CYIL vol. 14 (2023)

JAN MALÍŘ CYIL 14 (2023) also, politically motivated attempts to redefine academic freedom, debate on this freedom has recently gained in urgency. 4 In contrast with the importance it has been attributed, however, academic freedom has been only marginally affected by the processes of legal harmonisation or unification which have taken place in so many areas on international and European level. As K. D. Beiter et al. aptly observed, in international “hard” law, there are currently few provisions directly dealing with academic freedom. 5 This is even the case of the global treaties on human rights. Although the human rights treaty bodies have hinted at the importance of the respect for academic freedom, 6 there are no express provisions on academic freedom or specific standards related to academic freedom contained in these treaties. Although the concern for academic freedom has recently grown on international level, 7 it is international soft law which continues to be predominantly relevant with respect to this freedom on international level. This fact can be demonstrated by the most prominent attempt at harmonising standards applicable to academic freedom undertaken on the global level so far – the UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel, adopted in 1997. 8 While the UNESCO recommendation no doubt aims at something close to comprehensive harmonisation of the approach which the UNESCO Member States should take with respect to academic freedom in their respective legal systems, as a mere recommendation, it is not binding on the Member States although they are generally obliged to report on action taken upon recommendations adopted. 9 1. Academic Freedom in the Law of the Council of Europe At first sight, similar observations can be made on the European level, at least as far as the Council of Europe is concerned. 10 This key regional organisation has a non-negligible 4 For a more detailed treatment of the recent transformations of academic environment, see e.g., HAO, Z. and ZABIELSKIS, P. (eds.), Academic Freedom Under Siege Higher Education in East Asia, the U.S. and Australia (Springer, 2020); in a more philosophical perspective, LIESSMANN, K., P., Theorie der Unbildung. Die Irrtümer der Wissensgesellschaft (Zsolnay 2006); in a primarily legal perspective, see e.g., BEAUD, O., Le savoir en danger. Menaces sur la liberté académique (Presses Universitaires de France, 2021). 5 BEITER, K., D., KARRAN, T., and APPIAGYEI-ATUA, K., (2016) “Academic freedom and its protection in the law of European States: Measuring an international human right”, European Journal of Comparative Law and Governance , 3(3) (2016) 254–345, p. 261 et seq. 6 See, e.g., CESCR, General Comment no. 13 on Article 13 of the ICESCR (21st session, 8 December 1999), paras 38–40. 7 UN, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc.A/75/261, 28 July 2020. 8 The UNESCO Recommendation concerning the Status of Higher-education Teaching Personnel, adopted by the General Conference of the UNESCO on 11 November 1997, https://unesdoc.unesco.org/ark:/48223/ pf0000160495. 9 SCHERMERS, H., G., and BLOKKER, N., M., International Institutional Law , 5 th edition (Brill, 2011) p. 767 et seq. 10 By way of comparison, in the EU, Article 13 of the Charter of Fundamental Rights of the EU, binding on the EU institutions and the Member States when implementing EU law, expressly provides that “[a]cademic freedom shall be respected”. Article 13 of the Charter is, thus, a rare binding provision which expressly deals with academic freedom. However, at least for the time being, the practice based on this provision remains limited, see, notably, CJEU, C 66/18, European Commission v. Hungary, 2020, ECLI:EU:C:2020:792, paras 222–234; doctrinally, see, e.g., SAYERS, D., Article 13, in: PEERS, S., HERVEY, T., KENNER, J., WARD, A., (eds.), The EU Charter of Fundamental Rights: A Commentary (Oxford University Press: 2022) pp. 412–414.

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