Academic Freedom as a Human Right

Academic Freedom as a Human Right? Facing up to the Illiberal Challenge Presented by: Mrs. Uitz Date: 9 February 2021 The Illiberal Challenge - Do pharmaceutical corporations have human- rights responsibilities to make medicines available to poor communities? - 'Illiberal democracy' (Zakaria 1997): • More or less democratically elected leaders using the vocabulary and procedures of constitutional democracy – to self-perpetuate:  Centralize and arrogate executive powers,  Diffuse constitutional accountability mechanisms,  Thwart criticism, contestation and the need for compromise,  Eradicate pluralism and diversity in politics and society. - Usual suspects: • Judicial reforms (packing constitutional courts, reforming judiciaries), • Undercutting parliament's lawmaking and inquiry powers, turning professional civil service to a loyal collaborators, • Media reform (ownership) to amplify the regime's message, • Shrinking civil society, demonizing human rights defenders ... The Illiberal Challenge – to Academic Freedom - Old news: • Respected universities opening campuses in 'illiberal democracies' (Gulf, Singapore) (Koch 215) - New news: • Higher education reforms by populist and illiberal political actors around the word (Brazil, Hungary, Poland, Russia, Turkey - also India ...) - with strong anti-intellectual undertones - Techniques: • Persecution of prominent dissenters in academia, • Silencing of prominent dissenters (e.g. non-renewal of contracts) • General mission: to halt illiberal indoctrination - through reforms  Undermining university self-government (autonomy)  Institutional changes through funding • NB: anti-elitism as about elite replacement + nurturing a new Zeitgeist What is Academic Freedom Anyway? - - Fuzzy and elusive concept: • "Complicated idea with limited application" (Scott 2019) • Ideal, aspiration, value, principle, institutional precondition • Possibly a human right (UN SR 2020, ECtHR) • EU CFR 13: "Academic freedom shall be respected." • Sayers 2014: unclear what 'academic freedom' in and what respecting it means Definitional conundrum: • Professional and legal / constitutional / human rights concept (Post 2015) • Caught between individual and institutional dimensions (institutional right, university autonomy, positive obligation) • - - UN SR 2020: institutional protection may restrict the right Elements of a definition: • An individual right of professionals (Post; Barendt 2010, CH 19) • Depends on collective and institutional environment • Different from freedom of expression - activity (research) • More than freedom of expression - collective dimension Practical limits: • International instruments and constitutions do not mention it expressly • When they do: it is a duty / state responsibility • Most courts rely on soft law - and wait for the ECtHR • Professional definitions (university associations, institutional autonomy, not the human right angle charters) emphasize Waiting for the ECtHR? - Robust protection of freedom of expression by academics: • So long as it contributes to the public discourse / addresses issues of general interest (Mustafa Erdogan v. Turkey (2014)) • Covers protection for academic publications (Baskaya and Okcoglu v. Turkey (1999), Sapan v. Turkey (2010)) • - Also covers access to information (research) (Kenedi v Hungary (2009)) Troubled by institutional aspect: • Sources of survey research as university property (Gillberg v. Sweden (2012)) • Illegally installed cameras in the classroom - quasi-public space / expectations of privacy (Antovic and Mirkovic v. Montenegro (2017)) CJEU to the rescue? - C-66/18: Hungarian higher education law ("lex CEU")) • 228: .... the measures at issue are capable of endangering the • academic activity of the foreign higher education institutions 233: the measures render uncertain or to exclude the very possibility of founding a higher education institution, or of continuing to operate an existing higher education institution, in Hungary" - AG Kokott's opinion: • 144: "[t]he legal rule regarding the conclusion of an international treaty does not limit that freedom directly. It is nevertheless likely to deprive academics working at the universities concerned of the infrastructure needed to exercise academic freedom" So: What is Academic Freedom About? - Obvious: about generating new knowledge • - Research university is "designed to be unsettling" (Cole 2015) One of the rebel rights: • Critical inquiry – and the institutional infrastructure that supports is (Butler 2009, 2017) - Point and purpose of academic freedom in a constitutional democracy: - • To build democratic competence through critical inquiry (Post) • As one of the counter-majoritarian tools (Ignatieff 2018) Three-way compact (Butler 2018): • "The state must accept the academic freedom of institutions and agree to restrain itself from intervention " Way Forward - - Develop the concept of academic freedom as a human right: • Building on its conceptual core as one of the rebel rights • Account for the interplay of its individual and institutional dimension Mobilizing existing elements of human rights jurisprudence – against illiberal practices: • Emphasis on the protection of critical inquiry - not just professional standards in teaching • Highlight the "watchdog function" • Much closer scrutiny of legitimate aims • Identify arbitrary government action (open political discretion) • Account for the chilling effect of institutional reforms • Be mindful of procedural hurdles: victim status A Word on Chilling Effect - Chilling effect is about anticipating the impact of particular rules or state action on the behavior of individuals • Well-developed in free speech jurisprudence • Only works when the local context is accounted for (how the law is applied by national authorities, impact of campaigns of intimidation and demonization) - In the context of academic freedom, the illiberal chilling effect is not silence: • It is about shying away from doing research that involves critical inquiry that is uncomfortable for the government • Research that supports illiberal policy making is welcome by these regimes • So is cutting edge since - that does not hold them accountable