Beagle Channel Arbitration
Encyclopedia
On 22 July 1971 Salvador Allende
Salvador Allende
Salvador Allende Gossens was a Chilean physician and politician who is generally considered the first democratically elected Marxist to become president of a country in Latin America....

 and Alejandro Lanusse, the Presidents of Chile
Chile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...

 and Argentina
Argentina
Argentina , officially the Argentine Republic , is the second largest country in South America by land area, after Brazil. It is constituted as a federation of 23 provinces and an autonomous city, Buenos Aires...

, signed an arbitration agreement (the Arbitration Agreement of 1971). This agreement related to their dispute over the territorial and maritime boundaries
Maritime boundary
Maritime boundary is a conceptual means of division of the water surface of the planet into maritime areas that are defined through surrounding physical geography or by human geography. As such it usually includes areas of exclusive national rights over the mineral and biological resources,...

 between them, and in particular the title to the Picton, Nueva and Lennox
Beagle Channel cartography since 1881
The region of the Beagle Channel, explored by Robert FitzRoy eighteen-thirties, was one of the last ones to be colonized by Chile and Argentina. The cold weather, the long distances from other inhabited regions and the shortage of transport and subsistence kept it far from the governmental task.In...

 islands near the extreme end of the American continent, which was submitted to binding arbitration under the auspices of Queen Elizabeth II
Elizabeth II of the United Kingdom
Elizabeth II is the constitutional monarch of 16 sovereign states known as the Commonwealth realms: the United Kingdom, Canada, Australia, New Zealand, Jamaica, Barbados, the Bahamas, Grenada, Papua New Guinea, the Solomon Islands, Tuvalu, Saint Lucia, Saint Vincent and the Grenadines, Belize,...

 of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

.

On 2 May 1977 the court ruled that the islands belonged to Chile (see the Report and decision of the Court of Arbitration).
On 25 January 1978 Argentina repudiated the arbitration decision and on 22 December 1978 started (and a few hours later aborted) military action
Operation Soberanía
Operación Soberanía was the codename of a planned Argentine military invasion of Chile to be carried out on 22 December 1978 due to the Beagle conflict dispute. The invasion was halted at the last minute and did not take place....

 to invade both those islands and continental Chile.

The Court

The British Crown had previously in 1902 and 1966 acted as arbitrator between Chile and Argentina (see Arbitration 1902 here), but, given the growing Falkland Islands sovereignty dispute between Argentina and the United Kingdom, the parties agreed to change the statutory framework of the Arbitration.

The Arbitration Agreement of 1971 stipulated:
  • the names of the 5 judges appointed (see the preamble of the Arbitration Agreement):
    • Hardy Cross Dillard (United States of America)
    • Gerald Fitzmaurice
      Gerald Fitzmaurice
      Sir Gerald Gray Fitzmaurice GCMG, QC was a British barrister and judge.He was born on 24 October 1901, the younger son of Vice-Admiral Sir Maurice Swynfen Fitzmaurice and Mabel Gertrude Gray. He studied at Malvern College and at Gonville and Caius College, Cambridge, where he gained a Bachelor of...

       (United Kingdom
      United Kingdom
      The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

      )
    • André Gros (France
      France
      The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

      )
    • Charles D. Onyeama (Nigeria
      Nigeria
      Nigeria , officially the Federal Republic of Nigeria, is a federal constitutional republic comprising 36 states and its Federal Capital Territory, Abuja. The country is located in West Africa and shares land borders with the Republic of Benin in the west, Chad and Cameroon in the east, and Niger in...

      )
    • Sture Petrén (Sweden
      Sweden
      Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....

      )
  • the region where the court was to define the borderline (A polygon ABCDEF, known as "Hammer", see paragraph 4 of Article 1 of the Arbitration Agreement)
  • that the final decision would be submitted to the British Crown, which was then to recommend acceptance or rejection of the award of the court but not to modify it (Article XIII of the Arbitration Agreement)
  • that the Court of Arbitration should reach its conclusions in accordance with the principles of international law.
  • that each of the Parties should defray its own expenses and one half of the expenses of the Court of Arbitration and of Her Britannic Majesty's Government in relation to the Arbitration.


In this way the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

 did not have any influence on the judgement: the procedure, the legal framework, the judges and the matter in dispute had all been defined by both countries.

Procedure

The procedure had four phases:
  1. The Memorials (starting from 1 January 1973) in terms of the delivery of written pleadings, annexes and maps.
  2. The Counter-Memorials (starting from 2 June 1974) in terms of the responses.
  3. The Replies (starting from 1 June 1975) in terms of comments.
  4. The Oral proceedings (starting from 7 November 1975 to 23. October 1976) in terms of oral statements that were made in English or French at the speaker's choice, a simultaneous translation into English being provided in the latter case.


Chile handed over to the Court 14 volumes and 213 maps, and Argentina 12 volumes and 195 maps.

During the first fortnight of March 1976, the Court, accompanied by the Registrar and Liaison Officers from both sides, visited the Beagle Channel region, and inspected the islands and waterways concerned, first on the Chilean Naval Transport Vessel "Aquiles", and then on the Argentine Naval Transport Vessel "ARA Bahia Aguirre".

Arguments

In the border treaty of 1855 Chile and Argentina had agreed to retain the borders of the Spanish colonial administration. This principle, known in jurisprudence as Uti possidetis
Uti possidetis
Uti possidetis is a principle in international law that territory and other property remains with its possessor at the end of a conflict, unless otherwise provided for by treaty; if such a treaty doesn't include conditions regarding the possession of property and territory taken during the war,...

, served two purposes: the first was to divide the territory between the two countries, and the second to preclude the creation of Res nullius
Res nullius
Res nullius is a Latin term derived from Roman law whereby res is not yet the object of rights of any specific subject. Such items are considered ownerless property and are usually free to be owned...

areas that could have been taken in possession by other powers (such as the United States of America, the UK or France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

 – although the Beagle Channel
Beagle Channel
thumb|right|300px|Aereal view of Beagle Channel. The Chilean [[Navarino Island]] is seen in the top-right while the Argentine part of [[Isla Grande de Tierra del Fuego]] is seen at the bottom-left....

 had been unknown until 1830 and there had been no Spanish settlements south of Chiloé).

The boundary treaty of 1881 described, without any map, the course of the 5600 km border as follows:
  • over the Andes
    Andes
    The Andes is the world's longest continental mountain range. It is a continual range of highlands along the western coast of South America. This range is about long, about to wide , and of an average height of about .Along its length, the Andes is split into several ranges, which are separated...

     mountains (from north to parallel 52°S: ‘the highest peaks that divide the waters’) (Article I),
  • in the region north of and through the Strait of Magellan
    Strait of Magellan
    The Strait of Magellan comprises a navigable sea route immediately south of mainland South America and north of Tierra del Fuego...

     (mainly along the 52°S parallel) (Article II) and
  • in the Tierra del Fuego
    Tierra del Fuego
    Tierra del Fuego is an archipelago off the southernmost tip of the South American mainland, across the Strait of Magellan. The archipelago consists of a main island Isla Grande de Tierra del Fuego divided between Chile and Argentina with an area of , and a group of smaller islands including Cape...

    -Beagle Channel region (Article III).


The controversial articles II and III of the 1881 treaty were:

Article II)
"In the southern part of the continent, and to the north of the Straits of Magellan, the boundary between the two countries shall be a line, which starting from Point Dungeness, shall be prolonged overland as far as Mount Dinero; thence it shall continue westward, following the highest elevations of the chain of hills existing there, until it strikes the height of Mount Aymont. From this point the line shall be prolonged up to the intersection of meridian 70° W., with parallel 52° S. and thence it shall continue westward coinciding with this latter parallel as far as the divortium aquarum of the Andes. The territories lying to the north of said line shall belong to the Argentine Republic, and to Chili those that extend to the south, without prejudice to the provisions of Art. 3d concerning Tierra del Fuego and the adjacent islands".

Article III)
"In Tierra del Fuego a line shall be drawn, which starting from the point called Cape Espiritu Santo in parallel 52°40, shall be prolonged to the south along the meridian 68°34 west of Greenwich until it touches Beagle Channel. Tierra del Fuego, divided in this manner, shall be Chilean on the western side and Argentine on the eastern. As for the islands, to the Argentine Republic shall belong Staten Island, the small islands next to it, and the other islands there may be on the Atlantic to the east of Tierra del Fuego and of the eastern coast of Patagonia; and to Chile shall belong all the islands to the south of Beagle Channel up to Cape Horn, and those there may be to the west of Tierra del Fuego".


Under the so-called oceanic principle Argentina believed that the uti possidetis doctrine operated such that, under the arrangements operated by the colonial administrations, Chile (then the Captaincy General of Chile) had no territorial waters in the Atlantic Ocean
Atlantic Ocean
The Atlantic Ocean is the second-largest of the world's oceanic divisions. With a total area of about , it covers approximately 20% of the Earth's surface and about 26% of its water surface area...

 and the Argentine (then the Viceroyalty of the Río de la Plata
Viceroyalty of the Río de la Plata
The Viceroyalty of the Río de la Plata, , was the last and most short-lived Viceroyalty of the Spanish Empire in America.The Viceroyalty was established in 1776 out of several former Viceroyalty of Perú dependencies that mainly extended over the Río de la Plata basin, roughly the present day...

) could not have territorial waters in the Pacific Ocean
Pacific Ocean
The Pacific Ocean is the largest of the Earth's oceanic divisions. It extends from the Arctic in the north to the Southern Ocean in the south, bounded by Asia and Australia in the west, and the Americas in the east.At 165.2 million square kilometres in area, this largest division of the World...

. The Argentine saw a reaffirmation of this principle in the Protocols of 1902
Pactos de Mayo
The Pactos de Mayo are four protocols signed in Santiago de Chile by Chile and Argentina on 28 May 1902 in order to extend their relations and resolve its territorial disputes. The disputes had led both countries to increase their military budgets and run an arms race in the 1890s.1. - Acta...

, according to Rizzo Romano the first arms control pact in the world, under which both countries agreed that the Chilean navy should have enough ships to defend the interests of Chile in the Pacific, and the Argentine navy should have enough ships to defend the interests of Argentina in the Atlantic. Chile did not consider those protocols as a border treaty, and hence claimed that the boundary between the Pacific and the Atlantic had never been defined.

To resolve the conflicting interests of both countries, they decided in 1881 on an agreement; but nearly a century later there was still no mutual understanding of what that agreement had consisted of. Chile maintained it had only renounced rights to eastern Patagonia (today continental south Argentina) to obtain full possession of the Strait of Magellan, but Argentina believed Chile received the Strait of Magellan in return for renouncing all coasts bordering the Atlantic ocean.

About the course of the Beagle Channel there were discrepancies. The eastern end of the Channel can be seen as a delta
River delta
A delta is a landform that is formed at the mouth of a river where that river flows into an ocean, sea, estuary, lake, reservoir, flat arid area, or another river. Deltas are formed from the deposition of the sediment carried by the river as the flow leaves the mouth of the river...

 with an east-west arm
Arm (geography)
In geography, an arm is a narrow extension, inlet, or smaller reach, of water from a much larger body of water, like an ocean, sea, or lake. Although different geographically, a sound or bay may be called an arm....

 and a north-south arm (around Navarino Island). The channel specified in the border treaty of 1881 was seen by Chile as the east-west arm, but by Argentina as the north-south arm. Following this controversy, two clauses were in dispute: Chile argued the Channel clause (... to Chile shall belong all the islands to the south of Beagle Channel up to Cape Horn,...), while Argentina the Atlantic clause (... the other islands there may be on the Atlantic to the east of Tierra del Fuego ...). Some Chileans argued that the text "until it touches the Beagle Channel" in article III meant that Argentina had no navigable waters in the Beagle Channel, although this interpretation was not supported by the Chilean claim.

The judgement

A unanimous judgement was handed over to Queen Elizabeth II on 18 April 1977. The French judge André Gros gave a dissenting vote, not concerning the result but the reason. On 2 May 1977 the judgement was announced to the governments of both countries.

It involved the border running approximately along the center of the Channel, and awarded both Chile and Argentina sovereignty over navigable waters in the Channel:
"the Court considers it as amounting to an overriding general principle of law that, in absence of express provision to the contrary, an attribution of territory must ipso facto carry with it the waters appurtenant to the territory attributed" (§107 Report and Decision of the Court of Arbitration).


Whaits island, the islet
Islet
An islet is a very small island.- Types :As suggested by its origin as islette, an Old French diminutive of "isle", use of the term implies small size, but little attention is given to drawing an upper limit on its applicability....

s called Snipe, Eugenia, Solitario, Hermanos, Gardiner and Reparo, and the bank
Bank (topography)
A bank, sometimes referred to as a fishing bank, is an area on the continental shelf which is shallow compared to its surrounding area, such as a shoal or the top of an underwater hill. Somewhat like continental slopes, ocean banks slopes can upwell as tidal and other flows intercept them,...

 known as Herradura were awarded to Chile. All of these lie near the southern bank of the Beagle Channel.

Argentina was awarded all islands, islets and rocks near the north coast of the channel: Bridges, Eclaireurs, Gable, Becasses, Martillo and Yunque.

At the eastern end of the Channel, the judgement recognized the sovereignty of Chile over the Picton, Nueva and Lennox islands and all their adjacent islets and rocks.

The territorial waters established by these coasts, according to international maritime law, established Chilean rights in the Atlantic Ocean.

The Court sentenced also:
  1. the 1881 treaty had given Chile exclusive control of the strait (§ 31)
  2. the waters of the strait were likewise Chilean since Chile controls both shores (§37)
  3. the Chilean Point Dungenes is on the Atlantic (§24)
  4. the 1893 Protocol had not altered the basic nature of the 1881 treaty compromise (§74)

The reasons of the Court

The court rejected both the uti possidetis principle and the oceanic principle because:
«...In the particular case of the 1881 Treaty no useful purpose would be served by attempting to resolve doubts or conflicts regarding the Treaty, merely by referring to the very same [oceanic] principle or doctrine, the uncertain effect of which in the territorial relations between the Parties, had itself caused the Treaty to be entered into, as constituting the only (and intendedly final) means of resolving this uncertainty. To proceed in such a manner would merely be to enter a circulus inextricabilis....»


The tribunal considered that the exchange of Patagonia for the Strait of Magellan was the transaction behind the 1881 treaty:
«...This [Patagonia] was what Chile conceded by giving up a claim that still had enough vitality and content, at least politically, to make its final abandonment of primary importance to Argentina. It is on this basis, as well as on the actual attribution of Patagonian territory to Argentina effected by Article II of the Treaty, that the Court reaches the conclusion that it was the antithesis Patagonia/Magellan, rather than Magellan/Atlantic, which constituted the fundamental element of the Treaty settlement....»


After careful consideration of all possible word meanings and interpretations of the text, the court refused the Atlantic clause:
«... The Argentine interpretation depends on subjecting the text to a process, not exactly of amendment, but of what is known as emendation, i.e. adjustment to accommodate a different outlook. This is in no way an illegitimate proceeding as such, —but its acceptability in any given case must depend on how compelling are the reasons that operate to support it, and also on the degree of adjustment entailed. The following are the adaptations that would be required:...»

The reaction to the judgement

Chile accepted the judgement immediately and enacted it into its domestic law on 14 June 1977 (decree n°416 over the base lines).

On 25 January 1978 Argentina repudiated the arbitration award. According to Argentina:
  1. the Argentine argument had been distorted and misrepresented.
  2. the judgement had covered topics outside its terms of reference
  3. the Court had drawn contradictory conclusions.
  4. the Court had made errors of interpretation.
  5. the Court had made geographical and historical errors.
  6. the Court had not properly balanced the arguments and evidence of each party.


It has been argued that the Argentine claims over the Beagle Channel could not be sustained from a legal point of view and that in practice many of their assertions were subjective.

Aftermath

The court awarded navigable waters on the north bank of the eastern part of the Channel to Argentina, but otherwise it met all Chilean claims. Although the arbitration concerned only small islands, the direction of the new demarcation of the frontier would under international maritime law give Chile significant rights running into the Atlantic ocean, and would also significantly reduce the claims of Argentina on the Antarctic continent and its waters.

The Argentine rejection led both countries to the verge of war. On 22 December 1978 Argentina started military action
Operation Soberanía
Operación Soberanía was the codename of a planned Argentine military invasion of Chile to be carried out on 22 December 1978 due to the Beagle conflict dispute. The invasion was halted at the last minute and did not take place....

 to invade the islands. Only last minute papal mediation prevented the outbreak of armed conflict. The award was a defeat for Argentine foreign policy, and initiated an uncoupling from the international community, which lead Argentina three years later into the Falklands war
Falklands War
The Falklands War , also called the Falklands Conflict or Falklands Crisis, was fought in 1982 between Argentina and the United Kingdom over the disputed Falkland Islands and South Georgia and the South Sandwich Islands...

.

The arbitration was completely separate from the Falkland Islands issue, a fact that is often obfuscated or publicly denied in Argentina, where the arbitration is often presented as a plot by the UK.

Pablo Lacoste in his work "La disputa por el Beagle y el papel de los actores no estatales argentinos" (Argentine Civil Society Agencies in the Beagle Dispute) says:
The Argentine newspaper Clarin
Clarín (newspaper)
Clarín is the largest newspaper in Argentina, published by the Grupo Clarín media group. It was founded by Roberto Noble on 28 August 1945. It is politically centrist but popularly understood to oppose the Kirchner government...

 wished to show that the UK government had taken a substantive role in the arbitration, so that it could be criticized as biased in this by its own dispute with Argentina over the Falklands. To buttress this suggestion, on 3 May 1977, just as the arbitration award was announced, the newspaper put on its front page a cartoon of Queen Elizabeth II eating a Cap of Liberty
Phrygian cap
The Phrygian cap is a soft conical cap with the top pulled forward, associated in antiquity with the inhabitants of Phrygia, a region of central Anatolia. In the western provinces of the Roman Empire it came to signify freedom and the pursuit of liberty, perhaps through a confusion with the pileus,...

, an Argentine emblem. Note that the same monarch had resolved the Palena and California controversies [i.e. other border disputes between Chile and Argentina] ten years previously, and that the Argentine government had accepted those decisions – but that in 1977 the Argentine press did not mention these precedents.


Chile kept in mind the Argentine breach of the arbitration agreement.

The award brought the military dictatorships on both sides to the border to a unique and paradoxical situation: in Chile they celebrated the "wise" decision of the (overthrown) enemy Allende, and in Argentina they criticized the "imprudent" decision of his former colleague in power, general Lanusse.

The award was later fully recognized by Argentina in the Friendship and Peace Treaty of 1984.

See also

  • Falklands War
    Falklands War
    The Falklands War , also called the Falklands Conflict or Falklands Crisis, was fought in 1982 between Argentina and the United Kingdom over the disputed Falkland Islands and South Georgia and the South Sandwich Islands...

  • Argentina-Chile relations
    Argentina-Chile relations
    Argentina–Chile relations refers to interstate relations between the Republic of Chile and the Argentine Republic. Argentina and Chile share the world's third-longest international border, which is long and runs from north to the south along the Andes mountains...

  • Foreign relations of Argentina
    Foreign relations of Argentina
    This article deals with the diplomatic affairs, foreign policy and international relations of Argentina.At the political level, these matters are officially handled by the Ministry of Foreign Relations, also known as the Cancillería, which answers to the President...

  • Foreign relations of Chile
    Foreign relations of Chile
    Since its return to democracy in 1990, Chile has been an active participant in the international political arena. Chile assumed a two-year non-permanent position on the UN Security Council in January 2003 and is an active member of the UN family of agencies, serving as a member of the Commission on...


External links

  • Chilean Telecast of Televisión Nacional de Chile "Informe Especial", Theme El año que vivimos en peligro, (sometimes in YouTube), Spanish Language
  • Argentine Telecast of History Channel: Operativo Soberanía YouTube, Spanish Language
  • Special edition of El Mercurio, Santiago de Chile, 2 September 2005, Spanish Language. There are Interviews with contemporary witness like Ernesto Videla, Jaime Del Valle, Helmut Brunner, Marcelo Delpech und Luciano Benjamín Menéndez. Spanish Language.
  • Interview with the (later, in the nineties) Chief Commander of the Argentine Army Martín Balza
    Martín Balza
    Lieutenant General Martín Antonio Balza is an Argentine military former Chief of Staff of the Argentine Army. He is currently Argentine ambassador to the Republic of Colombia....

     in El Mercurio de Santiago de Chile, 2 September 2005, Spanish Language
  • Interview with Sergio Onofre Jarpa
    Sergio Onofre Jarpa
    Sergio Onofre Jarpa Reyes is a Chilean politician who served as a member of the cabinet during the government of Augusto Pinochet.-Biography:Coming from a rural background, he studied agriculture at the University of Chile...

    , Chile's Ambassador
    Ambassador
    An ambassador is the highest ranking diplomat who represents a nation and is usually accredited to a foreign sovereign or government, or to an international organization....

     in Argentina 1978 to 1982 in La Tercera, Santiago, Chile, 17 March 2002, Spanish Language
  • Interview with Argentine General Luciano Benjamín Menéndez, Commandant of the III Army Corps in El Mercurio de Santiago de Chile, (from the Argentine Magazine "Somos"), Spanish Language
  • Interview with Pio Laghi, Nuntius in Argentina, 1978, in Clarín, Buenos Aires, 20 December 1998. Spanish Language
  • Interview with the Ambassador of the United States of America in Argentina, Raúl Héctor Castro
    Raúl Héctor Castro
    Raul Hector Castro is a Mexican-born American politician. He has served in both elected and non-elected public offices, including United States Ambassador and the 14th Governor of Arizona. He was the first Mexican American to be elected governor of Arizona...

    , in Clarín Buenos Aires, 20 December 1998, Spanish Language
  • Interview with the former Chief of the "Secretaría General del Ejército" (a Think-Tank of the Argentine Army), General Reynaldo Bignone
    Reynaldo Bignone
    Reynaldo Benito Antonio Bignone is an Argentine general who served as dictatorial President of Argentina from July 1, 1982 to December 10, 1983. In 2010, he was sentenced to 25 years in prison for his role in the kidnappings, torture, and murders of the Dirty War.-Early career:Reynaldo Benito...

    , President of Argentina after the Falkland War, in Clarín, Buenos Aires, 20 December 1998, Spanish Language
  • Article Cartas desde el Abismo, Clarín, Buenos Aires, 20 December 1998, Spanish Language
  • Article El belicismo de los dictadores Clarín, Buenos Aires, 20 December 1998, Spanish Language
  • Article Beagle: historia secreta de la guerra que no fue La Nación, Buenos Aires, 12. August 1996, Spanish Language
  • Article Historia de la santa mediación en Clarín, Buenos Aires, 20 December 1998, Spanish Language
  • Chile-Argentina Relations, Spanish Language
  • Toma de decisiones políticas y la influencia de los discursos oficialistas durante el Connflicto del Beagle: Chile - Argentina 1977-1979, Spanish Language
  • Text of the Tratado de Paz y Amistad de 1984, Dirección de Fronteras y Límites de Chile, Spanish Language
  • Text of the Peace and Friendship Treaty of 1984, Copy to the United Nations
    United Nations
    The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...

    , English Language
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