What is the balance 3 years after the adoption of the Inter-American Principles on Academic Freedom? What role should universities play?
By: Salvador Herencia-Carrasco | Originally published in Agenda Estado de Derecho (Spanish only)
The Inter-American Principles on Academic Freedom and University Autonomy, adopted by the Inter-American Commission on Human Rights (IACHR) in December 2021, marked a milestone for the promotion, protection and guarantee of these rights in the Americas. While this progress must be recognised within the Inter-American system, its implementation, both by States and universities, has been minimal to date.
This legal and institutional morass is worrying because, in the face of increasing attacks on academic freedom and university autonomy, this lack of implementation increases the vulnerability of the university and members of the community. The purpose of this article is to demonstrate how universities can and should lead the way in respecting the Inter-American Principles, focusing on two issues: sexual violence and harassment and the right to peaceful protest.
Legal context for the protection of academic freedom
Academic freedom is grounded in several norms and principles of international human rights law, as recognised in the preamble and Principle I of that instrument. Until the adoption of the Inter-American Principles, no regional human rights system had adopted a single, broadly applicable statement on academic freedom that reflected the current state of the art.
Entities such as UNESCO, the International Committee on Economic, Social and Cultural Rights, the UN Special Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and Expression and, more recently, the UN Special Rapporteur on the Right to Education have shown the relevance of this freedom, explaining its content and scope in different contexts, highlighting its importance for the consolidation of free and democratic societies.
Despite this recognition, there has been little development of the multiple aspects of academic freedom and university autonomy by States and by universities themselves. This has led to little and insufficient implementation of norms and public policies on the matter, leading to a worsening of the protection of academic freedom globally in recent years. According to the Index of Academic Freedom, in the last decade academic freedom has declined in 23 countries, including several countries in the Americas.
Examples of such deterioration include the erosion of academic autonomy of universities, the judicialisation and political persecution of academics and students, increasing threats and online harassment, and the lack of protective measures, accompanied by a lack of adequate institutional response. We note that attacks on student organisations constitute attacks on academic freedom and that an intersectional lens is of great importance in both understanding and overcoming attacks on academic freedom.
Implementation of the Principles by universities: Prevention of gender-based violence and the right to peaceful protest.
In this sense, when talking about the implementation of academic freedom, we usually try to identify what are the responsibilities of the state to protect this right. The Rule of Law Agenda portal has published several articles on state actions affecting university autonomy and academic freedom, including cases in Brazil, Nicaragua and Peru. Monitoring, documenting and demanding the respect and guarantee of the right to academic freedom from the state is fundamental. But what is the role of higher education institutions?
A closer look at the Inter-American Principles shows that, in parallel to the work of the state, higher education institutions have a fundamental role to play in ensuring that the university community can exercise these rights, under a clear and transparent framework. Academic freedom, freedom of expression, participation in university bodies/committees, policies against labour and sexual harassment, adopting transparent protocols and processes for academic careers and/or scholarships are just some of the issues whose implementation can and should be led by university authorities. But in practice, these measures are far from being in line with the Inter-American Principles and, therefore, with Inter-American human rights standards.
For the sake of space, let us take as an example two issues: gender-based violence and the right to protest in the space of higher education institutions. Worse than gender-based violence and sexual harassment in higher education institutions is the impunity that accompanies these complaints. These cases are documented throughout the region, but sanctions are exceptional, even when judicial protection measures are in place.
Working on cases of violence, together with my colleagues from the Coalition for Academic Freedom in the Americas and Scholars at Risk, we see a phenomenon that is repeated in several countries. Women who decide to report cases of gender-based violence, whether they are academics or students, are often abandoned and unprotected by the institutions that have a duty to protect them. The adoption of a protocol solves nothing if the institution does not have the resources and personnel to lead processes of prevention and, if necessary, sanction. A right without an effective remedy is a dead letter. And this is what can be seen throughout the region, as in practice we see how academics and students who denounce violence or sexual harassment are marginalised, harassed or attacked in order to isolate them and weaken the legitimacy of their denunciation.
The other aspect is the exercise of the right to peaceful protest within the university. This is an issue that has been in the public debate in the wake of the war in Gaza. The Inter-American System recognises the right to peaceful protest, which is interrelated with freedom of expression and freedom of association. Whatever position you may have on the war in Gaza, there is no denying that the conflict is a public issue that deserves free and safe debate. Unfortunately, the responses of universities have been varied and even contradictory, leading to an increase in attacks and police raids on protesters.
In these cases, universities have taken into account institutional, political and economic positions to define a position, minus the one they are obliged to take as a guarantor: that of guaranteeing the exercise of a human right, which is the right to peaceful protest and/or the right to freedom of expression and association. With the return to the classroom in North American universities, it is likely that we will again see clashes between members of the academic community and the security forces, as the universities are not making a decision based on respect for the rights of their community.
Conclusions
The adoption of the Inter-American Principles has filled a gap and, in May 2024, the UN Rapporteur on the Right to Education adopted a set of Principles for the Implementation of Academic Freedom at the UN level. This demonstrates the importance and relevance of protecting universities and their mission. But, along with demanding respect for their autonomy, it is important that universities take the lead in implementing institutional norms and policies within the framework of the Inter-American Principles. Principle XVI of the aforementioned document is clear in stating that the duty of implementation falls on all actors.
It would be of utmost importance that universities, through their national or regional associations, create implementation roundtables to design and discuss university policies that allow all members of the university community to research and develop in a safe environment. These roundtables, in line with the Principles, should be composed of representatives of the entire university community. Universities can and should lead by example.
About the author: Salvador Herencia-Carrasco is a part-time professor at the Faculty of Law, University of Ottawa. He is a member of the Editorial Committee of the Rule of Law Agenda portal, and a legal advisor to CLAA.
Suggested academic citation: Herencia-Carrasco, Salvador. Protecting Academic Freedom: What about Universities? Rule of Law Agenda. 2024/09/25. Available at: https://agendaestadodederecho.com/proteccion-de-la-libertad-academica/