Kwadwo Appiagyei-Atua | The UNESCO General Conference adopted the Recommendation concerning the Status of Higher-Education Teaching Personnel (Recommendation) in 1997. The document was passed without a dissenting vote, with four countries issuing reservations.(1) This moment was a watershed in the evolution, consolidation and standardisation of the principles promoting academic freedom in the world. Yet, the Recommendation is generally considered to be non-binding simply because it has the judicial status of “soft law.”(2) “Soft law” refers to quasi-legal instruments which are hortatory and therefore lack legal binding force, but not legal significance because of the normative values they epitomise.
I make the following arguments to support the proposition that the Recommendation has had binding force from the beginning or at least has now attained that status.
First, the Recommendation derives its existence and validity in international law from a number of major international human rights instruments, including the Universal Declaration on Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Therefore, if parties to the 1997 Recommendation are parties to any of these international instruments out of which the former derives its source, existence and validity, then indirectly they could be held legally responsible to abide by the tenets of the Recommendation.
Secondly, the Recommendation requires Member States and higher education institutions to “take all feasible steps to apply the provisions spelled out [in the Recommendation] to give effect” to them.(3) This implies an obligation to respect the commitments made in the document. Taye Assefa, using the Recommendation to assess the state of academic freedom in Ethiopia, describes it “as an international standard-making instrument.” (4)
Finally, the Recommendation qualifies as customary international law. The contemporary method of identifying the maturation of customary law is enunciated in the 1986 International Court of Justice case of Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.).(5) This is discussed in detail by Anthea Roberts who argues, inter alia, that “… [M]odern custom is derived by a deductive process that begins with general statements of rules rather than particular instances of practice. This approach emphasizes opinio juris rather than state practice because it relies primarily on statements rather than actions. … Whether these texts become custom depends on factors such as whether they are phrased in declaratory terms, supported by a widespread and representative body of states, and confirmed by state practice.” (6)
Based on this deductive approach, it can be said that the “soft law” norms embodied in the Recommendation and representing the statement of rules or opinio juris have “hardened” to become customary international law as a consequence of state practice. In the case of African States, for example, a survey on the de jure application of the four main indicators of the UNESCO Recommendation – institutional autonomy, individual freedoms, self-governance and tenure – and a fifth – whether the constitution of the country recognises academic freedom – found that only Eritrea has not applied any of the 5 indicators in its domestic laws, while The Gambia conformed to one of the 5 indicators. The rest recorded more than 1, with more than 80% recording application of at least 3 of the indicators.(7) Thus, within these states, the indicators contained in the Recommendation have provided a model for domestic legislative reform, thereby constituting state practice. This state practice, in combination with opinio juris expressed in the Recommendation, elevates the Recommendation to the status of international custom, which is a legally binding source of law in the field of international law.(8)
* Marie Curie International Incoming Fellow, University of Lincoln, UK. This brief is made possible through an EU-sponsored Marie Curie grant to support the Building Academic Freedom and Democracy in Africa project.
(1) The reservations of Australia, New Zealand, Spain, and the United Kingdom, however, did not relate to the section on academic freedom. See ILO, “UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel, 1997. Text adopted by the 29th Session of the General Conference of UNESCO” (GB.271/LILS/9, 271st Session, Geneva, March 1998).
(2) For example, see Yves Daudet and Kishore Sing, “The Right to Education: An Analysis of UNESCO’s Standard-setting Instruments” (Paris, UNESCO, 2001) at 45.
(3) Para 74 of the UNESCO Recommendation.
(4) T. Assefa, (ed.), Academic Freedom in Ethiopia Perspectives of Teaching Personnel (Addis Abba: Forum for Social Studies, 2008).
(5) Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27).
(6) Anthea E. Roberts, “Traditional and Modern Approaches to Customary International Law: A Reconciliation” (2001) Vol 95 American Journal of International Law, 757.
(7) Appiagyei-Atua et al, “A Review of Academic Freedom in Africa through the Prism of the UNESCO 1997 Recommendation.” (Submitted for review towards publication).
(8) Article 38(1)(b) of the Statutes of the International Court of Justice.