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Academic Freedom and Its Protection in the Law of European States Measuring an International Human Right

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Academic Freedom and Its Protection in the Law of European States Measuring an International Human Right european journal of comparative law and governance 3 (2016) 254-345 brill.com/ejcl Academic Freedom and Its Protection in the Law of European States Measuring an International Human Right Klaus D. Beiter Associate Professor, North-West University (Potchefstroom Campus), Faculty of Law, South Africa [email protected] Terence Karran Professor of Higher Education Policy, School of Education, University of Lincoln, uk [email protected] Kwadwo Appiagyei-Atua Senior Lecturer, University of Ghana, School of Law, Ghana [email protected] Abstract 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 * Klaus D. Beiter, B.Iur. LL.B. (unisa, Pretoria), Dr. iur. (lmu Munich). The author wishes to thank the European Commission for its award of a Marie Curie Intra-European Fellowship under its Seventh Framework Programme for research funding, enabling the author to com- plete work on the project ‘Safeguarding Academic Freedom in Europe’ at the University of Lincoln, uk. † Terence Karran, B.Sc. (Economics and Sociology) Joint Honours, Aberystwyth, PhD Govern- ment, University of Manchester. ‡ Kwadwo Appiagyei-Atua, LL.B. (Univ. of Ghana, Legon), BL (Ghana School of Law), LL.M. (Dalhousie Univ., Canada), DCL (McGill Univ., Canada). The author wishes to thank the European Commission for its award of a Marie Curie International Incoming Fellowship un- der its Seventh Framework Programme, enabling the author to complete work on the project ‘Building Academic Freedom and Democracy in Africa’ at the University of Lincoln, uk. © koninklijke brill nv, leiden, 2016 | doi 10.1163/22134514-00303001 <UN> Academic Freedom in the Law of European States 255 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 edu- cation, 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 assess- ment 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. Keywords academic freedom – institutional autonomy – self-governance – tenure – international human rights law – unesco Recommendation concerning the Status of Higher- Education Teaching Personnel of 1997 – legal protection of academic freedom in eu states 1 Introduction In two articles published in 2007 and 2009, respectively, Terence Karran had analysed whether the then 23 Member States of the European Union provided a high, medium or low level of protection of the right to academic freedom,1 alternatively, whether they complied fully, partially or not at all with it.2 Karran chose parameters of measurement based on notably unesco’s Recommenda- tion concerning the Status of Higher-Education Teaching Personnel of 1997. He considered his assessment to be a preliminary one 1 T. Karran, ‘Academic Freedom in Europe: A Preliminary Comparative Analysis,’ Higher Edu- cation Policy 20(3) (2007) 289–313. 2 T. Karran, ‘Academic Freedom in Europe: Reviewing unesco’s Recommendation,’ British Journal of Educational Studies 57(2) (2009) 191–215. european journal of comparative law and governance 3 (2016) 254-345 <UN> 256 Beiter, Karran and Appiagyei-Atua in that it addresses the constitutional and legislative frameworks in rela- tion to academic freedom, thereby establishing the basis for subsequent empirical work to examine how the concept is interpreted and perceived by academic staff undertaking their day to day work within Europe’s universities.3 The latter day-to-day experience of academic freedom by academic staff in Eu- ropean universities is indeed currently being scrutinised by the authors, and will be reported on in subsequent publications. However, little did the authors know at the time of Karran’s assessment that the ‘redesigning’ of higher educa- tion (‘he’) in European countries – and the concomitant modification of he legislation this would entail – would be pursued at such a speed and with such a vehemence. National constitutions and he laws in Europe continue emphasising the importance of the right to academic freedom. A closer look at the detail of he law, however, reveals that the eloquent commitments to academic free- dom contained in bills of rights or the introductory sections of he laws in truth increasingly merely pay lip-service to this important right once held in esteem in most parts of Europe. Ever since Karran has published his find- ings, there have been significant changes in the legislation on he in many European countries, enhancing levels of autonomy (or, what policy-makers consider to constitute autonomy) of he institutions, and limiting the extent to which academic staff are involved in the governance (or ‘management,’ as it has become accustomed to be called) of institutions, reducing the scope of their participation in strategic decision-making, while simultaneously in- creasing that of rectors (rectorates) (and deans/heads of departments) and external ‘experts.’ Moreover, the law regulating conditions of employment of academic staff in he is more and more guided by notions of ‘flexibilisa- tion,’ legitimising the conclusion of fixed-term contracts of service (without long-term perspectives) also at post-entry levels of the academic career, and assuring that contracts of service can be terminated on operational grounds without restraint. Hence, in the light of these circumstances – and before commenting on the assessment of the de facto situation of academic freedom in Europe – it is meaningful to undertake a renewed assessment of the state of health of the right to academic freedom in the law of the now 28 eu Member States,4 relying 3 Karran (n 1) 289. 4 It may well be asked why the article does not rather focus on states in their capacity as Member States of the Council of Europe, which as a regional organisation focuses on the european journal of comparative law and governance 3 (2016) 254-345 <UN> Academic Freedom in the Law of European States 257 essentially on the standards of unesco’s Recommendation. This article relies on the parameters of the right to academic freedom used by Karran (i.e., 1. the protection of ‘academic freedom’ in the constitution or other legislation, 2. the autonomy of institutions of he, 3. academic self-governance, and 4. academic tenure), adding a fifth: the ratification of international agreements relevant to the protection of the right to academic freedom. The analysis has, moreover, been refined by defining 37 specific indicators to measure compliance by indi- vidual states. The focus, naturally, has been on defining human rights indica- tors, i.e. indicators operationalising the requirements of the right to academic freedom as protected under international human rights law. The approach has been to accord a numeric value to each indicator in accordance with its relative weight as adjudged under international human rights law. Adding up the scores of states for each of these values makes it possible to rank states regarding five core aspects, but also overall in their protection of the right to academic freedom. As for the structure of the article, Part 2 outlines the nature of the require- ment of legislation applied in assessing the ‘legal’ protection of the right to academic freedom. Part 3 comments on the right to academic freedom as protected under international human rights law. Part 4 focuses specifically on unesco’s Recommendation concerning the Status of Higher-Education Teach- ing Personnel of 1997 and its provisions on academic freedom. Part 5 touches on the issue of the legitimacy of using indicators and rankings in determining compliance with human rights standards. Part 6 presents the standard score- card developed ‘to measure’ the legal protection of the right to academic free- dom in each of the 28 eu states. Part 7 refers to the modus operandi applied and some of the practical difficulties encountered in the assessment exercise. Part 8 reflects the results of the actual assessment for each of five main cat- egories of assessment (incorporating the five parameters mentioned above), and also overall, for eu states. Based on the results, Part 9 then comments on the state of health of the legal protection of the right to academic freedom in Europe, and Part 10 explains the extent to which the findings may be viewed as reflecting violations of the right to academic freedom and also
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