CYIL vol. 14 (2023)

CYIL 14 (2023) THE EUROPEAN COURT FOR HUMAN RIGHTS AND ACADEMIC FREEDOM potential with respect to harmonising legal standards in many areas. 11 When it comes to academic freedom, however, while the political bodies of the Council of Europe have repeatedly dealt with some of its aspects, no convention has been concluded that would purport to harmonise standards related to academic freedom applicable in the Member States. This fact distinguishes academic freedom from other areas, as diverse as the protection of human rights in the context of biomedicine 12 or the protection of the privacy and personal data in the context of their automatic processing. 13 Therefore, from the perspective of the law of the Council of Europe, academic freedom has been hitherto addressed mostly in the non-binding acts. Their origins can be traced back till the end of the 1990s 14 and some of them have a horizontal scope indeed. 15 The dominance of non-binding law in the area of academic freedom continues till present although, in the wake of the recent controversies over the respect for academic freedom in some of the Member States, academic freedom has re-emerged on the agenda of the Council of Europe’s political bodies, as can be illustrated by the adoption of Recommendation 2189 (2020) on the threats to academic freedom and autonomy of higher education institutions in Europe. 16 Interestingly enough, in June 2021, in a response to this new recommendation, the Committee of Ministers consented to studying “the possibility, in the years to come, of drawing up an action plan to give policy advice on academic freedom and institutional autonomy, and assessing the feasibility of a binding instrument in this respect”. 17 This seems to be for the very first time that the idea of laying down at least some binding standards with respect to academic freedom in Europe has appeared on the official agenda. However, only the years to come will show whether the idea of a convention on academic freedom will materialize or not. Although there is currently no convention which would directly address academic freedom in the law of the Council of Europe, yet, certain binding standards concerning the respect for academic freedom can be drawn from the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 18 the cornerstone of the European regional system of human rights’ protection. The truth is that, comparably to global treaties 11 SCHMAHL, S., and BREUER, M., (eds.), The Council of Europe: Its Law and Policies (Oxford University Press, 2017). 12 See, in particular, Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No. 164), open for signature 4 April 1997; it is worth mentioning that, to some extent, this Convention addresses some of the issues raised by biomedical research (see, notably, its Chapter V), but not issues related to academic freedom as such. 13 See e.g. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108), open for signature on 28 January 1981. 14 Recommendation No. R (2000) 8 of the Committee of Ministers to member states on the research mission of universities, 30 March 2000. 15 This is especially the case of Recommendation 1762 (2006) of the Parliamentary Assembly on academic freedom and university autonomy, 30 June 2006 or Recommendation CM/Rec(2012)7 of the Committee of Ministers to member States on the responsibility of public authorities for academic freedom and institutional autonomy, 20 June 2012. 16 Recommendation 2189 (2020)1 of the Parliamentary Assembly on Threats to academic freedom and autonomy of higher education institutions in Europe, 20 November 2020. 17 Reply to Recommendation 2189 (2020)1, Doc. 15312, 3 June 2021, para 8. 18 Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 005), open for signature on 04/11/1950; in addition, up to now, 16 additional protocols have been adopted which complement the ECHR.

135