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Journal Article on West Philippines Sea.Archie M. Cascara

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Philippines’ claim over the West Philippine Sea
By Archie M. Cascara
Abstract
The West Philippine Sea dispute is not only an issue of military power and political
influence, but also a policy issue. In particular, the Philippines has tried to fight Chinese moves
with an international award and with substantial results. In the context of its territorial and
maritime controversy on the south China sea in the West Philippines in Manila, the Philippines
launched international arbitration on 22 January 2013 in relation to the People's Republic of
China (China). In the on-going saga of competing claims in the South Chinese Sea, it was a
brave move which was called a "game changer." After a number of hostile acts and offensive
conduct by China, the Philippines agreed to take legal action.
The Philippines argues that China has interfered with its rights under the United Nations
Convention on the Law of the Sea (UNCLOS). China has claimed maritime zones surrounding
these features greater than 12 nautical miles from which it has excluded the Philippines. The
Philippines says these features are not above sea level at high tide and cannot be acquired by a
State or subject to its sovereignty. China's exploitation and prevention of the Philippines from
exploiting the living and non-living resources in the Philippines' EEZ and continental shelf are
all unlawful under the Convention, the Philippines argues. The case is described as a challenge to
China's claim to sovereignty over the South China Sea and its control of its own exclusive
economic zone (EEZ) in the East China Sea.
The case was first reported on by The Philippine Daily Inquirer on July 17, 2008. The
Lowell Bautista (2016) article was amended on July 18, 2008, to remove references to the "nine
dash line" and the "sovereign rights" claim. The Philippines is aware of the 2006 Chinese
Declaration. The Philippines has avoided raising subjects or claims.
Introduction
The West Philippine Sea is the Philippine government's official designation as the eastern
part of the South China Sea which falls within the Exclusive Economic Zone (EEZ) of the
Philippines. The word is also misinterpreted to refer to the entire South China Sea.
The Philippines is considered a maritime country: more than 7,100 islands are scattered
throughout its national territory. It is separated from its Asian neighbors by big bodies of water.
Travel through its waters is one of the cheapest and principal modes of transporting passengers
and goods to the major islands of the country, as well as serving as a vital link to international
trade. As such, the Philippines has its fair share of maritime cases, such as collisions, sinking,
salvage, piracy, hijacking, and arrest of ships. The Philippines counts on the maritime industry as
a vital component in attaining inclusive growth and socio-economic progress. Shipping remains
the major infrastructure by which islands are linked, as well as, connects the country to
international commerce and trade (Castillo et al., 2021).
The critical role of maritime transport in ensuring an integrated and coordinated transport
network is incontestable for an archipelagic country like the Philippines. Since a high percentage
of domestic and international commerce, travel and tourism are by air and sea, the efficiency of
aviation and maritime transportation has become increasingly critical to growth and
competitiveness. Maritime transport is the backbone of international trade and a key engine
driving globalization and competitiveness. Around 80% of global trade by volume and over 70%
by value is carried by sea, as per the UNCTAD estimate.
Timeline and Sequence of Conflicts and Several Standoffs
Just last November 25, 2020, it was reported again that the China Coast Guard (CCG,
2020) and Royal Malaysian Navy (RMN) are involved in another standoff over hydrocarbon
exploration in the South China Sea. China Coast Guard ship 5402 harassed a drilling rig and its
supply ships operating just 44 nautical miles from Malaysia’s Sarawak State on November 19.
Malaysia deployed a naval vessel in response, which continues to tail the 5402. The incident
seems to have followed two weeks of increasing tensions between the CCG and RMN in the area.
An analysis of AIS data from Marine Traffic and satellite imagery from Planet Labs reveals this
high-stakes game of chicken that would otherwise have remained under the radar.
According to a report by the Asia Maritime Transparency Institute (AMTI, 2018), the
“CCG 5402” ship harassed a drilling rig and its supply ships on Nov 19, and the navy responded
by deploying a vessel that continued to tail the ship. Citing automatic identification system (AIS)
data from marine traffic and satellite imagery from Planet Labs, the report said the CCG ship left
Hainan on Oct 30 for what has become a standard Chinese patrol route.
If ever the Philippines would be subject to such activities by competing States, there
would be specific legal disputes that would likely arise from the similar incident involving
Philippine and foreign vessel, but could also otherwise be resolved through “Arbitration” via the
Permanent Court of Arbitration. Such is akin to the similar case that can be remembered that on
22 January 2013, the Philippines instituted arbitral proceedings against China in a dispute
concerning their respective “maritime entitlements” and the legality of Chinese activities in the
South China Sea. In response, by a diplomatic note dated 19 February 2013 addressed to the
Philippines, China expressed its rejection of the arbitration.
In China’s view, the Arbitral Tribunal did not have jurisdiction in the case because
China’s acceptance of dispute settlement under the UN Convention on the Law of the Sea
(UNCLOS) – the basis put forward by the Philippines – was limited and excluded sea boundary
delimitations and the determination of historic titles. Since then, China has continuously refused
either to accept or to participate in the arbitral proceedings initiated by the Philippines. The
tribunal, however, did not see this as an obstacle: on 29 October 2015, it delivered its first award
finding that it had jurisdiction, and, on 12 July 2016, its award deciding on the merits of the
dispute.In a next step, the tribunal determined the legal status of certain maritime features
occupied by China in the South China Sea. Determining whether these are “islands", “rocks",
“low-tide elevations” (LTEs) or “submerged banks” is important because, unlike fully entitled
islands, rocks which cannot sustain human habitation or economic life of their own do does not
generate an exclusive economic zone (EEZ) and a continental shelf (CS). Consequently, rocks do
not give rights to resource exploitation beyond their territorial sea.
The tribunal also ruled on the legality of activities of Chinese officials and Chinese
vessels in the areas of the South China Sea located within the Philippines’ EEZ and CS. It
concluded that China breached the provisions of UNCLOS, in particular by (a) temporarily
prohibiting fishing in areas of the South China Sea falling within the Philippines’ EEZ, (b) failing
to prevent Chinese vessels from fishing in the Philippines’ EEZ at Mischief Reef and Second
Thomas Shoal and (c) preventing Filipino fishermen from engaging in traditional fishing at
Scarborough Shoal. Regarding China’s construction of artificial islands, installations and
structures at Mischief Reef – a LTE which is part of the Philippines’ EEZ and CS – without the
authorization of the Philippines, the tribunal also found China to have violated UNCLOS. The
Philippines welcomed the award, which vindicated most of its claims, and stated that it remained
open to negotiate with China. Conversely, China rejected the decision as illegal, null and void and
therefore without any binding effect on itself. Other countries, including the United States,
Vietnam, Australia and Japan, backed the Philippines and called on China to respect the tribunal’s
decision.
On the other hand, Cambodia supported China’s non-acceptance of the award. ASEAN
members issued a joint communiqué reaffirming the need to avoid actions that might escalate
tensions in the South China Sea and to seek the peaceful resolution of disputes in accordance with
international law, including UNCLOS.8 The tribunal’s ruling is certainly a legal victory for the
Philippines over China as the judges agreed unanimously on almost all the questions submitted by
the Philippines, including a declaration from the tribunal that China is obliged to comply with
UNCLOS and that the award is legally binding on China. There is no enforcement mechanism as
such under UNCLOS in the event that China fails to comply with the tribunal’s decision, but the
Philippines could either resort to diplomatic ways (bilateral or multilateral negotiations within the
framework of international organizations) or have recourse to further arbitration under UNCLOS.
Moreover, other states and non-state actors could take further actions (i.e. economic sanctions) to
put pressure on Beijing to shift its behavior. But, beyond China’s non-compliance attitude, the
award has a value for the states bordering the South China Sea and the rest of the international
community for two reasons: (a) the tribunal’s ruling clarified the respective rights and obligations
of both China and the Philippines in the South China Sea, thereby facilitating their further
relations, and (b) the Tribunal’s findings might have an impact on policy considerations and
decision-making of other states as it clarified important legal issues in UNCLOS.To sum up, the
legal disputes heavily involve maritime entitlements.
The starting point for understanding the disputes between the Philippines and other
claimants to features in the South China Sea is to recall the legal origins of the Philippine
archipelago as well as international law concerning entitlement to maritime features. The
Republic of the Philippines was seen as an archipelago by its former colonial rulers − Spain and
the United States. To the outside world, it consisted of a large “box” wherein both the waters and
the features were considered part of the Philippines. Over time, the Philippines abandoned the
“box” and modified its claims to conform to the 1982 UN Law of the Sea Convention.
It did so in a number of enactments commencing in 1961 and ending in 2009. The 80
archipelagic baselines that form the modern-day Philippines are UNCLOS compliant.10 In the
Philippines, we have a complete legislation, both substantive and adjective, under which to bring
an action in rem against a vessel for the purpose of enforcing liens. The substantive law is found
in Article 580 of the Code of Commerce. The procedural law is to be found in Article 584 of the
same Code. The result is, therefore, that in the Philippines any vessel – even though it be a foreign
vessel – found in any port of this Archipelago may be attached and sold under the substantive law
which defines the right, and the procedural law contained in the Code of Commerce by which this
right is to be enforced. But where neither the law nor the contract between the parties creates any
lien or charge upon the vessel, the only way in which it can be seized before judgment is by
pursuing the remedy relating to attachment under Rule 59 [now Rule 57] of the Rules of Court.
Why is the West Philippine Sea (South China Sea) important?
As of this writing, the West Philippine Sea is one of the most important waterways in the
world because about US$5.3 trillion in ship-borne goods traverse the South China Sea annually
and four leading exporting countries use the West Philippine Sea for their maritime trade – China,
Japan, South Korea and Taiwan (Carpio, 2020).
The US$5.3 trillion comprises the $1 trillion USA inbound/outbound trade, while $1
trillion is for EU inbound/outbound trade. Which is why both the US and EU maintain an interest
in establishing peace and order as majority of the exports and imports passes through the West
Philippine Sea.
About 65% of South Korea’s petroleum imports and about 60% of Japan and Taiwan’
petroleum imports are traded within the narrow strait of Malacaand passes through West
Philippine Sea, and then to China. Along the West Philippine Sea, the Spratly’s Island can be
found where it serves as a collection of reefs – it has an extensive collection of coral reefs, and
this is where fishes spawn or lay their eggs. About 12% of annual global fish catch in the world
comes from the West Philippine Sea, the West Philippine Sea is very rich in fishery. It is a very
small sea which only comprises 2.5% of the world’s ocean surface, but serves as one of the main
sources of fish catches of top trading countries (Carpio, 2020).
In addition to the rich fisheries available, the seabed or bottommost part of the West
Philippine Sea contains several minerals called “Methane Hydrates” which is a natural gas that
could power the Chinese Economy for at least 100 years since Methane Hydrates are estimated
to be more abundant than oil and gas combined. The top 3 countries with technology for
extracting Methane Hydrates are China, U.S.A, Canada, and Japan.
The efforts exerted by the Philippines to be aligned with the International Convention
The Philippine administration first used the phrase "West Philippine Sea" during
President Benigno Aquino III's administration in 2011. The name was meant to be a symbolic
gesture in disputing China's claim to sovereignty over the entire South China Sea. In September
2012, in government maps, other means of communication and papers, the Philippine government
declared that the name will begin to refer to western Philippine waters as the "West Philippine
Sea." According to the 2016 PCA Ruling, on July 12, 2016, the Permanent Court of Arbitration
ruled in favor of the Philippines in a case not involving naming. It clarified that the Tribunal has
not been asked to, and does not purport to, delimit any maritime boundary between the Parties or
involving any other State bordering on the South China Sea".The tribunal also ruled that China
has "no historical rights" based on the "nine-dash line" map
However, the Philippines is not a signatory, nor has it adopted the International
Convention (UNCLOS) for the Unification of Certain Rules Relating to the Immunity of StateOwned Vessels. Likewise, the Philippines has no legislation to implement the aforesaid
Convention. Hence, the matter of the question on the arrest of State-owned vessels is still
unsettled and has not been squarely ruled upon by Philippine courts.Philippine maritime law is
not covered by a single body of law but by various statutes. These are the Philippine Code of
Commerce of 1888, New Civil Code of 1952, Carriage of Goods by Sea Act, Insurance Code of
1981 on marine insurance, 1997 Rules of Civil Procedure, and PDs (notably PD 1521) and rules
and regulations promulgated by Philippine administrative agencies, such as the Philippine
Maritime Industry Authority (MARINA), the Philippine Overseas Employment Administration
(POEA), and the Philippine Coast Guard (PCG), which are also tasked by Philippine law to
administer maritime and maritime-related work.
Legal victory and scientific basis for the rightful claimof the Philippines
The western part of the Philippine archipelago has the maritime zones known as the
Western Philippine Sea. The Luzon Sea, as well as the water around the Kalayaan Island Group
and Bajo de Masinloc, which is also known as Scarborough Shoal, comprise these regions. (Sec.
1, Administrative Order No. 29 (2012)
The Manila Trench subduction zone is an active convergent plate margin between the
South China Sea and the northern Philippines. The trench trends northerly and is associated with
a volcanic arc, an east dipping Benioff zone beneath Luzon, and a well‐developed fore arc basin
system. Also, the Manila Trench is situated in the geologically complex area of the western part
of the Pacific Ocean, is part of the 'Ring of Fire' where active tectonic plate and volcanic
movements take place. Complex geophysical settings influence trench formation, high seismicity
and geodynamic instability visualized on the thematic maps of geological and tectonic settings as
the most important causes of ocean trench formation. Part 13 of the Marine Scientific Research
provides that search and surveillance is legitimate for ocean sciences purposes as long as consent
of coastal state is given. For example, in March 2017, a Chinese marine research vessel was
spotted remaining in the water area of the Benham Rise off the eastern part of Luzon Island on
the extended continental shelf of the Philippines. It is not clear if the vessel was performing
marine science research, so this could probably pose legal implications or mere violations of
international law.
Article 76 of the U.N. Convention of the Law of the Sea defines the continental shelf,
stating that the continental shelf of a coastal State comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural prolongation of its
land territory to the outer ridge of the continental margin. Therefore, if the continental margin
continues beyond 200 nautical miles, the seabed concerned is interpreted as being considered as
part of the State’s continental shelf. If based on this definition, however, only a particular state
can establish a vast continental shelf if its continental margin stretches infinitely and this is not
fair. For this reason, limits are set for the range of continental shelves, and there are exceptions to
such limits if, like the Bay of Bengal, the sea area concerned has a unique seabed.
It is still quite uncertain whether the Philippine government has set the limits of its
extended continental shelf, but as long as the Chinese government acknowledges the rights of the
Philippines to the extended continental shelf, there is no question that the Chinese government
treats the extended continental shelf as one of the Philippines.
Marine Scientific Research Article 246, paragraph 6, thus organizes those points of
disagreement regarding marine scientific research over the extended continental shelf. It
stipulates that marine scientific research shall be performed in the exclusive economic zone and
on the continental shelf with the consent of the coastal State. In theory, however, coastal states
must give their consent if such research is performed exclusively for peaceful purposes and in
order to increase scientific knowledge of the marine environment for the benefit of all mankind.
In some cases, however, coastal states can withhold their consent at their discretion, and these
four cases are set out in paragraph 5 of the same article. Then comes paragraph 6, which
accounts for expanded continental shelves as follows:
Article 246, paragraph 6: “Notwithstanding the provisions of
Paragraph 5, coastal States may not exercise their discretion to withhold
consent under Subparagraph (a) of that paragraph in respect of marine
scientific research projects to be undertaken in accordance with the provisions
of this Part on the continental shelf, beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured, outside
those specific areas which coastal States may at any time publicly designate as
areas in which exploitation or detailed exploratory operations focused on
those areas are occurring or will occur within a reasonable period of time.
Coastal States shall give reasonable notice of the designation of such areas, as
well as any modifications thereto, but shall not be obliged to give details of the
operations therein.”
If China is thinking about “implied consent” such that they can continue to build until
Philippines is not provided consent within 4 months of the act, Article 245 of the Marine
Scientific Research however does not approve of “implied consent”. Per Article 245, the Coastal
States, in the exercise of their sovereignty, have the exclusive right to regulate, authorize and
conduct marine scientific research in their territorial sea. Marine scientific research therein shall
be conducted only with the express consent of and under the conditions set forth by the coastal
State. This article however, is contrary to Article 252 which narrates that States or competent
international organizations may proceed with a marine scientific research project six months
after the date upon which the information required pursuant to Article 248 was provided to the
coastal State unless within four months of the receipt of the communication containing such
information the coastal State has informed the State or organization conducting the research that:
(a) it has withheld its consent under the provisions of Article 246; or
(b) the information given by that State or competent international organization
regarding the nature or objectives of the project does not conform to the
manifestly evident facts; or
(c) it requires supplementary information relevant to conditions and the
information provided for under Articles 248 and 249; or
(d) outstanding obligations exist with respect to a previous marine scientific
research project carried out by that State or organization, with regard to
conditions established in Article 249.
The U.S. is not a signatory of the UNCLOS as they objected to the Part XI of the
Convention of UNCLOS on a number of grounds, alleging that the Treaty was detrimental to
American economic and security interests. The U.S. argued that the terms of the Treaty were not
favorable to the free market and were intended to benefit the economic structures of the
Communist States. Despite these, and contrary to the intentions of the U.S., however, a provision
of “specific areas” in which coastal states can decide whether they should grant their “consent”
at their discretion to research that has direct effects on the exploration and exploitation of natural
resources was added to paragraph 6.
In other words, this addition indicates that coastal states cannot exercise their discretion
to grant consent outside such specific areas. At first glance, this seems to mean that marine
research can freely be carried out in vast areas, but specific areas can freely be designated by
coastal states, and moreover, there is no mention of the breadth of specific areas. But it is still
unclear what the “implied consent” really entails, will the implied consent extend to underwater
bases? Or only above water, unmanned fleet, vehicles? Probably, consent may be withheld; but
actively. And while the Law of the Sea Convention does not define marine scientific research
(MSR), the term generally refers to those activities undertaken in the ocean to expand
knowledge of the marine environment and its processes. The United States has identified some
marine data collection activities that are not marine scientific research. These include:




Discovery and exploration of natural resources;
Hydrographic surveys (in order to enhance the safety of navigation);
Military operations, including military surveys; activities related to the laying
and operation of submarine cables;
Environmental monitoring and evaluation of marine pollution in compliance
with Section 4 of Part XII of the Convention; collection of marine
meteorological data; such as those used for ocean state monitoring and
forecasting, natural hazard alerts and weather forecasting, and climate
forecasting-including through the voluntary ocean observation programs of
the
Joint
Intergovernmental
Oceanographic
Commission-World
Meteorological Organization Technical Commission on Oceanography and
Marine Meteorology (JCOMM), the Global Drifter Program, and Argo
program.
However, contrary to the intentions of the U.S., the provision of "specific areas" in which
coastal states may determine whether to give their consent, at their discretion, to research that
has a direct impact on the exploration and development of natural resources has been added to
paragraph 6 of Article 246. In other words, this addition means that coastal states cannot exercise
their power to grant consent beyond those particular areas. At first glance, this seems to mean
that marine research can be carried out openly in large areas, but particular areas can be freely
allocated by coastal states and, furthermore, there is no mention of the scope of specific areas.
In this matter, there is no information that the Philippine government designated specific
areas as stipulated in paragraph 6 of Article 246. This means that even if marine scientific
research by China directly affects the exploration and exploitation of natural resources, the
Philippines cannot refuse to grant its consent at its discretion. But as long as no particular areas
have been identified by the Philippine Government, other states may conduct marine scientific
research under more relaxed regulations than over the 200-nautical-mile continental shelf. In that
case, research vessels are considered to be in the high seas when performing research on the
extended continental shelf. If they violate any of the laws and regulations of the coastal state,
will the state take effective enforcement action?
Even if waters over the extended continental shelf are the high seas, there would be no
major problem with the application or enforcement of domestic laws and regulations if it is
objectively judged that the autonomous underwater vehicle concerned is conducting research on
the extended continental shelf or the like. In fact, there are a few states which stipulate measures
to be taken for autonomous underwater vehicle in the high seas over the extended continental
shelf in their domestic laws and enforce such laws.
However, because it is believed that many of the marine scientific research projects are
carried out primarily by warships or government ships, coastal states must recognize that
immunities are given to certain vessels or ships when they implement laws and regulations if any
of them are violated. For this reason, it is assumed that the steps that can actually be taken by
coastal states would be extremely small.Clearly, China violated the United Nations Convention
on the Law of the Sea (UNCLOS) which was established to define coastal and maritime
boundaries, to regulate seabed exploration, not within territorial claims, and to distribute revenue
from regulated exploration.
The “territorial sea” is defined under the UNCLOS as the 12-nautical mile zone from the
baseline or low-water line along the coast. The coastal state’s sovereignty extends to the
territorial sea, including its seabed, subsoil, and air space above it. Article 56 of the UNCLOS
outlines parameters for the establishment of a country’s exclusive economic zone (EEZ), which
extends 200 nautical miles from the country’s coastline. Article 56 gives sovereign rights for
exploration, exploitation, conservation, and resource management of living and non-living
natural resources of waters in the country’s EEZ. Article 76 defines the continental shelf of a
nation, which ‘comprises the seabed and subsoil of the submarine areas that extend beyond its
territorial sea throughout the natural prolongation of its land territory to the outer edge of the
continental margin or to a distance of 200 nautical miles…’ (cited from UNCLOS, 1982).
Within a coastal State's jurisdiction, the State has sovereign rights to explore and exploit
their natural resources (both living and nonliving) but has a duty to protect and preserve the
marine environment through environmental policies (Article 192 and 193 of UNCLOS).
UNCLOS promotes the sustainable use and conservation of marine biodiversity, a concept that
has been reiterated and expanded upon through more recent initiatives such as the Millennium
Development Goals (MDG; 2000–15), United Nations Sustainable Development Goals (SDG;
2015–30) and the Convention on Biological Diversity's Aichi Biodiversity Targets (2011 − 20).
Specifically, MDG 7 aimed to protect 8.4% of coastal marine areas by 2014, SDG 14 focuses on
the conservation and sustainable use of the oceans, seas, and marine resources, and Aichi
Biodiversity Target 11 aims to conserve 10% of coastal and marine areas by 2020. In each case,
States who sign up for the initiatives make a commitment to work towards the goals and targets.
Such initiatives are invaluable in generating international cooperation and commitments to
sustainable development, but it is important to note that within their jurisdiction, implementation
of management measures is at the discretion of that State.
However, the establishment of the UNCLOS parameters has also created the potential for
overlapping claims in semi-enclosed seas. These claims could be further extended by any nation
which could establish a settlement on the islands at these seas.Under the Administrative Order
No. 29, the National Mapping and Resource Information Authority is mandated to use the
designation West Philippine Sea in maps produced and published by the government agency.
Other government agencies are also required to use the term to popularize the use of the name
domestically and internationally.
Prior to the issuance of the order, the Philippines' weather bureau, PAGASA, adopted the name
in 2011 to refer to waters west of the country while remained using "Philippine Sea" to refer
waters east of the archipelago.
Conclusion
The tribunal's decision is sure to be a legal win over China for the Philippines, as judges
unanimously agreed on almost every issue put forward by the Philippines, including a court
statement that China is required to comply with UNCLOS and that the award is legally binding
on China.
The South China Sea Arbitration (RPC) awarded the Philippines a unanimous award on
12 July 2016 which is largely favorable to the Philippines.China has opposed this ruling, but it
can still be a step towards pacific conflict resolution. The Philippines opened arbitral proceedings
against China on 22 January 2013, in a dispute over their respective maritime rights and the law
of the Chinese operations in the South China Sea. In response to a diplomatic note dated 19
February 2013 in the Philippines, China expressed its rejection of the arbitration. Moreover,
further steps (e.g. economic sanctions) may also be taken by other states and non-state actors to
compel Beijing to shift its behavior. However, in the case of the States bordering the West
Philippine Sea and the rest of the international community, the award is valuable beyond China's
non-compliance attitude for two reasons: (a) the court decision clarified China and the
Philippines' respective Southern China rights, thereby facilitating more relations; and (b) the
finding of the Tribunal could have an effect on the Court.
To conclude, it is too early to say to what degree the decision of the court would really be
of significance both at regional and international level.It is up for debate if this condition may be
related to the judgment of the court. In the meantime, for example, it is hard to think that nations
such as Okinotorishima's Japan or Johnson's Island's United States will remove their claims on
characteristics that they say they are entirely entitled islands and not just rocks.
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