19
On this basis, the judgment, having previously applied the rule of estoppel to the legal arguments
put forward by the parties, 51 holds “that preliminary objections cannot limit, contradict or render
ineffective the content of a State’s acknowledgement of responsibility” and “that the preliminary
objection of failure to exhaust domestic remedies filed by Peru is not compatible with the State’s
partial acknowledgement of responsibility in this case (…), since, if declared admissible, it would
exclude all the facts and violations admitted by Peru from the jurisdiction of the Court.”
Thus, the judgment does not clearly distinguish between the acknowledgement or “acceptance
of the facts” and acknowledgement or “acceptance of the claims,” contemplated in Article 62 of
the Court’s Rules of Procedure. 52 It only refers to the “acknowledgement of responsibility” of the
State, in circumstances in which, in the present case, it was only an “acceptance of facts,” but
not of “claims,” thereby expressly excluding the acknowledgment of responsibility for them.
On the other hand, the judgment does not seem to consider the fact that the State's
acknowledgment was made after it alleged in the case file that domestic remedies had not been
exhausted and before the Commission had ruled on the matter, which it did in the Report on
Admissibility and Merits, issued twenty years after the presentation of the petition. In other
words, the State made this acknowledgment at the admissibility stage, without prejudice to the
preliminary objection it had raised and when the Commission had not yet ruled on the matter.
In no way, therefore, did such acknowledgment imply that it disregarded or rendered ineffective
that objection. To claim otherwise would imply accepting as legitimate that the State has been
placed in a situation of procedural inequality by being denied the possibility of submitting
allegations and arguments, including the aforementioned acknowledgment, made in the event
that the preliminary objection raised from the beginning of the case was not accepted, or by
depriving the latter of any legal effect because of having raised them subsidiarily.
This is certainly very relevant, given that the criterion followed in the judgment entails conferring
on the State’s acknowledgement a purpose other than that pursued and declared by the State.
Indeed, the State made the acknowledgment in question at the admissibility stage, not to admit
responsibility, but precisely to demonstrate that there were pending proceedings on the facts of
the case at the time the petition was “lodged” and that, in any event, reparations had already
been made, at least in part, to the victims. This acknowledgment implied, then, at least as far
as the facts were concerned, an acceptance of the facts as understood by the State, as the
subject of the petition and, moreover, it did not expressly include an acceptance of international
responsibility for them. 53
In this regard, it should be recalled that acquiescence is one of the unilateral juridical acts of the
State. In other words, it is an act that emanates solely from the State, its effectiveness does not
depend on another legal act, it does not produce obligations for third parties, it is formulated
with the unequivocal intention of producing binding and enforceable legal effects for its author
and it cannot be withdrawn or rendered ineffective if another subject of international law has
acted in conformity with it. The latter is known as the rule of estoppel. Thus, the State’s
51
Para. 27 and following paras.
“If the respondent informs the Court of its acceptance of the facts or its total or partial acquiescence to the claims
stated in the presentation of the case or the brief submitted by the alleged victims or their representatives, the Court
shall decide, having heard the opinions of all those participating in the proceedings and at the appropriate procedural
moment, whether to accept that acquiescence, and shall rule upon its juridical effects.”
53
Paras. 24 and 25.
52
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