European Convention on Human Rights: Extra-Territorial Application
| Published date | 01 August 2005 |
| Date | 01 August 2005 |
| DOI | 10.1350/jcla.2005.69.4.295 |
| Author | Kerem Altiparmak |
| Subject Matter | Article |
The suggestion of the court that the discrimination embodied in s. 6 of
the 1956 Act was justified on the basis that there was a need to protect
girls and deter boys from engaging in sexual intercourse in order to
prevent pregnancy belies some outmoded gender stereotyping. The
court appears to presuppose that teenage sexual encounters occur in
circumstances in which passive girls succumb to the predatory advances
of boys. The extent to which this presumption reflects contemporary
social behaviour is questionable. Furthermore, if one accepts that pre-
vention of pregnancy is the primary purpose of the provision, any
deterrent effect of the threat of criminal sanction would be greater were
it hanging over both potential participants. Moreover, if one takes the
view that the prevention of the risk of pregnancy was merely one of a
number of purposes served by the provision, others being the preven-
tion of transmission of sexual diseases and securing the psychological
well-being of those who may not possess sufficient emotional maturity
to engage in sexual relationships, the justification for discriminating on
the basis of gender becomes ever more tenuous.
Andrew Roberts
European Convention on Human Rights: Extra-territorial
Application
R (on the application of Al Skeini) vSecretary of State for Defence
[2004] EWHC 2911, [2005] HRLR 3
The claimants, all of whom were Iraqi citizens, were the relatives of six
Iraqis who were killed in provinces of Iraq where and at a time when the
UK was recognised as an occupying power. The first five claimants’
relatives were shot in separate armed incidents involving British troops.
The sixth claimant’s case was different. Her son, Baha Mousa, was
arrested by British forces on suspicion of involvement with weapons
hidden in the hotel where he worked as a receptionist. He died in a
military prison in British custody, allegedly as a result of beatings of his
prison guards.
The Divisional Court considered only two preliminary issues: (1)
whether the deaths took place within the jurisdiction of the UK so as to
fall within the scope of (a) the European Convention on Human Rights
and (b) the Human Rights Act 1998; and (2) whether, if so, there had
been a breach of the requirements under Articles 2 and 3 of the Conven-
tion regarding an adequate inquiry into those deaths.
H
ELD
,
PARTLY DISMISSING THE CLAIM
, the claims of the first five
claimants must fail as the conduct of British forces against their relatives
did not fall within the jurisdiction of the UK, whereas the case of Baha
Mousa was within the UK’s jurisdiction and thus within the scope of the
European Convention on Human Rights: Extra-territorial Application
295
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