"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: IV. Modus Operandi and Practical Difficulties Encountered in the Endeavor through V. The Legal Protection of the Right to Academic Freedom in Europe E. The Protection of Job Security (including "Tenure"

4. MODUS OPERANDI AND PRACTICAL DIFFICULTIES ENCOUNTERED IN THE ENDEAVOR

   The assessment of the legal protection of the right to academic freedom in Europe undertaken here considers only public institutions of HE and, among these, only universities. (113) The right to academic freedom naturally needs also to be respected in private institutions of HE, though there may be differences in the scope of that right in that context. (114) Infringements of academic freedom further seem more prevalent in universities than, for example, polytechnics, which may not be as extensively involved in original research as universities. (115) These restrictions in the ambit of the inquiry were necessary in the light of limited human and time resources available to examine all relevant data. The analysis entailed an examination of thirty European HE systems. States with a federal structure in the field of HE required a particular approach. In the case of Belgium, the HE systems of Flanders and Wallonia were considered separately, omitting the German-speaking region. In the case of Germany, with different HE systems in each of the sixteen Lander, it has been decided to study the situation in the two Lander with the most inhabitants, Bavaria and North Rhine-Westphalia, one-third of Germany's population living in these Lander. The two HE systems also reveal interesting differences, both Lander traditionally having been governed by conservative and social-democrat governments, respectively. As Germany's Hochschulrahmengesetz (Framework Act on Higher Education) in its version of 1999 (116) is still on the law books (its abolition lingering on the political agenda), differences among the various HE systems, though increasing, remain within bounds. Where appropriate, developments in the other Lander have been taken note of. Regarding Spain, certain powers in the field of HE regulation rest with the autonomous regions. As for the United Kingdom, the situation in England has been studied primarily (more than 80 percent of the United Kingdom's population living there), giving some consideration to elements of the Scottish system.

   The actual legislation of EU states constituted the primary source of information for purposes of the assessment. Legislation as in force at the beginning of 2014 has been studied. (117) Where relevant language competencies existed (Dutch/Flemish, English, French, German, and Spanish), the original language versions of the legislation were consulted. In other cases, recourse was had to official or unofficial English-language translations that seemed reliable. In a few cases, no reliable English-language versions could be traced (Croatia, Greece, and Italy), probably because the states concerned had adopted new HE legislation relatively recently. In these cases, but also to take account of recent amendments to HE laws in the case of other states, online translation tools had to be utilized. (118) In all instances, it has been sought to verify the correctness of information by studying relevant secondary literature (journalistic and academic texts, and information available in online databases (119)) or information provided by states themselves. (120) It will be appreciated that coping with voluminous and diverse sets of legislation in different languages is a daunting task. An error margin of up to three percent is thus conceivable.

5. THE LEGAL PROTECTION OF THE RIGHT TO ACADEMIC FREEDOM IN EUROPE: THE RESULTS OF THE ASSESSMENT

   The following six headings provide a brief overview of state performance with regard to each of the five columns of the scorecard and overall. Each heading provides concise information on trends identified, some examples, and a country ranking in the form of a table. (121)

   1. The Ratification of International Agreements and Constitutional Protection

      All twenty-eight EU member states have ratified the ICCPR and the ICESCR of 1966. The United Kingdom is the only member state not to have ratified the Optional Protocol to the ICCPR of 1966. Claims under Article 19 on the right to freedom of expression alleging that the United Kingdom has violated academic freedom thus cannot be brought before the Human Rights Committee. In view of the recentness of the adoption of the Optional Protocol to the ICESCR in 2008, only eight states so far (Belgium, Finland, France, Italy, Luxemburg, Portugal, Slovakia, and Spain) have ratified it. The Optional Protocol to the ICESCR entered into force on May 5, 2013. (122) A number of states have expressed reservations with regard to Article 20 of the ICCPR, which prohibits "any propaganda for war" (Paragraph 1) and "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" (Paragraph 2). Malta and the United Kingdom reserve the right not to adopt legislation with regard to Article 20 as a whole. Belgium and Luxemburg do so as regards Article 20(1) on war propaganda. Ireland defers the right to adopt legislation on a specific criminal offense in the sphere of Article 20(1). Also Denmark, Finland, the Netherlands, and Sweden do not want to apply Article 20(1), with Finland stating that applying this provision "might endanger the freedom of expression referred [to] in article 19 of the Covenant." Reservations to Article 20 have not been considered to amount to "non-compliance" in the present analysis. As Jack Donnelly comments:

      Here the issue is balancing two competing human rights, rather than a conflict between human rights and another value. Any resolution will require restricting the range of at least one of these rights. Therefore, any approach that plausibly protects the conceptual integrity of both rights must be described as controversial but defensible. (123) The reservations expressed, it is submitted, should perhaps be understood in this context. Malta, however, has made a problematic reservation with regard to Article 22 of the ICCPR on the right to freedom of association, stipulating that it "reserves the right not to apply article 22 to the extent that existing legislative measures may not be fully compatible with this article." All EU member states are further bound by the relevant provisions of the ECHR, as amended and supplemented. (124)

      The constitutions of all EU member states (125) protect the right to freedom of expression. Express provisions are found in the (written) constitutions of twenty-seven countries. In the United Kingdom, this right should be considered part of that country's unwritten constitution. (126) Whereas the provisions of the Greek, Irish, and Romanian Constitutions are problematic ("partial compliance"), that of the Hungarian Constitution is seriously deficient ("noncompliance"). Article 14(3) of the Greek Constitution, for example, allows the seizure of newspapers and other publications in cases of "an offence against the Christian or any other known religion" or "an insult against the person of the President of the Republic." (127) The Hungarian Constitution substantially constrains political campaigning in non-public media and provides that freedom of speech may not violate "the dignity of the Hungarian nation" in Article IX(3) and (5), respectively.

      Express provisions on the right to academic freedom--in the form of a right to freedom of science (128)--may be found in the constitutions of eighteen countries. (129) These protect the right either as part of provisions (also) addressing the right to freedom of expression (Germany and Spain), (130) the right to education/educational rights (Austria, Finland, Greece, Italy, and Sweden), (131) rights related to science, arts, culture, universities, and research institutions (Bulgaria, Croatia, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia), (132) the right to freedom of thought, conscience, and religion (Czech Republic), (133) or both the right to education/educational rights and rights related to science, arts, and culture (Portugal). (134) The provisions contained in the Czech, Greek, and Hungarian Constitutions may he considered to be problematic ("partial compliance"). Regarding the Czech Republic, the right to freedom of thought, conscience, and religion provides too narrow a basis as to cover all aspects of the right to academic freedom. Article 16(8) of the Greek Constitution prohibits the establishment of private universities, thereby also preventing opportunities for diversified notions of academic freedom to flourish in different contexts. (135) Although academic freedom does require regulation, the provisions of Article X(1) of the Hungarian Constitution--also in the light of the Constitution's generally paternalistic, even authoritarian, stance--to the effect that the right to academic freedom is ensured "within the framework laid down in an Act" does not augur too well for the protection of that right.

      Express provisions on institutional autonomy are contained in fifteen constitutions (Austria, Bulgaria, Croatia, Estonia, Finland, North Rhine-Westphalia (Germany), Greece, Hungary, Italy, Lithuania, Poland, Portugal, Romania, Slovenia, and Spain), while provisions on self-governance are contained in only three (Bavaria (Germany), Portugal, and Spain). All of these are "fully compliant," except for Hungary's provisions on institutional autonomy, which must be held to be "non-compliant." (136) Article X(3) of the Hungarian Constitution provides that

      Higher education institutions shall be autonomous in terms of the content and the methods of research and teaching; their organization shall be regulated by an Act. The Government shall, within the framework of an Act, lay down the rules governing the financial management of public higher education institutions and shall supervise their financial management. (137) Finally, regarding the robustness of constitutional provisions, the question was whether the normative context of constitutions (values reflected by relevant...