Escenarios y actores electorales distritales

ORGANIZATION

In relation to the first situation reference must be made to article 5 of the draft articles elaborated by the ILC, in which it is affirmed that:

“1. The conduct of an organ or agent of an international organization in

the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization[280]”.

Article 5 is the correspondent version of article 4 in the ASR:

under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State”.

Article 4 states, in the first paragraph, “[t]he principle of attribution for the purposes of

State responsibility in international law that the conduct of an organ of the State is attributable to that State”.

In reference to States, such article “[c]overs all the individual or collective entities

which make up the organization of the State and act on its behalf…”, including even organs

“[…] of any territorial governmental entity within the State on the same basis as the central

governmental organs of that State[281]”. Therefore, based on the principle of the unity of the State, all acts or omissions of its organs “are to be regarded as acts or omissions of the State

for the purposes of international responsibility[282]”.

In reference to the specific IO’s legal system, a similar reasoning to the extent of excluding the relevance of the terminology used in the internal law of a State in order to define an organ. Moreover, the ICJ, both in the Reparation case, and in Its Advisory Opinion on the Applicability of article VI, section 22, of the Convention on the Privileges and Immunities of the UN, stuck to a liberal interpretation of the word “agents”, affirming that “the

essence of the matter lies not in their administrative position but in the nature of their mission[283]”.

The ICJ, in a subsequent advisory opinion, newly addressed the issue of attribution of conduct sustaining that: “the United Nations may be required to bear responsibility for the

damage arising from such acts[284]”, without making any distinction between principal and subsidiary organs.

Furthermore It included that the conduct of the UN was made up of “acts or omission

of its agents[285]”, both officials than persons acting on behalf of the UN “on the basis of

functions conferred by an organ of the organization[286]”.

The reasoning of the Court has a general value, therefore it can be applied to all organizations. On this point, relevant are the words chosen by the Swiss Federal Council in one of Its decisions: “[En] règle générale, sont imputables à une organisation internationale

les actes et omissions de ses organes de tout rang et de toute nature et de ses agents dans l’exercice de leurs compétences [287]”.

Passing on to the comparison of article 5, paragraph 2, of the IO Draft Articles, and article 4 of the ASR, it is clear that, notwithstanding the reference to the rules of the organization, in exceptional cases “functions may be considered as given to an organ or

agent even if this could not be said to be based on the rules of the organization[288]”, or pursuant to them.

Central for the attribution of the conduct results to be the criterion of effective control over the conduct, stated in article 6 of the IO Draft Articles, titled “Conduct of organs or

agents placed at the disposal of an international organization by a State or another international organization”:

“The conduct of an organ of a State or an organ or agent of an

international organization that is placed at the disposal of another international organization shall be considered under international law an

act of the latter organization if the organization exercises effective control over that conduct”.

There is nonetheless nothing which interferes with an eventual will of the lending State or organization to conclude an agreement specifically regulating the eventual responsibility for an internationally wrongful act committed by the lent organ[289]. For example, the model contribution agreement relating to military contingents placed at the disposal of the UN by one of its member States, provides, on one side, the liability of the UN towards third parties and, on the other, the right of recovery of the UN from the contributing State in circumstances of “loss, damage, death or injury from gross negligence or wilful misconduct of the personnel

provided by the Government[290]”.

It must be nevertheless noted, firstly, that such agreements deal only with the distribution of responsibility, rather than with the attribution of conduct, and, secondly, that in any case third States, under the general rules are not deprived of their rights towards the State or the organization whose responsibility is asserted.

More will be said on such criterion in reference both to the attributions of the unlawful acts committed by military contingents that States put under the disposal of the UN, than to the case of responsibility of both member States and third States for the exercise of direction and control over the commission of an international wrongful act by an IO [291].