acting in peace time or in a situation of armed conflict. He submits that the concept
of official capacity in the Convention extends beyond any formal State structure and
even beyond actors who had been invested with authority by the State. It covers all
those who exercise a form of public authority over individuals in a manner which
might be similar to the authority of a State. Thus, he submits, it would extend to
armed groups who seek to depose the government and to exercise State power and
would certainly extend to those who in their quest for authority have displaced the
legitimate government in those areas where they operate.
The approach to interpretation of section 134 CJA and article 1, UNCAT
23.
Section 134 CJA was intended to give effect to UNCAT in domestic law. As
a result, the words “person acting in an official capacity” must bear the same
meaning in section 134 as in article 1, UNCAT. (See R v Bow Street Metropolitan
Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) (“Pinochet No 3”) [2000] 1
AC 147 per Lord Browne-Wilkinson at p 200A-B.) The principles of international
law governing the interpretation of treaties are to be found in articles 31 and 32,
Vienna Convention on the Law of Treaties, 23 May 1969, (1980) (Cm 7964), 1155
UNTS 331.
“Article 31. General Rule of Interpretation
1.
A treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty
in their context and in the light of its object and purpose.
2.
The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its
preamble and annexes:
(a)
Any agreement relating to the treaty which was
made between all the parties in connexion with the
conclusion of the treaty;
(b)
Any instrument which was made by one or more
parties in connexion with the conclusion of the treaty
and accepted by the other parties as an instrument
related to the treaty.
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