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The Bidirectional Relationship Between Academic Freedom and Rule of Law: Hungary, Poland and Russia

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Abstract

This paper analyses the mutually reinforcing relationship between upholding the Rule of Law and protecting university autonomy. Academic freedom as recognised in international human rights law can be deconstructed into two inter-connected dimensions: an individual right and institutional autonomy. The paper argues that the relationship between institutional autonomy of universities and the Rule of Law is a mutually reinforcing one, as demonstrated by the situation in Hungary, Poland and Russia. This relationship manifests in two distinct ways. Firstly, the core principles of the Rule of Law are necessary to ensure that university autonomy is not threatened by arbitrary and untrammeled exercise of State power. Secondly, this autonomy, in turn supports and strengthens the Rule of Law. Therefore, to fully appreciate the state of academic freedom in Hungary, Poland and Russia, we need to consider this bidirectional link between institutional autonomy of universities and the Rule of Law.

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Notes

  1. At the end of each monitoring period, reports were finalized and submitted to the Scholars at Risk Network. McGill Academic Freedom Monitoring Clinic, 2020; McGill Academic Freedom Monitoring Clinic, 2021.

  2. Palombella 2010, p. 11: “Although there may also be a moral ideal which is often recognised within rule of law, as connected to its root of liberty, certainty, non-arbitrariness, or even human dignity, it ds not directly prescribe moral objectives. It prescribes only legal features. It does not ask for the law to bear some specific content, the good law, nor does it claim to dictate the internal form of the realm of power (for example, that power be organised democratically).” Venice Commission of the Council of Europe, “Rule of Law Checklist” Adopted by the Venice Commission at its 106th Plenary Session (Venice, 11–12 March 2016) CDL-AD(2016)007rev, p. 9 [Venice Commission, “Rule of Law Checklist”]: “The Rule of Law is thus one of the three intertwined and partly overlapping core principles of the Council of Europe, with democracy and human rights.”.

  3. Venice Commission, “Rule of Law Checklist”, ibid, p.13: The Commission notes that “the Rule of Law would just be an empty shell without permitting access to human rights. Vice-versa, the protection and promotion of human rights are realised only through respect for the Rule of Law: a strong regime of Rule of Law is vital to the protection of human rights.” This paper analyses this idea in relation to academic freedom.

  4. For an analysis of the legal framework on academic freedom in Europe also see: Karran 2009; Beiter et al. 2016.

  5. UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999 p. 171 [ICCPR]; UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3 [ICESCR]: As per Articles 2 of both ICCPR and ICESCR, the primary obligation to fulfill the rights enshrined in them rests on State parties to the Covenants.

  6. UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 13: The Right to Education (Art. 13 of the Covenant), 8 December 1999, E/C.12/1999/10 para 38 [CESCR, General Comment 13]: Academic freedom also encompasses a series of other human rights, including freedom of opinion, expression, association, and assembly.

  7. UN General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, 28 July 2020, A/75/26 para 5 [Report of the Special Rapporteur on freedom of expression].

  8. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) at Article 18 (freedom of thought), Article 19 (freedom of expression), Article 20 (freedom of assembly), Article 23 (right to work), Article 26 (right to education) and Article 27 (right to participate and share scientific advancement). CESCR, General comment No. 25 (2020) on science and economic, social and cultural rights (article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights), 30 April 2020, E/C.12/GC/25 para 10 [CESCR, General Comment 25]: “The Universal Declaration of Human Rights is relevant to establish the scope of all the rights enshrined in the Covenant, not only because the preamble to the Covenant refers explicitly to the Universal Declaration of Human Rights, but also because both instruments represent international endeavours to give legal force to the rights in the Universal Declaration of Human Rights through the adoption of binding treaties.”.

  9. CESCR, General Comment 13, supra note 6 at para 47.

  10. European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02 Articles 13, 14 (3) and 16: Article 13 states that “academic freedom shall be respected” and “the arts and scientific research shall be free of constraint.” Article 14(3) grants “the freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.” Article 16 recognizes the freedom to conduct a business in accordance with Union law and national laws and practices is recognised.

  11. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5 (ECHR).

  12. European Court of Human Rights, Sorguç v. Turkey, application No. 17089/03, Judgment, 23 June 2009 para 35 [Sorguç v. Turkey]; European Court of Human Rights, Mustafa Erdoğan and Others v. Turkey, application Nos. 346/04 and 39,779/04, Judgment, 27 May 2014 para 40 [Mustafa Erdoğan and Others v. Turkey]; European Court of Human Rights, Kula v. Turkey, application No. 20233/06, Judgment, 19 June 2019 para 38 [Kula v. Turkey].

  13. Council of Europe, Parliamentary Assembly, Recommendation 1762 (2006) of the Parliamentary Assembly of 30 June 2006 on ‘Academic Freedom and University Autonomy’; Also see European Parliament, Recommendation of 29 November 2018 to the Council, the Commission and the Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy on Defence of academic freedom in the EU’s external action, 2018/2117(INI); Council of Europe, Committee of Ministers, Recommendation CM/Rec(2012)1 of the Committee of Ministers to member States on public service media governance (Adopted by the Committee of Ministers on 15 February 2012 at the 1134th meeting of the Ministers' Deputies).

  14. The Magna Charta Observatory of Fundamental University Values and Rights. http://www.magna-charta.org/magna-charta-universitatum/read-the-magna-charta. Accessed 9 August 2021. [Magna Charta Universitatum]: It emphasises the need for moral and intellectual independence of universities from all political authority and economic power and contains principles of academic freedom and institutional autonomy as a guideline for good governance and self-understanding of universities.

  15. Rome Ministerial Communiqué, EHEA Rome 2020 (19 November 2020), Annex I. http://ehea.info/Upload/Rome_Ministerial_Communique.pdf. Accessed 9 August 2021. [Rome Communiqué].

  16. CESCR, General Comment No. 13, supra note 6 para 4: The General Comment recognizes as one of the most fundamental objectives of education that it shall “be directed to the full development of the human personality”.

  17. Report of the Special Rapporteur on freedom of expression, supra note 7 para 4.

  18. CESCR, General Comment No. 13, supra note 6 para 39.

  19. Ibid, para 38.

  20. Scholars at Risk Network, 20 January 2019.

  21. Scholars at Risk Network, 21 March 2020.

  22. Scholars at Risk Network, 9 February 2021..

  23. Remonews, 2021. Accessed 1 November 2021.

  24. Reuters Staff, 2021..

  25. Scholars at Risk Network, 17 October 2019.

  26. CESCR, General Comment No. 13, supra note 6, para 39. Sorguç v. Turkey, sura note 12, para 35: The ECtHR, in Sorguç v. Turkey stressed that academics’ freedom extends to expressing their opinion about the institution or system in which they work.

  27. UNESCO, Recommendation concerning the Status of Higher-education Teaching Personnel, adopted by the General Conference at its twenty-ninth session, Paris, 21 October—12 November 1997 [UNESCO Recommendation of 1997].

  28. ICCPR, supra note 5 Article 2: states parties must “ensure” that individuals have the rights laid out in the covenant. CESCR, General Comment 13, supra note 6, para 39: The ICESCR explains that individuals have the “duty to respect the academic freedom of others.”.

  29. Report of the Special Rapporteur on freedom of expression, supra note 7, para 20.

  30. Kula v. Turkey, supra note 12, paras 38–39.

  31. CESCR, General Comment No. 13, supra note 6, para 40: The Committee states that “autonomy is that degree of self-governance necessary for effective decision-making by institutions of higher education in relation to their academic work, standards, management and related activities.”.

  32. UNESCO Recommendation of 1997, supra note 27, point 17.

  33. Magna Charta Universitatum, supra note 14.

  34. Report of the Special Rapporteur on freedom of expression, supra note 7, p. 9.

  35. Scolars at Risk Network, 1 October 2018.

  36. CESCR General Comment 25, supra note 8, para 49: The Committee on Economic Social and Cultural Rights recognizes that scientific advancement is a common endeavour to which all other stakeholders should contribute, nationally and internationally, including scientists, universities, publishers, scientific associations, funding agencies, libraries, the media and non-governmental institutions.

  37. European Commission v. Hungary, C-66/18 ECLI:EU:C:2020:792, Judgment of the Court (Grand Chamber) of 6 October 2020.

  38. Action brought on 1 February 2018, European Commission v. Hungary, Case C-66/18, Official Journal of the European Union, C 211, 18 June 2018: The Commission decided to refer the case to the Court of Justice for a declaration that Hungary has failed to fulfil its obligations arising from Article XVII of the GATS, Article 16 of Directive 2006/123/EC, Articles 49 TFEU and 56 TFEU, and Articles 13, 14(3) and 16 of the Charter of Fundamental Rights of the European Union.

  39. Opinion of Advocate General Kokott delivered on 5 March 2020, European Commission v. Hungary, Case C-66/18, ECLI:EU:C:2020:172, para 1 [Advocate General’s Opinion, Commission v Hungary].

  40. Ibid, para 133.

  41. General Comment No. 13, supra note 6, para 18.

  42. Matei and Iwinska 2018, p. 350.

  43. UNESCO Recommendation of 1997, supra note 27.

  44. Rome Communiqué, supra note 15.

  45. Matei & Iwinska, supra note 42, p. 359.

  46. Smolentseva 2003: The Russian higher education system traces its roots back to the seventeenth century although the Imperial Moscow University, known to be the oldest of the more ‘classical’ universities was formed in the eighteenth century. From early history, the Russian university structure was funded by the state and catered to the needs of the state. However, in the twentieth century, state monopolization of higher education was countered by the establishment of nongovernment higher education institutions.

  47. Ibid. Soviet Russia continued to exercise this high level of state control over higher eduation. For example, Smolentseva argues that it was a prerogative of the state to define centrally the kind and number of specialists to train, what institutions should be established, and what salary to pay.

  48. Kuraev 2016, p. 187 In this transition period, several important pieces of legislation were passed: a 1992 education law (amended in 1996), a 1996 higher education law, the 2000 "doctrine of education," and the introduction of state educational standards for postsecondary vocational education.

  49. Ibid, p. 191: The Federal Law "About Higher Professional Education" was adopted in 1966, edited in 1996 and published as an active Act of Legislation on March 1, 2012; the "Unified Charter of a Higher Educational Institution of Russian Federation" was originally adopted in 1938, edited in 1961, again in 1984, and is presently active in the RF in the final current edition of 2009.

  50. Matei & Iwinska, supra note 42, p. 360.

  51. Gall 2020.

  52. Ramanujam et al. 2012, p. ix.

  53. Matczak 2020.

  54. European Commission v. Republic of Poland, C-791/19, ECLI:EU:C:2021:596, Judgment of the Court (Grand Chamber) of 15 July 2021.

  55. Kochenov and Bárd 2018, p. 9. Also see Kochenov and Bard 2019.

  56. Waldron 2002; Kochenov 2015, p. 80.

  57. Venice Commission, “Rule of Law Checklist” supra note 2, p. 10.

  58. Waldron 2020, p.7 [Waldron]; Kochenov 2015, supra note 56, p. 81.

  59. Palombella, supra note 2, p.7.

  60. Tamanaha et al. 2006, p. 6.

  61. Palombella, supra note 2, p. 6.

  62. Venice Commission, “Rule of Law Checklist” supra note 2 pp. 10–11: (1) Legality, including a transparent, accountable and democratic process for enacting law; (2) Legal certainty; (3) Prohibition of arbitrariness; (4) Access to justice before independent and impartial courts, including judicial review of administrative acts; (5) Respect for human rights; and (6) Nondiscrimination and equality before the law.

  63. Fuller 1958, p. 660.

  64. Fuller 1969, Chapter 2.

  65. Tamanaha 2011, p. 215.

  66. Tamanaha 2012, p. 92.

  67. ICCPR supra note 5, Article 19 (3).

  68. Advocate General’s Opinion Commission v. Hungary, supra note 39, para 29.

  69. Venice Commission, “Rule of Law Checklist” supra note 2, p. 26.

  70. Sunday Times v. The United Kingdom (No. 1) App. No. 6538/74 (ECtHR, 26 April 1979), para 49.

  71. Venice Commission, “Rule of Law Checklist” supra note 2, p. 26.

  72. Advocate General’s Opinion, supra note 39 para 137.

  73. Venice Commission supra note 2, p. 29.

  74. UN Human Rights Committee (HRC), General comment no. 34, Article 19, Freedoms of opinion and expression, 12 September 2011, CCPR/C/GC/34 para 25.

  75. Strakhovskaya O, Sulim S & Rothrock K, 2018.

  76. Dubrovsky 2017. This decision by the inspector was approved by the courts.

  77. Scholars at Risk Network, 20 June 2018: Scholars at Risk Network notes that the true reason for the deaccreditation of Shaninka was to retaliate against its exercise of academic freedom.

  78. Polish Public Information Bulletin of the Ombudsman, 2020.

  79. Palombella, supra note 2, pp. 5–6.

  80. Tamanaha 2011, supra note 65, p. 244.

  81. Ciobanu 2010, p. 98 [Ciobanu].

  82. Ibid p. 100.

  83. Habermas 1970, p. 2.

  84. Ibid.

  85. Luhmann 2013, p. 113: The vehicle of research remains publication, the vehicle of teaching interaction in lecture halls and seminar rooms. “Academic didactics,” or mostly improvised functional equivalents, determine what scientific texts are suitable for instruction; and conversely, however highly qualified a teacher’s work may be, it bestows no reputation as a researcher.”.

  86. Ignatieff 2018, p. 9.

  87. Ibid.

  88. Mustafa Erdoğan and Others v. Turkey, supra note 12.

  89. Ibid para 33.

  90. Scolars at Risk Network, 1 September 2020.

  91. Wallach Scott 2018, p. 23.

  92. Pruvot and Estermann 2017, p. 21.

  93. Scholars at Risk Network, 1 October 2018..

  94. McGill Academic Freedom Monitoring Clinic 2020, supra note 1, p. 13.

  95. Walker 2020.

  96. Defending open society has been vital to the mission of CEU since it was established in 1991. Soros had been a student of Popper’s at the London School of Economics, and CEU was created to further these ideals in former communist societies undergoing transition to democracy and a market economy.

  97. Popper 1945, p. 131.

  98. Roch 2018, p. 52, Citing George Soros, “An Educational Initiative for Eastern Europe” (Open Society Archives, Budapest, April 2, 1990).

  99. The Moscow Times, 10 August 2018.

  100. Yudin 2018.

  101. Troianovski 2019.

  102. Scholars at Risk Network, 21 June 2021.

  103. Schiermeier, 2021; The Moscow Times, February 16 2021; Trinity Variant – Science, 2021.

  104. Report of the Special Rapporteur on freedom of expression, supra note 7 para 11: Article 15 of the International Covenant on Economic, Social and Cultural Rights recognizes the need for international contacts and co-operation in the scientific and cultural fields. Article 19 (2) of the International Covenant on Civil and Political Rights recognizes that freedom of expression extends “regardless of frontiers”.

  105. Ciobanu, supra note 81 p. 102.

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    Nandini Ramanujam & Vishakha Wijenayake

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Nandini Ramanujam is a Full Professor at Faculty of Law, McGill University and co-Director and Program Director of the Center for Human Rights and Legal Pluralism (CHRLP). She supervises the academic freedom monitoring clinic of CHRLP. Vishakha Wijenayake is a Doctoral Candidate at the Faculty of Law, McGill University and an O’Brien Fellow at CHRLP. The authors would like to thank Hamza Mohamadhossen (JD/BCL) and Natalia Koper (JD/BCL) for their monitoring work at the clinic in Winter 2020 and Janelle Deniset, Kassandra Neranjan, Hanna Rioseco, Emma Sitland, Ellen Spannagel and Gazal Gupta for their monitoring work in Winter 2021. This article is informed by their work.

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Ramanujam, N., Wijenayake, V. The Bidirectional Relationship Between Academic Freedom and Rule of Law: Hungary, Poland and Russia. Hague J Rule Law 14, 27–48 (2022). https://doi.org/10.1007/s40803-021-00165-3

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