In his criticism of my view on academic freedom, Klaus Beiter touches upon some puzzles of academic freedom (1). I want to make some observations on these puzzles, explaining in the process where I think Beiter has misunderstood me and where I believe his views are debatable.
The first puzzle is that neither intellectual freedom nor freedom of scientific research nor academic freedom is explicitly mentioned in the International Covenants. Intellectual freedom, however, is clearly implied in Article 19 ICCPR—the freedoms to hold and express opinions. I have not seen this questioned. The term “freedom of scientific research” is not used in the Covenants either, but Article 15.3 ICESCR speaks of “freedom indispensable for scientific research.” While there is no real problem in shortening this formula to freedom of scientific research, Beiter abbreviates it to “freedom of research.” This is questionable because not all research is scientific. I myself abbreviated it to “scientific freedom,” which on closer scrutiny is also problematic because scientific freedom can be construed as a concept larger than freedom of scientific research. Academic freedom finally, is not mentioned implicitly or explicitly in the Covenants. For Beiter, academic freedom is included in “freedom of research.” He writes: “One should not confuse ‘academic freedom’ with ‘freedom of research.’ The latter includes academic freedom (…)”. In this view, academic freedom would be the name for freedom of scientific research when applied to academics. I agree but only in part because Beiter’s view is solely based on the distinction academic/non-academic. Another view is possible. That other view is based on the distinction research/teaching. Viewed as such, academic freedom is not exhaustively included in freedom of scientific research; it rather overlaps with it for the research component but not for the teaching component. Academic freedom as a guarantee for teaching is covered by the rights to education (Article 13 ICESCR) and free expression. I believe this other view is just as valid as that defended by Beiter. In short, the relationship between intellectual freedom, freedom of scientific research and academic freedom is more complex than Beiter assumes. The fundamental reason for this is the lack of conceptual clarity in the Covenants.
Beiter repeatedly argued that the right to education is the “single and complete locus” for academic freedom. If this were so, why, then, does he assert that it is a part of the freedom of scientific research, which is itself not part of Article13 but of Article 15.3 ICESCR? In contrast to Beiter, I believe that much research conducted at universities and academies has no educational component at all because it is directed at the discovery rather than the transmission of knowledge. To call all academic research part of education merely because it takes place at “higher-education institutions” is to stretch the meaning of education beyond acceptable limits. Let us now look closely at Article 13 ICESCR. It formulates education as a right of the educated only but nowhere as an explicit right of the educators. (Implicitly, of course, educators’ rights are necessary for the exercise of the rights of the educated.) Furthermore, Article 13 refers to the goals of, and access to education, but says little about teaching, let alone teaching at higher-education level, and nothing about research. In short, Article 13 is essential but incomplete. To cover the full academic freedom spectrum, we also need other human rights, like free expression.
A certain historical myopia may be at play here. Why? In 1999, the Committee on Economic, Social and Cultural Rights issued its General Comment on Article 13. Several paragraphs were devoted to academic freedom. But the Committee’s work on Article 15—containing the rights to culture and science—has barely begun: hitherto, only General Comments on copyright (15.1.c) and the right to culture (15.1.a) have been issued, but those on the right to benefit from science (15.1.b) and on the state duties regarding the promotion of science, respect for freedom of scientific research and international contacts (Articles 15.2–15.4) are still lacking. When they appear one day, they will evidently contain passages on academic freedom—exactly like the comment on education did. The first signs are already there in the documents preparing the ground for these future Comments. In 2013, for example, the UN Special Rapporteur for Cultural Rights “recall[ed] that several human rights provisions protect academic freedoms.” (Note, in passing, the plurals: provisions, freedoms.) From a historical perspective, then, it is premature to state that academic freedom solely depends on the right to education.
In part 2, I will discuss the degree to which various human rights determine academic freedom and the issue of the right to academic travel. In part 3, constitutional protections for academic freedom will be considered as well as the diverging views of UNESCO and the Committee on Economic, Social and Cultural Rights regarding academic freedom.
(1) See Klaus Dieter Bieter, “The doctrinal place of the right to academic freedom under the UN covenants on human rights—A rejoinder to Antoon de Baets” in University Values Bulletin, December 2013, a response to De Baets in University Values Bulletin, May 2012, itself a rejoinder to Beiter in University Values Bulletin, July 2011.