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Analysis II
Last Updated: 12/06/2011
Testing Veto Power before the UN General Assembly: Mahmoud Abbas and International Law Perspectives on Palestinian Statehood
Kichere Mwita

Kichere Mwita draws on theories of statehood in international law to analyze the recent bid presented by Mahmoud Abbas, President of the Palestine Liberation Organization, for full membership of the State of Palestine before the United Nations General Assembly.


General introduction

This article explores what type of theory His Excellency Mahmoud Abbas (President and Chairman of the Palestine Liberation Organization) used to present the bid for statehood of Palestine on 23 September 2011 before the General Assembly. In so doing, international law perspectives are presented on theories of statehood (declaratory and constitutive theories), along with an historical background of the never-ending Israel-Palestine conflict and an analysis of interventions by the international community as a broker to peace, as well as the political consequences for Israel of granting Palestine full membership.

On 23 September 2011, Abbas decided to present his application for the admission of Palestine as a full Member before the UN General Assembly: “I have the profound honor, on behalf of the Palestine People, to submit this application of the State of Palestine for admission to membership in the United Nations’’.[1] The bid from Palestine is backed by over 100 Member States of the United Nations. The USA has vowed to veto this application. Should the majority within the General Assembly win? Should the minority (veto power) decide on behalf of the majority? Mr. Abbas already bid for full membership and statehood of Palestine on 23 September 2011. However, no one knows exactly what type of statehood theory Mr. Abbas used in his bid for full membership. Was it declaratory theory? Was it constitutive theory? The contradiction areas due to, on the one hand, the fact that Palestine is recognized as having observer entity status before the UN; on the other hand, it is recognized as receiving unilateral declaratory statehood of Palestine in 1988. This article describes this situation as a test of veto power before the General Assembly.

image:United Nations

Historical background of the never-ending conflict between Palestine-Israel

The Israeli-Palestinian conflict is a long-waging historical conflict on this planet Earth. It forms part of the wider Arab-Israeli conflict between Jewish Zionists and the Arab population living in Palestine.[2] The root causes of this conflict are border disputes, mutual recognition, security, water rights, control of Jerusalem, Israeli settlements, Palestinian freedom of movement, and legality of Palestinian refugees.[3] This longstanding conflict has raised concerns for both the Israeli and Palestinian people, as well as the international community: blaming among the conflicting parties, violence and deaths of innocent civilians are all a part of this conflict. About 13,000 deaths have been reported since 1948.[4]

Various interventions by international community in Palestine-Israel conflict

Efforts from the international community have been made towards intervention in the never-ending conflict between Palestine and Israel since the establishment of the State of Israeli in 1948. These interventions include the Camp David Summit (2000) under US President Bill Clinton, which focused on the settlement of the Gaza strip and West Bank, along with Palestinian sovereignty over East Jerusalem; The Road Map for Peace (2001) under the auspices of the USA, Russia, the UN and the European Union. This proposal called for a halt to Israeli settlement construction and a halt to Israeli and Palestinian violence, along with two-state formation.[5] The Taba Summit (2001) under the auspices of the Egyptian government called on Israeli to remove its forces temporarily from the controlled areas to pursue further negotiations. Next, the Arab Peace Initiative (2002) proposed a solution for the Arab-Israeli conflict as a whole, and the Israeli-Palestinian conflict in particular. This proposal laid down the recognition of borders established by the UN before the 1967 Six-Day War, called for the full normalization of relations with Israel in exchange for the withdrawal of its forces from all occupied territories, including the Golan Heights, the recognition of "an independent Palestinian state with East Jerusalem as its capital" in the West Bank and Gaza Strip, as well as a "just solution" for the Palestinian refugees.[6]

Unilateral Declaration of Palestine Statehood

On 15 November 1988, Mr. Yasser Arafat, under his chairmanship of the Palestine Liberation Organization (PLO), unilaterally proclaimed the establishment of an independent Palestinian state,[7] an Arabic State with the designated capital of Jerusalem. To that end, Mr. Arafat became the President. Since then, about 100 countries recognize the Palestine state, and currently it is headed by the Palestine National Authority (PNA) established in 1994. However, the PNA does not claim sovereignty over any territory. Therefore, it is not the government of the State of Palestine proclaimed in 1988.[8] Palestinians currently have permanent observer entity status at the UN. [9] This does not mean that Palestine is a sovereign state.

Constitutive and Declaratory Theories’ approach to statehood in international law

The Constitutive and Declarative theories are the two common doctrines for recognition of statehood. However, the two theories have encountered myriad discussions by scholars from international legal perspectives. ‘’The question of the legal effect of the recognition of new entities that call themselves 'States' has been characterized for over a century by the 'great debate' between the constitutive and the declaratory schools of thought. Does a State only become a State by virtue of recognition, or is a State a State because it is a State; that is, because it meets all the international legal criteria for statehood? In the first case, recognition is status-creating; the latter, it is merely status-confirming’.’[10] The question is, between the two theories, which one is considered to have been applied by the Government of Palestine to bid for full membership in the United Nations?

Declarative theory approach to statehood

Declarative theory defines a state as a person in international law if it meets the following criteria: a) a defined territory; b) a permanent population; c) a government; and d) a capacity to enter into relations with other states. Under this theory, an entity/state is independent and is recognized by other States.[11] Also, the state is recognized as an international legal personality (i.e., is subject to international law), having a permanent population, a defined territory, a government and capacity to enter into relations with other states. [12] Despite the unilateral declaration by Palestine on 15 November 1988, its statehood lacks recognition as an international legal personality.[13] International legal personality is normally used to refer to a state or an entity based on various criteria such as its capacity to make international treaties and agreements; ability to submit claims to the International Court of Justice, to have total privileges and immunities within state jurisdiction, and the capacity to participate in various international bodies, such as the IMF, World Bank, and UNESCO, where participation depends on international membership status.[14] Despite its unilateral declaration, the state of Palestine does not conform to such characteristics. Hence, declarative theory, on the other hand, is referred to as status- confirming[15].

The constitutive theory approach to statehood

In constitutive theory, a state/entity is recognized as an international personality by other sovereign states. Contrary to declarative theory, statehood does not require diplomatic recognition by other states, but rather a recognition that it exists.[16] Contrary to declarative theory, a recognized state lacks a legal international personality such as the capacity to make international treaties and agreements, ability to make claims before the International Court of Justice, to have total privileges and immunities within sovereign state jurisdiction, and the capacity as a state to participate in various international bodies, such as the IMF, World Bank, and UNESCO, where its participation depends on international membership status.[17] Some scholars refer to this theory as status-creating.[18] The unilateral act is either binding or not, depending upon all the circumstances and whether it was intended to create a legal obligation between the parties.[19]

However, some scholars sternly argue that neither declarative nor constitutive theories are valuable schools of thought for state recognition; they contend that the existence of the state as such has been there beforehand. The act of recognition of a state is merely a political act, a formal one, which normally precedes diplomatic relations with a state that already exists as such.[20] There exist many other territorial entities which are not states but which operate as independent entities: Taiwan, Quebec (Canada), and Palestine Autonomous Areas - the Gaza Strip and the West Bank.[21] Despite its status as an observer entity in the General Assembly, Palestine is recognized as a state by about 100 sovereign states in the United Nations.[22] This is representative of the constitutive theory of statehood recognition of Palestine.

The UN Charter and fraught Statehood of Palestine

According to the UN Charter, Article 4(2) stipulates that “The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council’’. Article 18 paragraph 2 states, “Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include: recommendations with respect to the maintenance of international peace and security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1(c) of Article 86, the admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of Members, questions relating to the operation of the trusteeship system, and budgetary questions.” However, the General Assembly is restricted from making any recommendation that the Security Council is dealing with. This is established under Article 12 paragraph 1 of the UN Charter, which stipulates that “While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests”.[23] This implies that the question of Palestine’s bid for full membership to the United Nations General Assembly should depend solely on the recommendation of the Security Council. Here, many questions remain, including, inter alia, the competence and general mandate that the UN Charter accords to both the Security Council and the General Assembly. Which body is above the other according to the UN Charter? Why does the Security Council seem to override the mandate of the UN General Assembly? To many states, the General Assembly is supposed to be accorded the final mandate in line with the quencequence of the states’ internal affairs. However, this is not at all the case since the UN Security Council seems to have supreme power, even over states’ internal affairs. For instance, despite Palestine being recognized as a unilateral declaratory state by more than 100 Member States of the UN, its statehood is not recognized by the eye of the international community.

Mahmoud Abbas and skeptical theories approach to Palestinian statehood

The constitutive and declarative theories are the two common doctrines for recognition of statehood. Despite the unilateral declaration by Palestine on 15 November 1988, its statehood lacks recognition as an international legal personality. Hence, what type of theory did Mr. Mahmoud Abbas use to bid for full membership before the General Assembly on 23 September 2011? Was it a constitutive or declarative theory approach to statehood? Referring to his letter of application for Palestinian statehood and recognition of Palestine as a full member of the General Assembly Abbas stated, “I should be grateful if you would transmit this letter of application and the declaration to the Presidents of The Security Council and the General Assembly as soon as possible”.[24] Also, “this application for membership is being submitted based on the Palestinian People’s natural, legal and historic rights and based on the United Nations General Assembly resolution 81(ii) of 29 November 1947, as well as the declaration of the independence of the state of Palestine of 15 November 1988 and the acknowledgement of the General Assembly of this declaration in the Resolution of 43/177 of 15 December 1988”. [25]

According to Mr. Mahmoud Abbas himself, he seems to be bidding for the statehood of Palestine and full membership before the General Assembly using the declarative theory approach for statehood. However, in my view, Mr. Mahmoud Abbas did not use declarative theory approach to bid for Palestinian statehood; instead, he used the constitutive theoryThe reason for this inference is that Palestine does not meet the criteria hereinafter described in the Montevideo Convention on the Rights and Duties of States (1933), wherein Article 1 establishes that ‘The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.’ [26] The State of Palestine lacks a defined territory, and it has no capacity to enter into international treaties and agreements with other states and so forth. Despite its statehood being recognized by about 100 sovereign states, Palestine lacks an international legal personality to make international treaties and agreements with other states[27] [28]; the ability to submit claims to the International Court of Justice[29], and the ability to have total privileges and immunities within state jurisdiction. Hence, by all means, the state of Palestine does not possess declaratory recognized statehood, but rather, it is a constitutively recognized state. That is, its statehood does not require diplomatic recognition by other states, but it does require the recognition that it exists.

International law regards a state as independent and autonomous, and members of the international community presume that all states are equal whatever their size, population, geography and wealth.[30] Far from a mere technical rule, recognition is a task whose implications and potential consequences are of capital political significance, accompanied by the right to be acknowledged and respected.[31] According to Article 8 of the Montevideo Convention on the Rights and Duties of States (1933), it is stipulated that “No state has the right to intervene in the internal or external affairs of another”.[32] Since Palestine is not formally recognized as a state, it does not qualify for enjoying this notion of sovereignty as declared in the Montevideo Convention. Hence, it struggles to attain full-fledged membership in the international community.

Mahmoud Abbas and a win-win situation before the General Assembly

It is very difficult for Palestine to succeed in securing full membership to the United Nations; the reason being that the United States of America vowed to veto this bid. However, the Palestine Authority is in a great position to submit a resolution for non-observer entity status. Currently, the Palestine National Authority is recognized by the United Nations as an observer-status entity. If it fails to secure full membership, it has another chance to put forth a resolution to move from its current observer entity status to non-observer entity status before the General Assembly.

In his speech at the UN, Mr. Netanyahu said that the core of the conflict was not settlements, but the refusal of the Palestinians to recognize Israel as a Jewish state.[33] The Middle East Peace Quartet - the European Union, United States, Russia and UN - committed itself to the target of achieving a two-state solution to the Israel-Palestinian conflict by September 2011.[34] Any consensus for a two-state solution means that Palestine will be a sovereign state enjoying full self-determination as a state. “If, as expected, the US vetoes the bid, the Palestinians have a second option, though this would not result in full membership. They can submit a resolution to the General Assembly and a vote could be held within 48 hours of submission, though it would probably be delayed until after the General Debate- late September or early October. This would give more time to negotiate a text that would have maximum support, from European countries in particular. Approval would require a simple majority of those present. There is no veto”.[35] There is one superpower, the USA, acting as a policeman; politically and ideologically leading the endeavors to settle political disputes or to promote settlements, but playing its role in a selective way to the extent that it favors the superpower’s strategic and geopolitical interests. It also exercises its political role as a global mediator in many trouble spots, such as in the Middle East.[36]

Political effects of recognizing the state of Palestine as a full member to the UN

The primary function of state recognition is regarding the state’s political existence and its enjoyment of legal international personality, implying both the full obligations and rights of the state. Hence, Palestine is seeking international legal personality, which entails, as mentioned above, the ability to make international treaties and agreements and the ability to submit claims to the International Court of Justice. Also, it seeks to have total privileges and immunities within state jurisdiction and the capacity to participate fully in various international bodies such as the IMF, World Bank, and UNESCO.[37] To achieve its full capacity, a state needs international membership; an international legal personality subject to international law. Having full membership would enable Palestine to have direct recourse to the International Court of Justice (ICJ) as a state. Article 34(1) of the ICJ establishes that ‘Only states may be parties in cases before the Court’.[38] This would have a negative impact on Israeli, which, for decades, has occupied and established Jewish settlements on Palestinian territory.

Granting full membership to Palestine is not a solution to the conflict

In my view, only the commitment towards justice and a two-state solution to the Israel-Palestine conflict will bring peace to the conflicting states. The state of Israel needs the existence of Palestine. And the state of Palestine needs the existence of the Israeli. However, each conflicting party must have understood by now that no brother or sister outside their territory will be able to come and settle their conflicts. The core causes of the conflict are somewhat known. One has to ask, given the killings occurring in the territory, what has been achieved so far? Only dialogue committed to a win-win situation will make peace prevail in Israel and Palestine. Justice means peace. No justice, no peace. No Palestine, no Israel. “Peace will not be made in the corridors of the United Nations. It will be made if the parties reason together”. [39] “Resentment against the west, and particularly the US, is profound in the Arab world, largely because it is seen as controlling the regions’ energy resources, being unjust to the Palestinians and propping up corrupt regime”. [40] “A fair global society would require that unrepresented minorities and indigenous people are represented on the international plane”.[41]

Conclusion

On 23 September 2011, His Excellency Mahmoud Abbas bid for full membership of the state of Palestine before the General Assembly. On 15 November 1985, Palestine unilaterally declared itself the State of Palestine. Since then, the statehood of Palestine has been backed by more than 100 Member States of the United Nations. Despite this unilateral declaration of statehood, Palestine is recognized as having observer entity status in the General Assembly. In his bid for the full membership of Palestine, Mahmoud Abbas seemed to use the declarative theory approach to statehood; however, Palestine is not recognized as a state in the eyes of the international community. Therefore, contrary to the declarative theory approach used by Abbas in his bid for statehood, he was actually using the constitutive theory approach to statehood. However, exactly which theory’s approach to statehood was used by Abbas is still up for debate in international law perspectives. This is due to the unilateral declaration of Palestinian statehood in 1985, and the criteria for an entity to be recognized as a state established by Article 1 of the Montevideo Convention of Rights and Duties of States (1933). In examining Palestine and its unilateral declaration of 1985, the backing of over 100 Member States, and the theory approach to statehood used by Abbas, one cannot exactly tell which type of theory was applied by Mahmoud Abbas in his bid for statehood before the General Assembly on 23 September 2011. This is what this article describes as ‘Testing Veto Power before the UN General Assembly: Mahmoud Abbas and Skeptical of Constitutive and Declarative Theories of Palestine Statehood’.


Footnotes

[1] Application of Palestinian Full Membership, September 2011. Accessed 20 October 2011.

[2]Israeli-Palestinian Conflict: en.wikipedia.org/wiki/Israeli–Palestinian conflict. Accessed 20 October 2011

[3] Ibid.

[4] Thusu, Daya and Freedman, Desi (2003): War and The Media: Reporting conflict 24/7. (Top Ten by Number of Deaths), p.2.

[5] Palestinian National Authority: Retrieved. en.wikipedia.org/wiki/Palestinian_National_Authority. Accessed 20 October 2011

[6] Ibid.

[7] Palestinian National Authority, loc.cit.

[8] Ibid.

[9] BBC News Middle East (24 September 2011) Palestinian bid for full Membership at the UN. Retrieved. www.bbc.co.uk/news/world-middle-east-13701636, accessed 30 September 2011.

[10]Stefan A. G. Talmon, ‘The Constitutive versus the Declaratory Doctrine of Recognition: Tertium Non Datur. British Year Book of International Law,’ Vol. 75, pp. 101-181, 2004. Oxford Legal Studies Research Paper No. 18/2006 (University of Oxford - Faculty of Law).

[11]Montevideo convention on the Rights and Duties of the State (26 December 1933): Retrieved. en.wikipedia.org/wiki/Montevideo Convention. Accessed 20 November 2011.

[12] Higgins, Rosalyn (1994): Problems and Process. International Law and how we use it. . (Oxford University Press), chp.iii, p.39.

[13] Palestinian National Authority, loco.cit.

[14] Damrosch, Lori; Henkin, Louis; Pugh, Richard; Schachter Oscar and Smit, Hans (2001): ‘International Law. Cases and Materials’, Fourth edition, American Casebook Series, chp.4, p.249.

[15] Stefan A. G. Talmon, loc.cit

[16]Constitutive and Declaratory theories of Statehood: Retrieved. Accessed 20 October 2011

[17] Damrosch, Lori; Henkin, Louis; Pugh, Richard; Schachter Oscar and Smit, Hans (2001): International Law. Cases and Materials, (Fourth edition, American Casebook Series, chp.4, p.249.

[18] Stefan A. G. Talmon, loc.cit.

[19]Higgins, Rosalyn (1994): ‘Problems and Process. International Law and how we use it’. (Oxford University Press),chp.ii, p.36.

[20]Trindade, Antonio (2005): ‘International law for humankind. Towards A New Jus Gentium General Course on Public International Law.’ The Hague Academy of International Law Collected Courses Volume 316), ch.vii, p.204.

[21]Dixon, Martine and McCorquodale, Robert (2003): ‘Cases and Materials on International Law’, Oxford University Press, 4th edition), chp.v, p.135.

[22]Palestinian National Authority: Retrieved. en.wikipedia.org/wiki/Palestinian_National_Authority. Accessed 20 October 2011

[23] The Charter of the United Nations (1945): Retrieved. Accessed 20 October 2011

[24] Application for the State of Palestine to Admission to Membership in the General Assembly. Retrived. Accessed 20 October 2011.

[25] Ibid.

[26] Montevideo convention on the Rights and Duties of the State (26 December 1933): Retrieved. en.wikipedia.org/wiki/Montevideo Convention, Article 1. Accessed 20 November 2011

[27]Ibid.

[28] Damrosch, Lori; Henkin, Louis; Pugh, Richard; Schachter Oscar and Smit, Hans, loc.cit.

[29] Statute of the International Court of Justice (ICJ), Retrievd. Statute of the Court | International Court of Justicewww.icj-cij.org/documents

[30] Dixon, Martine and McCorquodale, Robert, loc.cit.

[31] Koskenniemi, Marti (2001): ‘The gentle civilizer of Nations. The Rise and Fall of International Law, 1870-1960’. Printed in the United Kingdom at the University Press, Cambridge, 4th editition), pp.382-383.

[32] Montevideo Conventions on the Rights and Duties of the States (1933), op.cit., Article 8

[33]BBC News Middle East (26 September 2011). Retrieved from, Accessed 30 September 2011.

[34] Ibid.

[35] BBC News Middle East (24 September 2011) Palestinian bid for full Membership at the UN, loc.cit.

[36] Cassese, Antonio (2001): ‘International Law’. Oxford University Press Inc., New York, First edition, p.44

[37] Damrosch, Lori; Henkin, Louis; Pugh, Richard; Schachter Oscar and Smit, Hans, loc.cit.

[38] The Statute of the Court of Justic, (1945), op.cit., Article 34, Chapter II, Competence of the Court

[39] Rafael, Gideon (1981): Destination Peace. Three Decades of Israel Foreign Policy. A Personal Memoir (Stein Day/Publishers/Scarborough House, New York 10510), pp.189-190.)

[40] Thusu, Daya and Freedman, Desi, loc.cit.

[41] Brus, Marcel; Duursma, Jorri and Dugard, John, ‘State Sovereignty, and International Governance’, Oxford University Press in UK, 2002, p.143.

BIBLIOGRAPHY

Application for the State of Palestine to Admission to Membership in the General Assembly. Retrieved. http://www.scribd.com/fullscreen/66184173?access_key=key-yvyucbouczscvin89t8. Accessed 20 October 2011

Application of Palestinian Full Membership, September 2011. Retrieved, www.haaretz.com/news/diplomacy-defense/application-of .Accessed 20 October 2011

BBC News Middle East (26 September 2011). Retrieved from, www.bbc.co.uk/news/world-middle-east-15056141mm. Accessed 30 September 2011.

BBC News Middle East, 24 September 2011. Palestinian bid for full Membership at the UN. Retrieved. www.bbc.co.uk/news/world-middle-east-13701636. Accessed 30 September 2011

Brus, Marcel; Duursma, Jorri and Dugard, John (2002): ‘State Sovereignty, and International Governance’, Oxford University Press in UK, p.143.

Cassese, Antonio (2001): ‘International Law’. Oxford University Press Inc., New York, First edition, p.44

Constitutive and Declaratory theories of Statehood: Retrieved. www.wordiq.com/definition/Constitutive_theory_of_statehood. Accessed 20 October 2011

Damrosch, Lori; Henkin, Louis; Pugh, Richard; Schachter Oscar and Smit, Hans (2001): International Law. Cases and Materials, Fourth edition, American Casebook Series, chp.4, p.249

Dixon, Martine and McCorquodale, Robert (2003): ‘Cases and Materials on International Law’, Oxford University Press, 4th edition), chp.v,p.135.

Higgins, Rosalyn (1994): ‘Problems and Process. International Law and how we use it’, Oxford University Press), chp. Ii, 36 & chp.iii, p.39.

Israeli-Palestinian Conflict: Retrieved. en.wikipedia.org/wiki/Israeli–Palestinian conflict. Accessed 20 October 2011

Koskenniemi, Marti, ‘The gentle civilizer of Nations. The Rise and Fall of International Law, 1870-1960’. Printed in the United Kingdom at the University Press, Cambridge, 4th editition), 2001, pp.382-383.

Montevideo convention on the Rights and Duties of the State (26 December 1933): Retrieved. en.wikipedia.org/wiki/Montevideo Convention. Accessed 20 November 2011.

Palestinian National Authority: Retrieved. en.wikipedia.org/wiki/Palestinian_National_Authority. Accessed 20 October 2011.

Rafael, Gideon (1981): Destination Peace. Three Decades of Israel Foreign Policy. A Personal Memoir (Stein Day/Publishers/Scarborough House, New York 10510), pp.189-190.)

Statute of the International Court of Justice (ICJ), Retrieved from, Statute of the Court | International Court of Justicewww.icj-cij.org/documents, Article 34.Accessed 20 October 2011

Stefan A. G. Talmon (2004): ‘The Constitutive versus the Declaratory Doctrine of Recognition: Tertium Non Datur. British Year Book of International Law’, Vol. 75, pp. 101-181, Oxford Legal Studies Research Paper No. 18/2006, University of Oxford - Faculty of Law.

The Charter of the United Nations (1945): Retrieved. www.un.org/en/documents/charter/. (Accessed 20 October 2011

Thusu, Daya and Freedman, Desi (2003): War and The Media: Reporting conflict 24/7. (Top Ten by Number of Deaths), p.2.

Trindade, Antonio (2005): ‘International law for humankind; Towards A New Jus Gentium General Course on Public International Law’. The Hague Academy of International Law Collected Courses Volume 316, ch.vii, p.204.


Kichere Mwita is a current graduate student of the Masters Programme in International Law and Settlement of Disputes, United Nations Mandated University for Peace of Costa Rica


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