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CONTRIBUTIONS TO INTERNATIONAL LAW
AND DIPLOMACY

Edited by L. Oppenheim, M.A., LL.D.,

Membre de I'Institut de Droit International,

Whewell Professor of International Law in the University of Cambridge,

Honorary Member of the Royal Academy of Jurisprudence at Madrid,

Corresponding Member of the American Institute of International Law.



INTERNATIONAL CONVENTIONS
AND THIRD STATES



UNIFORM WITH THIS VOLUME



A GUIDE TO
DIPLOMATIC PRACTICE

BY THE RIGHT HON.

SIR ERNEST SATOW, G.C.M.G.
2 vols. 28j. net.

LONGMANS, GREEN AND CO.
London, New York, Bombay, Calcutta and Madras



INTERNATIONAL

CONVENTIONS AND

THIRD STATES



A MONOGRAPH



BY

RONALD F. ROXBURGH

OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ;

FORMERLY WHEWELL INTERNATIONAL LAW SCHOLAR IN THE UNIVERSITY OF CAMBRIDGE

FORMERLY SCHOLAR OF TRINITY COLLEGE, CAMBRIDGE



LONGMANS, GREEN AND CO.

39 PATERNOSTER ROW, LONDON

FOURTH AVENUE & 30th STREET, NEW YORK
BOMBAY^ CALCUTTA, AND MADRAS

1917



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EDITORIAL INTRODUCTION

The present monograph on International Con-
ventions and Third States deals with an important
problem which hitherto has nowhere been made
the subject of thorough research. And there is no
agreement among those writers on International
Law who have given their attention to the matter
at all. A number of them, in forming their opinion,
are influenced by the Municipal Law under which
they live and work. Consciously or unconsciously,
they apply the principles of their Municipal Law
concerning the question whether from a contract
between two individuals rights can accrue to a
third, to the question whether from International
Conventions rights can accrue to third States.
The same mistake is made here as with regard
to numerous other questions of International Law.
Authors belonging to different nations approach
these questions biased by views of their national
legislation and their national jurisprudence. They
take it for granted that the principles and rules of
International Law are to be construed and inter-
preted according to views upheld by their Municipal
Law and their national jurisprudence. Many a
controversy is due to this faulty attitude on the part



370:1 02



vi EDITORIAL INTRODUCTION

of those who expound the rules of International
Law.

Under these circumstances the method which
Mr. Roxburgh had to pursue in his research was
a foregone conclusion. He had, in the first instance,
to give a very brief outline of the several Municipal
Laws, in so far as they deal with the question of
contracts and third parties. He had, in the second
instance, to give a critical summary of the opinions
of those writers who have previously dealt with
the problem of International Conventions and third
States. Having thereby cleared the ground, he
was ready to search for precedents in diplomatic
practice from which the rules concerning the subject
could safely be drawn. The reader will see that
Mr. Roxburgh has thus brought together a con-
siderable amount of material, and that he has come
to very valuable conclusions which require thorough
examination and consideration. Whether or no the
reader agrees with all the results of Mr. Roxburgh's
labour, so much is certain that any future attempt
to throw more light on the problem must take the
present work as the basis from which to start.

L. Oppenheim.

Cambridge^

March 22, 191 7.



AUTHOR'S PREFACE

This monograph was written in the years 19 13
and 1 914, in accordance with the rules governing
the Whewell International Law Scholarships in the
University of Cambridge. Since then it has been
revised and largely rewritten. I sincerely hope
that the evidence collected in it will prove of some
value to students of this subject.

Beyond this, I only wish to add that, while these
pages have been passing through the press, the
January number (19 17) of the American Journal of
International Law has come into my hands. It con-
tains a report of the proceedings in the case of Costa
Ricaz^. Nicaragua before the Central American Court
of Justice. Costa Rica had lodged a complaint against
the Bryan-Chamorro Treaty concluded between the
United States and Nicaragua on the 5th August,
1 9 14, on the ground that It violated rights pre-
viously acquired by Costa Rica. The Court pro-
nounced in Its favour against the Treaty, and
declared that : *'The Government of Nicaragua has
violated, to the injury of Costa Rica, the rights
granted to the latter by the Cafias- Jerez Treaty,
. . . by the Cleveland Award, . . . and by the
Central American Treaty of Peace and Amity . . /'



viii AUTHOR'S PREFACE

This decision is in accordance with the conclu-
sions reached in §§ 24 and 25 of this monograph.

Commenting upon this case in the American
Journal of International Law, one of the editors
observes: *' The main question at issue was the
right of Nicaragua to negotiate and enter into
agreements with the United States concerning
matters of direct or indirect interest to the other
RepubHcs of Central America." The actual pro-
ceedings, however, hardly seem to justify this
observation.

Ronald F. Roxburgh.

Middle Temple^
March, 1917.



AUTHORITIES REFERRED TO

Abribat. Le detroit de Magellan au point de vue inter-
national. Paris, 1902.

Alvarez. La codification du droit international. Paris,
1912.

Anson, Sir W. R. The Law of Contract. 13th ed.
Oxford, 191 2.

Arntz, E. " De la situation de la Roumanie," in the Revue
de droit international et de legislation comparee^ vol. ix.

(1877)-

Ashburner. Principles of Equity, London, 1902.
Aubry et Rau. Cours de Droit Civil Franqais. 5th ed.

Paris, 1 897- 1 907.
Austin, J. Lectures on furisprudence. 5th ed. by

Campbell, 1885.
Baty, T. International Law in South Africa. London,

1900.
BloCISZEWSKI, J. " L'annexion de la Bosnie et de I'Herze-

govine," in the Revue generate de droit international

puhliCyVoX. xvii. (1910).
Bluntschli. Le droit international codifii^ traduit par

Lardy. Paris, 1874.
BONFILS, H. Manuel de droit iftternational public. 6th

ed. by Fauchille. Paris, 1912.
British and Foreign State Papers.

Calvo. Le droit international. 5th ed. Paris, 1896.
Cobbett, Pitt. Cases and Opinions on International Law.

3rd ed. London, 1909.
Code F Mir al des Obligations. (Switzerland.) March, 191 1,

published by Wyss. Berne, 1911.
Davis, G. B. The Elements of International Law. New

York, 1908.

ix



X AUTHORITIES REFERRED TO

Despagnet. Cours de droit international public. 4th ed.

edited by Boeck, 1910.
DiENA. "Der Plan eines neuen interozeanischen Kanals

in Nicaragua," in the Zeitschrift filr Internationales

Reckt, vol. XXV. (191 5).
Engelhardt. D?i regime conventionnel des fleuves inter-

nationatix. 1 879.
FlORE, P. Nouveau droit international public, 2nd ed.

traduit par Antoine, 1885.
Foreign Relations of the United States. Washington.
Grotius. De Jure Belli et Pads. Translated by Whewell.

Cambridge, 1853.
Hains, p. C. " Neutralization of the Panama Canal," in the

American Journal of International Law ^vo\. iii. (1909).
Hall, W. E. A Treatise on International Law. 6th ed.

edited by Atlay. Oxford, 1909.
Halleck. International Law, 4th ed. edited by Baker.

London, 1908.
Hansard. Parliamentary Debates.
Harriman, E. a. Law of Contracts. Boston, Mass.

2nd ed. 1901.
Heffter, A.-G. Le droit international public de VEurope^

traduit par Bergson. 1866.
Herman, E. Fuzier-. Code Civil annote. Paris, 1885-

1898.
Hertslet. The Map of Europe by Treaty. London, 1875.
Holland, T. E. The Elements of Jurisprudence, nth

ed. Oxford, 19 10.
Holland, T. E. The European Concert in the Eastern

Question. Oxford, 1885.
HOLTZENDORFF, F. " L'abrogation de TArticle V. du

Traitd de Prague," in the Revue de droit i7iternatio7ial

et de legislation comparee^ vol. x. (1878).
HUBER, Max. Die Staatensuccession. Leipzig, 1898.
HUBERICH AND Speyer. German Legislation hi Belgium.

The Hague, 191 5.
Ilbert, Sir C. The Government of India. 3rd ed.

Oxford, 191 5.



AUTHORITIES REFERRED TO xi

Justinian. Imperatoris Jiistiniani Institutiones.
Kaufmann, M. G. " La Loi Am^ricaine sur le Canal de

Panama," in the Revue de droit international et de

legislation comparee^ vol. xiv. (191 2).
Kent. Commentary on International Law, 2nd ed.

edited by Abdy. Cambridge, 1878.
Kluber, J. L. Droit des gens moderne de V Europe. Paris,

1831.
Knapp, H. S. "The real status of the Panama Canal as

regards neutralization," in the American Journal of

International Law^ vol. iv. (1910).
Law Reports, The.
Lawrence, T. J. The Principles of International Law.

4th ed. London, 19 10.
Lawrence, T. J. Essays on some disputed questions in

modern International Law. 2nd ed. Cambridge, 1885.
Lawrence, W. B. Commentaire sur Wheaton. Leipzig,

1868.
LORIMER, J. The Institutes of the Law of Nations.

Edinburgh, 1883.
Maitland, F. W. Equity. Cambridge, 1909.
Martens. Recueil de Traites.
Martens, F. de. Traite de droit international, traduit

du Russe par Leo. Paris, 1883.
Martens, G. F. de. Precis du droit des gens. Edited

by Pinheiro-Ferreira. Paris, 1831.
Moore, J. B. A Digest of International Law . Washing-
ton, 1906.
MoYLE, J. B. Imperatoris fustiniani Institutiones. 5th

ed. Oxford, 191 2.
North Atlantic Coast Fisheries Arbitration. Foreign Office,

I 909-1910.
Nys, E. Le droit international. Brussels, 19 12.
Odgers, W. B. The Common Law of England. London,

1911.
Oppenheim, L. International Law . 2nded. London, 1912.
Oppenheim, L. The Panama Canal Conflict. 2nd ed.

Cambridge, 191 3.



xii AUTHORITIES REFERRED TO

Oppenheim, L. "The Science of International Law," in

the American Journal of International Law^ vol. ii.

(1908).
Ortolan. Diplomatie de la Mer. Paris.
Phillimore, Sir R. Commentaries upon International

Law. 3rd ed. London, 1 879-1 889.
Pollock, Sir F. Principles of Contract. 8th ed. London,

1911.
Pollock, Sir F. Essays in Jurisprudence and Ethics.

London, 1882.
Pradier-Fodere. Traite de droit international public.

Paris, 1 885-1906.
Pufendorf. De Jure Naturae et Gentium. 1672.
Reddie, J. Researches in Maritime International Law.

Edinburgh, 1844.
Rey, F. " La Question Israelite en Roumanie," in the Revue

generale de droit international public^ vol. x. (1903).
RIVIER, A. Principes du droit des gens. Paris, 1896.
Rolin-Jaequemyns, G., in the Revue de droit inter-
national et de legislation compa^'ee, vol. ii. (1870).
S AVION Y. Obligationenrecht. 1853.
Schuster, E. J. The Principles of German Civil Law.

Oxford, 1907.
Stair. The Institutions of the Law of Scotland. Edin-
burgh, 1832.
Strahan AND Kenrick. A Digest of Equity. 2nd ed.

London, 1909.
Taylor, H. A Treatise on International Public Law.

London, 1902.
Thudicum, F., in the Revue de droit international et de

legislation comparee^ vol. ii. (1870).
Vattel. Le droit des gens. Edited by Pradier-Fod^r^.

Paris, 1863.
Walker, T. A. A Manual of Public International Law,

Cambridge, 1895.
Waultrin, R. " La Neutrality des lies dAland," in the

Revue gendrale de droit international public^ vol. xiv.

(1907).



AUTHORITIES REFERRED TO xiii

Westlake, J. International Law. 2nd ed. Cambridge,

1910 and 1913.
Westlake, J. Chapters on the Principles of International

Law, Cambridge, 1894.
Wheaton. Elements of International Law, 4th English

ed. Edited by Atlay. London, 1904.
WiLLISTON, S. "Contracts for the benefit of a third

person," in the Harvard Law Review, vol. xvi.
WOOLSEY, T. D. International Law, 5th ed. London,

1879.



CONTENTS



PAOB

Editorial Introduction v

Author's Preface vii

Authorities referred to . . . . . . . . ix



CHAPTER I



INTRODUCTION



SECTION

I



The Subject of this Monograph

2. The Present Position of the Subject

3. A Treaty is a Contract .



CHAPTER H
THIRD PARTIES AND CONTRACTS IN MUNICIPAL LAW



4-

5
6,

7
8

9

10,
II



Roman Law .......

English and Scotch Law ....

The Law of the United States

The Law of France, Belgium, Holland, and Italy

German Law ......

Swiss Law .......

The Law of Other Countries ....

Conclusions to be Drawn from Municipal Law .



6
6
10
12
13
15
15
17



CHAPTER HI

THE OPINIONS OF PUBLICISTS

12. The Opinions of Publicists as to Obligations .

13. The Opinions of Publicists as to Rights : Grotius,

14. Pufendorf, 1672

15. Kluber, 1831



[625



19

20
22
22



CONTENTS XV

SECTION PAGE

1 6. Holtzendorff, 1878, and Hall, 1880 23

17. Pradier-Foddre, 1885 ; Bonfils, 1894; Rivier, 1896 . . 23

18. Abribat, 1902 24

19. Despagnet, 1894 25

20. Oppenheim, 1905 ........ 26

21. Heffter, 1844, and Fiore, 1865 26

22. Recapitulation . . . . . . . .27



CHAPTER IV

TREATIES UNFAVOURABLE TO THIRD STATES

23. The Imposition of Obligations ..... 29

24. Treaties Incidentally Unfavourable to Third States . '31

25. Illustrations from the Practice of States .... 34

CHAPTER V

TREATIES BENEFICIAL TO THIRD STATES



Treaties Incidentally Beneficial to Third States . . 36

The Treaty of Berlin 36

The Dardanelles and the Guarantee of Turkey . . 38
Treaties Intended to Benefit, but not to Confer Rights on

Third States ........ 40

The Aland Islands ....... 40

The Abrogation of Article V. of the Treaty of Prague, 1866 42
Treaties Intended to Confer Legal Rights on Third States :

with Accession Clause ...... 45

Difficulties in the Law of Accession and Adhesion . . 46

The Congo and the Niger ...... 49

Treaties Intended to Confer Legal Rights on Third States :

no Accession Clause . . . . . '51

The Annexation of Bosnia and Herzegovina ... 54
Walachia and Moldavia . . . . . . '55

International Settlements 56

Cases of Permanent Neutralization ..... 58

Conclusions Based on §§ 35-39 ..... 60

The Straits of Magellan 61

The Panama Canal and the Hay-Pauncefote Treaty, 1901 . 63

The Amendments 65

The Rejected Amendment 67

The Accepted Amendment 68



XVI



CONTENTS



CHAPTER VI



THE INFLUENCE OF CUSTOM

SECTION PAGE

46. Treaties as a Basis of Customary Law .... 72

47. The Importance of Tacit Consent in International Law . ^-^

48. The Opinions of Publicists . . . . . • 74

49. The Nature of Tacit Consent ...... 75

50. How far Tacit Consent is a Question of Fact . . . T]

51. The Transition from Usage to Custom .... 79

52. Can a Conviction of Legal Necessity ever be Presumed? . 81

53. In International Settlements ? . . . . .81

54. Acts Inconsistent with the Position of a Mere Licensee . 82

55. The Performance of Onerous Duties .... 83

56. Mere Long Usage ? . . . . . . •83

57. Lawmaking Treaties and International Settlements . . 84

58. The Practice of States : the Law of Legation ... 85

59. Treaties Relating to International Rivers .... 86

60. Article XXXIV. of the Berlin Congo Conference . . 88

61. The Declaration of Paris ...... 91

62. Recapitulation ........ 94



CHAPTER Vn



EXCEPTIONAL CASES

63. Exceptional Cases in General .

64. "Imperfect Rights"

65. A Treaty as a Legislative Enactment

66. Conventional and Customary Rules .

67. Rights in rei7t. ....

68. State Servitudes ....

69. Transitory or Dispositive Treaties .

70. International Leases



96
97
99

lOI

103
105
107
109



RESULTS
71. Recapitulation of Conclusions Reached

Alphabetical Index .



Ill



115



INTERNATIONAL CONVENTIONS
AND THIRD STATES

CHAPTER I

INTRODUCTION

§ I. The Subject of this Monograph. — The pur-
pose of this monograph is to consider the position of
third states as affected by International conventions.
It is evident that many a treaty concluded between
two or more powers may indirectly concern a large
number of states which are not parties to it ; and in
the following pages an attempt has been made to
determine whether such a treaty can impose legal
obligations and bestow legal rights upon third parties
in the absence of some special relationship with one
of the contracting powers.

§ 2. The Present Position of the Subject, — The
rules applicable to this matter which the International
community has agreed to regard as obligatory in its
mutual dealings appear to be imperfectly defined.
Perhaps on this account, several writers of authority,
while professing to expound International Law, have
put before the student rules not based on Inter-
national state practice, but derived from other
sources. Vattel, for example, is criticised on this
account by Pinheiro-Ferreira, who observes that



2 INTRODUCTION

" L'auteur (i e. Vattel), trop imbu des principes de
jurisprudence civile, ne s'est pas aper9u que ce
n'dtait pas toujours a cette source qu'il fallait
chercher la solution des problemes concernant le
droit des gens, surtout en fait de conventions." ^

So far as the present subject is concerned, even
those Publicists who admit that municipal law cannot
govern International Law do seem biased, perhaps
unconsciously, by the municipal law of their own
country. Anglo-American writers, for example,
brought up under a system of law in which the
maxim : pacta tertiis nee no cent nee pro sunt prevails
in full vigour, or has been but recently relaxed,
hardly stop to refer to the effect of a treaty upon
third parties.^ On the other hand, writers belonging
to those countries in which the Code NapoMon is in
force, are prone to consider the position from the
point of view of that code, with occasional reference
to Roman law.^

^ In a note on Vattel (liv. ii. chap. xii. § 153), quoted in
Pradier-Foddr^'s edition of Vattel. (Paris, 1863.) ("The author,
too much permeated with the principles of civil law, did not
realise that the solution of problems of International Law,
especially with regard to treaties, should not always be sought
from this source.")

* Thus Lawrence, The Principles of International Law, 4th ed.,
London, 19 10; Davis, The Elements of International Law, New
York, 1908; Halleck, International Law, edited by Sir G. S.
Baker, Bart., 4th ed., London, 1908, and Kent, Commentary on
International Law, edited by Abdy, 2nd ed., Cambridge, 1878,
appear not to allude directly to the question at all. Hall, A
Treatise on International Law, 6th ed., Oxford, 1909, and West-
lake, International Law, 2nd ed., Cambridge, 1910 and 19 13,
dismiss it in a single sentence.

8 The divergence between Roman Law and the French Code
upon this matter is often overlooked.

For the whole subject cf, Pradier-Foddre, Traite de droit



INTRODUCTION 3

§ 3. ^ Treaty is a Contract. — It is true that
treaties are the contracts of International Law.
Most Publicists define them as such ; and indeed
they seem to present all the essential elements of
contract as a legal conception.^ It may be useful,
therefore, to analyse this conception, and to consider
briefly the analogous question of the position of
third parties under a contract in various systems
of municipal law. But this procedure can only tend
towards the elucidation of our present subject,
because the actual rules of the law of nations
can be discovered neither by theory nor by
analogy, but solely by reference to the practice of
states.

Savigny defines a contract as "the agreement of
several in an accordant expression of will, with the
object of creating an obligation between them."
(** Vereinigung Mehrerer zu einer libereinstimmen-
den Willenserklarung, wodurch unter ihnen eine
Obligation entstehen soil.") ^ According to this
definition, the essential elements of a contract are
{a) an agreement ; {b) the intention to create an

International Public^ Paris, 1885-1906, vol. ii. p. 810, § 1127;
Rivier, Principes du droit des gens, Paris, 1896, vol. ii. pp. 62,
89 ; Fiore, Nouveau droit international public, 2nd ed., traduit
par Antoine, 1885, vol. ii. p. 387, §§ 1025-1031 ; and Heffter,
Le droit International Public de F Europe, traduit par Bergson,
1866, § 83.

^ Cf. Oppenheim, International Law, 2nd ed., London, 191 2,
vol. i. p. 540, § 491 ; Pradier-Fod^r^ {op. cit), vol. ii. p. 473,
§ 888 ; Hall {pp. cit.), p. 317 ; Lorimer, The Institutes of the Law
of Nations, Edinburgh, 1883, vol. i. p. 261 ; Woolsey, Inter-
national Law, 5th ed., London, 1879, P- ^66, § loi ; Calvo, Le
Droit International, 5th ed., Paris, 1896, § 161 7.

2 Savigny, Obligationenrechty 1853, vol. ii. p. 8.



4 INTRODUCTION

obligation ; ^ and these are also the essential elements
of a treaty.

It may be stated at once that Anson considered
it inconsistent with this analysis of a contract to
hold that the contracting parties could affect the
legal rights or duties of a stranger. ** If the obliga-
tion takes the form of a promise by A to X to
confer a benefit upon M, the legal relations of M
are unaffected by that obligation. He was not a
party to the agreement ; he was not bound by the
vinculum juris which it created ; the breach of that
legal bond cannot affect the rights of a party who
was never included in it. Nor, again, can liability
be imposed on M by agreement between A and X.
In contract, as opposed to other forms of obligation,
the restraint which is imposed on individual freedom
is voluntarily created by those who are subject to
it, — it is the creature of agreement." ^

But the opinion of Anson, however weighty, must
not prejudice the discussion of the position of third
states under treaties. For in the first place, his
words must be strictly construed. Although an
attempt by A and X to confer a benefit on M could
not, in theory, bestow any rights on M, since it is
not possible in the theory of jurisprudence for two
i private individuals to alter the legal position of a
/ third, even for his benefit, without his consent, yet
it does not follow that if A and X agreed to confer
a right on M, and M assented, it would be contrary

1 Anson, The Law of Contract, 13th ed., Oxford, 191 2, p. 2.
* Anson {op. cit.), p. 263. Cf, Holland, The Elements of
lurisprudence, nth ed., Oxford, 19 10, p. 255.



INTRODUCTION 5

to the legal theory of a contract to allow M to
acquire a right. Such a right might be acquired
under an additional contract, consisting of a joint
offer by A and B, accepted by M. That a contract
could not be so made in English law, because there
is no " consideration " moving from M, is no ob-
jection, since "consideration" is not an essential
element in the conception of a contract in
International Law.

Secondly, as Anson himself observed, his analysis
of contract "must be limited in its application to a
scientific system of Jurisprudence in which rights
have been analysed and classified," ^ and existing
systems of law are apt to pay more attention to
general convenience than to theoretical consistency.
The fact remains beyond dispute that certain muni-
cipal systems do, in certain circumstances, allow A
and B by contract to confer legal rights on M, as
will appear in the next chapter.

' Anson {pp. cit,)^ p. 2.



CHAPTER II

THIRD PARTIES AND CONTRACTS IN MUNICIPAL LAW

§ 4. Roman Law. — In Roman law, which has

exercised such a wide influence in the formation of

many modern legal systems, and which permeates

the works of the early Publicists, such as Gentilis,

J Grotius, and Pufendorf, the rule : pacta tertiis nee

\ nocent nee {?rosunt prevailed. ' A contract between

\ A and B that C should act (or forbear to act),

Imposed no obligation on C.^ Again, a contract

between A and B that C should receive a certain

benefit, as a rule conferred no legal rights on C.^

"Alteri stipulari . . . nemo potest: inventae sunt

enim hujusmodi obligationes ad hoc, ut unusquisque

sibi adquirat quod sua interest : ceterum si alii

detur, nihil interest stipulatoris." ^

/ § 5. English and Scotch Law, — The general rule

1 Moyle, Imperatoris Justiniani Institutiones^ 5th ed., Oxford,
1912, p. 412.

2 Moyle {pp. cit,\ p. 413.

3 Institutes of Justinian, III. 19. §19. ("No one can make
a stipulation for another : for obligations of this kind have been
devised so that each should acquire for himself what is in his own
interest. But it is no benefit to the stipulator if the thing be
given to another.")

Certain exceptions arise out of the law of agency, status, and
succession in the Roman and all other municipal systems; but
these are not relevant to the present discussion.

6



THIRD PARTIES AND CONTRACTS 7

/ of English law is that a contract can neither confer
/ rights nor impose obligations upon a third party. It
was not always clear that a stranger could not ac-
quire rights under a contract, and the point seems
to have been first definitely settled in the case of
Price V. Easton in 1833.^ ^^ spite of this decision,


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