interior of a foreign State for crimes allegedly committed by him in connection with the exercise of his powers for the maintenance of public order in his country”,

France had violated “the principle that a State may not, in breach of the principle of sovereign equality among all Members of the United Nations . . . exercise its authority on the territory of another State”. The Congo further submitted that, in issuing a warrant instructing police officers to examine the President of the Republic of the Congo as witness in the case, France had violated “the criminal immunity of a foreign Head of State — an international customary rule recognized by the jurisprudence of the Court” (…).

(Although Congo requested for provisional measures,) the Court concluded that no evidence had been placed before it of any irreparable prejudice to the rights in dispute and that, consequently, circumstances were not such as to require the exercise of its power to indicate provisional measures (…).

Hearings were scheduled to open in the case on 6 December 2010, when, by a letter dated 5 November 2010, the Agent of the Congo, referring to Article 89 of the Rules of Court, informed the Court that his Government was “withdraw[ing] its Application instituting proceedings” and requested the Court “to make an Order officially recording the discontinuance of the proceedings and directing the removal of the case from the List”. (B)y an Order of 16 November 2010, the Court… ordered that the case be removed from the List.”

NB: Congo did not provide a reason for the withdrawal. See here a post on it by Dapo Akande.

5. Certain Questions concerning Diplomatic Relations (Honduras v. Brazil)

On 28 October 2009, Honduras, through its Ambassador  to the Netherlands, initiated proceedings against Brazil. Honduras alleged that Brazil had “breached its obligations under Article 2 (7) of the Charter and those under the 1961 Vienna Convention on Diplomatic Relations” and requested the Court “to adjudge and declare that Brazil does not have the right to allow the premises of its (Brazilian Diplomatic) Mission in Tegucigalpa to be used to promote manifestly illegal activities by Honduran citizens (which included the then recently deposed President of Honduras, who had sought shelter in the Embassy following a coup)…”.

For a background to the proceedings, see here and here.

By letter dated 28 October 2009, Honduras revoked the authority of its Ambassador in the Netherlands and appointed another official to represent Honduras at the proceedings. The Court decided that, given the circumstances, no other action would be taken in the case until further notice.

By a letter dated 30 April 2010, Honduras informed the Court that it withdraws its application, without providing any specific reasons. By Order on 12 May 2010 the Court ordered the case be removed from the List.

6. Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland)

On 26 April 2006, the Commonwealth of Dominica instituted proceedings against Switzerland concerning alleged violations by the latter of the Vienna Convention on Diplomatic Relations, as well of other international instruments and rules, with respect to a diplomatic envoy of Dominica to the United Nations in Geneva.

In its Application, the Commonwealth of Dominica asked the ICJ to “…decide and clarify whether the rights of a sovereign nation to select its envoys to the United Nations can be impaired by a host State and whether the host State can even withdraw the accreditation of an Acting Head of Mission claiming that an envoy is engaged in commercial activities outside the host State, and whether such change of diplomatic status can take place without even notifying, neither the sending State nor the United Nations.”

By letter of 15 May 2006, the Commonwealth of Dominica expressed its intention to discontinue proceedings.  On 9 June 2006, the Court ordered that the case be removed from the List. No reasons were provided for the withdrawal.

7. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Libyan Arab Jamahiriya v. United States)

Excerpts of the summary of the ICJ:

“On 3 March 1992 the Libya initiated proceedings against the United States and the United Kingdom, in respect of a dispute over the interpretation and application of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation signed in Montreal on 23 September 1971, a dispute arising from acts resulting in the aerial incident that occurred over Lockerbie, Scotland, on 21 December 1988.

In its Applications, Libya referred to the charging and indictment of two Libyan nationals by a Grand Jury of the United States of America and by the Lord Advocate of Scotland, respectively, with having caused a bomb to be placed aboard Pan Am flight 103. The bomb subsequently exploded, causing the aeroplane to crash, all persons aboard being killed. Libya pointed out that (1) the acts alleged constituted an offence within the meaning of Article 1 of the Montreal Convention, which it claimed to be the only appropriate Convention in force between the Parties, and asserted that (2) it had fully complied with its own obligations under that instrument, Article 5 of which required a State to establish its own jurisdiction over alleged offenders present in its territory in the event of their non-extradition ; and that (3) there was no extradition treaty between Libya and the respective other Parties, so that Libya was obliged under Article 7 of the Convention to submit the case to its competent authorities for the purpose of prosecution. Libya contended that (4) the United States of America and the United Kingdom were in breach of the Montreal Convention through rejection of its efforts to resolve the matter within the framework of international law, including the Convention itself, in that (5) they were placing pressure upon Libya to surrender the two Libyan nationals for trial.

On 3 March 1992, Libya made two separate requests to the Court to indicate forthwith certain provisional measures, namely : (a) to enjoin the United States and the United Kingdom respectively from taking any action against Libya calculated to coerce or compel it to surrender the accused individuals to any jurisdiction outside Libya ; and (b) to ensure that no steps were taken that would prejudice in any way the rights of Libya with respect to the legal proceedings that were the subject of Libya’s Applications. On 14 April 1992, the Court read two Orders on those requests for the indication of provisional measures, in which it found that the circumstances of the cases were not such as to require the exercise of its powers to indicate such measures (…)

On 27 February 1998, the Court delivered two Judgments on the preliminary objections raised by the United Kingdom and the United States of America (…) It declared that it had jurisdiction on the basis of Article 14, paragraph 1, of that Convention to hear the disputes between Libya and the respondent States concerning the interpretation or application of the provisions of the Convention (…)

In June 1999, the Court authorized Libya to submit a Reply, and the United Kingdom and the United States to file Rejoinders. Those pleadings were filed by the Parties within the time-limits laid down by the Court and its President.

By two letters of 9 September 2003, the Governments of Libya and the United Kingdom on the one hand, and of Libya and the United States on the other, jointly notified the Court that they had “agreed to discontinue with prejudice the proceedings”. Following those notifications, the President of the Court, on 10 September 2003, made an Order in each case placing on record the discontinuance of the proceedings with prejudice, by agreement of the Parties, and directing the removal of the case from the Court’s List.””

NB: The letters to the ICJ does not specify the conditions under which the case was withdrawn. See here for the conditions agreed to by parties to resolve the issue, and a discussion as to why a negotiated settlement was reached. The settlement was linked to the removal of UN sanctions. Libyan government subequently paid compensation to the families of the Lockerbie victims. It also submitted a letter to the Security Council stating that “Libya, as a sovereign state, has facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am flight and accepts responsibility for the actions of its officials.” Of the two accused, the Scottish Court, that was vested with jurisdiction to determine the case, concluded the guilt of one person. In 2015, Scottish investigators identified two further suspects.

 Recent attempts to reopen the Lockerbie case has been rejected by Libyan officials (02 August, 2017).

8. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi)

On 23 June 1999, the Democratic Republic of the Congo initiated proceedings against Burundi for “(…)acts of armed aggression perpetrated by Burundi on the territory of the Democratic Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the Organization of African Unity.” It stated that “…such armed aggression by Burundian troops on Congolese territory has involved inter alia violation of the sovereignty and territorial integrity of the Democratic Republic of the Congo, violations of international humanitarian law and massive human rights violations.” Congo sought (1) to secure the cessation of these acts of aggression; (2) reparation for acts of intentional destruction and looting; and (3) the restitution of national property and resources appropriated for the benefit of Burundi.

Burundi filed its memorial within the time limits fixed by the Court. The Government of the DRC informed the Court on 15 January 2001 that it intended to discontinue the proceedings instituted against Burundi. It also stated that it “reserved the right to invoke subsequently new grounds of jurisdiction of the Court”. The two cases were removed from the List on 30 January 2001.

9. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda)

On 23 June 1999, the Democratic Republic of the Congo (DRC) initiated proceedings against Rwanda for “(…)acts of armed aggression perpetrated by Burundi on the territory of the Democratic Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the Organization of African Unity.”   This has involved the violation of the sovereignty and territorial integrity of Congo, violations of international humanitarian law and massive human rights violations. Congo sought (1) to secure the cessation of the acts of aggression directed against it; (2) reparation for acts of intentional destruction and looting; and (3) the restitution of national property and resources appropriated for the benefit of Rwanda.

Burundi filed its memorial within the time limits fixed by the Court. The Government of the DRC informed the Court on 15 January 2001 that it intended to discontinue the proceedings instituted against Burundi. It also stated that it “reserved the right to invoke subsequently new grounds of jurisdiction of the Court”. The two cases were removed from the List on 30 January 2001.

10. Vienna Convention on Consular Relations (Paraguay v. United States of America)

On 3 April 1998, the Republic of Paraguay instituted proceedings against the United States of America in a dispute relating to a Paraguay national and concerning alleged violations of the Vienna Convention on Consular Relations of 24 April 1963.

Excerpts of the summary of the ICJ:

“(…) Paraguay based the jurisdiction of the Court on Article 36, paragraph 1, of the Statute and on Article I of the Optional Protocol which accompanies the Vienna Convention on Consular Relations, and which gives the Court jurisdiction as regards the settlement of disputes arising out of the interpretation or application of that Convention.

In its Application, Paraguay indicated that, in 1992, the authorities of the Commonwealth of Virginia had arrested a Paraguayan national, charged and convicted him of culpable homicide and sentenced him to death without informing him of his rights as required by Article 36, paragraph 1 (b), of the Convention. Those rights included the right to request that the relevant consular office of the State of which he was a national be advised of his arrest and detention and the right to communicate with that office. It was further alleged by the Applicant that the authorities of the Commonwealth of Virginia had not advised the Paraguayan consular officers, who were therefore only able to render assistance to him from 1996, when the Paraguayan Government learned of the case by its own means. Paraguay asked the Court to adjudge and declare that the United States of America had violated its international legal obligations towards Paraguay and that the latter was entitled to “restitution in kind”.

The same day, 3 April 1998, Paraguay also submitted a request for the indication of provisional measures to ensure that the national concerned was not executed pending a decision by the Court. At a public hearing on 9 April 1998, the Court made an Order on the request for the indication of provisional measures submitted by Paraguay. The Court unanimously found that the United States of America should take all measures at its disposal to ensure that the Paraguayan national concerned was not executed pending the decision by the Court. By an Order the same day, the Vice-President, acting as President, having regard to the Court’s Order for the indication of provisional measures and the agreement of the Parties, fixed the time-limits for the filing of the Memorial and the Counter-Memorial. Paraguay filed its Memorial on 9 October 1998.

By letter of 2 November 1998, Paraguay indicated that it wished to discontinue the proceedings with prejudice. The United States of America concurred in the discontinuance on 3 November. On 10 November 1998, the Court therefore made an Order placing on record the discontinuance and directing the case to be removed from the List.”

11. Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America)

On 17 May 1989, Iran instituted proceedings against the United States of America.  Iran claimed, inter alia, that the United States had violated  the Convention on International Civil Aviation and the  Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, by (1) its destruction of an Iranian aircraft , causing the deaths of its 290 passengers and crew, (2) by refusing to compensate Iran for the damage caused and (3) by its continuous interference in aviation in the Persian Gulf.

By a letter dated 8 August 1994, the two Parties jointly informed the Court that the parties have entered into negotiations and to postpone the oral proceedings and then on 22 February 1996 they requested the Court to discontinue the proceedings because they had entered into a full and final settlement. Also in February 1996, the US agreed to pay Iran $61.8 million in compensation for the 248 Iranians killed, plus the cost of the aircraft and legal expenses. The US had already paid $40 million to the other countries whose nationals were killed.

Click here for the summary of the case in the ICJ website.

12. Maritime Delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v. Senegal)

On 12 March 1991 Guinea-Bissau initiated proceedings against Senegal in which the Court was asked to decide : “What should be, on the basis of the international law of the sea and of all the relevant elements of the case, including the future decision of the Court in the case concerning the Arbitral ‘award’ of 31 July 1989, the line (to be drawn on a map) delimiting all the maritime territories appertaining respectively to Guinea-Bissau and Senegal.” At this time, the above case concerning the Arbitral Award of 31 July 1989 was progressing before the Court.

Senegal objected to the admissibility of a fresh claim, and possibly to the Court’s jurisdiction and parties agreed that no measure should be taken in the case until the Court had delivered its decision in the Arbitral Award Case. The Court delivered its Judgment in that case on 12 November 1991.  In its judgment the Court stated that it was “highly desirable that the elements of the dispute that were not settled by the Arbitral Award of 31 July 1989 be resolved as soon as possible, as both Parties desire”. Subsequently, the parties entered into an “accord de gestion et de coopération” and they decided to discontinue the proceedings (…). On 8 November 1995 the Court made an Order to remove the case from the Court’s List.

13. Certain Phosphate Lands in Nauru (Nauru v. Australia)

On 19 May 1989 the Republic of Nauru initiated proceedings against Australia in respect of a dispute concerning the rehabilitation of certain phosphate lands mined under Australian administration before Nauruan independence.

In its Application, Nauru claimed that Australia had breached the trusteeship obligations it had accepted under Article 76 of the Charter of the United Nations and under the Trusteeship Agreement for Nauru of 1 November 1947. Nauru further claimed that Australia had breached certain obligations towards Nauru under general international law, more particularly with regard to the implementation of the principle of self-determination and of permanent sovereignty over natural wealth and resources. Australia was said to have incurred an international legal responsibility and to be bound to make restitution or other appropriate reparation to Nauru for the damage and prejudice suffered (See here).

The Court delivered its Judgment on 26 June 1992 on the several preliminary objections raised by Australia. This included an objection by Australia based on the fact that New Zealand and the United Kingdom were not parties to the proceedings. The Court held, inter alia, that

(…) it was in no way precluded from adjudicating upon the claims submitted to it, provided the legal interests of the third State which might possibly be affected did not form the actual subject-matter of the decision requested. Where the Court was so entitled to act, the interests of the third State which was not a party to the case were protected by Article 59 of the Statute (See here).

Australia filed its Counter-Memorial and the Court fixed the dates for the filing of a Reply by the Applicant and a Rejoinder by the Respondent.

On 9 September 1993, the two Parties deposited a joint notification and informed the Court that they had reached a settlement and have agreed to discontinue the proceedings. On 13 September 1993, the Court ordered the case to be removed from the General List.

14. Border and Transborder Armed Actions (Nicaragua v. Honduras)

On 28 July 1986, Nicaragua instituted proceedings against Honduras alleging violations of international law arising from certain military activities directed against the Nicaragua by the contras operating from Honduras. The violation specified included violations of Article 2 (4) of the UN Charter, Charter of the Organization of American States, Pact of Bogota and other customary law provision, including those that prohibited the threat or use of force in international relations.

In its Judgment of 20 December 1988, the Court concluded that it had jurisdiction to proceed and commenced the proceedings on the merits.

Nicaragua, by letter dated 11 May 1992, informed the Court that the Parties had reached an out-of-court agreement and as a result, has decided to “renounce all further rights of action based on the case”. The ICJ ordered the case to be removed from the General List on 27 May 1992.

15. Border and Transborder Armed Actions (Nicaragua v. Costa Rica)

On 28 July 1986, Nicaragua instituted proceedings against Costa Rica , respectively, alleging violations of international law arising from certain military activities directed against the Nicaragua by the contras operating from Honduras. The violation specified included violations of Article 2 (4) of the UN Charter, Charter of the Organization of American States, Pact of Bogota and other customary law provision, including those that prohibited the threat or use of force in international relations.

Nicaragua filed its Memorial on the merits on 10 August 1987 (see Memorial of Nicaragua). By a communication dated 12 August 1987, Nicaragua,declared that it was discontinuing the judicial proceedings instituted against Costa Rica.

The ICJ ordered that the case be removed from the General List on 19 August 1987.

16. Passage through the Great Belt (Finland v. Denmark)

On 17 May 1991 Finland instituted proceedings against Denmark in respect of a dispute concerning a project of Denmark to construct a fixed traffic connection for both road and rail traffic across the strait of the Great Belt, the effect of which would have been to “…permanently to close the Baltic for deep draught vessels of over 65 m height, thus preventing the passage of such drill ships and oil rigs manufactured in Finland as required more than that clearance.”  Finland argued that the Great Belt is a strait used for international navigation, that there is a right of free passage through the Great Belt.

The Court noted that “the existence of a right of Finland of passage through the Great Belt is not challenged, the dispute between the Parties being over the nature and extent of that right, including its applicability to certain drill ships and oil rigs.”

On 23 May 1991, Finland requested the Court to indicate certain provisional measures. The Court refused, but held that “pending a decision of the Court on the merits, any negotiation between the Parties with a view to achieving a direct and friendly settlement is to be welcomed.”

By letter dated 3 September 1992, Finland, “referring to the passage quoted above, stated that a settlement of the dispute had been attained and accordingly notified the Court of the discontinuance of the case by Finland.” The case was subsequently removed from the General List.

For the documents relating to this case, click here.

 
 
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