The EU boycott of Russian scientists and the right to science in the shadow of Ukraine’s invasion

The Russian Federation’s invasion of Ukraine has brought back the issue of scientific freedom and the protection of scientists developing military technology. The day after the invasion, Germany froze bilateral science partnerships with the Russian Federation. A slew of European countries quickly followed suit, and some restrictions have been expanded to include Belarus. Russia’s participation in Horizon Europe and Horizon 2020, the European Union’s flagship science grant programs, was also suspended—a measure still in place as 2023 begins. Should Russian scientists’ freedom of research be guaranteed in the shadow of the military invasion of Ukraine? Or should Russian scientists be subjected to the sanctions and boycotts targeting the Russian Federation?

In this writing, I tackle two questions. The first focuses on whether military science falls within the scope of Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which codifies was has come to be known as the human right to science and the duty “to respect the freedom indispensable for scientific research and creative activity.” Given that the answer to this first question is positive, at least with regard to some types of military science, the second questions explore the legitimacy of the EU boycott of Russian scientists under international human rights law.

What is “science” in international human rights law?

The definition of “science” under international human rights law was settled in 2020 with the adoption of General Comment No. 25 by the UN Committee on Economic, Social and Cultural Rights. This instrument incorporates verbatim the definition of science articulated by UNESCO in its 2017 Recommendation on Science and Scientific Researchers. According to paragraph 1(a)(i) of the Recommendation:

“the word “science” signifies the enterprise whereby humankind, acting individually or in small or large groups, makes an organized attempt, by means of the objective study of observed phenomena and its validation through sharing of findings and data and through peer review, to discover and master the chain of causalities, relations or interactions; brings together in a coordinated form subsystems of knowledge by means of systematic reflection and conceptualization; and thereby furnishes itself with the opportunity of using, to its own advantage, understanding of the processes and phenomena occurring in nature and society.”

The Recommendation text considers “validation through sharing of findings and data and through peer review” as constitutive of science. Consequently, scientific activity is within the scope of protection of the right to science only if its findings are sharable and peer reviewable. These conditions are also met in the earlier stages of the development of research (when findings have yet to be produced) whenever a scientist intends to share the findings when produced and subject them to peer review. Peer review does not need to be intended narrowly as the formal review that papers go through when submitted to academic journals. In Why Trust Science?, Naomi Oreskes offers a broader, more flexible notion of peer review. According to the Harvard sociologist of science, peer review encompasses:

“… the informal processes of judgment and evaluation that research findings undergo when scientists discuss their preliminary results in conferences and workshop and solicit comments from colleagues prior to submitting them for publication, as well as the continued process of evaluation that published claims endure as fellow scientists attempt to use and build on those claims.”

Military science and technology and the right to science

How does this framework apply to military science and the development of military technology? Even considering the broader notion of peer review, the legal implication is that not all scientific activities, even when scientists carry them out according to a proper scientific methodology, fall within the UNESCO definition of science and, thus, the scope of protection of the right to science. When they do not, they are not protected by the right to science. Even when carried by scientists with proper credentials, expertise, and membership in scientific societies, such activities would fall outside the scope of protection of Article 15 of the ICESCR, and these scientists would not be entitled to scientific freedom.

Scientific activities carried out in secret in the military fall outside the scope of protection of Article 15 of the ICESCR. When the work of those scientists, whether enlisted as military personnel or not, is scientific in nature but not meant to be shared with the broader scientific community, it is not “science,” according to the UNESCO definition. Conversely, science developed for military purposes but intended to be publicly shared is protected under the right to science. Typically, these scientific activities and outputs are treated as “dual use” science and be subjected to approvals and restrictions that do not apply to science carried out without military goals.

The intent to research findings to the formal or informal processes of judgment and evaluation of fellow scientists is paramount in determining whether a scientist enjoys scientific freedom as codified in Article 15 of the ICESCR. “Intent” can be determined in various ways. It may be clearly expressed in research policies and documents, for instance, when findings are labeled. Research may be listed as a “state secret” research as a matter of state secret in domestic law. Intent can also be derived from the context in which research occurs. For instance, it is apparent to those involved that findings will not be made public or, more simply, research findings are never submitted for peer review. A review process internal to the military system, with reviewers bound by secrecy, does not count as “peer review” as framed by UNESCO because those research findings do not undergo review by the scientific community but only by a handful of selected experts bound by secrecy.

If scientists’ boycott operates at the level of scientific conferences or journals, boycotts are hardly justifiable. In large part, these boycotts amount to interference with scientific freedom. Scientists engaged in military scientists who wish to present their findings at scientific meetings or to publish them in scholarly journals are clearly not engaged in science carried out in secrecy. Even if scientific activities had been conducted in full secrecy up to that point, submitting an abstract to a conference or a manuscript to a journal tilts the balance in favor of an intent to publish. The act of “going public” triggers protection of that scientific activity under Article 15 of the ICESCR. A similar conclusion can be said about scientific projects such as those funded by Horizon Europe and Horizon 2020, in which the submission process and review are not bound by secrecy. Scientists seeking public funding accept peer review in the UNESCO sense, whether this is undertaken publicly or not (even when peer review reports are not published, research can be said to have undergone peer review).

Are boycotts of scientists working on military technology for governments targeted by international sanctions ever justified under international law?

According to the framework, scientific activities carried out by Russian scientists (even when working for the Russian Federation’s government) with the intent to be published and undergo peer review fall under Article 15 of the ICESCR. These scientists are thus entitled to the scientific freedom to participate in the EU research funding schemes as a matter of international human rights law. To be legitimate, restrictions on their scientific freedom must be carefully assessed in light of the narrow requirements set forth in international human rights treaties, particularly in Articles 4 and 19 of the ICCPR and 4 of the ICESCR.

According to these provisions, restrictions must be determined by law, pursue a legitimate aim, and be necessary and proportionate. The first requirement, known as “legality”, demands that limitations have a basis in international or EU law. The sanctions adopted by the EU are in compliance with obligations under international law.

The requirement of legitimacy may be harder to overcome. Commenting on the EU sanctioning Russian military officers on this blog, James Patrick Sexton notes that sanctions are “not inherently problematic and may fulfil the sanction regime’s aims of preventing further violations of Ukraine’s ‘territorial integrity, sovereignty and independence’.” Yet, the case of sanctioning Russian scientists engaged in military science is undoubtedly more arduous to make than that against individuals known or suspected to have engaged in or funded military activities in Ukraine. For instance, directing Horizon Europe and Horizon 2020 research funds toward military applications is expressly prohibited. A European Commission Guidance Note clearly states that “[p]rojects involving the defence industry or military organisations are not automatically excluded from funding. However, their participation can be justified only if they are involved in research activities exclusively focused on civil applications.”

The European Union’s legitimate aim to avoid contributing to the undermining of Ukraine’s “territorial integrity, sovereignty and independence” is already accomplished when collaborations with Russian scientists are vetted at the time research proposals are submitted for funding, as stated in the Guidance Note: “The exclusive focus on civil applications of your proposed research will be checked during the scientific review of your proposal”. Furthermore, concerns that awarded funds are misdirected to the development of military applications can be addressed by triggering a project review. During the lifetime of the project,” the Guidance Note adds, “the compliance with the confirmations and relevant legal obligations mentioned above, can be checked as part of the project review.” As a result, suspending Russian scientists’ participation in these fund schemes arguably fail to achieve a legitimate aim under international human rights law.

The blank presupposition or unsubstantiated suspicion that Russian recipients of EU research awards have misused funds is an insufficient basis to interfere with their scientific freedom. The only ground that may justify suspending Russian scientists from Horizon Europe or Horizon 2020 is evidence that funds are indeed misdirected to military applications intended to support the military efforts of the Russian Federation in Ukraine. In this case, there would be a legitimate aim.

Yet, the suspension from participation in the European Union’s flagship science grant programs would still need to meet the third prone of the legitimacy test for interference with scientific freedom: necessity and proportionality. To meet this standard, the European Union must demonstrate that interfering meets a pressing social need (necessity) and is the least intrusive instrument amongst those that might achieve the desired result (proportionality). Evidence of misdirection of funds to military applications could trigger the necessity to limit Russian scientists’ access to those funds. This evidence would have to meet a threshold of probability and credibility to justify any action on the part of the European Union. Much harder would be to satisfy the requirement of proportionality. The existing monitoring provisions of the European Union’s science funding schemes (application review and periodic review of funded projects) constitute adequate safeguards to ensure Ukraine’s “territorial integrity, sovereignty and independence”. Suspending Russian scientists would not be the least intrusive instrument at the disposal of the European Union. It may be for a very short period, that is, the time necessary to activate the safeguards to ensure proper use of funding embedded in the EU funding schemes. At the moment, this third, latter prong of the legitimacy test to justify restrictions on Russian scientists’ freedom is not met. This seems not to be the case. To my knowledge, no evidence of fund misuse was ever produced, thus making the suspension not necessary. Furthermore, the suspension has been in place for almost a year, which would have been sufficient to properly review funding applications and how already disgorged funds are used.

Is the current suspension of Russian scientists from Horizon Europe and Horizon 2020 legitimate under international human rights law?

My reasoning logically leads to conclude that the current suspension of Russian scientists from Horizon Europe and Horizon 2020 violates scientific freedom as recognized under international human rights law. The research conducted in Russia with funds awarded by the Europen Union’s research award scheme is “science” that falls within the scope of application of Article 15 of the ICESCR. When Russian scientists apply and are awarded EU funds, they agree to use them for purposes other than military applications. Taking away those funds would violate their scientific freedom. This rationale applies also to funds yet to be awarded but for which scientists are currently eligible to apply for. The entitlments relating to scientific freedom apply, in my judgment, also as soon as scientitists become eligible to apply under a funding scheme. Only credible evidence that they breached (or are likely to breach, if funds are awarded) their commitment to using the funds exclusively on civil applications would justify actions on the part of the European Union to suspend them from their research funding schemes. Moreover, a suspension would be justifiable only for the time necessary to review how the funds were used and to obtain reimbursement of funds misallocated to military applications. A different case concerns future eligibility. Scientific freedom does not entitled Russian scientists to remain eligible to apply and receive research awards in future rounds of funding, that is, after 2027, when Horizon Europe rolls out.

The same logic can be applied to the more general justification offered in support of these bans, that is, that it is appropriate to suspend cooperation with scientists in a state that acts contrary to some basic values (e.g., the prohibition of aggression), especially when these scientists work for state-owned/funded institutions, when they have not publicly disassociated themselves from the wrongful conduct of the state, and when moreover the heads of the relevant academic institutions have actively publicly supported that wrongdoing. Only the latter case may justify restrictions. Scientists who endorse or become advocates of a war of aggression, particularly if working on military technology, would be under credible suspicion that any funds awarded to them misdirected. The case against scientist who have not publicly disassociated themselves from the wrongful conduct is more problematic, particulary for scientists work for state-owned/funded institutions. The failure to disassociate from wrongful conduct of the state may be the result of fear of retaliation or, even worse, actual threats to their persons or careers. Scientific freedom is intended to protect scientists from this kind of duress (which, of course, could also be the reason why scientists endorse military aggression). The international community cannot therefore assume that a scientist’s silence on political matters equals endorsement. Human right standards demand a more careful scrutiny of the context of non-disassociation. A ban affecting all scientists who do not dissociate themselves from wrongful conduct of the state is the kind of blank restriction that fails to meet the standards of Article 4 of the ICESCR.

In the absence of these conditions, the case to maintain the suspension of Russian scientists fails under international human rights law. The wrongful conduct of a state whoudl not jeopardize the status and freedoms of scientists who operate in good faith, with the confines of the rules of the funding schemes from which they receive support. While stripping Russian scientists of their privileges and funding may be politically tempting, it undermines the very foundations of human rights. When a state acts unlawfully, the international community ought to ensure that the human rights of the citizens of that country are secured. It is a responsibility that is even more salient than in ordinary times. The lack of respect of international law by the leaders of that country is a red flag that that, internally, basic human rights may not be adequately secured. Rather than punishing scientists for “being there,” the international community should rally around them.