No abstract

Using comparative data from 28 states within the European Union, this paper is a comprehensive assessment of the protection for, and (by extension) the health of, academic freedom in the universities of the nations of the European Union. The paper, extending previous work in this area, adopts a ‘bottom-up’ approach utilising 37 specific parameters that relate to international treaties, and national, constitutional, and legislative protection for academic freedom, along with legal regulations concerning institutional governance, the appointment of the Rector, and the existence of academic tenure, in order to create a composite picture of the health of academic freedom in the universities within the European Union nations

Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights protects the right of everyone to enjoy the benefits of scientific progress and its applications (REBSPA). While the interpretation of this provision has not really been a focus of attention in the past, this is changing. A danger lies in construing this provision as entitling states to comprehensively regulate the field of science, at the expense of scientific and academic freedom. Scientific or academic freedom, rather than state regulation, guarantees creativity and innovation in the field of science for the benefit of society at large. This article raises four caveats to guide all those tasked with interpreting Article 15(1)(b) – specifically, the UN Committee on Economic, Social and Cultural Rights, right now preparing a General Comment on Article 15(1)(b). Firstly, it is crucial to have conceptual clarity of, and understand the differences between, the REBSPA, freedom of science, academic freedom, freedom of expression, and the right to education. Secondly, science, by its very nature, is not susceptible to being managed. An ‘adequate’ framework for science should limit state intervention and empower the scientific fraternity. Thirdly, regulation has lately often entailed the adoption of a corporatist approach to science in universities and research institutions. This damages science. Fourthly and finally, UNESCO's recent Recommendation on Science and Scientific Researchers of 2017 constitutes only an imperfect blueprint to guide interpretation of the REBSPA. It fails to address various threats (impact agenda science, peer review, ethical regulation, entrepreneurialisation, accountability excess, absence of rights of participation in governance, and so on) to scientific and academic freedom. Relying throughout on the notion that a science system must be ‘adequate for science’, the article concludes with a set of 22 recommendations on how the REBSPA should be construed so as to duly respect scientific and academic freedom. The current science regime needs to be fundamentally rethought in the light of such freedom. Otherwise – and many experts concur – we shall soon witness the fatal collapse and disintegration of modern science. Freedom as a pillar of science, and of the REBSPA, is in danger of being lost.

Focusing on those countries that are members of the European Union, it may be noted that these countries are bound under international human rights agreements, such as the International Covenants on Civil and Political, and Economic, Social and Cultural Rights or the European Convention on Human Rights, to safeguard academic freedom under provisions providing for the right to freedom of expression, the right to education, and respect for ‘the freedom indispensable for scientific research.’ unesco’s Recommendation concerning the Status of Higher-Education Teaching Personnel, a ‘soft-law’ document of 1997, concretises international human rights requirements to be complied with to make the protection of the right to academic freedom effective. Relying on a set of human rights indicators, the present article assesses the extent to which the constitutions, laws on higher education, and other relevant legislation of eu states implement the Recommendation’s criteria. The situation of academic freedom in practice will not be assessed here. The results for the various countries have been quantified and countries ranked in accordance with ‘their performance.’ The assessment demonstrates that, overall, the state of the protection of the right to academic freedom in the law of European states is one of ‘ill-health.’ Institutional autonomy is being misconstrued as exhausting the concept of academic freedom, self-governance in higher education institutions sacrificed for ‘executive-style’ management, and employment security abrogated to cater for ‘changing employment needs’ in higher education.