Some Puzzles of Academic Freedom (Parts 2 and 3)

In part 1 of this post, published in the University Values bulletin in July 2014, I argued that by not explicitly mentioning intellectual freedom, freedom of scientific research and academic freedom, the two international human rights covenants lack conceptual clarity. I also took issue with Klaus Beiter’s assertion that art. 13 ICESCR (the right to education) is sufficient as a conceptual base for academic freedom.(1) I argued that Beiter suffers from historical myopia. I will therefore now discuss the degree to which various human rights determine academic freedom and add a note on the particular issue of the right to academic travel. I will then consider constitutional protections for academic freedom as well as the diverging views of UNESCO and the Committee on Economic, Social and Cultural Rights regarding academic freedom.

Part 2.

The degree to which various human rights determine academic freedom. In an earlier contribution (2), I defended the view that academic freedom is sustained by some human rights directly and by others indirectly. The direct determinants, I argued, were the rights to free thought, free expression and information, peaceful assembly and association and the prohibition of hate speech (arts. 18–22 ICCPR) and the rights to education, culture and science (arts. 13–15 ICESCR). On further reflection (space restrictions do not allow for a full explanation here), I would now also like to add art. 17 ICCPR, the rights to privacy and reputation, to these direct determinants. The indirect determinants—I called them preconditions—were the remaining human rights. For Beiter, the indivisibility of human rights means that while all human rights (can) influence academic freedom to an equal degree, paradoxically it is still possible to call education (art. 13 ICESCR) the “single and complete locus” for academic freedom. Beiter tries to refute my direct/indirect determinants view as follows: “[A]ttacks on the liberty and security of university staff and students or their physical integrity, honour and reputation are so widespread that it would be a mockery not to describe these as assaults on academic freedom itself, specifically as the human rights violations concerned occur precisely because of academic content supported by scholars.” Beiter erroneously thinks that my direct/indirect determinants approach obscures a large part of the assaults on academic freedom, namely those engendered by what I called preconditions. In order to reason like this, he must equate “preconditions” with “no conditions at all.” It is not because I describe freedom from murder or torture as preconditions for academic freedom rather than direct determinants that I neglect their roles as causes of academic freedom violations. The opposite is the case. In a recent essay, “Political Murders of Historians (1945–2014),” I calculated on a case-by-case basis that worldwide 214 historians and history producers were killed for political reasons after 1945. I also estimated that the deaths of one out of four of these history producers killed for political reasons had some substantial relationship to their historical (including academic) work. (3)

The right to academic travel. Beiter reproaches me that I do not take into account the right to academic travel. At first sight, he has a point here. Let us also recall a major finding of the 1986 study by John Ziman and others, The World of Science and the Rule of Law (4). They wrote: “With only one exception—the lack of a right to enter a country of which one is not a citizen, for professional scientific purposes—all the rights necessary for the free and effective pursuit of science are already covered by the existing international code of human rights law” (italics in original). This finding contains two parts: an exception and a conclusion. First a word about the conclusion itself. It is a radical conclusion since it states that, on the condition that all human rights of scholars are respected, we can abolish the concept of academic freedom: there is no need for such a special claim by the academic profession. Note, in passing, that Ziman emphasizes all human rights and not only the right to education, as Beiter does.

Now the exception about academic travel. If we agree that the right to enter a country of which one is not a citizen is basically covered by the freedom of movement (arts. 12–13 ICCPR), although the latter does not specifically talk about “professional scientific purposes,” then we can drop the exception. Beiter would surely agree with this. Be that as it may, one could argue that the importance of the right to academic travel has fundamentally changed since the publication of Ziman’s study almost 30 years ago, given that today we can email, skype and access internet archives. Scholars who in the past did not benefit from international contacts because they were unable to travel for economic or political reasons have alternative channels now. But this will not be my argument here. It will be that, contrary to what Beiter and Ziman think, the right to academic travel is included in my direct determinants of academic freedom, because it is strongly implied in art. 15.4 ICESCR, which says: “The States Parties…recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.” This amounts to much the same as arts. 12–13 ICCPR and it is specifically designed for scientists. In short, I concur with Beiter that the right to academic travel, is crucial. And I would even add that, unfortunately, many states frequently abuse exit and entry visa policies as instruments of censorship and so neglect their international obligations in this regard.

Part 3. Constitutional protections. Not surprisingly, the diffuse presence of the idea of academic freedom in the Covenants is reflected in its diffuse presence in the world’s constitutions. Scholars at Risk prepared a revealing graph presenting “Constitutional protections for academic freedom,” (5) in which three categories of countries are distinguished: those whose constitutions explicitly guarantee academic freedom (21 countries, at the time the graph was produced), those who directly guarantee elements of academic freedom (99 countries), and the remaining 76 countries whose constitutions indirectly guarantee academic freedom (that is, via other rights). I note in passing that, like me, Scholars at Risk finds a direct/indirect determinants approach (which I defended above) useful.

I have three observations about the graph. In contrast to what one may expect, the list of 21 countries with constitutions explicitly guaranteeing academic freedom—the top category—is not very reassuring. There are several notorious violators of academic freedom among them: pick the examples yourselves or compare the list with the countries discussed in the recent report of the Global Coalition to Protect Education from Attack, Education under Attack 2014 (6). The list is telling in a second respect. Several of the countries in the top category introduced explicit constitutional guarantees for academic freedom after excruciating periods of repression and conflict (for example, Spain, Japan, El Salvador, Tunisia), ostensibly because their universities had been among the first casualties at the time. Lastly, it is striking that most consolidated democracies do not (yet) provide explicit constitutional guarantees for academic freedom: some directly guarantee elements of academic freedom while others guarantee academic freedom via other rights.

A last surprise. In the passages devoted to academic freedom in its General Comment on the Right to Education of 1999, referred to in part 1 of this post, the Committee on Economic, Social and Cultural Rights (CESCR) writes that its observations apply to higher-education institutions in particular, but then somewhat mysteriously adds: “The Committee wishes to emphasize, however, that staff and students throughout the education sector are entitled to academic freedom.” This is a baffling statement since elsewhere in its General Comment the CESCR seems to endorse the definition of academic freedom given by UNESCO in art. 27 of its 1997 Recommendation Concerning the Status of Higher-Education Teaching Personnel. Although the CESCR does not quote this definition in its entirety, it discusses several of its elements and refers to the Recommendation itself. The CESCR, however, is ostensibly developing its own view on academic freedom rather than adopting the UNESCO one, which sees academic freedom as applicable to “higher-education personnel” only. I think that the CESCR overstretched its hand here. It is already a matter of controversy whether students in higher education enjoy the same degree of academic freedom as lecturers and researchers (the Recommendation does not mention academic freedom for students), and it is even more questionable to allocate academic freedom to secondary-school textbook authors or teachers, let alone their students, and even far more so, to primary-school teachers and their pupils.

The Covenants contain several inconsistencies and gaps, undoubtedly the product of the drawn-out negotiation process during which they were first drafted in the 1950s. The authoritative General Comments struggle with these same inconsistencies and gaps. We already pointed to the lack of conceptual clarity in part 1. Fortunately, in one of the most enlightened passages of its General Comment on the Freedoms of Opinion and Expression of 2011, the Human Rights Committee recognized that “The Covenant does not permit general prohibition of expressions of an erroneous opinion.” We all benefit from the right to err.

Notes

(1) Antoon De Baets, “Some Puzzles of Academic Freedom, Part 1,” University Values (July 2014); Klaus Dieter Beiter, “The Doctrinal Place of the Right to Academic Freedom under the UN Covenants on Human Rights—A Rejoinder to Antoon de Baets” University Values (December 2013), a response to De Baets in University Values (May 2012), itself a rejoinder to Beiter in University Values (July 2011).

(2) Antoon De Baets, “The Doctrinal Place of the Right to Academic Freedom Under the UN Covenants on Human Rights—A Rejoinder,” University Values (May 2012).

(3) Antoon De Baets, “Political Murders of Historians (1945–2014),” in Stefan Berger, ed., Historians as Engaged Intellectuals (New York / Oxford: Berghahn, forthcoming [2015]). For similar findings, see Antoon De Baets, “Archivists Killed for Political Reasons,” Comma: International Journal on Archives, 2013, no. 2, 123–134 (published with delay in 2015)].

(4) John Ziman, Paul Sieghart and John Humphrey, The World of Science and the Rule of Law: A Study of the Observance and Violations of the Human Rights of Scientists in the Participating States of the Helsinki Accords (Oxford: Oxford University Press, 1986), 10.

(5) Scholars at Risk, “Constitutional Protections for Academic Freedom” (version January 2014; http://scholarsatrisk.nyu.edu/Documents/SAR_AF_Constitutions_Pyramid.pdf).

(6) Global Coalition to Protect Education from Attack, Education under Attack 2014 (New York: GCPEA, 2014; http://www.protectingeducation.org/education-under-attack-2014).