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The Nature of Law Newsletter, September 2008



Issue 7, September 2008

Message from the Chief Counsel

This seventh issue of LEGEN's newsletter is one of the most interesting because of an array of recent environmental and international legal issues. We report that the International Law Commission has issued draft articles on transboundary groundwater, UNEP has issued draft guidelines for national legislation on access to information, and several US courts have issued decisions that for the first time take climate change into consideration in licensing decisions. In addition, we report that the International Court of Justice has provided a further ruling on a case we addressed earlier on the right to be informed of consular access in a death penalty case, and has accepted the filing of a dispute by Ecuador against Colombia becauase of the alleged effects from aerial herbicide spraying.

As always, if you have questions on any of these or related matters, please contact us at LEGEN.

Charles E. Di Leva
Chief Counsel, Environment and International Law Unit
Legal Vice Presidency - The World Bank


The International Law Commission Adopts Draft Articles on the Law of Transboundary Aquifers
By Salman M.A. Salman

UNEP Draft Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters
By Patrice Talla Takoukam 

Climate Change in United States Courts - The Fallout Begins from the U.S. Supreme Court's ruling in Massachusetts vs EPA
By Charles Di Leva

The Right to be Informed of the Vienna Convention Rights - An update on the Provisional Measures Granted by the International Court of Justice
By Salman M. A. Salman and Sachiko Morita

Aerial Herbicide Spraying Dispute before the ICJ
By Maurizio Ragazzi

The International Law Commission Adopts Draft Articles on the Law of Transboundary Aquifers
By Salman M.A. Salman

On August 5, 2008 the International Law Commission (ILC) (The ILC was established pursuant of General Assembly Resolution 174 (11) of November 21, 1947, as a subsidiary organ of the General Assembly for the progressive development and codification of international law. ILC is composed of legal experts nominated by states and elected by the General Assembly.) adopted the Draft Articles on the Law of Transboundary Aquifers (Draft Articles). The adoption of the Draft Articles completes the work of the ILC on the topic that commenced in 2002, six years earlier. No doubt this is a landmark step in the codification and progressive development of the law of the international watercourses. It comes fourteen years after the ILC agreed on the draft Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention) in 1994. That Convention was adopted by the United Nations General Assembly in 1997, but has not yet entered into force. (As of September 1, 2008, sixteen countries have ratified or acceded to the Convention. The Convention needs 35 instruments of ratification/accession to enter into force.)

The work of the ILC on transboundary aquifers was part of the work on the larger topic of “Shared Natural Resources.” The ILC decided to adopt a step- by- step approach and to focus on the consideration of transboundary groundwaters as a follow-up to the ILC previous work on the Watercourses Convention. The ILC adopted on first-reading a set of 19 Draft Articles on the law of transboundary aquifers and commentaries thereto in 2006. The Draft Articles were transmitted to Governments for comments and observations, with a request that such comments be submitted by January 1, 2008. While awaiting the comments from Governments, the ILC addressed the question of relationship between its work on transboundary aquifers and that on oil and natural gas. It decided to proceed with and complete the second-reading of the law on transboundary aquifers independently of its possible future work on oil and natural gas.

ILC received written and oral comments from 47 states which were generally favorable and supportive of the ILC work. Those comments were considered during the second reading and the revised Draft Articles were adopted thereafter. As the views of Governments on the final form of the draft articles were divided, the ILC decided to recommend to the General Assembly a two-step approach, consisting of the General Assembly (a) taking note of the Draft Articles to be annexed to its resolution and recommending that states concerned make appropriate bilateral and regional arrangements for the proper management of their transboundary aquifers on the basis of the principles enunciated in the Draft Articles: and (b) considering, at a later stage, the elaboration of a convention on the basis of the Draft Articles. Since there would be some time before a decision is made on the second step, the ILC decided to refrain from formulating a draft article on the relationship between these Draft Articles and other international agreements, and also a draft article on the settlement of disputes, the formulation of which would become necessary only when the second step is initiated.

The Draft Articles follow the principles enunciated in the Watercourses Convention, with adaptations to fit the special characteristics of aquifers. The Draft Articles define an aquifer as “a permeable water-bearing geological formation underlain by a less permeable layer and the water contained in the saturated zone of the formation,” and “aquifer system” to mean a series of two or more aquifers that are hydraulically connected. The Draft Articles call on the states to utilize the transboundary aquifers according to the principle of equitable and reasonable utilization, keeping in mind the need to maximize the long term benefits, to establish comprehensive utilization plans, and sustainability of the aquifer. The Draft Articles adopt and adapt the factors for equitable and reasonable utilization included in the Watercourses Convention. The Draft Articles also deal with: the obligation not to cause significant harm, the general obligation to cooperate, exchange of data and information and protection and preservation of ecosystems (including prevention, reduction and control of pollution). (The Draft Articles use the term “precautionary approach” stating “Aquifer states shall take a precautionary approach in view of uncertainty about the nature and extent of a transboundary aquifer or aquifer system and its vulnerability to pollution.” It does not use the term “precautionary principle.”). It encourages aquifer states to conclude bilateral or regional agreements or arrangements on the shared aquifers.

Notification for planned activities is addressed in Article 15, and is based largely on the corresponding articles of the Watercourses Convention. It requires the aquifer state that plans to implement any activities which may affect a transboundary aquifer to provide the other aquifer states with timely notification thereof. Such notification shall be accompanied by available technical data and information, including any environmental impact assessment, in order to enable the notified state to evaluate the possible effects of the planned activities. Article 16 deals with technical cooperation with developing states, while Article 17 addresses emergency situations.

The ILC recommendation of a two-step approach to the General Assembly, consisting of adopting the Draft Articles now, and considering elaboration of a convention at a later stage, is realistic, given the delays and difficulties facing the entry into force of the Watercourses Convention itself. (See Salman M.A. Salman, The United Nations Watercourses Convention Ten Years Later – Why Has its Entry into Force Proven Difficult? 32 Water International (2007) at 10.). This approach is similar to that adopted with regard to the Draft Articles on Responsibility of States for International Wrongful Acts. As recommended by ILC, the General Assembly, in Resolution 56/83 of 12 December 2001, took note of the articles on responsibility of states for internationally wrongful acts, the text of which was annexed to the resolution, and recommended them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action. It is expected that the General Assembly will accept the ILC recommendation, and follow a similar approach with regard to the Draft Articles on the Law of Transboundary Aquifers.

UNEP Draft Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters
By Patrice Talla Takoukam

A Consultative Meeting of Government Experts on the Draft Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters was held at UNEP headquarters in Nairobi from 20 to 21 June 2008. The meeting was attended by representatives of 40 countries, mainly from developing countries, intergovernmental and nongovernmental organizations. The initiative to draft the Guidelines was taken to draw attention to the importance of these fundamental rights in environmental matters, expressed in the 1992 Rio Declaration’s Principle 10. The purpose of the Guidelines is primarily to provide guidance to developing countries and to countries with economies in transition when developing legislation and regulations on issues covered by the Guidelines. They are to be regarded as minimum guidelines, on which national legislation could be based, and which would need to be tailored according to specific national circumstances.

General comments were followed by discussions article per article, until a consensus was reached among the participants on the content and wording of articles. In general, there was no critical issue that could result to an impasse in the discussions. Some key issues that were discussed during the review of the draft are as follows:

- The definition of the notions of “public” and “public concerned”. It was agreed to refer to the definition provided by the Aarhus Convention:

(i) “The public” may be defined as one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups.
(ii) “The public concerned” may be defined as the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law should be deemed to have an interest.

- On the principle of access to information, it was agreed not to limit the scope and the nature of environmental information that can be provided to the public. Any country may define the scope and the nature of the information, according to its national laws and regulations, and the public interest.

- On the principle of public participation, the participants were concerned about the appropriate level and timing of involvement of the public in a decision making process.

- Access to information and public participation are linked in the sense that the participation can not be appropriate if the public does not have access to relevant information.

- Both access to information and public participation are key factors to access to justice; as well as the human and logistic capacities of the competent institutions.

- Access to justice may not be ensured if (i) the public is not informed on its rights and procedures to access to courts; (ii) the procedures are financially prohibitive; and (iii) judicial officers, prosecutors and other relevant stakeholders are not trained in general principles of environmental laws.

The Meeting recommended the Draft Guidelines be submitted to the UNEP Governing Council in February 2009, and once it is approved to ensure its dissemination in its countries members, in particular in developing countries and countries with economies in transition.

Climate Change in United States Courts - The Fallout Begins from the U.S. Supreme Court's ruling in Massachusetts vs EPA
By Charles Di Leva

Last year, we reported on the potential impact of the U.S. Supreme Court ruling in Massachusetts v. EPA, (Massachusetts v. EPA, 549 U.S. 497 (2007)) that CO2 is an air pollutant under the U.S. Clean Air Act and that EPA should develop CO2 regulations under that statute. There have been several recent decisions in favor of environmental groups that appear to base at least part of their holdings on the US Supreme Court ruling. (We provide a very brief review of these cases below. If a reader would like more detailed discussion, please contact us.)

In one of the first cases to address CO2 in light of Massachusetts v EPA, a Georgia state court judge has ruled against an agency approved permit for a new 1200 megawatt coal plant because the application failed to demonstrate how it would limit CO2 emissions ( See, Friends of the Chattahoochee v Couch, No. 2008 CV 146398 (Fulton County Superior Court)). The judge ruled that based on Massachusetts v EPA, the applicant had an obligation to make such a demonstration in its permit application.

The Longleaf Corporation, a subsidiary of Dynergy Corporation is appealing the ruling, and the State Supreme Court is to decide by August 29 whether to allow the appeal. Business groups and the State Attorney General were among those who filed briefs supporting the request for an appeal, claiming that the judge acted prematurely, given that EPA has yet to issue any rules. They also claim the ruling will have an adverse effect on business throughout the state, and that the plant would bring jobs to the poorest part of Georgia.

Two other potentially important rulings arise out of California. Environmental groups have succeeded in two cases, one at the federal level and the other a state case, in which they contend CO2 should have been taken into account at part of the decision-making entities. In Center for Biological Diversity v National Highway Traffic Safety Administration, (Center for Biological Diversity v National Highway Traffic Safety Administration, Case Nos. 06-71891 et seq. (U.S Circuit Court of Appeals, 9th Cir.)), the U.S. Circuit Court of Appeals ruled that NHTSA Corporate Average Fuel Economy standards were invalid because they failed to address the benefits that would come from including CO2 considerations in the rulemaking. Among the arguments that resonated with the Court of Appeals were that the NHTSA failed to take into account the costs and benefits that would come from CO2 reductions, and that the NHTSA failed to comply with the requirements of an Environmental Impact Assessment (EIA) under National Environmental Policy Act. In addition, they did not consider the cumulative impact of their failure to address CO2 and to consider the range of alternatives to their proposed standards.

The same Center also prevailed in a case in State Court in which they joined with the Sierra Club to challenge a land use permit issued by the municipality for a housing and golf resort proposed by a well-known golf professional. (See Center for Biological Diversity, et al. v. City of Desert Hot Springs, et al. (Riverside County Superior Court - Case No. RIC 464585) (August 6, 2008)). In this case, they successfully argued that the EIA failed to comply with California requirements related to CO2 in that the resort failed to make a “meaningful attempt” to address the global warming impacts that might take place if the permit were approved and the resort constructed. The resort would have been located next to a national park that includes endangered species.

There will likely continue to be a raft of lawsuits to address this issue, especially until the EPA adopts rules for CO2. On July 11, 2008 the EPA issued a more than 500 page Advance Notice of Proposed Rulemaking (“ANPR”), in which they solicit comments over the next 120 days in reaction to a range of possible ways in which CO2 could be regulated. Given this time frame, it is generally agreed that such rulemaking will not begin until a new administration is in place.

The Right to be Informed of the Vienna Convention Rights - An update on the Provisional Measures Granted by the International Court of Justice
By Salman M. A. Salman and Sachiko Morita

On June 5, 2008, Mexico filed a request for interpretation of the Judgment delivered on March 31, 2004 by the International Court of Justice (ICJ) in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America). As was noted in the April edition of LEGEN newsletter, the Court in the Avena case found that “the United States had breached Article 36 of the Vienna Convention on Consular Relations in the cases of 51 Mexican nationals by failing to inform them…of their rights to consular access and assistance” and that the United States is obliged to “provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals….” In this new application, Mexico invoked Article 60 of the Statute of the Court (Article 60 provides that “In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.”) (Statute) to request for an interpretation on the scope of the latter part of this Judgment.

On the same day, Mexico also filed for the indication of provisional measures in accordance with Article 41 of the Statute, asking that the Government of the United States take all measures necessary to ensure that five Mexican nationals are not executed pending the conclusion of the above mentioned proceedings for interpreting the Avena Judgment. One of these Mexican nationals (José Ernesto Medellín) was scheduled to be executed on August 5, 2008, and the other four are expected to receive an execution date in the very near future.

On July 16, 2008, the Court issued its order on Mexico’s two requests. With regard to Mexico’s request for an interpretation, the Court concluded by a vote of seven to five that “there appears to be difference of opinion between [the parties] as to the meaning and scope” of the Avena Judgment, and that therefore “the Court may, under Article 60 of the Statute, deal with the Request for interpretation.”

With respect to Mexico’s request for a provisional measure, the Court granted it by a vote of seven to five. It concluded that “the circumstances require that it indicate provisional measures to preserve the rights of Mexico,” and that the United States “shall take all measures necessary to ensure that [five Mexican individuals who are scheduled to be executed shortly] are not executed pending judgment on the Request for interpretation submitted by the United Mexican States, unless and until these five Mexican nationals receive review and reconsideration consistent with…the Court’s Judgment delivered in March 2004…” The Court further added that this decision on the provisional measure “in no way prejudges any question [it] may have to deal with relating to the Request for interpretation.”

Provisional measures are an exceptional remedy in international litigation, and are rarely granted by the ICJ. Such measures are only granted if the Court is satisfied that there is an “urgent necessity” that justifies such a request (Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (2005), 223.). Article 41 of the Statute provides that “the Court shall have the power to indicate, if it considers that circumstances so require, any provision or measures which ought to be taken to preserve the respective rights of either Party.” This power is only exercised if there is urgency in the sense that action prejudicial to the rights of either party is likely to be taken before the Court has given its final decision. (See, Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17, para. 23; Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p. 107, para. 22; Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 18, para. 73; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, p. 11, para. 32.)

In this case, as mentioned above, one of the five Mexican nationals for whom the provisional measure was granted was scheduled to be executed on August 5 and the other four are expected to receive their execution date in the coming days. Given that these Mexicans may be executed before the Court delivers its final judgment on the Request for interpretation, the Court concluded that “their execution would cause irreparable prejudice” and that “there undoubtedly is urgency” that justifies the granting of provisional measures in this case.

Despite ICJ granting provisional measures, the state of Texas still went ahead with the execution of José Ernesto Medellín on August 5. The execution, by lethal injection, took place shortly after the US Supreme Court denied Medellín’s last request for a reprieve. In a 5-4 decision, the Court noted that the evidence did not justify the stay because neither Congress nor the Texas legislature had taken actions in the case since the Court decided five months ago in Medellín v. Texas, and that it does not seem that Medellín was prejudiced by his lack of consular access. However, Justice Stevens dissented, quoting his own concurring opinion in the Medellín decision that “the cost to Texas of complying with the ICJ judgment ‘would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced’ this petitioner….On the other hand, the costs of refusing to respect the ICJ’s judgment are significant. The entire Court and the President agree that breach will jeopardize the United States’ ‘plainly compelling’ interests in ‘ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law.’” Justice Breyer also noted in his dissenting opinion that the execution would place the US “irremediably in violation of international law.”

Aerial Herbicide Spraying Dispute before the ICJ
By Maurizio Ragazzi

On March 31, 2008, Ecuador instituted proceedings against Colombia before the International Court of Justice (the ICJ), which is the principal judicial organ of the United Nations. Ecuador alleged that the aerial spraying by Colombia of toxic herbicides near and across the border between the two countries has caused serious damage to people, crops, animals and the natural environment in Ecuador, posing a grave risk for additional damage. As a basis of the ICJ’s jurisdiction, Ecuador invoked the 1948 Pact of Bogotá, to which both states are parties, and the 1988 United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances.

In its application, Ecuador alleged that, since at least 2000, Colombia has used airplanes and helicopters to spray broad-spectrum herbicides in the two states’ border region with a view to targeting illicit coca and poppy plantations in the Colombian territory near the border while causing extensive damage to the Ecuadorian people and environment. While Colombia has not disclosed to Ecuador the chemical composition of the herbicides, their primary active ingredient is glyphosate, laboratory studies of which have found adverse effects in all standard categories of toxicology testing. In addition, the risks for people and the natural environment are heightened, according to Ecuador, by the fact that the fumigations occur in a particularly vulnerable area, which is home to communities of indigenous peoples, including the Awá. In this respect, the Ecuadorian application referred to a recent Report of the United Nations Special Rapporteur on the human rights and freedoms of indigenous peoples, according to which the most serious problem in the area occupied by the Awá, who have strong connection to their land, is precisely the aerial spraying of illicit crops by Colombia. Ecuador also indicated that some of the local population has been forced to relocate to areas further from the border.

On the basis of these allegations, and as efforts to negotiate an end to the fumigations by means also of bilateral scientific commissions have proved unsuccessful, Ecuador requested the ICJ to adjudge and declare that Colombia (a) is in breach of its international obligations by causing the deposit of toxic herbicides in the territory of Ecuador and damage to human health, property and the environment, (b) must indemnify Ecuador for any damage caused by its unlawful acts, and (c) in respecting the sovereignty and territorial integrity of Ecuador, must take the necessary steps to prevent the deposit of toxic herbicides in the territory of Ecuador. In essence, the dispute between the parties, as alleged by Ecuador, is not about the aim of eradicating illicit coca and poppy plantations, but about the methods and locations of Colombia’s operations.

In its application, Ecuador referred generically to the breach, by Colombia, of Ecuador’s rights under customary and conventional international law, without providing details. This, however, is what could be expected of an application, as the initial step to put the proceedings in motion. The more detailed arguments of the parties will be formulated in the Memorial and Counter-Memorial.

In conformity with its usual practice, by an Order dated May 30, 2008, the ICJ fixed the time-limit for the filing of a Memorial by Ecuador (April 29, 2009) and of a Counter-Memorial by Colombia (March 29, 2010). Ecuador has not requested any provisional measures from the ICJ, while reserving its right to do so.

Useful link

  • The documentation regarding the case is electronically available at the ICJ website.







September - December, 2008

Sept. 2222 UN General Assembly High Level Meeting on Implementation of the New Partnership for Africa’s DevelopmentNew York, USA
Sept. 23-24Carpathian Network of Protected Areas Conference BrasovRomania
Oct. 1-3

UNEP negotiators training

Oct.3-14UN Convention to Combat Desertification COP8 Madrid
Oct.5-14IUCN World Congress Barcelona, Spain
Oct.6 - 8Second International Symposium on “Food and Water Sustainability in Asia 2008”Macau, China
Oct. 7- 9European Regional CITES Meeting for Plants Lampedusa, Italy
Oct.8-12Fifth meeting of the Ad Hoc Open-ended Working Group on Access and Benefit-sharing Montreal, Canada
Oct.13-16International Conference on Traditional Forest-related Knowledge and Sustainable Forest Management in AfricaAccra, Ghana
Oct.28-29Carbon Capture & Storage - Showcasing the opportunities and necessity for CO2 storageAbu Dhabi, United Arab Emirates

4 Nov.

RAMSAR COP 10 Changwon, Republic of Korea, 
Nov.4 - 9ISO Social Responsibility Working Group Vienna
Nov.7 - 9

European Forum

Nov.7-10Ninth International Conference on Dryland Development: Sustainable Development in the Drylands - Meeting the Challenge of Global Climate ChangeAlexandria, Egypt
Nov.10-14Second International Forum on Water and Food 2008Addis Ababa, Ethiopia
Nov.10-14Ad hoc Expert Group to develop proposals for the development of a voluntary global financial mechanism/portfolio approach/forest financing frameworkVienna, Austria
Nov.10-14Provoking Change: Strategies to promote forest users in the AmazonSanta Cruz de la Sierra, Bolivia
Nov.10-1427th Anuual meeting of the North East Atlantic Fisheries CommissionVenue to be determined
Nov.10-14GEF Council Meeting and NGO ConsultationWashington DC, USA

27th Session of IPCC

Nov.13-14Water for PeaceParis, France
Nov.16-20Twentieth Meeting of the Parties to the Montreal Protocol (MOP-20)Doha, Qatar
Nov.16-2110th International Symposium on the Biosafety of GMOSWellington, New Zealand
First meeting of the CBD Ad Hoc Technical Expert Group on Biodiversity and Climate Change London, UK
Nov.17-22International Expert Workshop on CITES Non-Detriment FindingsCancun, Mexico
Nov.17-20Coastal Cities Summit: Values and VulnerabilitiesSaint Petersburg, Florida, US
November 18 - 19Carbon Markets Africa - CDM business opportunities in AfricaCape Town, South Africa
November 19 - 21Fifth Meeting of the Biosafety Protocol Compliance CommitteeKuala Lumpur, Malaysia
November 20 - 21

Biofuels Markets Africa - The pan-African meeting place for the biofuels industry

Cape Town, South Africa
UNIDO Public Policy on SMEs and CSR Vienna
World Biodiversity Congress Chiang, Mai, Thailand
Nov. 30 -Dec.5CMS COP 9 Rome, Italy
Dec.1- 5CGIAR Annual General Meeting 2008Maputo,Mozambique 
Dec.1- 5CMS COP 9Rome, Italy
Dec.1- 5International Conference on Water Scarcity, Global Changes and Groundwater Management ResponsesIrvine, California, USA
Dec.1- 5Law and Land Policy in an Urbanising WorldRotterdam, The Netherlands
Dec.2- 5CBD Expert Group on ABS Concepts, Terms, Working Definitions and Sectoral ApproachesWindhoek, Namibia
Dec.1-1214th Session of the Conference of the parties/Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol, 4th Session of the Subsidiary BodiesPoznan, Poland
Dec.3-7Forest Governance Learning Group Bhopal
Dec.8-12Fifth Session of the Commission of the Western and Central Pacific Fisheries CommissionBusan, Republic of Korea
Dec. 8-9Development and Climate Days - IIED at COP/MOP3 Bali

FAO High-Level Conference on Water for Agriculture and Energy in Africa: The Challenges of Climate Change

Sirte, Libya
Dec. 29International Biodiversity Day 











The Environment and International Law Unit of the World Bank’s Legal Vice Presidency (LEGEN) provides advice to the Bank on all environmental and international legal and policy issues related to Bank-financed, implemented and/or supported projects.

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Last updated: 2011-09-05

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