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B. Standards & instruments Scholars and advocates for the protection and promotion of academic freedom and university autonomy may find support in international human rights law, standards and mechanisms. These avenues include (I) international human rights in the United Nations system and regional systems; (II) leading statements on academic freedom and university autonomy; (III) and national and sub-national level protections. The following briefly outlines the principal provisions in each of these categories for the defense of academic freedom.
The principle of academic freedom is composed of a number of intersecting rights. Though no international legal document encompasses the entire scope of the principle, it is clear that the international legal landscape has recognised various aspects and components of the principle and works to promote academic freedom through its available texts and mechanisms. The most important instruments of international law that protect aspects of academic freedom are described below. More information on the mechanics of these instruments and advice on how best to use them for advocacy purposes is available in Module C. The Universal Declaration of Human Rights (UDHR) is the most fundamental statement for the protection and promotion of universal human rights. The UDHR is the parent document to the two United Nations human rights covenants (which, when taken in combination, are called the International Bill of Human Rights) and is the inspiration and guidepost for many other human rights documents. Particularly pertinent to academic freedom, the UDHR recognises the right to freedom of thought, conscience and religion, the right to freedom of opinion and expression, and the right to peaceful assembly and association (Art. 18, 19, 20). The UDHR also includes the right to education requiring that “[e]ducation shall be directed to the full development of the human personality and…shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and…peace.” (Art. 26) Relating also to academic freedom is the right of everyone to freely participate in the cultural life of the community and to share in scientific advancement and its benefits. The International Covenant on Civil and Political Rights (ICCPR) is the second of the three United Nations documents that make up the International Bill of Human Rights. It contains, in particular, two rights that are fundamental with respect to violations of academic freedom: the right to freedom of thought, conscience and religion and the right to freedom of opinion and expression (Art. 18, 19). The ICCPR also includes protections of other rights frequently threatened in violations of academic freedom. Protections include the right of peaceful assembly (Art. 21), the right to freedom of association (Art. 22), the right not to be “subjected to arbitrary or unlawful interference with [one’s] privacy, family, home or correspondence, nor to unlawful attacks on [one’s] honour and reputation,” (Art. 17) the right to liberty and security of person and the right not be subjected to arbitrary arrest or detention (Art. 9), and the right to liberty of movement and freedom to choose a residence (Art. 12). The ICCPR also applies in cases of violence against academics, by protecting the right to life (Art. 6), and the right to be free from torture or cruel, inhuman or degrading treatment or punishment (Art. 7). The International Covenant on Economic, Social and Cultural Rights (ICESCR) is the third document in the International Bill of Human Rights. The Covenant includes rights relating to education, and to the enjoyment of the benefits of cultural freedom and scientific progress (Art. 13, 15) Additionally States Parties should “respect the freedom indispensable for scientific research and creative activity,” which requires states to respect the academic freedom of staff and students as an essential component of the right to education (General Comment 13). Three conventions provide support for the defense of academic freedom when it is threatened by discrimination. The Convention against Discrimination in Education (CDE) is a UNESCO document that requires States Parties to prohibit discrimination in education based on race, color, sex, language, religion, political or other opinion, national or social origins, economic condition or birth. The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) requires States Parties to “guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law” in the enjoyment of civil and political, as well as economic, social and cultural rights (Art. 5). The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides that “States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education ”(Art. 10) When violations of academic freedom take the form of physical violence, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) protects scholars against the use of torture intending to attack their academic freedom or the academic freedom of others. In addition, three international recommendations address academic freedom and university autonomy directly. Dealing specifically with protections for those in the teaching profession, the ILO/UNESCO Recommendation on Status of Teachers, adopted in 1966 outlines in a section on ‘Professional Freedom’, that “the teaching profession should enjoy academic freedom in the discharge of professional duties” (Art. 61). The Recommendation on the Status of Scientific Researchers (RSSR) adopted by the General Conference of UNESCO in 1974, notes that the “open communication of…results, hypotheses and opinions – as suggested by the phrase ‘academic freedom’ – lies at the very heart of the scientific process, and provides the strongest guarantee of accuracy and objectivity of scientific results”(Preamble). The RSSR recognises the balance of rights and responsibilities, requiring that “…scientific researchers respect public accountability while at the same time enjoying the degree of autonomy appropriate to their task and to the advancement of science and technology” (Art. 8). The Recommendation Concerning the Status of Higher Education Teaching Personnel (RSHETP), adopted by the General Conference of UNESCO in 1997, is an international accord on standards for higher education. The RSHETP provides for the protection of academic freedom in far greater detail than any of the human rights treaties. The rights mentioned include academic freedom, the civil, political, economic, social, and cultural rights recognised by international instruments, and the right to teach and to carry out research work “without any interference” (Art. 26-29). Several articles list specific protections required to guarantee academic freedom including: access to libraries, computer systems and databases without censorship, freedom to publish and disseminate research results and freedom to participate in international gatherings (Art. 11-14). There are currently three major regional human rights systems in existence—the African, Inter-American and European systems. Regional human rights systems parallel and complement the United Nations system by promoting and protecting human rights in particular parts of the world. The African Charter on Human and Peoples’ Rights creates a regional human rights system for the African continent. The Charter was unanimously adopted in 1981 at an Organisation of African Unity (OAU) (now succeeded by the African Union) and entered into force in 1986. The Charter established the African Commission on Human and Peoples’ Rights to oversee and interpret the Charter and the African Court on Human and Peoples’ Rights. The Charter contains a long list of civil, political, economic, social and cultural rights, including the right to education (Art. 17), the right to free association (Art. 10), the right to freedom of conscience (Art. 8), the right to receive information and to express and disseminate one’s opinions “within the law,” (Art. 9) the right to freedom of movement and residence (Art. 12), and the right to liberty and security of person (Art. 6). The African Charter is unique in the importance it gives to an individual and group’s duties as well rights in the community, in addition to its codification of peoples’ rights. The American Declaration on the Rights and Duties of Man and The Inter-American Convention on Human Rights which entered into force in 1978 and are overseen by the Inter-American Commission on Human Rights. Both the Declaration and Chapter 2 of the Convention list a range of civil and political rights that echo those in the UDHR. The Convention includes the right to reply to “inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication” (Art. 14) and the freedom of movement and residence (Art. 22). The Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights (the Protocol of San Salvador) adds the protection of economic, social and cultural rights including the right to education and the appropriate aims of education (Art. 13), the right to the benefits of scientific and technological progress and recognises a requirement of respect for the freedom indispensable for scientific research and creative activity as well as the international cooperation necessary to foster work in these fields (Art. 14), and the right to just, equitable, and satisfactory conditions of work which include the right to follow one’s vocation and be promoted according to qualifications and competence (Art. 7). The Inter-American Court of Human Rights was established in 1979 to interpret and enforce the Convention. The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is a Council of Europe (COE) treaty which entered into force in 1953. The ECHR, along with its protocols, is the most important human rights instrument of the European regional system [1]. It is overseen by the European Court of Human Rights in Strasbourg and the Council of Europe. Akin to the ICCPR, the ECHR protects the right to freedom of thought, conscience and religion (Art. 9) and the right to freedom of expression (Art. 10), as well as the right to freedom of assembly and association (Art. 11). Other provisions include the right to liberty and security of person (Art. 5) and protection against attacks on personhood by protecting the right to life (Art. 2) and prohibiting torture, inhuman or degrading treatment or punishment (Art. 3). Protocol No. 4 (Art. 2) adds the right of freedom of movement and of residence and the right to leave any country (including one’s own). The Committee of Ministers of the COE also created a Steering Committee for Higher Education and Research (CDESR); a pan-European forum for representatives from the academic community to meet with representatives from Higher Education Ministries. The Parliamentary Assembly adopted Recommendation 1762 (2006) Academic Freedom and University Autonomy through the work of the CDESR and the Committee on Culture, Science and Education. The recommendation reaffirms the right to academic freedom and university autonomy stating, that “…history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation.” The recommendation then outlines the rights and responsibilities of universities and academics while calling for academic freedom to be guaranteed by law, preferably by national constitutions (para.7). The European Social Charter (ESC) is a treaty of the Council of Europe adopted in 1961 and revised in 1996 which guarantees a number of social and economic rights including the right to education (Art. 17.2), the free movement of persons (Art. 18.4), and the right to work (Art. 1). The European Committee of Social Rights (ECSR) is responsible for monitoring compliance in States Parties. In December 2000, EU leaders, the European Commission and the European Parliament proclaimed the Charter of Fundamental Rights of the European Union. The Charter sets out the range of civil, political, economic and social rights of European citizens and all persons resident in the EU. Specifically the Charter states: “The arts and scientific research shall be free of constraint. Academic freedom shall be respected” (Art. 13). This article has been incorporated into the draft constitution for Europe. The constitution has not yet been ratified however. Middle Eastern and Asian Human Rights Systems The Arab-Middle Eastern system of human rights is less extensive and less established than the other regional systems. There is an Arab Charter on Human Rights, first drafted in 1994 then redrafted and adopted at the Summit of Heads of Member States of the League of Tunis in 2004. States and NGOs have expressed reservations concerning the text of the charter stating that several of its provisions are not consistent with international human rights standards or laws [2]. The Asian region does not have a single uniting legal document for human rights. Asia-Pacific NGOs, the Asia-Pacific Forum on National Human Rights Institutions, and the Asian Human Rights Commission all focus on human rights in the region and aim to create a regional document. NGOs have created several lead documents such as the Bangkok NGO Declaration of Human Rights in 1993 and an Asian Human Rights Charter in 1997. While these efforts mark important steps forward, a comprehensive regional human rights system is not yet in place [3]. A number of regional academic conferences, non-governmental and intergovernmental organisations have issued statements recognizing specific elements of academic freedom and university autonomy as well as the rights and obligations of scholars, universities, governments and other authorities. This section catalogues some of the statements that have been most influential in setting standards concerning academic freedom and autonomy. The Lima Declaration on Academic Freedom and Autonomy of Institutions of Higher Education, approved by the General Assembly of the World University Service (WUS) in 1988, was drafted in response to an increasing “tendency to undermine, restrict, or suppress academic freedom and autonomy of institutions of higher learning in Third World countries [4].” The declaration includes the right to fulfill all academic functions without discrimination or interference, the right to become part of the academic community, the right to maintain contact with counterparts anywhere in the world, and the freedom of association (Art. 3, 5, 8, 12). The Lima Declaration also recognises that professional standards create responsibilities and obligations corresponding to academic freedom (Art. 13). The Declaration also includes several provisions on the importance of university autonomy requiring institutions of higher education to be independent from the national government and other authorities when addressing issues such as finances, internal organisation, education and research policies, and administration (Art. 1). The Lima Declaration also states that the right to education “can only be fully enjoyed in an atmosphere of academic freedom and autonomy of institutions of higher education” (Preamble). Like the Lima Declaration, the Dar es Salaam Declaration and the Kampala Declaration were drafted in response to threats to academic freedom and autonomy in specific geographic regions. The Dar es Salaam Declaration was adopted in Dar es Salaam, Tanzania, at a workshop sponsored by the Council for the Development of Economic and Social Research in Africa (CODESRIA). The Kampala Declaration was also agreed on by participants of a symposium organised by CODESRIA and extended the statement of academic rights to the entire African continent [5]. Both of the African declarations placed the struggle for academic freedom and autonomy in the specific context of the authoritarianism and socio-economic crisis then occurring throughout the African continent [6]. Both declarations focus on the connection between academic freedom and civil and political rights. The Kampala Declaration focuses on the rights the intellectual community including that freedom of movement shall not be restricted due to intellectual opinion, belief or activity. The Declaration addresses university autonomy, obligations of the state to the intellectual community, and the social responsibilities of the academics. It also emphasises that African states are party to international and regional human rights instruments (Preamble). Scholars in the Middle East have also met to discuss academic freedom in the context of economic and political challenges. The Amman Declaration on Academic Freedom and the Independence of Institutions of Higher Education and Scientific Research was the result of a 2004 conference of academics and university presidents organised by the Amman Center for Human Rights Studies (ACHRS) which advocates for human rights and democracy in Jordan and the Arab world. The Declaration emphasises the importance of both academic freedom and autonomy in the context of scientific research (Para.1,2). The Declaration recognises a tendency, “[i]n most Arab countries” to tailor “[s]cientific curricula, programmes and projects” in order to promote “narrow-minded policies and the goals of protecting the regime and the monopoly of power” (Introduction). Under the Amman Declaration, governments are obliged to respect the independence of and to increase the resources available to institutions of higher education and scientific research (para. 1,7). Universities have the responsibility to promote the economic and social needs of their communities and to support members of the Arab academic community whose rights are threatened (para. 11, 12). University autonomy is promoted by encouraging the administrators of institutions of higher education to operate the institutions democratically and to select their own academic staff (para. 1, 5). The Declaration also recognises scholars’ rights to travel (Principle 4), to maintain contact with international counterparts (Principle 13), to benefit from the result of scientific research and to ensure that research is not restricted in its dissemination (Principle 13), and to form professional associations (Principle 6). The Bologna Magna Charta Universitatum was also drawn up as part of an academic conference, and focuses on the tradition of autonomous institutions of higher education (particularly European universities), the rights historically afforded to these institutions, and the preservation of those rights despite economic and social change. The Magna Charta was drafted by delegates of European universities and was signed by university rectors who attended the 900th anniversary ceremony of the oldest European university, University of Bologna, in 1988 in Italy [7]. Since the ceremony, more than 600 higher education institutions, primarily European but also American, Asian, African, and Australian, have signed the document. In doing so, they agree to do everything possible to encourage governments to base their academic principles on the policies affirmed by the Magna Charta. The Fundamental Principles proclaimed by the document state that “a university is the trustee of the European humanist tradition,” that universities are autonomous institutions, and that freedom in research and training are indispensable to the traditional role of the university (Fundamental Principles 1, 3, 4). The 1940 Statement of Principles on Academic Freedom and Tenure drafted by representatives of the American Association of University Professors (AAUP) and the Association of American Colleges (AAC) was one of the first statements to promote academic freedom. The statement expressly recognises the importance of academic freedom in colleges and universities, emphasising that institutions of higher education exist for the public benefit rather than for the benefit of individual scholars or institutions (Introduction). It extends academic freedom to teachers, researchers and any other investigator affiliated with an institution of higher learning (Introduction, n. 1). The statement promotes the component rights and freedoms that compose academic freedom such as full freedom in research and publication, freedom in classroom discussion, freedom from censorship when scholars are speaking or writing as citizens, and the right to permanent or continuous tenure after a probationary period (Para. a-c, Academic Tenure). The 1940 Statement makes clear that academic rights involve corresponding responsibilities. Compliance with the statement is monitored by the AAUP. The representatives of six staff associations of higher education in Tanzania [8] adopted The Dar es Salaam Declaration in Dar as Salaam, Tanzania, at a workshop sponsored by the Council for the Development of Economic and Social Research in Africa (CODESRIA). The Declaration’s geographic coverage is limited to Tanzania and is structured so as to be endorsed by staff associations or student organisations at Tanzanian universities (para. 52). The Dar es Salaam Declaration covers, amongst others, the rights and freedoms that comprise academic freedom, the obligations of the State administration, the autonomy of institutions of higher education and the social responsibilities of both institutions and academics (para. 2, 3, 4). In 2006, in cooperation with the Iraqi Teachers’ Union, the ACHRS organised a conference on academic freedom that focused specifically on Iraqi universities [9]. At the conclusion of the conference’s second session in Amman, Jordan in 2006 the Baghdad-Amman Declaration on Academic Freedom in Iraqi Universities was released. The Baghdad-Amman Declaration echoes the Amman Declaration (mentioned above) by requiring governments to respect institutional autonomy and to allocate resources to strengthen higher education and scientific research (para. 7, 11). Under the Baghdad-Amman Declaration, universities are obligated to independently develop policies without the influence of outside organisations, to outline clear rules for electing university presidents, and to encourage cooperation among local, regional, Arab, and international organisations in order to facilitate the exchange of scientific and research knowledge (para. 5, 6, 12). In addition to protections at the international and regional level, academic freedom and university autonomy find legal protection at the national and subnational levels. We briefly outline four categories of protection at these levels here. In some cases, academic freedom and university autonomy are explicitly protected in the text of the national constitution. The South African Constitution, for example, states that “everyone has the right to freedom of expression, which includes…freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research” (Chapter 2, Section 16). In the Philippines, the Constitution states that “Academic freedom shall be enjoyed in all institutions of higher learning” [10]; whilst the Constitution of Japan simply states that “Academic freedom is guaranteed” [11]. The United States constitution protects freedom of speech but does not provide explicit protection of academic freedom; however, academic freedom has found a place in court decisions on freedom of speech and in the surrounding discourse [12]. In thirteen EU nations academic freedom is explicitly protected in the constitution, while eight EU countries guarantee the autonomy or self-governance of higher education institutions [13]. Where a written constitution exists, it is primarily the task of the highest court in the nation (usually the Supreme Court) to interpret these provisions on behalf of the citizens. Whether or not academic freedom does not find explicit protection in a national constitution, measures may be taken to include provisions relating to academic freedom in statutory laws and in higher education legislation in particular. For example, a 2005 law in Rwanda which governs higher education states that: “Higher learning institutions shall enjoy autonomy in the areas of teaching, research, administration and management of their human and material resources.”[14] In Indonesia, a higher education law issued in 1989, followed by a government regulatory decree issued in 1990, included guarantees for academic freedom and scientific autonomy [15]. The 1989 Higher Education Act in New Zealand states that “academic freedom and the autonomy of institutions are to be preserved and enhanced.” In Europe, with the exception of Greece and Malta, all EU nations have some specific legislation relating to higher education referring to academic freedom and/or university autonomy [16]. The 1988 Education Reform Act in the UK, for example, states that “academic staff have freedom within the law to question and test received wisdom.”[17] Departments or Ministries Higher Education often play a vital role in focusing the national attention on key issues, as well as recommending and participating in the drafting and creation of higher education legislation with specific reference to academic freedom. International human rights must be protected and promoted at the national level. Countries can adopt international human rights law (the conventions and covenants) directly into national legislation through what is typically called a Human Rights Act. Therefore, the workings of international monitoring committees and courts (see Part C) will have great significance for the evolving levels and types of protection afforded in individual nations. As international standards are clarified and expounded upon, the same is required of national standards. Individual states have the additional option of adopting legislation independent of international conventions and covenants but which abides by and secures international standards. Many countries have established National Human Rights Institutions (NHRIs) of which there are three general types: human rights commissions, ombudspersons, specialised institutions. United Nations standards for NHRIs were set out in the 1993 Paris Principles. There are approximately 120 such bodies around the world [18]. NHRIs frequently review bills and legislation put forward by government to assess their conformity with international human rights standards, facilitate the ratification or accession of a state to international human rights treaties, investigate human rights concerns, monitor government fulfillment of international and regional human rights standards, and educate the public about international human rights law [19]. A human rights commission is generally, though not exclusively, a national institution which is concerned primarily with the protection of civil rights from infringement by the government. Human rights commissions systematically review a government’s human rights policy and help to monitor state compliance with international standards. The Australian Human Rights Commission, for example, holds public inquires into issues that are of national concern and provides advice to courts and to the government. The office of an ombudsperson is most commonly mandated to be an impartial mediator between the government and individuals who claim their human rights have been violated. For example, the mission of the Human Rights Defender of the Republic of Armenia facilitating and contributing to the improvement of legislation related to human rights and fundamental freedoms, and bringing Armenian legislation in line with the norms and standards of international law. A state may also establish a specialised institution to protect and advocate for the rights of minorities and other vulnerable groups. The institution will generally investigate claims of discrimination though it is rarely empowered to make a legally binding decision. Protection for academic freedom and university autonomy does not end at the national level. In some countries ombudsman offices exist only at the subnational level (e.g. Canada, India and Italy). In nations with federal constitutions, legislation protecting academic freedom within higher education may be passed at a regional or local, rather than federal level [20]. In some instances, regional and local laws have incorporated international human rights law directly as domestic legal standards, for example in 1998 the United States city of San Francisco adopted the standards of CEDAW as its municipal law [21]. Administrative districts and other subnational institutions may also possess the autonomy to implement standards. In Bosnia and Herzegovina, for example, the two levels of subnational government, cantons and municipalities, have their own legislative branches. In contexts such as these, where sub-national institutions hold a great degree of autonomy, local parliaments or district councils will often provide the first avenues of redress for individuals whose academic freedom has been violated. Conclusion Existing international, regional, national and sub-national standards and instruments provide strong foundational support for the defense of academic freedom. Some argue, however, that the threats that scholars and universities continue to face despite these existing standards demonstrate the need for an international legal instrument specific to academic freedom and university autonomy[22]. The debate continues. In the meantime, advocates of academic freedom and university autonomy should be well-acquainted with the standards and instruments already at hand and learn to use them effectively in their work. In Module C, we examine the mechanisms in place to use these standards and instruments effectively in defense of academic freedom. --------------------------------------------------------- |
