'Measuring' the erosion of academic freedom as an international human right: a report on the legal protection of academic freedom in Europe.

• Author: Beiter, Klaus D.
• Position: Abstract through III. Developing a Standard Scorecard 'to Measure' the Right to Academic Freedom in Europe, p. 597-631

ABSTRACT

This Article reports and comments on the results of an assessment of the legal protection of the right to academic freedom (an examination of its factual protection to be undertaken at a future point) in EU member states, having examined these countries' constitutions, laws on higher education, and other relevant legislation. The assessment relied on a standard scorecard, developed by utilizing indicators of protection of academic freedom, notably as reflected in UNESCO's Recommendation concerning the Status of Higher-Education Teaching Personnel, a document of 1997 that is not legally, but "politically" binding, and which concretizes international human rights requirements in respect of academic freedom-a right under international human rights law. The results for the various countries have been quantified, and the countries have been ranked in accordance with "their performance." Overall, the state of the legal protection of the right to academic freedom in Europe appears to be one of "ill-health." Increasingly, European countries are merely paying lip service to this important right. While the concept of institutional autonomy is being misconstrued, self-governance in higher education institutions and employment security are being subjected to rigorous processes of erosion.

TABLE OF CONTENTS I. INTRODUCTION II. THE RIGHT TO ACADEMIC FREEDOM UNDER INTERNATIONAL HUMAN RIGHTS LAW AND UNESCO'S RECOMMENDATION CONCERNING THE STATUS OF HIGHER-EDUCATION TEACHING PERSONNEL OF 1997 III. DEVELOPING A STANDARD SCORECARD "TO MEASURE" THE RIGHT TO ACADEMIC FREEDOM IN EUROPE A. The "Legal" Protection of the Right to Academic Freedom: The Requirement of Legislation B. The Provisions on Academic Freedom in UNESCO's Recommendation Concerning the Status of Higher-Education Teaching Personnel of 1997 C. The Scorecard IV. MODUS OPERANDI AND PRACTICAL DIFFICULTIES ENCOUNTERED IN THE ENDEAVOR V. THE LEGAL PROTECTION OF THE RIGHT TO ACADEMIC FREEDOM IN EUROPE: THE RESULTS OF THE ASSESSMENT A. The Ratification of International Agreements and Constitutional Protection B. The Express Protection of Academic Freedom in Higher Education Legislation C. The Protection of Institutional Autonomy in Higher Education Legislation D. The Protection of Academic Self-Governance in Higher Education Legislation E. The Protection of Job Security (including "Tenure") in Relevant Legislation F. The Legal Protection of the Right to Academic Freedom in Europe: Overall Results VI. ANALYSIS AND OBSERVATIONS: THE STATE OF HEALTH OF THE LEGAL PROTECTION OF THE RIGHT TO ACADEMIC FREEDOM IN EUROPE VII. VIOLATIONS OF THE RIGHT TO ACADEMIC FREEDOM AND THE RIGHT TO EDUCATION TABLES 1. Standard Scorecard "to Measure" the Right to Academic Freedom 2. Table 1: Country Ranking: Ratification of International Agreements and Constitutional Protection 3. Table 2: Country Ranking: Express Protection of Academic Freedom in Higher Education Legislation 4. Table 3: Country Ranking: Protection of Institutional Autonomy in Higher Education Legislation 5. Table 4: Country Ranking: Protection of Academic Self-Governance in Higher Education Legislation 6. Table 5: Country Ranking: Protection of Job Security (including "Tenure") in Relevant Legislation 7. Table 6: Legal Protection of the Right to Academic Freedom in Europe: Overview of Total Scores and Results in Main Categories of Assessment 8. Table 7: Overall Country Ranking: Legal Protection of the Right to Academic Freedom in Europe I. INTRODUCTION

This Article builds on earlier research that undertook a preliminary comparative analysis of the right to academic freedom in Europe. At the time, Terence Karran had analyzed whether twenty three member states of the European Union provided a high, medium, or low level of protection of the right; (1) alternatively, he analyzed whether they complied fully, partially, or not at all with parameters (2) of measurement based on UNESCO's Recommendation concerning the Status of Higher-Education Teaching Personnel of 1997. In the meantime, there have been significant changes in the legislation on higher education (HE) in many European countries, which have enhanced levels of autonomy (or, what policymakers consider to constitute autonomy) of HE institutions and have limited the extent to which academic staff are involved in the administration (or "management," as it has come to be called) of institutions, which has reduced the scope of their participation in strategic decision-making, while, simultaneously increasing that of rectors or rectorates, deans and heads of departments, and external "experts." Moreover, the law regulating conditions of employment of academic staff in HE is more and more guided by notions of "flexibilization," which legitimizes the conclusion of fixed-term contracts of service (without long-term perspectives) even at post-entry levels of the academic career and assures that contracts of service can be terminated on operational grounds "without undue restraints." It appears paradoxical, therefore, that national constitutions and HE laws all the same continue emphasizing the importance of the right to academic freedom. In light of these circumstances, it is meaningful to undertake a renewed assessment of the state of health of the right to academic freedom in Europe, relying essentially on the standards of UNESCO's Recommendation. (3)

Karran considered his assessment to be a preliminary one. (4) This Article relies on the parameters of the right to academic freedom used by Karran (the protection of "academic freedom" in the constitution or other legislation, the autonomy of institutions of HE, academic self-governance, and academic tenure) and adds a fifth: the ratification of international agreements relevant to the protection of the right to academic freedom. Furthermore, this Article refines the analysis by defining thirty-seven specific indicators to measure compliance by individual states. The focus, naturally, has been on defining human rights indicators (i.e., indicators operationalizing the requirements of the right to academic freedom as protected under international human rights law). The indicators chosen will thus purposively not measure whether HE reforms in the countries concerned comply with requirements of economic or managerial efficiency, as such criteria are irrelevant in--and, in any event, subordinate to--a human rights approach that is binding on all the states considered in this assessment. The approach has been to accord a numeric value to each indicator in accordance with its relative weight as adjudged under international human rights law. Adding up the scores of states for each of these values not only makes it possible to rank states regarding the five core aspects but also to rank them overall in their protection of the right to academic freedom.

This Article is written in the context of a larger project on the right to academic freedom conducted at the University of Lincoln, United Kingdom, examining the doctrinal basis of the right to academic freedom in terms of international human rights law and further assessing the level of protection of that right in various regional contexts, concentrating on the European and African contexts for the moment. The Article looks at the legal protection of the right to academic freedom in Europe (i.e., its protection in the legislation of twenty-eight EU member states). (5) It presents an overview of the findings and some observations on the purport of these for the state of health of the legal protection of the right to academic freedom in Europe. The factual protection of the right--inter alia as a result of institutional, faculty and/or departmental regulations, policies, and customs--will be analyzed in subsequent publications, relying primarily on the results of an online survey on academic freedom carried out in Europe in 2015. (6) An overall picture of the situation of the right to academic freedom in Europe, to be sure, will have to take account of the findings with regard to both its legal and factual protection.

2. THE RIGHT TO ACADEMIC FREEDOM UNDER INTERNATIONAL HUMAN RIGHTS LAW AND UNESCO'S RECOMMENDATION CONCERNING THE STATUS OF HIGHER-EDUCATION TEACHING PERSONNEL OF 1997

   With higher-education teaching personnel in mind, "academic freedom" has been described as:

   [T]he right [of such personnel], without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies. All higher-education teaching personnel should have the right to fulfil their functions without discrimination of any kind and without fear of repression by the state or any other source. (7) Apart from such freedom of teaching, freedom in carrying out research, etc., "academic freedom" in HE--in a comprehensive sense--covers at least three additional aspects, namely self-governance in HE by the academic community, employment security (including "tenure"), and the autonomy of institutions of HE, all of which will be described more fully in the discussion that follows. The various rights thus entailed by "academic freedom" must, however, be interpreted in the light of special duties and responsibilities for staff and students as well as the fact that a proper balance between the level of autonomy enjoyed by HE institutions and their systems of accountability should be ensured. (8)

   In his chapter on the right to education in the first major textbook on economic, social, and cultural rights in international law, Manfred Nowak in 1995 still had to concede that international law largely neglected the topic of academic freedom and institutional autonomy. (9) This remains true today to the extent that...