AbstractThis thesis explores and challenges the dominant understanding in the literature that there is a clear binary and hierarchical distinction between the absolute forum internum and qualified forum externum in the architecture of the right to freedom of thought, conscience and religion in Article 9 of the European Convention on Human Rights (ECHR) and the jurisprudence of the European Court of Human Rights (ECtHR).
This thesis argues — based on a detailed analysis of ECHR Article 9, related international instruments and travaux préparatoires, and all Article 9 jurisprudence in English and French from the 1960s to the present day — that the traditional understanding of Article 9 in the literature is not founded textually or jurisprudentially. It contends that the forum internum and forum externum aspects of Article 9 are interrelated and should be understood on a conceptual continuum ranging from the forum internum to the forum externum because the forum internum is always relevant, to some degree, in Article 9 complaints.
Whilst the degree of forum internum relevance is the principal factor that the ECtHR uses to ascertain the strength of an applicant’s complaint, it is not the determining factor in Article 9 cases; the ECtHR balances factors indicating a violation (primarily, but not only, forum internum relevance) with countervailing factors indicating no violation, in order to reach its decision. As such, in terms of grouping Article 9 cases, this thesis suggests that it is easier to understand the jurisprudence if one thinks of it in terms of a series of concentric circles, rather than as a binary framework. In the loose concentric circles model, forum internum relevance is strongest and countervailing factors are weakest in the innermost circle, forum internum relevance is weakest and countervailing factors are strongest in the outermost circle, and forum internum relevance and countervailing factors are at their most contested in the middle circle.
This thesis contends that this radical reconceptualisation of the place of the forum internum and forum externum in Article 9 and the jurisprudence has implications for both academics and practitioners.
|Date of Award
|24 Mar 2020
|Malcolm Evans (Supervisor) & Russell Sandberg (Supervisor)