Along these same lines, and delving in deeper, it is also necessary to consider the work being
done by the United Nations International Law Commission on unilateral legal declarations 45
and the doctrine, from this same auxiliary source of international law, 46 holding that a
unilateral act is understood as a State’s unequivocal affirmation of its will, expressed in clear,
specific terms, with the intention of producing legal effects in its relations with one or several
states or international organizations. Furthermore, to determine these legal effects, it is
necessary to know the content of the declarations that need to be interpreted in good faith,
including all the factual circumstances in which they were made, the surrounding context, and
the resulting reactions.
It is likewise important to reconsider the rule of estoppel. According to the material quoted
and the doctrine, this rule says that the State may not withdraw its own unilateral legal act if
another subject of international law has proceeded on the basis of it, that is, it cannot reverse
such an act if the subjects to whom compliance with obligations is owed used it as a basis for
their own acts.
As discussed above, then, it can be inferred that the State’s recognition, as contained in the
case files, is not, strictly speaking, a unilateral legal act because it was a response to what
the Commission had said. That is, it was clearly developed for the exclusive purpose of
explaining a situation, to wit, the delays in the relevant process, but it was not intended to
change the meaning of an earlier act, and certainly was not issued such that its terms would
become binding. This is why it was improper to apply the rule of estoppel to the State’s
declaration, because estoppel applies to unilateral legal acts.
As an additional consideration, this writer does not agree with the judgment’s argument “that,
having recognized its responsibility before the Commission on a matter associated with one
of the objections to the rule on failure to exhaust domestic remedies, the State ... has
implicitly accepted the Court’s full jurisdiction to hear the instant case.” 47 While the State did
indeed come before the Court with this extensively discussed preliminary objection, thus
agreeing that the Court should rule on it, it is equally true that there was nothing to prevent
it from lodging the objection, and furthermore, it clearly was brought with the intent of having
it admitted, considering, among other things and in the terms of Article 62 of the Court’s
Rules of Procedure, the “acceptance” and the “juridical effects” of the recognition in the sense
described above. The claim, in other words, was not intended as a means to bypass the
Court’s jurisdiction to rule on the matter, but instead, to have the Court find in its decision
that the Commission did not have jurisdiction to proceed with the petition or even admit it.
CONCLUSION
In summary, and as discussed above, the terms of Article 46(1)(a) of the Convention are
clear, and they are consistent with an understanding of Article 26(1) and (2), 28(8), 30(1),
(2) and (3), 31 and 32 of the Rules of Procedure of the Commission, which interpret the
45
The ten Guiding principles on the subject, adopted in 2006 by the United Nations International Law Commission.
46
Art. 38(1)(c) of the Statute of the International Court of Justice, infra footnote 50.
47
Para. 27 of the judgment.
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