It is difficult to overemphasise the perceived centrality of the forum internum and forum externum distinction to the understanding and protection of the right to freedom of thought, conscience or religion in the literature. It has become the agreed conceptual framework or the ‘traditional terminology’ underpinning analyses;Footnote 1 it is now, as Petkoff points out, ‘almost inconceivable to consider freedom of religion or belief without coming across at least one reference to forum internum and forum externum’.Footnote 2
1.1 The Origins of the Terms forum internum and forum externum
The terms ‘forum internum’ and ‘forum externum’ look like legal terms but they do not appear in legal dictionaries or dictionaries of Latin legal terms, so it is useful to explore their ordinary meaning. In modern usage, ‘forum’ is usually used to describe ‘a meeting or medium where ideas and views on a particular issue can be exchanged’.Footnote 3 Originally, however, the Latin noun forum (pl. fora) referred to a ‘public square or marketplace used for judicial and other business’ in Roman cities;Footnote 4 in Late Middle English, it referred specifically to ‘what is out of doors’, typically an enclosure surrounding a house.Footnote 5 The Latin adjective internum (from inter, meaning ‘between’ or ‘among’) describes that which is inward or internal, whereas the term externum (from exter, meaning ‘outward’ or ‘outside’) describes that which is outward or external.Footnote 6 Latin dictionaries explain that the adjective internus means ‘inward’ or ‘internal’ as well as ‘domestic’,Footnote 7 and the adjective externus means ‘outward’ or ‘external’ and, with respect to one’s family or country, ‘foreign’ or ‘strange’.Footnote 8
There is some disagreement in different disciplines as to the meaning and origin of forum internum and forum externum. In the fields of political theory and philosophy, it has been argued that the distinction between the forum internum and forum externum originated in, and was central to, the medieval understanding of the self.Footnote 9 The forum internum represented the individual’s internal reality, the ‘forum of conscience, authenticity and freedom, subject to no one and punishable by no one except God’, whereas the forum externum represented the individual’s external appearance, ‘the forum in which the individual identified himself and was identified’ in the community.Footnote 10 However, others have contended that the distinction between the forum internum and forum externum emerged in Cartesian epistemology to refer to the mind (or conviction) and to outward, publicly observable behaviour, respectively.Footnote 11
In the field of law and history, specialists in canon law, such as Goering,Footnote 12 Gerosa,Footnote 13 Makinen and Pihlajamaki,Footnote 14 and Petkoff,Footnote 15 argue that the terms originated in canon law and represented different ways in which the medieval Church exercised jurisdiction – in the external forum of the ecclesiastical court, and in the internal forum of the court of conscience (forum conscientiae).Footnote 16 Petkoff suggests the ‘dichotomy’ first appeared at the Council of Trent;Footnote 17 however, Müller argues that the idea of a distinction between the internal and external forum in canon law in the late Middle Ages is a ‘modern myth’ because the ‘articulation of a neat distinction between private and public church proceedings’ – between a forum internum and forum externum – did not fully develop until early modernity.Footnote 18 Whatever the precise origins may be, it is possible to see a distinction between the internal forum and the external forum in Canon 196 of the 1917 Code of Canon LawFootnote 19 and Canon 130 of the 1983 Code of Canon Law,Footnote 20 which relate to the power of jurisdiction or governance in the Church.
This brief overview reveals that whilst the precise meaning and origin of the terms ‘forum internum’ and ‘forum externum’ is debatable, it is evident that these terms have a spatial meaning: the forum internum relates to the internal realm (the individual’s mind or conscience), whereas the forum externum relates to the external realm (whether the individual’s external appearance, the realm of public, observable behaviour or the realm in which individuals are punished for crimes). In addition, in each of the disciplines in which the terms ‘forum internum’ and ‘forum externum’ are discussed, they are generally used in conjunction, indicating a relationship between them.
1.2 The forum internum and forum externum Distinction in ECHR Article 9
The terms ‘forum internum’ or ‘forum externum’ do not appear in UDHR Article 18, ICCPR Article 18 or ECHR Article 9, yet it is widely understood that these provisions distinguish between two different aspects of the right to freedom of thought, conscience and religion: the internal aspect (the forum internum), which is understood to consist of the right to have or change a religion or belief; and the external aspect (the forum externum), which is understood to consist of the right to manifest religion or belief. The distinction between the forum internum and the forum externum is understood to be ‘spelled out’Footnote 21 in these provisions, and is believed to be a ‘foundational’Footnote 22 distinction, having been described as a ‘fundamental organising concept’Footnote 23 and the ‘most well-entrenched feature’Footnote 24 of the right to freedom of religion or belief.
In the context of the right to freedom of thought, conscience and religion, the term ‘forum internum’ is understood to relate to inner belief or conviction, or private, internal conscience, which is ‘largely exercised inside an individual’s heart and mind’,Footnote 25 whereas the term ‘forum externum’ is understood to relate to the ‘sphere of external manifestation’,Footnote 26 where religion or belief is outwardly expressed.
This distinction between internal and external realms,Footnote 27 spheres,Footnote 28 domains,Footnote 29 dimensionsFootnote 30 or componentsFootnote 31 is considered to be legally significant because, it is held, the forum internum and the forum externum have different levels of protection. The forum internum is variously described as an ‘absolute’,Footnote 32 ‘unrestricted’,Footnote 33 ‘unqualified’Footnote 34 or ‘inviolable’Footnote 35 realm that cannot be subject to limitations or coercion,Footnote 36 not even for reasons of national security or in an emergency. The forum internum, it is explained, has ‘long been held…to be absolutely beyond state regulation’.Footnote 37 Indeed, it is considered ‘trite law’ that the main international instruments protecting freedom of religion or belief subject the forum internum to unqualified protection.Footnote 38 In terms of Article 9 specifically, it has been understood that this level of protection is a ‘clear implication’ from the text of the article.Footnote 39
In contrast, the forum externum is described as a ‘qualified’ realm because manifestation may be restricted in certain circumstances in accordance with the limitation clauses in international provisions relating to freedom of religion or belief. ECHR Article 9(2), for instance, provides that the freedom to manifest religion or belief may be limited in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
This distinction between the forum internum and the forum externum is widely understood to be a doctrine of the ECtHR,Footnote 40 and also ‘imperative’ in its judgments.Footnote 41 The ‘difference’ between the forum internum and the forum externum is, many commentators have claimed, ‘well-acknowledged’ by the ECtHR,Footnote 42 and the ECtHR is understood to have developed a ‘rich jurisprudence’ around the distinction.Footnote 43
1.3 Criticisms of the forum internum and forum externum Distinction
The ‘correct’ application of the forum internum and forum externum distinction by the ECtHR is understood to be crucial for the effective protection of the right to freedom of thought, conscience and religion. Yet the ECtHR’s understanding and application of the distinction has been the subject of intense criticism on the grounds that it undermines rather than enhances the protection of Article 9 rights.
1.3.1 Problematic Forum Internum Protection
In relation to the forum internum and forum externum distinction, some commentators have argued that the ECtHR offers inadequate protection to the forum internum because it has not clearly set out the scope of the realm or the criteria for interference with it. In early commentary, it was argued that the forum internum had little role to play in Article 9 cases because its scope was so narrow that it was difficult to envisage how a State could interfere with it ‘short of brainwashing’.Footnote 44 It was held that the approach of the Commission and the Court meant that it was difficult for applicants to assert forum internum rights and this undermined the ‘absolute, unimpugnable and fundamental nature of the forum internum’.Footnote 45
A further, connected, criticism concerned the perceived failure on the part of the ECtHR to recognise the relevance of the forum internum in Article 9 complaints concerning limitations on manifestations of religion or belief. Carolyn Evans, for instance, explained that the wording of Article 9 suggests that a ‘distinction must be drawn between the general right to freedom of religion or belief and the right to manifest that religion or belief ’,Footnote 46 but in her analysis of the Article 9 jurisprudence, she suggested that in some instances the Commission and the Court failed to recognise, and reflect in its case law, the complex relationship between belief and action.Footnote 47 ‘It is not clear’, she explained, that ‘the first limb of Article 9 simply becomes irrelevant once some manifestation is in question’;Footnote 48 in some cases, she argued, limitations on manifestation may be so severe that they interfere not only with the forum externum but also with the forum internum. Carolyn Evans also contended that being forced to act contrary to one’s conscience could engage both the forum internum and the forum externum, and criticised the ECtHR for its narrow focus on the question of whether manifestation had been legitimately limited by the State.Footnote 49 Her observation that it is difficult to maintain a ‘strict line’ or a ‘neat distinction’Footnote 50 between the forum internum and the forum externum in some cases has been reiterated by more recent commentators who have argued that the line between the two realms has shown itself to be ‘elusive’Footnote 51 or ‘blurry’.Footnote 52
Another key problem identified in the early analyses of Article 9 jurisprudence was the treatment of complaints engaging the forum internum as complaints engaging the forum externum. Buscarini v. San Marino – in which the Grand Chamber found that the requirement on the applicants to swear an oath on the Gospels in order to take their seats in Parliament constituted a ‘limitation’ under Article 9(2)Footnote 53 – has been taken to exemplify this perceived error on the part of the ECtHR.Footnote 54 Taylor has argued forcefully that the ECtHR tends to ‘shoehorn’ complaints (such as those concerning refusals to act contrary to one’s religion or belief) into the category of manifestation so they can be subjected to limitations under Article 9(2).Footnote 55 When faced with a ‘binary choice between recognising the forum internum and characterising the applicant’s position in some way, no matter how inappropriately, as a form of manifestation’, the ECtHR, he claimed, often did the latter.Footnote 56 This, he contended, seriously undermined the protection of Article 9; in his view, the focus on the forum externum at the detriment of the forum internum reflected the ECtHR’s more widespread assumption that forum internum interference was not in question in Article 9 complaints.
Again, this early claim that the ECtHR offers inconsistent protection to Article 9 rights has been reiterated by more recent commentators. The ECtHR has been criticised for its so-called ‘confused’ approach of offering absolute protection to the forum internum in some cases but, in other similar cases, inappropriately treating forum internum rights as forum externum rights and considering the legitimacy of the interference with them under Article 9(2).Footnote 57 Furthermore, the Grand Chamber has been criticised for ‘ignoring’ forum internum complaints, even when a violation of Article 9 has been found by the Chamber, by focusing on complaints under different ECHR articles.Footnote 58
1.3.2 Problematic Forum Externum Protection
It is not, however, just the ECtHR’s protection of the forum internum that has been criticised in the literature. It has been claimed that the distinction between the forum internum and forum externum employed by the ECtHR is also undermining rather than enhancing the protection of the right to manifest religion or belief, which is understood to be a forum externum right.
The forum internum and forum externum distinction has come under criticism for separating the holding of a religion or belief from its manifestation in an artificial way and arbitrarily privileging internal belief over external manifestation.Footnote 59 There is a growing perception that, for the ECtHR, religion is about an inner state of mind and manifestations based on religion or belief (such as rites, rituals, wearing of religious clothing or adhering to a diet) are somehow separate.Footnote 60 Such a distinction is considered to be ‘obnoxious’ because it does not reflect the lived experience of believers and contradicts their self-understanding.Footnote 61 As a result of this interpretation of the jurisprudence, the ECtHR has been criticised for erecting an ‘artificial boundary’ between different ways of understanding and experiencing religion, and for failing to recognise that belief and manifestation are ‘mutually dependent’ and ‘cannot be neatly separated from each other’Footnote 62 or ‘surgically kept apart’.Footnote 63 This has led to the forum internum and forum externum distinction being described as a ‘fallacy of dualism’Footnote 64 and an example of the law as a ‘literature of caricature’.Footnote 65
In addition, it has been contended that the imagining of religion or belief by the ECtHR in terms of a ‘binary opposition’ between belief and practice has led to the privileging of the forum internum over the forum externum.Footnote 66 Peroni argues forcefully that this is evident from the ECtHR’s emphasis on the forum internum as the primary realm and is ‘re-affirmed in the Court’s well-known principle that the protection of the forum internum is “absolute and unqualified”’, whereas the forum externum can be subject to limitations under Article 9(2).Footnote 67 The forum internum and forum externum distinction has, the literature suggests, encouraged the assumption that, regardless of the restrictions in the forum externum, the forum internum remains untouched.
Related to this, some commentators have held that the conceptual and legal distinction between the forum internum and forum externum in Article 9 has facilitated, or been definitive for, the emergence of a spatial distinction between the public and private spheres, and lent weight to the privatisation of religion. With its emphasis on the internal, private realm, the forum internum and forum externum distinction is seen to have contributed to the ‘hiving off’ of religion to the private sphere,Footnote 68 so that religion remains ‘behind closed doors rather than in public’.Footnote 69 The emphasis is, it has been claimed, on manifestation in private (i.e., in one’s home or a religious building) rather than manifestation in public (i.e., in the street, in places of education or employment) and, as such, the former enjoys greater protection than the latter.Footnote 70 When individuals cross the spatial divide, from the private to the public sphere, it is believed that the State often intervenes to limit manifestation.
It has been argued in the literature, however, that the notion of a spatial divide between the private and the public sphere is not one which is readily apparent to believers, particularly for those for whom the display of religious clothing or symbols in public is central to their faith. The idea that religion or belief can be compartmentalised in such a way, or ‘left at the door’ when entering the public sphere,Footnote 71 is seen as deeply problematic by some commentators and the public–private distinction has been criticised for giving ‘the contradictory message that society thinks it is important that they [religious believers] can believe what they choose, but it is not sufficiently important to be able to act on those beliefs,’ especially not in public.Footnote 72
Furthermore, some commentators have argued that the forum internum and forum externum distinction has led to a bias at the ECtHR towards orthodoxy and against orthopraxy, that is, towards doctrine and against practice.Footnote 73 McIvor, for instance, has claimed that the ECtHR privileges ‘intellectual assent’Footnote 74 and others have criticised the ECtHR for working with a largely Protestant Christian view of religion and, as a result, for placing more emphasis on internal belief rather than outward manifestation.Footnote 75 And it has also been argued that the ECtHR is more ready to protect ‘voluntarist, private and individualist’ forms of belief rather than those which are ‘communitarian or organisational in orientation’.Footnote 76
Religious or belief minorities, especially those which place particular emphasis on external manifestation, ritual and material objects, have been seen to be relegated to second place.Footnote 77 Danchin, for instance, has argued that Christian or post-Christian norms have been incorporated into the ECtHR’s interpretation of Article 9 and this has meant that the claims of Muslim and other religious communities have been ‘placed in jeopardy and marginalised’.Footnote 78 This was reiterated more recently by Berry and by Gunn in their analyses of the ECtHR’s approach in French and Turkish headscarf cases in particular.Footnote 79
In the literature, the ECtHR’s approach to the right to manifest religion or belief has been described as haphazard and unpredictable: in some cases, it has found interference with, and a violation of, Article 9; however, in other, similar cases, even cases of the same ‘type’ (for instance, religious clothing cases), it has not found interference with, or a violation of, Article 9.Footnote 80 For instance, with respect to religious symbols, it has been claimed that there is an ‘incoherent approach of double standards’ at the ECtHR.Footnote 81 In working with the notion that there is a binary and hierarchical distinction between the forum internum and the forum externum, commentators have struggled to reconcile ostensibly contradictory outcomes.
1.3.3 Suggested Refinements
The criticisms brought against the forum internum and forum externum distinction by commentators relate to the practical protection of the right to freedom of thought, conscience and religion by the ECtHR, not just to academic concern for consistency and coherence in the jurisprudence. In an effort to address perceived problems with the ECtHR’s understanding and application of the forum internum and forum externum distinction, various suggestions have been made.
Some commentators have called for the ECtHR to apply the distinction between the forum internum and forum externum more conscientiously and have ‘greater respect for the structure of the right’ because, they argue, this would encourage better and more consistent Article 9 protection.Footnote 82 Carolyn Evans has urged the ECtHR to establish the scope of the forum internum and forum externum and clarify ways in which the forum internum could be interfered with but has cautioned against allowing too broad a scope to this realm due to its unrestricted nature.Footnote 83 The ECtHR has also been encouraged to take applicants’ claims more seriously, especially when complaints relate to the forum internum, and to look carefully at complaints where forum internum interference may be less obvious, such as in relation to education or State Churches.Footnote 84
Additionally, as a result of the difficulties applicants are perceived to face when asserting interference with forum internum rights under Article 9 before the ECtHR, some commentators have suggested seeking forum internum protection elsewhere. Taylor, for instance, argued that it was ‘necessary to consider a parallel means of protection when forum internum rights are at issue’.Footnote 85 Relying on the ECtHR’s approach in Thlimmenos v. Greece,Footnote 86 which he considered a ‘significant landmark’, Taylor argued that protection of forum internum rights could be improved by relying on the prohibition of discrimination under Article 14 in conjunction with Article 9.Footnote 87 This, he suggested, was a useful approach because it meant that it would no longer be necessary for applicants to ‘artificially establish an eligible form of manifestation’ in order to gain protection under Article 9.Footnote 88
Commentators who have advanced a more conceptual critique – concerning the very existence of a forum internum and forum externum distinction in the right to freedom of thought, conscience and religion – have been less forthcoming with practical recommendations to address the perceived problems in the jurisprudence. Generally, suggestions for improvement in the understanding of Article 9 are limited to calls to move away from a binary and hierarchical understanding of the forum internum and forum externum to a more relational understanding of these aspects. Cismas, for example, argues that the forum internum and the forum externum should be understood as ‘inherently interlinked’,Footnote 89 and Petkoff contends that the forum internum and forum externum in Article 9 should be understood as they were, and continue to be, understood in canon law as two interrelated elements in a ‘dialogical relationship’.Footnote 90 However, they have stopped short of showing how this would or could work in practice at the ECtHR.
One of the problems with the suggestions made to date is that they are piecemeal; in other words, the suggestions advanced are largely intended to address the specific issues that commentators have themselves highlighted. So far, a way forward which addresses a significant number of the issues raised in respect of the understanding of the right to freedom of thought, conscience and religion and the protection of this right by the ECtHR has not been offered.
Furthermore, and perhaps more importantly, the criticisms of the forum internum and forum externum distinction and the recommendations made by commentators to improve the protection of the right to freedom of thought, conscience and religion tend to be rooted in the idea that the forum internum and forum externum distinction is fundamental to Article 9. It is either argued that i) it is not as central as it should be or, ii) it should not be as central as it is. The perceived centrality of a binary and hierarchical distinction between the forum internum and forum externum in Article 9 has tended to constrain analyses and commentators have held back from asking more radical questions about the place of the forum internum and forum externum in the right to freedom of thought, conscience and religion.
1.3.4 The Evolution of the Classic Approach
At this point, it is useful to take a step back to consider how this classic approach to the understanding of Article 9 and its protection by the ECtHR evolved and came to dominate, and to explore the evidentiary basis for claims about the existence and importance of the forum internum and forum externum distinction.
Despite the perception that it is a fundamental feature of the architecture of Article 9 and a doctrine of the ECtHR, the notion of a distinction between the internal and external realms – particularly as expressed through the language of the forum internum and forum externum – developed over a relatively short period of time in the literature. Before the turn of the century, the terms ‘forum internum’ and ‘forum externum’ were absent from or used infrequently in discussions of freedom of religion or belief. There was a tendency to speak more loosely about the rights under Article 9 rather than to juxtapose the forum internum and the forum externum.Footnote 91 The catalyst for the use of the terms ‘forum internum’ and ‘forum externum’ to describe two distinctive elements of the right to freedom of thought, conscience and religion in Article 9 seems to be Carolyn Evans’ Freedom of Religion Under the European Convention on Human Rights. Whilst she was not the first to use these terms together in the literature on freedom of religion or belief,Footnote 92 she was the first to use them (particularly the ‘forum internum’) so frequently in relation to Article 9.
Carolyn Evans invested the distinction between the forum internum and the forum externum with considerable significance. In addition to observing that the wording of Article 9 suggests that ‘a distinction must be drawn between the general right to freedom of religion or belief and the right to manifest that religion or belief’, she referred to an ‘[i]nternal/external dichotomy’ in the right to freedom of thought, conscience and religion.Footnote 93 She also stressed that, in the interpretation of Article 9, the emphasis is on the forum internum which is subject to no limitations or restrictions, and noted that the right to have or change a religion is non-derogable under Article 9 whereas the right to manifest religion or belief may be subject to restrictions under Article 9(2).Footnote 94 The distinction between the forum internum and forum externum was also subtly reinforced through the monograph’s structure in which the forum internum and forum externum aspects of Article 9 are addressed in separate chapters.Footnote 95
The impact of the way in which Carolyn Evans presented the forum internum and the forum externum and popularised the use of the terms is difficult to overemphasise. Subsequent analyses of Article 9 employed the language and stressed the centrality of the distinction between the two realms further. In Taylor’s extensive treatment of Article 9 in Freedom of Religion: UN and European Human Rights Law and Practice, for instance, frequent references are made to the forum internum which is often contrasted with the forum externum or external manifestation.Footnote 96 Additionally, he imbued the distinction between the two realms with an increased intensity, explaining that there is an ‘inescapable and immutable distinction’ between the unqualified forum internum and the qualified forum externum in the ‘architecture of all core freedom of religion Articles’ which ‘must be observed at all times’.Footnote 97
In 2008, in his review of Taylor’s monograph, Gunn pointed out that ‘no major scholar has ever suggested that there is a simple bright line between the forum internum and forum externum’.Footnote 98 As discussed earlier, Carolyn Evans argued that in some Article 9 cases the relationship between belief and action was complex, and Malcolm Evans noted that whilst ‘separate’, the forum internum and the external realm of manifestation are ‘intimately connected’.Footnote 99 However, whilst a relationship between the forum internum and forum externum has been noted by these scholars, and they have recognised the difficulty in drawing a line between these aspects of Article 9 in some cases, the idea that it is essential to draw a bright line between the forum internum and the forum externum in practice, because of the different levels of protection to be offered to these realms, is deeply embedded in the literature.
This notion seems to be the driving force behind Carolyn Evans’ reproach of the ECtHR for its failure to develop a test to distinguish between the forum internum and the forum externum.Footnote 100 This was put more explicitly by Taylor who contended that, given that State interference in the forum internum cannot be justified but the State can limit the forum externum in certain circumstances, it is ‘vital to know precisely where the boundaries of each are to be drawn’.Footnote 101 He devoted two out of the five chapters in his monograph to discerning ‘the true reach of the unrestricted forum internum as distinct from the external right of manifestation’.Footnote 102
Over time, the terms ‘forum internum’ and ‘forum externum’ have become synonymous with absolute and qualified protection, respectively. This elision of ideas reflects the notion that the forum internum and forum externum are to be sharply distinguished because they represent different levels of legal protection. In addition, there has been a change in the language associated with the forum internum and forum externum to further emphasise the separateness and distinctiveness of these realms. Rather than simply describing a ‘distinction’, it is now common to see descriptions of a ‘clear and sharp distinction’,Footnote 103 a ‘substantial dividing line’,Footnote 104 or ‘bifurcation’Footnote 105 between the forum internum and forum externum.
Whilst it is not necessarily problematic for a notion to gain currency over time, some concerns may be raised about the way in which the forum internum and forum externum distinction has become the classic approach to understanding the right to freedom of thought, conscience and religion in Article 9 and its protection by the ECtHR. The first point to note is that statements relating to the centrality of the forum internum and forum externum distinction, both as an architectural feature of Article 9 and as an ECtHR doctrine, are often supported by very limited, if any, evidence from the text of Article 9, the relevant travaux préparatoires or ECtHR jurisprudence. Occasional references are made to C v. The United KingdomFootnote 106 – which concerned a Quaker’s objection to tax payments – to support the claim that the ECtHR draws a distinction between the forum internum and the forum externum in Article 9.Footnote 107 However, the way in which the term ‘forum internum’ was used in that case has not been thoroughly explored in the scholarly literature; it has not been demonstrated how it supports the claim that there is a clear distinction between the forum internum and the forum externum in Article 9, or the claim that the distinction is central to the ECtHR’s Article 9 jurisprudence.
Secondly, there appears to be some intertextual reliance at work.Footnote 108 Claims made about the centrality of the forum internum and forum externum distinction have tended to build upon earlier statements. Additionally, some of the more recent conceptual critiques appear to have taken earlier critiques of the case law as a starting point for their analyses rather than beginning with the text of Article 9 or the case law itself.
The implication in discussions relating to the right to freedom of thought, conscience and religion is that the forum internum and forum externum distinction is a clear and established legal principle which needs little explication. Statements reinforcing its centrality have been repeated so often that the notion has become an unquestioned dogma. But question it one must. The paucity of evidence provided to support claims made about a binary and hierarchical distinction between the forum internum and forum externum in Article 9, and the extent of intertextual reliance in the commentary raises some serious questions concerning the legitimacy and accuracy of claims made about the existence and centrality of the distinction and its and problematic nature, both at the time in which the claims were made and in light of the significant developments in the case law over the past three decades. This suggests that a review of the understanding of ECHR Article 9 and the related ECtHR jurisprudence is not only necessary but overdue.
1.4 Conclusion
There is an established consensus in the literature that a binary and hierarchical distinction between the absolute forum internum and the qualified forum externum is a fundamental architectural feature of Article 9 and an important doctrine of the ECtHR. However, despite this emphasis on the centrality of the distinction to the understanding and protection of the right to freedom of thought, conscience and religion, commentators have increasingly argued the notion is leading to problematic protection of both the forum internum and the forum externum at the ECtHR.
The ECtHR’s understanding and application of the distinction has been heavily criticised. In terms of the forum internum, it has been criticised for its perceived failure to apply the distinction ‘correctly’ and consistently, and to recognise when forum internum rights may be at issue in Article 9 complaints. In terms of the forum externum, it has been criticised for treating manifestation of religion or belief as a second-order concern, for allowing manifestations to be relegated to the private sphere, and for emphasising internal belief over external manifestation. Suggestions proposed by commentators to address these perceived problems tend to be piecemeal and, more importantly, are rooted in the idea that a binary and hierarchical distinction between the forum internum and the forum externum is, or should be, fundamental to the understanding and protection of Article 9.
By stepping back to consider how this classic approach to the right to freedom of thought, conscience and religion evolved, why it is now so embedded in the literature, and the evidentiary basis for claims made about the forum internum and forum externum distinction, this chapter raised some concerns about its legitimacy as a conceptual framework. In doing so, this chapter has laid the foundation for the review of the centrality of the forum internum and forum externum distinction to the understanding and protection of Article 9 – based on the text of ECHR Article 9, the related travaux préparatoires and Article 9 case law – in the subsequent chapters.
