Groningen Journal of International Law

International Law Under Construction

The Right to Academic Freedom in Latin America: A commentary on the report of the UNSR on freedom of opinion and expression

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Salvador Herencia-Carrasco and Catalina Arango Patiño

‘Education is the vaccine against violence and ignorance’. These words of Argentinean cartoonist Quino, immortalized by Mafalda, reflect the importance of education for the progress of our societies. Despite the fact that everyone seems to agree on their relevance, the almost secondary place that academic freedom has in international human rights law is striking.

For example, of the 44 UN human rights Special Rapporteurs and special mandates, not one is exclusively dedicated to academic freedom. It is generally assumed that academic freedom is part of the right to freedom of expression or the right to education. Since human rights are interdependent, this is partly true. However, academic freedom is an autonomous right and its components impact society as a whole, not just what happens within a classroom.

Hence the importance of the report of the UN Special Rapporteur on Freedom of Expression to the General Assembly, which was presented in late October this year. The purpose of this article is to analyze some of the components of this report, contextualizing their importance for Latin America.

Together but not Scrambled: Academic Freedom, Education and Freedom of Expression

The report begins by presenting a simple definition of academic freedom as the possibility of carrying out activities ‘involving the discovery and transmission of information and ideas, and […] with the full protection of human rights law’.

Beyond the link between education and freedom of expression, academic freedom must, in its own right, be protected by States. According to General Comment 13 of the UN Committee on Economic, Social and Cultural Rights, academic freedom includes the freedom of research and expression, the ability of students, teachers, and researchers to carry out their duties without discrimination or fear of repression by the State or any other external agent, and the ability to participate in professional or representative academic bodies.

Report of the Special Rapporteur: Global Attacks and the Need to Prioritize Their Protection

The report of the UN Special Rapporteur on Freedom of Expression calls on States and international bodies to include the right to academic freedom in public debate. The report shows how attacks on academic freedom represent a global phenomenon, which demands reinforced protection by the State.  

For example, it mentions cases in Europe such as legislative amendments in Hungary that would force the closing of the Central European University due to its views against the government and academic affiliations, or the Hungarian government’s decision not to certify or provide funding for any courses in gender studies (para 49), or cases in Asia such as in Pakistan in 2015, where military courts were re-established to prosecute so-called ‘anti-state’ persons, including professors and students. It also refers to cases in Africa where a pattern of arbitrary surveillance and detention of students at Oromo University was reported in 2014. 

The Special Rapporteur also points to a number of cases from Latin America in which it is evident that academics, scholars, students, and universities face permanent state and social repression because of the research they carry out, the social protests they lead, and the questions they pose about governments and their policies.

The report confirms that in recent years there have been multiple threats to academic freedom in Latin America related to (i) restrictions on university autonomy and the reduction of funding for higher education in Venezuela and Brazil; (ii) the use of violence against students and professors and the repression of student protests as in Colombia, Chile, Honduras and Brazil; and (iii) acts of sexual violence that go unpunished on university campuses in Mexico and Chile. [RT1] 

For example, the report confirms that in recent years there have been multiple threats to academic freedom in Latin America related to (i) restrictions on university autonomy and the reduction of funding for higher education in Venezuela and Brazil; (ii) the use of violence against students and professors and the repression of student protests as in Colombia, Chile, Honduras and Brazil; and (iii) acts of sexual violence that go unpunished on university campuses in Mexico and Chile.

Attacks on academic freedom are not limited to Europe and Latin America, but are a global phenomenon. Recently, the United States has ordered the cancellation of interracial training courses for its federal officials. In Canada, a stir was caused at the University of Toronto by the dean of the Faculty of Law, who suspended hiring the new director of the Human Rights Clinic – allegedly because of pressure and opposition from private donors – due to her work on the situation of Palestinians in the West Bank.

In light of these cases, the report recommends that States review and revise national laws and policies to ensure the protection of academic freedom. This includes avoiding the use of instruments of coercion, such as funding cuts, refraining from penalizing universities and their members for their activities, ensuring the institutional autonomy of universities, and recognizing that university campuses should be dynamic spaces for the exercise of the rights to expression, peaceful protest and other fundamental freedoms.

The recommendations call on international bodies not to further neglect the issue and to include academic freedom when examining the fulfillment of human rights in different countries. With regard to academic organizations, the report requests more inclusive and transparent policies. Finally, members of civil society are encouraged to take an active role in protecting academic freedom by bringing cases of violation or risk of violation to the attention of regional and international bodies.

Conclusions

To date, States have not been particularly responsive to these recommendations. Given the lack of response from States, it has been the courts that have been responsible for ensuring this right, particularly in Latin America. Successful, albeit exceptional, cases have occurred where the law has protected the right to academic freedom of Latin American scholars such as Professor Monica Godoy in Colombia, who was fired from her job after documenting alleged cases of sexual violence that occurred within a university, or the recent decision of Ecuador’s Constitutional Court, which protected the budget of public universities from being slashed in the middle of the coronavirus pandemic.

Undoubtedly, strategic actors are needed to make the problem visible and to prioritize the task of placing academic freedom at the top of the list of rights to be protected. For example, if the Inter-American Human Rights System were to strengthen its leadership on the issue, the courts in the region would surely support it in defending academic communities.

The Special Rapporteur report not only demonstrates that attacks on academic freedom are a global phenomenon, but calls for more visibility for a right that has been unfairly relegated to a marginal role. But ultimately, the defense of academic freedom is a job for everyone. Universities and their communities are the ones that innovate, produce knowledge, ask questions, and inquire into assumed truths. We cannot ignore the role that universities play in strengthening democracy and building a critical and free society.

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Note: A previous version of this article was published in Spanish in the “Agenda Estado de Derecho” website of the Konrad Adenauer Foundation. See: https://dialogoderechoshumanos.com/agenda-estado-de-derecho/un-derecho-en-el-olvido-la-libertad-academica-en-america-latina

Some references in this post are to Spanish language sources.


Salvador Herencia-Carrasco is director of the Human Rights Clinic of the Human Rights Research and Education Centre at the University of Ottawa. Twitter: @Sherencia77

Catalina Arango Patiño is coordinator of the “Academic Freedom in the Americas” project of the Human Rights Clinic at the University of Ottawa. Twitter: @CatalinaAP013

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