Academic Freedom Under Pressure

Contemporary threats to academic freedom are global, diverse and mounting. The ICNL-commissioned report Closing Academic Space published in March found “repressive and potentially repressive government practices against higher education institutions, including academics and students, in more than 60 countries”, including Hungary, Russia, Venezuela, Turkey, Egypt and China.

Challenges to academic freedom and autonomy in Europe, particularly the EU, now seem alarming, despite significant resistance. A couple of causes célèbres illustrate the point. On Wednesday 27 November, the distinguished constitutional law scholar Professor Wojciech Sadurski faced the first hearing in one of three SLAPP lawsuits brought against him under civil and criminal defamation laws by Poland’s governing Law and Justice party and the public broadcaster, TVP. Various actors have stood in solidarity with Professor Sadurski. In the run-up to the hearing, constitutional law scholars launched the #WithWoj hashtag, following an open letter on the Verfassungsblog in May; ARTICLE 19 submitted an amicus curiae brief, live-monitored the hearing and, together with other NGOs, issued a statement.

On Friday 15 November, my institution, the Central European University (“CEU”) officially inaugurated its Vienna campus, having been forced to move its US accredited degree programmes from Budapest as a result of amendments to Hungary’s higher education law adopted in April 2017 (“Lex CEU”). The subsequent fight to defend CEU spurred street demonstrations, the #IstandwithCEU hashtag and thousands of statements of support – including from academic institutions and associations, Nobel Laureates, German Chancellor Angela Merkel, Irish Taoiseach Leo Varadkar, the late former UN Secretary-General Kofi Annan and a network of freedom of expression NGOs. It also motivated the adoption of the Utrecht Declaration on Academic Freedom by human rights academics.

These cases raise a number of individual human rights issues and deep concerns about the implications of restrictions on scholars and universities for democracy and the rule of law across societies. They further prompt questions about the definition, scope and place of the notion of “academic freedom” in international law.

There is no explicit protection of academic freedom in international human rights treaty law. This contrasts with the express protection of academic freedom in Article 13 of the EU Charter of Fundamental Rights, various soft law instruments adopted by the Council of Europe, the constitutions of many states (including South Africa, Kenya, the Dominican Republic, Japan, Germany, Spain and Greece), the jurisprudence of the European Court of Human Rights and that of the African Commission on Human and Peoples’ Rights. The Committee on Economic, Social and Cultural Rights (“CESCR”) has defined the meaning of academic freedom and institutional autonomy in its General Comment No 13 on the right to education (Article 13) of 1999, which draws from the 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel:

30. Members of the academic community, individually or collectively, are free to pursue, develop and transmit knowledge and ideas, through research, teaching, study, discussion, documentation, production, creation or writing. Academic freedom includes the liberty of individuals to express freely opinions about the institution or system in which they work, to fulfil their functions without discrimination or fear of repression by the State or any other actor, to participate in professional or representative academic bodies, and to enjoy all the internationally recognized human rights applicable to other individuals in the same jurisdiction…

31. The enjoyment of academic freedom requires the autonomy of institutions of higher education. Autonomy is that degree of self-governance necessary for effective decision-making by institutions of higher education in relation to their academic work, standards, management and related activities.

The subsequent paucity of international human rights law and a lack of a “systematic global monitoring” on academic freedom and institutional autonomy has contributed to a “protection gap”, according to the ICNL report, whose authors recommend that “stakeholders [should] encourage UN Treaty Bodies, particularly the CESCR, to engage in more systematic examinations of the situation of universities in their review of states”. Some scholars have argued that the CESCR should dedicate a General Comment to the subject of academic freedom, though this is unlikely anytime soon, given the CESCR’s current focus on developing a General Comment on land rights.

I would argue that NGOs should also engage others parts of the UN human rights system – particularly the Human Rights Committee (“HRC”), the Human Rights Council’s special procedures mandate-holders, as well as the Universal Periodic Review (“UPR”)   – and, in doing so, instrumentalise a broader range of provisions of international human rights law – particularly Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”) on freedom of opinion and expression – in their international advocacy on academic freedom. There is already evidence of rising concern about the subject amongst other human rights bodies on such a basis, even though the related concept of academic or “institutional autonomy” as such has not gained the same traction.

Consider the HRC’s concern about the “constraints on freedom of thought, expression and association, as well as academic freedom” imposed by Lex CEU expressed in its March 2018 Concluding Observations on Hungary. The HRC called on the state to revise the legislative amendments to ensure that they “are strictly necessary, proportionate and consistent with the requirements of, inter alia, articles 19 (3), 21 and 22 (2) of the Covenant and that they do not unreasonably or disproportionately target” CEU. The HRC’s General Comment No 34 on freedom of opinion and expression (Article 19) of 2011 does not explicitly reference academic freedom, though it does state that national security laws should not be used to prosecute, amongst others, “researchers” for having disseminated public interest information. The HRC has addressed academic freedom through its jurisprudence under Article 19 of the ICCPR, deciding that there was no violation of an author’s “freedom of academic research” as a result of legislation criminalising the denial of existence of Nazi concentration camps in Faurisson v France in 1986, but that there was a violation of the provision in the case of university teachers who were prosecuted for having criticised the Togolese government in Adimayo M. Aduayom et al v Togo in 1996.

The Special Rapporteur on freedom of opinion and expression, David Kaye, issued a public statement and communication to the Hungarian government, emphasising that Lex CEU “[contradicted] fundamental principles of academic freedom that are embodied and guaranteed by article 19”, in April 2017. Since 2014, the mandate-holder has also issued joint communications with the Special Rapporteur on human rights defenders regarding the dismissal of an academic in reprisal for his cooperation and the detention and investigation of a swathe of academics in Turkey, and as part of a group of mandate-holders on the arrest, detentions and/or enforced disappearance of scholars in Egypt, Thailand and Tajikistan. Though it is disappointing that the Special Rapporteur on the right to education has not joined such initiatives to date, the stated interest of the current mandate-holder, Koumbou Boly Barry, to examine the state of the “autonomy of higher education institutions as well as academic freedom” during her visit to Qatar in December 2019 is to be welcomed. Surprisingly, the protection of academic freedom has been identified in the Universal Periodic Review only once: Slovenia recommended that Venezuela “achieve compliance with international standards on the protection of the right to autonomy and academic freedom” during the latter’s second periodic review in 2016.

Current high-profile cases should catalyse a more robust and focused reaction from international human rights bodies to the phenomenon of the deteriorating climate for scholars and institutions worldwide, especially when the United States and the EU have been ineffectual in their responses. Besides proposals for a dedicated CESCR General Comment and NGO advocacy before international human rights bodies that is more attentive to the human rights challenges of academic freedom and institutional autonomy, two further recommendations for the UN human rights system are put forward here.

First, the United Nations High Commissioner for Human Rights, Michelle Bachelet, ought to identify threats to academic freedom as a systemic human rights issue in many states through her public statements. Second the Special Rapporteur on freedom of opinion and expression or alternatively the Special Rapporteur on the right to education should develop a thematic report to the Human Rights Council or General Assembly on academic freedom and institutional autonomy. Together, these experts should also issue a joint communication on Professor Sadurski’s particular case because of its precedent-setting potential for those seeking to target academics through litigation in Europe and beyond.