INTERNATIONAL LAW, Sixth edition

788 international law
to the jurisdiction of the Court. The Court held that the key question was
whether the UN Security Council retained ultimate authority and control
so that operational command only was delegated and that this was so in
the light of resolution 1244. Accordingly, responsibility for the impugned
action was attributable to the UN, so that jurisdiction did not exist with
regard to the states concerned for the European Court. 56
Article 6 provides that the conduct of an organ placed at the disposal
of a state by another state shall be considered as an act of the former
state under international law, if that organ was acting in the exercise of
elements of the governmental authority of the former state. This would,
for example, cover the UK Privy Council acting as the highest judicial
body for certain Commonwealth countries. 57
Ultra vires acts
An unlawful act may be imputed to the state even where it was beyond
the legal capacity of the official involved, providing, as Verzijl noted in
the Caire case, 58 that the officials ‘have acted at least to all appearances as
competent officials or organs or they must have used powers or methods
appropriate to their official capacity’.
This was reaffirmed in the Mossé case, 59 whereitwasnotedthat:
Even if it were admitted that . . . officials . . . had acted . . . outside the statutory
limits of the competence of their service, it should not be deduced,
without further ado, that the claim is not well founded. It would still be necessary
to consider a question of law . . . namely whether in the international
order the state should be acknowledged responsible for acts performed by
officials within the apparent limits of their functions, in accordance with a
line of conduct which was not entirely contrary to the instructions received.
In Youman’s claim, 60 militia ordered to protect threatened American
citizens in a Mexican town instead joined the riot, during which the Americans
were killed. These unlawful acts by the militia were imputed to the
state of Mexico, which was found responsible by the General Claims Commission.
In the Union Bridge Company case, 61 a British official of the Cape
56 Judgment of 2 May 2007, paras. 134 ff. See also Bosphorus Airways v. Ireland, European
Court of Human Rights, judgment of 30 June 2005. As to the Kosovo situation, see above,
chapter 9, p. 452.
57 Yearbook of the ILC, 1974, vol. II, p. 288 and ILC Commentary 2001, p. 98.
58 5 RIAA, pp. 516, 530 (1929); 5 AD, pp. 146, 148.
59 13 RIAA, p. 494 (1953); 20 ILR, p. 217.
60 4 RIAA, p. 110 (1926); 3 AD, p. 223.
61 6 RIAA, p. 138 (1924); 2 AD, p. 170.