Is academic freedom a human right?
In earlier steps in this course, we discussed how core higher education values, including academic freedom, are informed by international human rights law (along with UNESCO instruments, civil society statements, and good practices in higher education).
What does that mean? Is academic freedom a human right?
This question is asked a lot. And the answer can be confusing.
What are “human rights”?
What are “human rights”? The term is used in two ways. Many people use the term “human rights” to describe a wide range of claims to protection against being harmed, or in support of being granted certain benefits that should be given to all human beings. For example, everyone might claim a “human right” to clean air or water. This general meaning of the term is useful for public discussion and debate, but lacks the force of legal protection.
The term “human rights” is also has a more narrow, legal meaning. This meaning refers to a set of legal claims to protection and benefits that are anchored in internationally recognized human rights statements, treaties and instruments. These include especially the United Nations Universal Declaration of Human Rights (1948) and two subsequent treaties, the International Covenant on Civil and Political Rights (ICCPR, 1966) and the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966). (Together these three are sometimes called the “International Bill of Rights.”) This meaning of the term includes legal obligations on states and their agents to respect human rights, to protect people in their territories against human rights violations, and to promote human rights.
So, is academic freedom a human right?
Although the term “academic freedom” does not expressly appear in these documents, much of the meaning of academic freedom is covered by the protections included in these instruments. These include, for example, protections for the freedom of opinion, expression and belief (ICCPR Art. 19); the right to education (ICESCR Art. 26); or the right to freedom from discrimination based on age, gender, religion, race, or other grounds (UNESCO, Convention against Discrimination in Education (1960)).
A professor who is punished by the state for the content of an academic paper, for example, might have a claim for an academic freedom violation, most likely brought under provisions protecting freedom of expression. A university department that is barred by the state from teaching climate science or evolutionary science might have a claim for an academic freedom violation, most likely brought under provisions guaranteeing the right to education or the right to the benefit of scientific progress (ICESCR Art. 15).
Other aspects of academic freedom, however, might not be protected by international human rights principles. These depend instead on domestic legal or policy protections, or on recognized good practices within the international higher education sector. Tenure or other systems for guaranteeing academic employment, for example, may play an important role in creating conditions under which academics can exercise academic freedom, but these systems themselves are not likely to be recognized as human rights.
So, is academic freedom a human right? The answer is yes, sometimes it is. Sometimes? How do we know when? How do we know when conduct or expression is protected by academic freedom? And when it is not? We will discuss this in future steps.
What about other core higher education values? Are they human rights?
Other core higher education values, like institutional autonomy or accountability, are also unlikely to be recognized directly as human rights. These also depend more on domestic legal or policy protections, or on recognized good practices within the international higher education sector. Revisions to a national higher education law that changes the way university rectors are selected, for example, or revisions to university admissions policies or fee structures, would generally be addressed under domestic laws, policies or good practices in the sector. These examples are not likely to be recognized as human rights.
However, sometimes actions relating to other core higher education values might trigger human rights protections. This is because, as we discussed earlier, all five core values are interrelated. So actions that threaten institutional autonomy or accountability might also threatened the parts of academic freedom that are protected by human rights.
A decision by a state to close a university because of budget issues or poor management, for example, probably would not trigger human rights protections. But the same decision to close a university might violate human rights principles if it was intended to punish peaceful academic or student expression, or to punish ethnic or other minorities by denying them access to higher education.
So, are other core higher education values human rights? The answer is generally no, but sometimes action that violates those other values also violates human rights principles protecting academic freedom.
Sometimes protected? Is that the best answer we can give?
“Sometimes” is a frustrating answer. But it is difficult to give a more precise answer to the question of whether academic freedom and other core higher education values are human rights because, generally speaking, human rights legal standards relating to academic freedom are underdeveloped.
This is especially true compared to other human rights issues, like freedom of movement or torture, for which there have been many legal cases brought and interpretive decisions issued by human rights committees and courts.
There are a few reasons for this. First, until recently, the large number of attacks on academic freedom globally each year was not well documented (Free to Think 2018).
Second, attacks on academic freedom often take place with violations of other rights, under which legal claims are brought. Imagine, for example, a professor is arrested and mistreated in custody because of a paper he published or a lecture she delivered. A human rights lawyer might typically bring a claim for wrongful detention or torture, without mentioning academic freedom. But publishing the paper and delivering the lecture are protected by academic freedom. The lawyer could also bring a claim for violation of academic freedom. This could give the client an extra basis for relief in the legal case. It might also provide evidence of motive and intent that strengthens the claim for violations of the other rights (in the examples, wrongful detention or torture) by showing why the professor was arrested or mistreated, and showing it was because of the content of the paper or lecture.
This gets to the third reason human rights legal standards related to academic freedom are underdeveloped. There may be a lack of familiarity with academic freedom issues among human rights lawyers. If they do not understand the issues, they are unlikely to bring cases claiming academic freedom violations, so the law does not get clarified.
This lack of familiarity is understandable. As we discussed in earlier steps in this course, there are different views about the origin and scope of academic freedom, even among academics.
Those who hold the “traditional” view draw most heavily from 19th and early 20th century understandings of academic freedom, and the university itself. This view treats academic freedom as a guild right. A guild right is a privilege enjoyed by people practicing a certain profession (in this case academic research and teaching) that persons outside the profession do not enjoy. People holding this view of academic freedom may not think of academic freedom as a human right (in part because the history on which their view happened before the evolution of modern human rights principles). And if they do not think of academic freedom as a human right, they are unlikely to ask their lawyers to bring human rights cases claiming academic freedom violations.
The contemporary or “socially-engaged” view of academic freedom is different. It draws most heavily from late 20th century and early 21st century understandings of academic freedom and the university. These understandings include modern human rights principles which have evolved since 1948, beginning with the International Bill of Rights and in later instruments, systems and practices. People holding this view of academic freedom might be more likely to think of academic freedom as a human right. As more people begin to adopt this view of academic freedom, we can expect more cases being brought, and the human rights legal standards relating to academic freedom will develop.
Where do we go from here?
In the coming steps, we will continue to explore the difference between academic freedom and human rights. We will explore especially the confusion between academic freedom and freedom of expression, a human right. This confusion goes directly to the question of “What questions are too dangerous to ask?” and “Who gets to ask them?” To try to make sense of these questions, we will look at examples to try to understand which types of actions –what conduct or expression by members of the higher education community– are protected by academic freedom, by free expression, by both, or by neither.
For now, let us know what you think in the comments. Do you think academic freedom is a human right? Should it be? Why, or why not?
© Scholars at Risk, Inc. 2017-18