Abstract
INTRODUCTION
When we talk about knowledge, we talk about a prerequisite for the flourishing of society. Scholarship and international organisations have recognised that knowledge is pivotal to promote a democratic society 1 and for development. 2 Yet academic freedom, a paramount right for the adequate protection of knowledge, is under increasing threat around the world. 3 In many countries, academics are feeling less able to teach, publish, and research in a manner that is free from government interference. In other countries, harassment and reprisals against universities, students, researchers, and lecturers are more explicit and even amount to physical threats, detention, and violence. 4
To give an example of this in the American region, the NGO Aula Abierta alongside Venezuelan university human rights centers and bodies documented that at least 339 university students and 17 professors were arbitrarily detained during the 2017 protests because of their role in creating and disseminating knowledge. 5 Aula Abierta was able to highlight the vulnerability of the academic community by pointing out that the number of journalists attacked in the same period was close to 388. 6 It is clear that the situation in Venezuela reflects a broader global trend in this regard. On 29 March 2023, 72 permanent missions of States to the UN in Geneva released a joint statement in which it was recognised that attacks on academic freedom are on the rise. 7 It defined these attacks as repression, intimidation, and harassment of researchers and teachers in connection with their research and public statements as well as dissolution of research institutions and the establishment of restrictive legal or financial frameworks.
In this column, we argue that the right to academic freedom has not received sufficient visibility in the existing International Human Rights Law Framework, hindering adequate protection of knowledge and of the individuals who are most intimately engaged in its production and dissemination. 8 At the same time, we wish to highlight several key developments in Latin America that have sought to counter this trend, and might provide a blueprint for further action in different regional systems or in the international human rights system more generally.
LACK OF VISIBILITY OF ACADEMIC FREEDOM IMPEDES IDENTIFICATION OF ITS VIOLATION
Although it is now widely recognised that academic freedom is protected by the International Covenant on Economic, Social and Cultural Rights, the issue has still received relatively little attention by the Committee on Economic, Social and Cultural Rights (CESCR). This may be partly because the right is not mentioned in the Covenant's text as an autonomous right, but instead falls under the normative content of Articles 13 (right to education) and 15 (right to culture and science). In its General Comment 13 on the right to education (Article 13), the CESCR has made clear that the right to academic freedom is an integral part of the right to education. It has stated ‘the right to education can only be enjoyed if accompanied by the academic freedom of staff and students’. 9 It has also stated that ‘members of the academic community, individually or collectively, are free to pursue, develop and transmit knowledge and ideas, through research, teaching, study, discussion, documentation, production, creation or writing […]’. 10
The right to academic freedom also finds protection under the normative content of Article 15(3) of the CESCR, according to which the States Parties ‘undertake to respect the freedom indispensable for scientific research and creative activity’. Although this provision is formulated more as an obligation of States than a substantive right, in its General Comment 25 on science the Committee clarified that: This freedom includes, at the least, the following dimensions: protection of researchers from undue influence on their independent judgment; the possibility for researchers to set up autonomous research institutions and to define the aims and objectives of the research and the methods to be adopted; the freedom of researchers to freely and openly question the ethical value of certain projects and the right to withdraw from those projects if their conscience so dictates; the freedom of researchers to cooperate with other researchers, both nationally and internationally; and the sharing of scientific data and analysis with policymakers, and with the public wherever possible.
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Yet despite having made it clear that academic freedom needs to be protected, there remains a question as to whether the Committee considers academic freedom to be conceived as a dimension of the right to education or the right to science, or an autonomous right. In 2020, the United Nations Special Rapporteur for the Promotion and Protection of the Rights to Freedom of Opinion and Expression issued a report in which it held that academic freedom finds protection in the normative content of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) related to freedom of expression and opinion. 12 Most notably, the Rapporteuŕs report calls international human rights bodies to address academic freedom violations as autonomous violations, not a derivation of freedom of expression. 13 It stated: ‘treaty bodies should seek out cases of academic freedom and, when reviewing them, be sure to characterize interferences not only as a specific type of violation (for example, of freedom of expression) but as a violation of academic freedom itself’. 14 This was a very important development because it is our view that the practice of addressing violations of academic freedom under different rights (for example, right to education, right to freedom of expression, right to science) reduces its visibility and prevents national and international human rights bodies from properly identifying the level of vulnerability of the academic community. It also diminishes the need for States to implement special measures to address this vulnerability and identify the impact of the academic freedom violations on democracy itself.
In our view, it is no coincidence that in its first two reports on Venezuela the UN Fact-Finding Mission (FFM) called for the attention on the attacks to journalists but did not mention the academic community members as victims.
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In order to address this, Aula Abierta did a review of the profile of the cases taken as a sample by the FFM in its first two reports and found that university students were victims of:
arbitrary detentions in 47.8% of the cases documented in the 2020 report and 13. 5% of the cases documented in 2021; extrajudicial executions, in 45% of the cases documented in 2020 and 50% of those documented in 2021; forced disappearances in 25% of cases documented in 2020; and cruel, inhuman, and degrading treatment in 53% of the cases documented in 2020.
It also did not seem to be a coincidence that in the case of Urrutia Laubreaux v Chile, the Inter-American Court of Human Rights (IACtHR) failed to address academic freedom within its merit decision, despite the Amicus Curiae briefs that civil society organisations submitted pointing out that the main controversy of the case was related to a Judge who was dismissed from the Chilean Judiciary because in his role as a student he wrote an academic report criticising the role of the Judiciary during the Pinochet's dictatorship.
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While seeking to highlight the relative lack of visibility of the right to academic freedom, the purpose of this column is also to bring to light some positive developments in recent years that suggest that the right to academic freedom is gaining more visibility and clarity within the Inter-American system. First, the column will explain the importance of the Inter-American Principles on Academic Freedom and University Autonomy 17 adopted by Inter-American Commission on Human Rights (IACHR) in 2021. This is the first self-standing human rights document to formally recognise academic freedom as an autonomous and self-standing human right, 18 filling the gap that both the American declaration and the American convention left when they expressly did not mention it, even though they have rules that regulate it. Second, the column explains the important role that civil society organisations and academia itself played in the adoption of the Inter-American principles.
FILLING THE GAP: RECOGNITION OF AN ENABLING, INDEPENDENT, AND INTERDEPENDENT HUMAN RIGHT BY THE INTER-AMERICAN PRINCIPLES
The Inter-American Principles on Academic Freedom and University Autonomy are a unique set of human rights standards specifically aimed at defining academic freedom´s nature as a matter of law, its relevance for democracy, its relationship with other human rights, and the role of the university autonomy to assure academic freedom. Regarding their status as a matter of law, there is no doubt that they are soft law norms. The IACHR justified the issuance of the principles by invoking Articles 41.b of the American Convention on Human Rights and 18.B of its statutes, both referring to the IACHŔs ability to issue recommendations to member States of the American Convention on Human Rights in order to encourage them to adopt progressive measures in favor of human rights.
However, despite being non-binding, the principles represent a key milestone in further developing the manner in which the international human rights law framework protects knowledge and members of the academic community. The Principles expressly link academic freedom to democracy, emphasising that it enables its consolidation, pluralism of ideas, scientific progress, human and societal development, and the full guarantee of the right to education. They also explicitly identify that obstacles to academic freedom slow the advancement of knowledge, undermine public debate, and reduce democratic spaces. 19 The idea of academic freedom as an enabling human right inherent to democracy is articulated in a cross-cutting manner throughout the 16 principles. 20
It is also of crucial importance that the Inter-American Principles make clear that academic freedom is an independent and interdependent human right, which enables the exercise of a series of other rights, including the right to freedom of expression, the right to education, the right to freedom of assembly, freedom of conscience, and freedom of association, among others. 21 In this sense, the IACHR provides important clarification on the nature of academic freedom as a matter of law within the Inter-American system and offers a progressive approach when compared to the international human rights framework.
In addition, the Principles build upon the definition of academic freedom given by the CESCR's General Comments 13 and 25 mentioned above and the Lima Declaration, in which academic freedom was defined as the freedom of members of the academic community, individually or collectively, in the pursuit, development, and transmission of knowledge, through research, study, discussion, documentation, production, creation, teaching, lecturing, and writing.
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Therefore, as a result of the provisions mentioned above, the Principles are able to provide protection to members of the academic community, even while they perform activities related to their academic tasks outside the campuses or even while offering their academic views on issues not strictly related to the university. The importance of this aspect was seen in the case of Professor Miguel Orozco, who was arbitrarily expelled from his position as the head of the Research and Health Studies Centre of the National Autonomous University of Nicaragua (CIES by its acronym in Spanish) after he criticised, from an academic perspective, the Nicaraguan Government health policies on the Covid-19 pandemic in 2020. 27 Likewise, members of the Academy of Physical, Mathematical and Natural Sciences in Venezuela were the target of threats by the Venezuelan authorities after the publication of a report warning of a possible new outbreak of Covid cases. 28 The protection of scholars beyond the campus is fundamentally important as scholars can often suffer reprisals when shedding light on issues of public interest from an academic perspective, like the wrong management of the COVID-19 Pandemic and its impact on the health of the citizens.
Secondly, a key contribution of the Principles is to state that students, faculty, academic staff, and researchers are ‘subject to special vulnerability in non-democratic contexts’ and ‘therefore require special protection’ due to their research and their role in the dissemination of critical thinking, especially when engaging in the discussion of public interest. 29 By taking this approach, the Principles push to consider the academic community as a group under special vulnerability in non-democratic contexts, as it has been done with other groups of individuals such as journalists or human rights defenders. 30 This makes it less likely that national and international human rights bodies will miss documenting violations against students, faculty, academic staff, and researchers missing in their monitoring work. However, the aforementioned provisions are not intended to imply that academic freedom cannot also be violated in democratic contexts.
ENGAGING ACADEMIA AND CIVIL SOCIETY WITH ACADEMIC FREEDOM
A second development that we find important to highlight in this column is the role that civil society and academia played in the adoption process of the Principles, both by initially highlighting the need for them and in its drafting process.
Civil society organisations played a particularly crucial role in raising awareness among national and international human rights bodies in the years before the Principles were adopted. Indeed, it was very important that their monitoring processes identified academic freedom violations as autonomous claims and that they were denounced as such. As a result of their advocacy, years before the adoption of the Inter-American Principles, the IACHR started addressing academic freedom in its reports. In its country reports for Venezuela 31 and Nicaragua 32 the IACHR held that academic freedom and university autonomy are essential to the enjoyment of the right of education but most important, to democratic society.
Another crucial force in the advocacy effort that led to the drafting of the Principles was the engagement of academia itself, as the main drivers of the generation of scientific knowledge and stakeholders that can be entrusted to hold views driven from academic expertise. In this regard, university human rights centers and academic civil society organisations have played a key role. For instance, Aula Abierta, Scholars at Risk (SAR) and the Human Rights Clinic of the University of Ottawa carried out human rights research and submitted claims before the IACHR. In 2019 they requested that the IACHR hold a public hearing to address the challenges to academic freedom in the Americas and consider how the academic community is targeted by the States. The public hearing was granted during the 171 period of sessions of IACHR, where IACHŔs President recognised the need to create Inter-American standards to properly protect academic freedom in the region, following the concerns expressed by the IACHŔs Special Rapporteur on Freedom of Expression and Economic, Social, Cultural and Environmental Rights. 33 This need was ratified by the commissioners during the 175 period of sessions. 34
In addition, the importance of academic networks and the engagement of academia in the process of advancing these standards was also evident in the drafting process of the Inter-American Principles on Academic Freedom, as Aula Abierta, SAR, and the Human Rights Centre of the University of Ottawa were delegated to submit comments and participate in the debate on the preliminary version, in the framework of the Academic Specialized Network of Technical Cooperation of the IACHR. 35 The final document was the object of debate by the IACHŔs Commissioners and adopted in December 2021.
Before concluding this section, we find it relevant to add that although the Principles are a significantly important document, there are considerable challenges in ensuring that they are implemented that need to be faced and acknowledged. For instance, out of the 35 States members of the Organization of American States, only Ecuador recognises academic freedom expressly at the constitutional level and only seven States recognise it expressly at the legal level (Bahamas, Bolivia, Canada, Chile, Ecuador, Dominican Republic, and Mexico). Undoubtedly, the adaptation of domestic law to minimum standards on academic freedom cannot be postponed.
CONCLUSION
The constant attacks against scholars and universities globally shows a pressing need to reinforce the protection of knowledge and critical thinkers. In this sense, the adoption of a set of Principles on Academic Freedom by the IACHR contributes to promoting a clear approach of academic freedom as an autonomous human right that plays an enabling role in ensuring democracy and the development of societies. Furthermore, they contribute to promoting the need for special protection for the academic community due to its role in the generation and dissemination of knowledge. The Inter-American experience shows that the progressive attention to academic freedom by national and international human rights bodies is only possible with the engagement of civil society organisations and academia in the process.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.