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Academic Freedom: Lessons from Strasbourg LL.M. Paper Joseph Faculty of Law and Criminology Academic Year 2018-2019 Exam Session 1 Academic Freedom: Lessons from Strasbourg LL.M. Paper Joseph Finnerty Student number : 01803851 Promoter: Prof. Dr. Eva Brems Co-reader: Dr. Laurens Lavrysen ‘The trailblazers in human, academic, scientific and religious freedom have always been nonconformists.’ Martin Luther King, A Gift of Love: Sermons from Strength to Love and Other Preachings (Boston, Beacon Press 2012), p. 35 i Abstract The Global Forum on Academic Freedom, Institutional Autonomy, and the Future of Democracy will convene in Strasbourg on 20 June 2019. It shall bring together over 100 actors in the field of higher education to discuss the growing importance of the principles of academic freedom and institutional autonomy, in the proper functioning of a democratic society. This work constitutes a critical examination of the current level of protection for academic freedom, as a human right, within the Council of Europe Member States. More specifically, it shall delineate and critically assess the extent to which the principle is protected, and determine whether such protection is sufficient in ensuring the practical and effective enjoyment of academic freedom. It commences by offering a working definition of academic freedom, before identifying the theoretical and legal basis, underpinning the concept. It moves on to examine the jurisprudential element of the protection framework, analysing how the European Court of Human Rights has approached cases concerning the safeguarding of academic freedom. Then, it applies its findings to two case studies, which each evidence clear attacks on academic freedom, to further facilitate its conclusions – that more express and extensive protection of the principle is required in European human rights law moving forward. ii Acknowledgements My sincerest thanks must go out to Professor Eva Brems for her guidance and constructive criticism. I would also like to express my gratitude to Doctor Laurens Lavrysen for his supervision in the legal clinic, which inspired the basis of this work. I must also give a special thanks to Findlay for sharing his extensive knowledge, particularly regarding the events in Hungary. Further, my mother deserves the utmost appreciation for her unwavering support throughout my studies, ever in hope that this may at last be the final year. This work is dedicated to my late father, Christopher James Bernard Finnerty, his enthusiasm for all things legal continues to constitute the foundation of my motivation. iii Table of Contents Table of Abbreviations ..................................................................................................................... vi I. Introduction ................................................................................................................................ 1 A. Research Objective ...................................................................................................................... 2 B. Working Definition ...................................................................................................................... 2 C. State of the Art ............................................................................................................................. 5 D. Research Questions ...................................................................................................................... 5 E. Methodology, Scope and Structure .............................................................................................. 6 II. A Syllabus for Protection: Making the Case for Academic Freedom ................................... 8 A. Legal Theory Justifying Academic Freedom ............................................................................... 8 B. Discovering the Legal Basis for Academic Freedom Within the Council of Europe ................ 10 1. Legally Binding Authority for Academic Freedom ............................................................... 11 2. Authority for Academic Freedom from Other Auspices of the Council of Europe ............... 16 3. Academic Freedom Under Other International Instruments .................................................. 20 C. Conclusions on the Basis for Protection of Academic Freedom ............................................... 25 III. Lessons So Far: An Examination of Jurisprudence of the European Court of Human Rights ................................................................................................................................................ 26 A. First Lessons: Towards Recognition of Academic Freedom as a Human Right ....................... 27 B. Building Upon the Foundations: The Protection of Academic Freedom in More Recent Jurisprudence ..................................................................................................................................... 32 C. A Critique of the Recent Shortfalls in the Jurisprudence .......................................................... 38 D. Conclusions on the Relevant Jurisprudence Under the Framework .......................................... 42 iv IV. Textbook Violations of Academic Freedom: The Cases of Turkey and Hungary ............. 43 A. Case Study of Turkey: Systematic Violations of (Academic) Freedom .................................... 43 1. An Unprecedented Attack on Academic Freedom ................................................................ 44 2. Exhaustion of Domestic Remedies and the Safeguarding of Academic Freedom in Turkey 45 3. Applying the Protection Framework to the Peace Petition Signatories ................................. 47 B. Case Study of Hungary: In Defence of the Central European University ................................. 53 1. ‘Lex CEU’ .............................................................................................................................. 53 2. An Additional Hurdle: Exhaustion of Domestic Remedies and the Proceedings Before the CJEU .............................................................................................................................................. 54 3. Reviving CEU’s Presence in Hungary Through the Protection Framework ......................... 56 C. Conclusions on the Present Challenges in Turkey and Hungary ............................................... 58 V. General Conclusions ................................................................................................................ 60 Bibliography ..................................................................................................................................... 64 v Table of Abbreviations AComHPR African Commission on Human and Peoples’ Rights AAUP American Association of University Professors CESCR UN Committee on Economic, Social and Cultural Rights CFR EU Charter of Fundamental Rights CJEU Court of Justice of European Union COM Committee of Ministers of the Council of Europe Comm. Communication CoE Council of Europe ECHR Convention for the Protection of Human Rights and Fundamental Freedoms EComHR European Commission of Human Rights ECtHR European Court of Human Rights EEA European Economic Area EHEA European Higher Education Area ESC European Social Charter EU European Union FETÖ Fethullahist Terrorist Organisation HRC UN Human Rights Committee HRFT Human Rights Foundation of Turkey IACtHR Inter-American Court of Human Rights ICJ International Court of Justice ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights Inquiry Commission Turkish State of Emergency Inquiry Commission no. number vi PACE Parliamentary Assembly of the Council of Europe p./pp. page/pages para./paras. paragraph/paragraphs TCC Turkish Constitutional Court U.K. United Kingdom UNESCO United Nations Educational, Scientific and Cultural Organisation U.S. United States Venice Commission European Commission for Democracy through Law vii I. Introduction In the 12th century, Emperor Fredrick I Barbarossa of Germany and the Holy Roman Empire introduced decrees for scholars, ensuring them safe travel between European cities (Authentica Habita).1 600 years later, the European Enlightenment ensured academic independence from the church, consolidating the view of the need for institutional autonomy and academic freedom with regard to scholarly research.2 This independence transgressed from societal expectations into law, one of the earliest examples of which is the German recognition of the principles of Lernfreiheit (freedom to learn) and Lehrfreiheit (freedom to teach) in national legislation.3 Despite these deep historical roots, President Erdoğan of the Republic of Turkey ordered the closure of 15 universities in July 2016.4 This recent example, and condensed history lesson, serve to highlight the risk in overlooking academic freedom in European human rights law, namely a regression of the right. In addition to the closure of Turkish universities, due regard must be had to the mass dismissals of academics in Turkey, amounting to over 6,000 academics in the public sector alone.5 Such an assault on academic freedom is not isolated to Turkey. It is further evinced in the unjustified infringement upon institutional autonomy in Hungary, resulting in the predominant closure of the Central European University (“CEU”) within its territory.6 Moreover, a recent U.K. study has indicated that 35.5% of academics fear self-censorship, as a result of negative repercussions, such as loss of privileges; demotion; or
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