Academic Freedom: a pending challenge within the International Human Rights Law Framework

by Ricardo Villalobos Fontalvo* and David Gómez Gamboa**

Albeit often not expressively mentioned, academic freedom is protected by the international human rights law framework. It has been 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.” (Lima Declaration on Academic Freedom 1988). Furthermore, it has been conceived as a key element for democracy itself and to advance economic and social development, as well as to achieve sustainable peace and prosperity (Utrecht Declaration on Academic Freedom). Yet, very little attention had been given to the latter by the international human rights bodies until a couple of years ago.

This contribution will argue the condition of academic freedom as a human right and the need for international standards on the topic. First, it will set the international normative grounds of academic freedom. Then, it will review the main current threats to academic freedom identified in Latin America. Third, it will address the recent interest in the subject by international human rights bodies. Finally, it will conclude by addressing the challenges in the drafting process of the academic freedom principles by the Inter-American Commission on Human Rights (IACHR).

Overview of the International legal framework

The United Nations Committee on Economic, Social and Cultural Rights (CESCR) held in its General Comment No.13 on the Right to Education that Academic Freedom is present in the normative content of Articles 13 of the International Covenant on Economic, Social and Cultural Rights (here, paras 38,39,40). Similarly, the Committee in its General Comment No. 25 referred to the States ‘obligation to fulfill scientific science (here, para 45).

Likewise, part of the scholarship is of the opinion that Articles 19 and 26 of the Universal Declaration of Human Rights, as well as Article 19 of the International Covenant on Civil and Political Rights (ICCPR), protects academic freedom. (Rajopal, pp. 27-28; Gómez-Gamboa p. 126). Finally, academic freedom is also protected by regional human rights instruments. The IACHR has held that XII of the American Declaration of the Rights and Duties of Man protects academic freedom (see here, para 458). Considering that Article 13 of the American Convention of Human Rights protects the right to freedom of expression, it could be argued that it also protects academic freedom, similarly to freedom of expression in the ICCPR.

In 2019, the Council of Europe issued a declaration on the topic. It recognized inter alia that academic freedom is pivotal for higher education to contribute to human rights and the rule of law. It also called to states to address violations of academic freedom in other member states. Finally, even though not mentioned, some literature provides that academic freedom finds protection within the normative content of Articles 9 and 17 of the African Charter on Human and Peoples‘Rights (Masingi, pp.49-50).

Threats to academic freedom: some patterns in Latin-America

Despite the solid normative grounds on academic freedom, it is alarming how global civil society organizations have documented (here) States´ failures to comply with the obligations to respect, protect and fulfill academic freedom. This section focuses on some of the main threats against academic freedom in Latin America, which has been documented (here) by the NGO Aula Abierta alongside university human rights centres from the region.

One example is the retaliation against scholars for their scientific research and reprisals for disseminating information on COVID-19. Such was the case of the members of the Venezuelan Academy of Physical, Mathematical and Natural Sciences (ACFIMAN) (here pp 29-33). In March 2020, the Academy issued a report in which it challenged the official numbers provided by the State on COVID-19 positive cases. In addition, it urged to increase the State´s capacity to test and track COVID-19 cases. As a backlash, Diosdado Cabello, President of the Constituent National Assembly publicly questioned the report and called in the Venezuelan Counter-Intelligence task forces to "pay the scientist a visit", without explaining further. Taking into account several concerns raised about the human rights violations committed by those task forces, the public reference made by Cabello seems more like a reprisal for the scholars' work.

The described case does not solely impact researchers´ rights. Harassing them promotes a chilling effect on the rest of the experts, preventing them to disseminate information about the pandemic or from engaging in the public policy discussion. This could exacerbate the health system crisis and deprives citizens of reliable information to critically assess state policies.

Another pattern is the reprisals against university scholars engaged in public debates and discrimination based on ideological bias. In 2018, the Nicaraguan Government implemented a tax reform that led to months of public demonstrations in which university students were actively engaged. The protests were severely repressed by the State, as the death of 317 people and other human rights violations were registered. Within this context, the Rector of Centro American University (Nicaragua) supported university students engaged in the protests, publicly criticized human rights violations of protesters, and the Government´s policies in the framework of a national dialogue process. In retaliation, he received death threats by official sympathizers. The seriousness of the threats led to a precautionary measure granted to him by the IACHR. In its reasoning, the IACHR noticed that the Rector faced threats to his life as a consequence of his support to university students engaged in the protest and his critical opinions against the Government in the context of the protest in Nicaragua (See paras 9,26 of the precautionary measure).

Finally, civil society organizations have identified the criminalization of university students and scholars who protest as another pattern. In an IACHR public hearing (See/34:00), Aula Abierta claimed that between 2017 and 2019 at least 450 students suffered reprisals while participating in the protest. Forced disappearances, extrajudicial killings, torture, and arbitrary detention were some of the reprisals. Furthermore, in the International Conference on Academic Freedom (May 2021), the UN Special Rapporteur for the Rights of Freedom of Peaceful Assembly and Association identified a global trend of reprisals against university students who peacefully demonstrate (see/2:05:23).

Advancing Academic Freedom before Human Rights Bodies

The existence of these concerning patterns, combined with the extensive research and advocacy work of CSO and scholars, have progressively brought academic freedom to the attention of international human rights bodies. The IACHR has recognized in its reports for Venezuela (para 458) and Nicaragua (paras 170-171) that academic freedom is essential to the fulfillment of the right of education but most important to democratic societies. A turning point was the public hearing about academic freedom and the autonomy of the higher education institutions in The Americas in the framework of the 171 periodical sessions of the IACHR (2019), where Esmeralda Arosemena de Troitiño, IACHR´s president at the moment, recognized the need to create Inter-American standards to properly protect academic freedom.

Recently, the UN Special Rapporteur on the Rights to Freedom of Opinion and Expression issued a landmark report on the topic. The report focuses on the freedom of opinion and expression as aspects of academic freedom and highlights academic freedom as a key element of democratic self-governance. Furthermore, it describes global trends on reprisals of academic freedom and calls states to refrain from attacks on academic institutions, academic groups, and to protect them from attacks of third parties (here, p.2).

Notwithstanding these advances, challenges remain. For instance, in the Urrutia v Chile case of the Inter-American Court of Human Rights (IACtHR), Judge Daniel Urrutia Laubreaux was sanctioned by the Chilean Judiciary for forwarding an academic paper to the Supreme Court of Justice that criticized the former actions during the Chilean military regime. Albeit Urruti´s academic paper was the cause for the retaliations in the case, the IACtHR failed to address academic freedom in its relation to freedom of expression. As stated above, some literature has submitted that the normative content of provisions on freedom of expression also protects academic freedom (Gómez-Gamboa et al. 2020:126). A similar view has been adopted by the Special Rapporteur in its report on academic freedom mentioned above. It recognized that there are many ways in which freedom of opinion and expression protects and promotes academic freedom (see para 5). Considering that the normative content of Article 13 of the ACHR on freedom of expression also protects academic freedom, the Court's reasoning should have acknowledged academic freedom as one of the human rights issues of the controversy.

Inter-American Principles on Academic Freedom

Situations like the one mentioned could be avoided with a set of international human rights standards on academic freedom. Fortunately, in 2021 the IACHR started a drafting process of principles on the topic. This is a turning point; however, some elements must be considered during the process, in order to avoid setting a narrow view of academic freedom.

First, the principles need to set out that academic freedom has both an individual and collective dimension (Goméz-Gamboa and Aponte, p. 33). Academic Freedom does not only impact scholars, researchers, and students by providing them with a free environment to conduct scientific research and to disseminate scientific knowledge. Without Academic Freedom the mentioned actors are unavailable to challenge social realities, to produce innovative ideas, and to critically engage in discussions of public affairs, all of which are pivotal for the development of democratic societies. Thus, the principles need to underscore the relation between academic freedom, democracy, and the development of societies.

Finally, all human rights are featured by the interdependence character (World Conference of Vienna). The Vienna Declaration and Programme of Action provides that the international community must treat human rights globally on the same footing, thus it is the states' duty to promote and protect all human rights (See para 5). Considering academic freedom is a human right, the set of principles needs to consider its relation with all human rights, that is, not only in its evident relation with Civil and Political Rights but also its interrelatedness with Economic, Social, and Cultural Rights. The latter can be illustrated with the case described above of the Venezuelan Academy of Physical, Mathematical and Natural Sciences and its possible impact in the right to health.

To conclude, both the international normative framework and recently international bodies' statements allow arguing academic freedom as a human right issue.

* Ricardo Villalobos-Fontalvo teaches Human Rights Law at the University Rafael Urdaneta School of Law (Venezuela). He is Coordinator of the Research and International Advocacy Department of the NGO Aula Abierta, and a researcher at the Human Rights Commission of the University of Zulia (Venezuela).

** David Augusto Gómez Gamboa is an Associated Professor at the Faculty of Law and Political Science at the University of Zulia State (Venezuela). He is the Head of the Human Rights Commission of University of Zulia State (Venezuela) and founder Director of the NGO Aula Abierta.

The Human Rights in Context Blog is a platform which provides an academic space for discussion for those interested in human rights, democracy, and the rule of law. We are always interested in well-written and thoughtful comment and analysis on topical events or developments. Scholars from all disciplines, students, researchers, international and national civil servants, legislators and politicians, legal practitioners and judges are welcome to participate in the discussions. We warmly invite those interested in writing a post to send us an e-mail explaining briefly the relevance of the topic and your background as an expert. We will get back to you as quick we can. All contributors post in their individual capacity, and their opinions do not necessarily reflect the official position of Human Rights in Context, or any organisation with which the author is affiliated.