2.1. The REBSPA and Freedom of Science in Article 15 of the ICESCR: Freedom of Science – An Element of the REBSPA, but also a Separate Right

Commentators and experts agree that the REBSPA in Article 15(1)(b) of the ICESCR comprises three elements:

• • freedom of science;

• • enjoyment of the benefits of scientific progress; and

• • protection from adverse effects of science.Footnote ¹⁶

Hence, as much as the REBSPA is participation in the benefits of science and protection of human dignity against the harmful consequences of science, it is also freedom of science. The crucial rationale for the protection of freedom of science must be seen to lie in the fact that it makes possible the discovery of the truth.Footnote ¹⁷ Scientific truth may, in turn, yield beneficial applications of science. While the second and third elements of the REBSPA, as mentioned here, rather signify positive state regulation, freedom of science rather signifies negative state abstention. There is an inherent tension between the former two and the latter element, a tension that requires a delicate balancing of the respective positive and negative state duties implicated.

The question, of course, is according to which criterion this balancing should take place. As already indicated, this article proposes the concept of ‘adequacy for science’ in this regard. The term signifies that structures, arrangements and decisions in the field of science must be such as will be ‘in the best interest of science and scholarship’ – rather than, for example, that of political, economic or social usefulness or expedience. The term connotes respect for the intrinsic requirements of science. It connotes the according of a central role to scientists themselves in organising science, appreciating that they, by reason of their training and experience, understand the needs of science ‘best’.Footnote ¹⁸ Another question relates to who should do the balancing. As will be explained further on, the essential contours of the balance are to be drawn by framework legislation, with the courts constitutionally safeguarding that this is ‘adequate for science’ – and, therefore, is in conformity with human rights.Footnote ¹⁹

Article 15 of the ICESCR protects ‘cultural rights’. Whereas Article 15(1)(b) lays down the REBSPA, Article 15(1)(a) protects the right ‘[t]o take part in cultural life’ and Article 15(1)(c) guarantees the right of creators ‘[t]o benefit from the protection of the moral and material interests resulting from [their] scientific, literary or artistic production[s]’. In terms of Article 15(2), states parties must take the steps ‘necessary for the conservation, the development and the diffusion of science and culture’. Article 15(4) enjoins them to ‘recognise the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields’. Note should be taken of Article 15(3), which requires states parties to ‘undertake to respect the freedom indispensable for scientific research and creative activity’. The latter provision thus provides an additional basis for freedom of science (here, as the immediate right of scientists). In many ways, Article 15(3) constitutes a counterpoise to the positive elements of Article 15(1)(b), to Article 15(1)(c), and to Article 15(2) and (4), offering protection against threats of excessive or inappropriate state action sought to be justified under these provisions.

The Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications – adopted following experts’ meetings initiated by UNESCO in 2007, 2008 and 2009Footnote ²⁰ – elaborates on the normative content of the REBSPA, identifying its stated three elements. In terms of the Venice Statement, the REBSPA accordingly requires, firstly, the creation of an enabling environment for the conservation, development and diffusion of science, notably including freedom of science;Footnote ²¹ secondly, enjoyment of the benefits of scientific progress (on a non-discriminatory basis);Footnote ²² and, thirdly, protection from the abuse and adverse effects of scientific progress.Footnote ²³

The Venice Statement refers to negative duties of restraint in the field of science in a number of instances. It states that ‘freedom of inquiry is a vital element in the development of science in its broadest sense’.Footnote ²⁴ Further, the right in Article 15(1)(b) ‘is inextricably linked’ to the freedom indispensable for scientific research as enshrined in Article 15(3).Footnote ²⁵ The enabling environment for science to be created ‘implies inter alia academic and scientific freedom’.Footnote ²⁶ It may consequently be noted that the Venice Statement views Article 15(1)(b) and (3) as also providing a basis for academic freedom, a freedom that will be separately defined and commented on under the next two headings.Footnote ²⁷ An indication of the potential normative content of freedom of science (with academic freedom being a concretised form thereof) is also provided by the UNESCO Recommendation on Science and Scientific Researchers of 2017.Footnote ²⁸

State obligations to respect the REBSPA include the duty ‘to respect the freedoms indispensable for scientific research’.Footnote ²⁹ The obligation to respect, firstly, not only gives rise to a claim accruing to the person entitled to benefit from science but, secondly, it also confirms a separate right of scientists, reinforcing that under Article 15(3). Regarding the former, individuals may thus claim that scientists’ freedom of enquiry be respected. This gives the latter, the scientist's own right, a strong sense of duty. Scientists must exercise their freedom primarily in the interest of society at large,Footnote ³⁰ which benefits from science only where it is free and can lead to a discovery of the truth.Footnote ³¹ To better explain this, society bestows a duty especially on university scientists to explore, and, moreover, to do so sincerely. In return, it accords substantial freedom to scientists so that they are, in fact, able to explore and discover. Only that freedom makes possible discovery of ‘maximum’ truth – as pointed out above, the crucial rationale for the protection of freedom of science. The UNESCO Recommendation of 2017 thus broadly states that scientific researchers have the ‘responsibilit[y] … to pursue, expound and defend the scientific truth as they see it’.Footnote ³² Once science is engaged to serve particular interests of state or industry and freedom is thus limited, science can, at best, furnish a compartmentalised version of the truth. This is so because, where science is planned in accordance with external goals, the natural operation of what the discussion below describes as the autonomous (‘uncontrollable’) laws of science is interfered with.Footnote ³³ Furthermore, science can never be as non-partisan and in the common (non-particular or non-proprietary) interest as where it remains free from instrumental concerns. Hence, there is a special need for disinterested science, as that furthers ‘maximum’ truth. Disinterested science presupposes free science. The more disinterested science is to be, the freer it must be.

Apart from negative state obligations to respect (that is, to not interfere with) the right, the REBSPA in Article 15(1)(b) entails positive state obligations to protect the right by preventing infringement by third parties (of significance specifically where research is undertaken by private industry)Footnote ³⁴ and positive state obligations to fulfil (that is, realise) the right – triggered, in particular, by Article 15(2) and (4) as read with Article 2(1).Footnote ³⁵ Audrey Chapman holds that obligations to fulfil could cover, inter alia:

• • an explicit government commitment to the development of science and technology;

• • setting policies and establishing institutions to promote the development and diffusion of science;

• • setting priorities for and channelling sufficient investment into the development of science and technology; and

• • developing laws, institutions and policies to monitor and regulate science and technology.Footnote ³⁶

As a human right, the REBSPA would oblige states parties to observe certain principles. They would have to ‘evaluate the implications of developing and making available areas of science and technology on human dignity’.Footnote ³⁷ They would have to ensure that ‘the freedom and opportunity to benefit from scientific and technical advancement be broadly diffused within a nation “without discrimination of any kind”’.Footnote ³⁸ They would further have to make ‘specific investments in science and technologies likely to benefit those at the bottom of the economical and social scale’.Footnote ³⁹ They would also have to implement ‘a right to societal decision making on setting priorities for and major decisions regarding the development of science and technology’.Footnote ⁴⁰

2.2. Academic Freedom as a Special or ‘Enhanced’ Version of Freedom of Science

As will be explained under this heading, it is important to distinguish between academic freedom and ‘ordinary’ freedom of science, as the nature or degree of protection to be accorded to either will have to differ.

Academic freedom is sometimes used as an umbrella concept for values and rights – some of them of human rights pedigree – that should prevail in education, either generally or at specific levels of the education system.Footnote ⁴¹ At other times, it is used as an umbrella concept for human rights that should prevail at all or certain levels of the education system. These human rights include, for example, freedom of expression in schools or on campus, the right to express personality, rights of non-discrimination, freedom of assembly or association, freedom of religion, freedom of teaching or research, and similar.Footnote ⁴² In the context of human rights law proper, however, academic freedom should only be given a strict meaning, namely that related to its key function. As in the case of freedom of science, discovery of the truth constitutes this key function, the crucial rationale for the protection of academic freedom.Footnote ⁴³ Not according academic freedom its strict meaning (set out below) would water down the effectiveness of academic freedom as a guarantor of the discovery of the truth and the advancement of knowledge for the benefit of society at large.

Academic freedom in a strict sense is the human right as it has been defined in paragraph 27 of the UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel of 1997.Footnote ⁴⁴ It is:

To buttress this right, it needs to be accompanied by institutional autonomy, self-governance, collegiality and tenure.Footnote ⁴⁶ Institutional (or university) autonomy ‘is the institutional form of academic freedom’.Footnote ⁴⁷ It offers protection against intrusion by the state (or anybody else) in the affairs of the university. Self-governance refers to the right of academics to take part in the governing bodies of, and to elect a majority of representatives to academic bodies within a higher education institution.Footnote ⁴⁸ Collegiality means shared responsibility, participation of all concerned in internal decision making, and consultative mechanisms in respect of academic and various administrative matters at all levels within a higher education institution.Footnote ⁴⁹ Tenure entails permanent employment contracts for academic staff, not easily terminable on operational grounds (and obviously not terminable for exercising one's academic freedom).Footnote ⁵⁰ The UNESCO Recommendation of 1997 makes it clear that individual academic freedom, self-governance and collegiality are essential components of institutional autonomy.Footnote ⁵¹ Hence, where many universities nowadays construe autonomy as the power to improve ranking, to promote reputation and to enhance earnings, this amounts to a perversion of the original meaning of the term. In many ways, autonomy is an entitlement deduced from and should thus serve academic freedom. Autonomy must serve the inherent requirements of science. It must serve safeguarding a science system ‘adequate for science’.

As indicated, in the context of human rights law proper, academic freedom should only have its strict meaning. When the Committee on Economic, Social and Cultural Rights, in its General Comment No 13 on the Right to Education, thus states that ‘staff and students throughout the education sector are entitled to academic freedom’,Footnote ⁵² this statement is, with all due respect, not correct. As Malcolm Tight emphasises, ‘academic freedom only applies to academics engaged in teaching, scholarship, etc., and not to other groups … e.g. secondary school teachers’.Footnote ⁵³ What the Committee perhaps meant to say is that ‘rights in education’ are to be enjoyed throughout the education sector.Footnote ⁵⁴ The role of primary and secondary schools is not to conduct a scholarly search for the truth. They do not need comparable autonomy from the state. Self-governance and collegiality as safeguards to ensure decisions on science that are collective in nature will be ‘adequate for science’ – because the academy better understands the inner workings of science than administrators – play no role whatsoever.Footnote ⁵⁵ The state has extensive powers of regulation with regard to primary and secondary schools.

Academic freedom may be stated to be a special form of freedom of science, the latter expressly provided for in Article 15(3) (‘freedom indispensable for scientific research’) and implicitly in Article 15(1)(b) of the ICESCR.Footnote ⁵⁶ While freedom of science relates to scientific endeavour in a more general or inclusive way, applying within and beyond universities, academic freedom is applicable solely in the higher education (university) context.Footnote ⁵⁷ As the term ‘academic freedom’ already indicates, this freedom applies to academics only. Academics are members of a university who teach or do research.Footnote ⁵⁸ ‘Scientific’ or ‘academic’ thus has nothing to do with the field of study concerned, or with the approach adopted (that is, whether a rational, ‘scientific’ approach, or a more scholarly, ‘academic’ approach). It relates only to the question: are we dealing with science (and this includes the humanities and social sciences) within or beyond the university? In the former case, we are dealing with academic freedom (as a concretised freedom of science); in the latter case, with ‘ordinary’ freedom of science. ‘University’ here does not solely denote ‘traditional’ universities, but all higher education institutions broadly dedicated to the triad of learning, teaching and research as facilitating notably disinterested science.Footnote ⁵⁹

It is important to distinguish between academic freedom and freedom of science because academic freedom requires a much more robust form of protection than ‘ordinary’ freedom of science. In view of the special responsibility of those working in higher education institutions to discover the truth and to advance knowledge, and their consequent vulnerability to hostility, they need and are entitled to enhanced forms of protection.Footnote ⁶⁰ Eric Barendt underlines that, insofar as the justification for academic freedom is based on ‘the special role of universities as places for the free exchange of ideas’, it does not apply with the same force to those working in non-university research institutes or private companies conducting research.Footnote ⁶¹ Although non-university research institutes, whether governmental or non-governmental (NGOs) – as the term is used here – serve the public interest (are not for-profit), they generally pursue more narrowly defined research objectives, even if they may also undertake a measure of pure science. Private companies are driven by mercantile interests. It is for this reason that academic freedom must be accorded an ‘elevated’ status when compared with the freedom of science on which researchers in non-university research institutes, or on which private companies or their research staff, would rely.Footnote ⁶²

Accordingly, while the authorities of a non-university research institute or private company may lay down the research agenda and assign research roles, such restrictions do not apply in universities.Footnote ⁶³ Similarly, tenure only serves to buttress academic freedom in universities. It should also be noted that academic freedom functions as a principle for allocating responsibilities in universities and as an academic and university organising principle.Footnote ⁶⁴ The requirements of self-governance and collegiality, as laid down in the 1997 UNESCO Recommendation, give particular expression to these principles. These concepts do not play a role in private companies. In non-university research institutes, they play a reduced role.Footnote ⁶⁵

The distinction between academic freedom and freedom of science is also drawn by the two separate UNESCO Recommendations addressing the rights and duties of ‘higher education teaching personnel’ and ‘scientific researchers’, respectively.Footnote ⁶⁶ The Recommendation concerning the Status of Higher-Education Teaching Personnel of 1997, applicable to teachers and researchers in higher education,Footnote ⁶⁷ refers to Article 13(2)(c) of the ICESCR on the right to higher educationFootnote ⁶⁸ and speaks of ‘academic freedom’.Footnote ⁶⁹ The Recommendation on Science and Scientific Researchers of 2017, applicable to scientific researchers ‘irrespective of … the legal status of their employer, or the type of organisation or establishment in which they work’,Footnote ⁷⁰ alludes to Article 15 of the ICESCRFootnote ⁷¹ and prefers the term ‘intellectual freedom’.Footnote ⁷²

Any positive state regulation under the REBSPA which affects the negative freedom of enquiry will have to be scrutinised in a differentiated manner, depending on the precise context. Scrutiny of state action that affects academic freedom will, in accordance with what has just been stated, have to be much stricter than scrutiny of state action that affects freedom of science beyond universities. It is important, therefore, to always keep in mind that enhanced protection under academic freedom can only be claimed by teachers, researchers and students in universities, public or private, and by those scientists working in research bodies clearly linked to universities.Footnote ⁷³ Consequently, academic freedom does not apply to scientists in non-university research institutes of government. It does not apply to or in higher education institutions established purely to make a profit (as these are, in effect, private companies). It also does not apply to or in think tanks, policy institutes or related NGOs. Naturally, it does not apply to or in public or private business corporations.Footnote ⁷⁴ In all these instances – and provided science as defined is pursuedFootnote ⁷⁵ – ‘ordinary’ freedom of science applies.Footnote ⁷⁶

Even if conceptually understood as a negative freedom, both academic and scientific freedom themselves entail duties on the state to respect, protect and fulfil. As a human or fundamental right, academic and scientific freedom may be enforced directly against public universities (as quasi-organs of the state) and private universities (as institutions serving the public interest – that is, when essentially not-for-profit institutions). Following the same rationale, scientific freedom may, likewise, be enforced directly against public (and potentially certain private) non-university research institutes. Although scientific freedom can ordinarily not be enforced directly against private companies, employment disputes between researchers and the private companies employing them will have to be dealt with in terms of labour law interpreted, where relevant, in the light of scientific freedom.Footnote ⁷⁷

2.3. Academic Freedom as Part of the Right to Education in Article 13 of the ICESCR

The UN Human Rights Covenants do not expressly mention academic freedom. The REBSPA in Article 15(1)(b), co-jointly with the provisions of Article 15(3) of the ICESCR, provides a basis for the freedom rights common to scientists within and beyond universities. Academic freedom, however, concretises many aspects of freedom of science in the higher education context, adds protection that is particular to that context, and generally infuses university values into freedom of enquiry. Although Article 15 properly serves as the basis for constructing a theory of academic freedom, this author and colleagues have argued that:Footnote ⁷⁸

We argued that Article 13 of the ICESCR on the right to education provides that natural ‘home’.Footnote ⁷⁹ Extensively supporting this view, we explained that the first sentence of Article 13(1), which ‘recognise[s] the right of everyone to education’, in terms of a purposive interpretation, should be understood as an open-ended fundamental norm in the sphere of education.Footnote ⁸⁰ As such, it functions as the normative basis for a comprehensive, rights-based education system, including at the higher education level, and also covering the rights of teaching and research staff.Footnote ⁸¹ Higher education accordingly really means learning, teaching and research, in higher education. This is a persuasive argument if one considers that these are inseparable, mutually reinforcing processes, all directed towards achieving the ‘greater’ overarching goals of science – science, rather than ‘instruction’, being what universities are for.Footnote ⁸²

2.4. Freedom of Science and Academic Freedom are Different from Freedom of Expression

Both freedom of science and academic freedom need to be clearly distinguished from freedom of expression.Footnote ⁸³ The former two freedoms entail additional entitlements and more robust speech rights than freedom of expression. This heightened position must also buttress the status of freedom of enquiry as one of the pillars of the REBSPA vis-à-vis the latter's more positive aspects.

Whereas freedom of expression relates in many ways to speech rights (covering oral and written statements), freedom of science and academic freedom also relate to permissible conduct – permissible conduct includes, for example, using the equipment or facilities of a research laboratory or university department, conducting scientific experiments, or organising a conference or research teams.Footnote ⁸⁴ Freedom of expression further cannot really serve as a concept from which to deduce rules aimed at governing the internal relationships (academic staff, students, governing and academic bodies) within the university. Academic freedom centrally functions as such a concept.Footnote ⁸⁵

Moreover, scientific and academic freedom, on the one hand, and freedom of expression, on the other, are based on two very different rationales. The latter is essentially about upholding democracy, entitling every person, as it were, to say whatever they desire in the interest of a multiplicity of views being heard. It even covers the right ‘to tell lies’.Footnote ⁸⁶ Scientific and academic freedom are more pronouncedly about discovering the truth and advancing knowledge (even if this is also crucial, eventually, in building a democratic society).Footnote ⁸⁷ Hence, scientific and academic freedom envisage ‘special’ speech rights. There are duties of objectivity and rigour that need to be observed. There is no right ‘to tell lies’. For this reason, scientific and academic speech are subject to quality controls, taking the form of, for example, peer review.Footnote ⁸⁸ In the context of ordinary speech protected by freedom of expression, such controls do not really exist,Footnote ⁸⁹ and would (or should) readily amount to impermissible censorship. However, it is also true that limitations by law to further certain public goals (such as national security) may be imposed more easily with regard to freedom of expression than scientific or academic freedom. This is a consequence of the crucial value attached to the discovery of the truth and the ‘sophisticated’ nature of scientific and academic speech. Scientific and academic freedom may be regulated rather than limited by law.Footnote ⁹⁰ This insight must be kept in mind in as far as positive state regulation under the REBSPA may have ‘an impact’ on the negative freedom of enquiry.

In sum, because of the stated crucial value of truth for the advancement of society and the risk of attack to which revealing that truth exposes scholars, scientific and academic freedom entail more robust speech rights than does freedom of expression. In the literature a useful distinction has been drawn between intra-mural and extra-mural academic speech and academics’ off-topic speech. In the case of intra and extra-mural speech, academics speak within their area of expertise to experts and non-experts, respectively.Footnote ⁹¹ In the case of off-topic speech, they speak outside their area of expertise.Footnote ⁹² Intra-mural speech enjoys a higher level of protection than extra-mural speech, which in turn enjoys a higher level of protection than off-topic speech – which, in fact, enjoys protection as ordinary speech under freedom of expression.Footnote ⁹³ The different levels of protection reflect ‘the (presumed) quality of the opinion and its (potential) contribution to the general interest’.Footnote ⁹⁴

2.5. When Will the REBSPA Attain the Quality of a Human Right?

The REBSPA, the right to science, while it must cater for various forms of scientific endeavour, will attain human rights quality only by focusing on science in a Weberian or Mertonian sense. In a nutshell, science in a Weberian or Mertonian sense means disinterested, free science – that is, that form of science best suited to promoting the emergence of ‘maximum’ truth, thus benefiting the common rather than particular interests,Footnote ⁹⁵ and thus most immanently directed at realising human dignity, the foundational value of human rights law. Max Weber, in his powerfully eloquent description of science as a vocation of 1919,Footnote ⁹⁶ states that science only unfolds its value for society if it provides insights ‘adding to knowledge’Footnote ⁹⁷ – that is, insights that explain the world. Science must, however, not be guided by notions of value or worth,Footnote ⁹⁸ or usefulness or purpose.Footnote ⁹⁹ These are considerations foreign to the normative order of science – and ‘[t]he different normative orders of the world [here notably science and politics] insolvably clash with each other’.Footnote ¹⁰⁰ Robert Merton, in his famous article on the normative structure of science of 1942, identified the following as the imperatives of academic science: communism (common ownership of science), universalism (science must be non-partisan), disinterestedness (science must be purpose-free), and organised scepticism – CUDOS.Footnote ¹⁰¹ The scientific community to this day continues to regard these criteria as essentially valid.Footnote ¹⁰² According to John Ziman, science in the Mertonian CUDOS sense constitutes ‘real science’.Footnote ¹⁰³ New modes of knowledge production, as resembling industrial science, follow a different model: the PLACE pattern. Science here is proprietary (not communalist), local (not universal), authoritarian (not disinterested), commissioned (not original), and expert (rather than sceptical).Footnote ¹⁰⁴ In simplified terms, while CUDOS is committed to ‘the whole truth’, PLACE is committed to ‘nothing, but the truth’, though not necessarily ‘the whole truth’.Footnote ¹⁰⁵ This is so because it has to obey the material interests of bodies outside science.Footnote ¹⁰⁶ Requirements these days that academic science must have ‘impact’ move it away from CUDOS towards PLACE science. To qualify as a human right, grounded in human dignity, the REBSPA would primarily have to embody the CUDOS vision in terms of which science serves society best if it remains free from considerations of political, economic or social usefulness.Footnote ¹⁰⁷ Only this vision allows for the emergence of comprehensive, untainted, ‘commonly-owned’ truth as a precondition for scientific progress that benefits all.

3.1. Positive vs Negative State Duties: Respecting the Autonomous Character of Science

Audrey Chapman stresses that ‘the process of doing scientific research and the development of applications from that science [must] be consistent with fundamental human rights principles’.Footnote ¹⁰⁸ She further emphasises that, while science may serve ‘other purposes, even noteworthy goals’, the REBSPA mandates that ‘science be seen as an instrument for human benefit’.Footnote ¹⁰⁹ While that sounds very plausible, it is not always easy to distinguish between science for human benefit and science as part of a grander state plan directed primarily at enhancing economic growth, which states will often hypocritically argue automatically promotes economic, social and cultural rights. Science must first of all be directed at revealing knowledge and truth, whether that is economically useful or not. Usefulness to the economy may, or may not, emerge subsequently. Human benefit also concerns civil, political, social and cultural progress. In today's neoliberal climate, however, ‘human benefit’ has become equated with economic growth as an end in itself.

In 1945, Michael Polanyi, one of the great theorists on intellectual enquiry of the previous century, described the idea of subordinating science to the planning of socio-economic progress part of ‘a general attack on the status of intellectual and moral life’.Footnote ¹¹⁰ His adversary, John Bernal, a political supporter of communism, however, believed that the ideal of pure science was ‘a form of snobbery’.Footnote ¹¹¹ More than fifty years of ‘science policy’ leave no doubt that Bernal's idea that research should be undertaken for its foreseeable socio-economic benefit has been triumphant.Footnote ¹¹²

In the 1980s, Bengt-Åke Lundvall and Christopher Freeman undertook their innovation system studies, directed at understanding communication processes between creators and users in the innovation process so as ultimately to find ways of ensuring that science would contribute to a socially embedded economy.Footnote ¹¹³ Little did they – and other social scientists building on their work, all with sympathies for the political left – know that the Organisation for Economic Co-operation and Development, the European Commission and other international organisations would crudely rely on their theories to justify a business-friendly ‘economistic’ approach towards science.Footnote ¹¹⁴

Meanwhile, premised on neoliberal notions of global economic competitiveness and public accountability, there is a firm belief among many policy makers that there should be a ‘science of science policy’, directed at steering the growth of science and, with it, that of the economy.Footnote ¹¹⁵ However, one may legitimately ask: where the outcome of research can be foreseen, is this still research? Is it not ‘logically nonsensical’ to still speak of research in this context?Footnote ¹¹⁶ Moreover, where the delivery of external goods to the wider society becomes the prime purpose of science, and where, towards that end, comprehensive machinery to plan and execute science is put in place, does this not amount to ‘technocratic method … driving out the sphere of the ethical’, eliminating ‘[any] sense of the academic community as a practice founded on a[n] [unconstrained] conversation’?Footnote ¹¹⁷

It should also be remembered that every instance of state regulation in the field of science readily impacts on scientific or academic freedom. Naturally, no freedom is unbridled. However, where the nature of a right – the REBSPA – is such that positive state regulation under that right may not only impact on that right's negative component (that is, scientific or academic freedom) but even tends to frustrate scientific progress in itself and the achievement of the REBSPA as a whole, such regulation requires careful ‘reasonableness’ justification. Perhaps it is also for this reason that Chapman considers that the scope of obligations to fulfil under the REBSPA is unclear and needs further discussion in the human rights community.Footnote ¹¹⁸

The danger with regard to Article 15(1)(b) lies in not establishing a suitable balance between the role of the state in positively organising science and its negative duty of restraint. In an article of 2016, this author and colleagues were the first in international human rights law to point out this fundamental concern:Footnote ¹¹⁹

The German Constitutional Court, in its seminal Hochschul-Urteil [University Judgment] of 1973, accordingly stresses ‘the autonomous character of science’, the fact that science follows its own laws, thus requiring large-scale state abstention from interference in the field of science.Footnote ¹²⁰ Scientists themselves have emphasised that science cannot ‘be managed’. Max Perutz, who received the Nobel Prize in Chemistry in 1962, expressed the view that creativity in science, as in the arts, could not be organised, but arose spontaneously from individual talent. While well-run laboratories could foster it, hierarchical organisation, bureaucratic rules and futile paperwork could kill it. Discoveries could not be planned but, as he described it, they popped up in unexpected corners.Footnote ¹²¹

The history of science reveals that many groundbreaking scientific discoveries are the result of scientists ignoring, subverting or openly contesting rules, policies and decisions of their employers on what should be researched and how. James Watson, one of the four co-discoverers of the structure of DNA, relates how he and his colleague Francis Crick, as young scientists, had been instructed to discontinue their study of DNA. Gladly they continued with it secretly, as this led to the discovery of the double helix structure of DNA. In 1962, Watson and his colleagues won the Nobel Prize in Physiology or Medicine for their discovery.Footnote ¹²² The history of science also provides ample proof of detours, coincidences and surprises that were not susceptible to being achieved in a systematic and linear manner.Footnote ¹²³ Hence, many groundbreaking inventions – be they penicillin, polyethylene (plastic), Teflon, vulcanised rubber or X-rays – were, in this sense, made ‘by mistake’.Footnote ¹²⁴ They did not flow from specific research plans with deadlines.Footnote ¹²⁵

At the basis of all creativity and innovation in science lies scientific or academic freedom, signifying the absence of unnecessary interferences with the wondrous but incomprehensible laws of scientific discovery. It has been observed that ‘[m]any academics are extremely independent with a focus on intellectual creativity. They value a secure and stable environment where they can do their work alone’.Footnote ¹²⁶ John Hurley, in his study of 16 Nobel Physics laureates, found that they attached ‘maximum possible importance … to their own freedom of thought and behaviour, including their ability to choose their own work’, and, by way of contrast, minimal importance to the supervision and evaluation of their research.Footnote ¹²⁷ Yet, states seem to have far-reaching plans for what they wish the sciences to accomplish. This approach has been described as dangerous. Acclaimed German philosopher Julian Nida-Rümelin (and a former Minister of Culture in a Social Democrat government in Germany) points out that attempts to instrumentalise academia to achieve economic, technological, social or cultural advances rest on a fundamental fallacy, warning that historical experience shows that the instrumentalisation of academia for state, religious and economic purposes has always inhibited the innovative potential of science.Footnote ¹²⁸

This author fully appreciates the role of the state, of course, in the context of realising economic, social and cultural rights. Focusing for a moment specifically on the educational context, the author, in a monograph on the right to education in international law, has elucidated the comprehensive positive duties of the state when it comes to implementing a system of education at the primary and secondary levels, designing educational content, supervising educational attainment, and ensuring the absence of indoctrination.Footnote ¹²⁹ However, when it comes to higher education and science, the picture is more complex. Although the state needs to massively invest resources in the system of higher education and science, universities crucially depend on autonomy. One of the important purposes of autonomy is the protection of academic freedom. The main purpose of academic freedom, in turn, as explained, is to enable teachers and researchers, co-jointly with students, to advance ‘the truth’.Footnote ¹³⁰ The truth – which, as Stefan Collini underlines, does not connote mere ‘usefulness’Footnote ¹³¹ – benefits the progress of society. The academy should not be obstructed in its truth-finding mission. The reality, however, is that it is in the process of foregoing enjoyment of those rights that function as determinants of an environment promoting ‘the best interest of science and scholarship’ – an academic environment that may be described as ‘adequate for science’.Footnote ¹³² Genuine institutional autonomy, individual academic freedom, academic self-duty,Footnote ¹³³ self-governance, collegiality, and employment security and tenure are in danger of becoming obsolete.Footnote ¹³⁴ Increasingly, the state and university ‘managers’ have come to decide on what should be taught and researched, and how.Footnote ¹³⁵ This is poison for the system of science. Based on their training, talent, scholarship and experience, scholars possess a ‘scientific’ or ‘academic intuition’, which tells them where knowledge lies.Footnote ¹³⁶ Presupposing their independence and enjoying rights of participation or self-regulation, they know best how to go about unearthing this.Footnote ¹³⁷ Over-regulation distorts or kills intuition.

3.2. Different Rules for Private Companies, Non-University Research Institutes, and Universities

Donald Braben notes that today's technology derives from scientific discoveries made decades ago, that managed creativity produces only what its managers specify, and that efficiency and accountability will often be the worst possible policies.Footnote ¹³⁸ He accordingly proposes, somewhat exuberantly, that we should begin to create ‘a twenty-first-century [Max] Planck Club’, the members of which ‘should hold themselves accountable only to Nature herself’.Footnote ¹³⁹ This may be somewhat overstating things, yet it conveys the message: scientific and academic freedom need to be taken more seriously. However, what then should the ambit, the delimitation, of the state's positive obligations under the REBSPA be to safeguard its negative freedom component so crucial to facilitating scientific progress? Which scheme of arrangements would be ‘adequate for science’?

It may be useful to distinguish between private companies conducting research, non-university research institutes, and universities.Footnote ¹⁴⁰ Non-university research institutes are specialist research institutions, existing independently from universities, and pursuing research in a clearly defined field of science. They may be public (governmental) or private (non-governmental), but serve the public interest, evident notably in the fact that they are not pure for-profit institutions. Universities are all higher education institutions, public or private, broadly dedicated to the triad of learning, teaching and research as facilitating notably disinterested science.Footnote ¹⁴¹ Pure for-profit non-university research institutes or universities rather qualify as companies. While ‘academic freedom’ applies only to universities, the more general ‘freedom of science’ also applies beyond these to non-university research institutes and private companies.Footnote ¹⁴²

With regard to private companies, the state should create incentives for research that promote (also) the public interest. Such incentives may exist by virtue of an adequate patent system. A patent establishes a time-limited monopoly awarded to the inventor, allowing him or her to exploit the technology developed. Current patent law, however, is marred by overprotection. This results in high prices for patented products and low productivity in the technology sector.Footnote ¹⁴³ Further innovation is stifled by bad patents being granted, for example, for inventions that do not meet genuine standards of non-obviousness or, especially in developing countries, the obligation to pay often excessive licensing fees in order to further develop patented technology. Another incentive device are innovation prizes (for example, ‘big cash’ awards).Footnote ¹⁴⁴ These may be particularly relevant where a specific problem is to be solved, but where the aimed-at product is unlikely to be patentable, for instance, because it relies largely on existing technology.Footnote ¹⁴⁵ Yet another option is for the state to create a fund that rewards research on topics of public significance, where the patent system, for lack of a lucrative market, does not create such an incentive.Footnote ¹⁴⁶ The various incentive measures mentioned play a role primarily in the sphere of applied science. Their role diminishes as pure or basic science – the hallmark of the university – gains significance.Footnote ¹⁴⁷

In private companies, maximum freedom for the employer, and also for employees vis-à-vis their employer, makes good sense.Footnote ¹⁴⁸ The state should respect and facilitate such creative freedom in its research and development policies for the private business sector. Private companies, however, pursue commercial rather than public interest objectives. This justifies lower levels of state protection for freedom of science in private companies compared with non-university research institutes and universities. Yet, intervention by the state might readily conflict with other important values. It might notably run counter to free-market principles.

In the case of non-university research institutes, the creator – that is, the state in respect of public institutes – has a clear role in the determination of the fields of research assigned to specific institutes. Other than in the case of universities, the research will often be more instrumentally defined – that is, directed towards a particular socio-economic purpose. However, this does not mean that these institutes do not undertake some pure science as well. The authorities of an institute will concretise the research agenda and may expect employees to take an active part in pursuing the agenda.Footnote ¹⁴⁹ For the rest, however, especially as regards the use of methods, the freedom of scientists in non-university research institutes should enjoy wide protection.

In the case of universities and research bodies linked to universities, research should predominantly be pure and disinterested. The state is not precluded from also broadly suggesting and even funding specific topics of research. Beyond that, however, institutional autonomy, individual academic freedom, self-governance, collegiality and tenure need to be strictly observed. While state supervision of universities is important, this should clearly reflect a ‘hands-off’ approach with the state intervening only in instances where academia clearly is in dereliction of its duties. However, all state supervision and intervention in itself must be subject to the control of the courts. The university as ‘the conscience and critic of society’ enjoys a special status justifying special protection of freedom of enquiry.Footnote ¹⁵⁰ Gerhard Casper, a former president of Stanford University, accordingly underlines that the great advantage of the research-intensive university in contributing to innovation is its ability ‘to set agendas and remain open to chance and serendipity in research’.Footnote ¹⁵¹ He explains that if the research-intensive university were to be subordinated to the pressures of business product development or governmental industrial policy, it would lose the advantage inherent in ‘its commitment to the endless process of inquiry, the search to know’.Footnote ¹⁵²

Interestingly, the above scheme entailing lower levels of freedom of enquiry in the research and development (R&D) sector and highest levels in universities is also supported by economic arguments. Partha Dasgupta and Paul David explain that the symbiotic relationship between the R&D and university sectors crucially depends on respecting the distinct rules and reward systems of each.Footnote ¹⁵³ Justifiably lower levels of freedom of enquiry (choosing research topics, publishing or claiming ‘ownership’ of research findings, and so on) in the R&D sector are offset by higher wages. Traditionally far lower wages in universities, in turn, need to be compensated for by high levels of freedom of enquiry, enabling researchers to develop a reputation, this being a vital reward for university scientists.Footnote ¹⁵⁴ Dasgupta and David thus underline that ‘the taste for the lifestyle of science’ of university scientists needs to be respected, which requires governments, inter alia, to subsidise pure, free science at high levels.Footnote ¹⁵⁵ Not respecting their taste for science would damage the economic structure of science, as many brilliant researchers would leave the pure science sector, resulting in largely ‘privatised’ science and a lack of fundamental research sustaining long-term economic growth.Footnote ¹⁵⁶

The REBSPA requires the research in entities belonging to all three groups to protect the human dignity of all those subject to scientific experimentation or who may suffer from abuse or adverse effects of science and its applications. It also requires states to take measures to ensure that the benefits flowing from scientific activity in any entity are distributed as widely as possible and on a non-discriminatory basis in society. These two points are crucially important. However, as they do not constitute the focus of this article, they will not be further commented on in their own right here.

3.3. The Role of the State, Legislation and Its Limits

The adoption of framework legislation for the science sector is crucial. A wide-ranging regulation of the science sector by the state at the mere executive or administrative level lacks democratic legitimacy and violates the rule of law.Footnote ¹⁵⁷ Legislation in the sphere of science should, firstly, guarantee rights; secondly, lay down rules of conflict resolution; and, thirdly, stabilise the science sector financially and organisationally.Footnote ¹⁵⁸ Such legislation will have to establish a balance between positive and negative state obligations under the REBSPA that duly protects scientific and academic freedom. It is the duty of the courts to insist on rectification where this balance has not been achieved. In other words, the courts are tasked in this sense with constitutionally safeguarding that legislation is ‘adequate for science’ – and, therefore, complies with human rights.

Specifically as regards the guaranteeing of rights, legislation needs to provide protection for scientific and academic freedom. In accordance with what has been stated under the previous heading, protection levels will be lower in private companies, but very high in universities, with those in non-university research institutes somewhere in the upper half of this scale. With this in mind, individual scientific and academic freedom rights need to be defined. Furthermore, in universities, ensuring that institutional, faculty and departmental decisions on science are ‘adequate for science’ needs to be guaranteed by detailing the requirements of self-governance and collegiality.Footnote ¹⁵⁹ However, the concept of ‘adequacy for science’ plays a role also in non-university research institutes. Hence, certain rights of participation in governance for scientists need to be applicable in this context as well. As a procedural safeguard of scientific or academic freedom, employment security – tenure in the case of universities – should be protected. Legislation must protect the human dignity of all those ‘exposed to’ science and outline appropriate claims to share in scientific progress. Legislation should set out all the various entitlements and specify remedies and procedures to enforce these. The courts must have the competence to enforce these entitlements.Footnote ¹⁶⁰

Although legislative and other state measures must provide a framework for organising science, state action should, beyond that, reflect a high level of restraint in regulating the field. This is a consequence of the fact that ‘the administrative apparatus of a democratic state is not well suited to the management of scientific research’.Footnote ¹⁶¹ Bureaucracy is inimical to risk, but risk is a prerequisite for science. Creativity and accountability are mutually exclusive concepts.Footnote ¹⁶² It has been stated correctly that:

Framework legislation should thus provide a basis for the installation of relevant bodies and structures of science. Ultimate competence for regulation and decision making in the science sector should be assigned to the scientific fraternity itself (and this means active teachers and researchers rather than unelected, executive university or science ‘managers’), as represented in these bodies and operating within these structures. The more decentralised these functions are, the better. Most decisions are best left to individual universities and research institutions. The essential body of norms for science would therefore largely comprise written and unwritten statutes, by-laws, procedures, rules and conventions originating formally and informally within the scientific community. The legitimacy of this body of norms is (to be) grounded in the stated framework legislation. Again, the courts must be competent to enforce scientific and academic freedom by putting the government in its place whenever it transgresses the boundaries of its powers. However, the scientific fraternity itself is also subject to the courts’ review competence, as its own normative, administrative or adjudicative acts might not always live up to the demands of the various elements of the REBSPA, including scientific and academic freedom.

Clearly, the state is obliged ‘to facilitate and to promote the free exercise of science and the transmission thereof to subsequent generations through the provision of personnel, financial and organisational resources’.Footnote ¹⁶⁵ Where the state has established universities, it is also required financially to ensure that free research and teaching can take place in these institutions.Footnote ¹⁶⁶ Basic (that is, block) institutional research funding needs to be substantially increased and competitive funding (through national research assessment exercises and grant competitions) substantially reduced. Competitive funding favours ‘fashionable’ topicsFootnote ¹⁶⁷ and, therefore, tends to corrupt ‘scientific’ or ‘academic intuition’. States should exercise restraint in ‘pushing’ science through time limits and incentive instruments offering rewards. Notably in universities, science can – in fact, must – do largely without such incentive instruments.Footnote ¹⁶⁸ This is what we meant above by ‘choice of the wrong regulatory instruments’.Footnote ¹⁶⁹ The prospect for these scientists to enjoy reverence in the scientific community is more than sufficient incentive.Footnote ¹⁷⁰ Mathias Binswanger remarks on over-incentivisation generally that the stylised competitions in science for publications, citations, and third-party projects (financing) have caused the emergence of ‘more and more nonsense in the form of publications and projects’.Footnote ¹⁷¹ In his view, the effect of the system is to crowd out intrinsic motivation, unconventional approaches, individual talent, and basic research. Quantity replaces quality, form replaces content, and bureaucracy replaces research.Footnote ¹⁷²

Consequently, the arrangements suggested under this heading effectively make the legislature the structural, the scientific fraternity the everyday, and the courts the final guardian of the science system. Insofar as pure science is concerned, the government's role is to focus on financing, providing, encouraging, mediating and supervising – within the bounds of the law, which, in itself, must comply with human rights – and thus be ‘adequate for science’, as understood here.

4.1. The Ideology of Corporatism and ‘Useful’ Science

Corporatism has become a central guiding principle for state development of higher education and science in universities and research institutions. The author and colleagues comprehensively reviewed the state of the legal protection of academic freedom in 28 European countries recently, to find not only that this is abysmal, but also that it has deteriorated over the last two decades or so.Footnote ¹⁷³ Whereas most countries formally ascribe to academic freedom in their constitutions and laws, a reading of the fine print tells a very different story. Academic freedom has in many cases become an empty phrase. Legislative reforms have paved the way for state control of science. Instead of the various parameters of individual academic freedom, institutional autonomy, self-governance and tenure having been woven into the fabric of the legislative framework as a whole, one may notice provision having been made for what Margeritha Rendel calls ‘financial’ and ‘managerial attacks’ on higher education and science.Footnote ¹⁷⁴ These ‘attacks’ are intended to realise economic growth as the sole end of higher education and science. ‘Financial attacks’ would entail deliberately underfunding the sector, placing the focus on competitive funding, and encouraging institutions to obtain large sums of finance for contract research performed on behalf of the government or industry.Footnote ¹⁷⁵ ‘Managerial attacks’ refer to top-down forms of governance in universities and research institutions and the adoption of ‘an audit culture’, entailing the regular measuring of performance of staff and institutions by ‘counting output’.Footnote ¹⁷⁶ In a nutshell, corporatism in science therefore means enforcing a pure economic rationale for science through methods drawn from the business world, in the form of manifold incentives, hierarchical governance and quality audits.Footnote ¹⁷⁷

It appears that in many governments there is a perception that comprehensive state action, implemented through universities and research institutions being kept on a short leash, is the recipe for advancing science, securing its benefits to society, and enhancing socio-economic progress. Nobel Literature laureate John Coetzee points out that the university traditionally was outside and above the everyday political scrum. This gave it a degree of disengagement, independence and self-determination, which allowed its members to engage with questions of the public good in a non-partisan and critical way.Footnote ¹⁷⁸ Meanwhile, however, the state exerts a tight grip over teaching and research. Referring to British universities in this context, Eric Barendt observes that ‘[t]he independence of … universities has been substantially limited in the last thirty years, so that now only lip-service may be paid to their autonomy’.Footnote ¹⁷⁹ Universities have become ‘the arm of national economic policy’.Footnote ¹⁸⁰ Universities are to contribute to the gross national product (GNP). The only two forms of justification for state funding for universities these days are manpower planning and narrowly defined benefits of research, particularly medical, technological and economic benefits.Footnote ¹⁸¹

Recently, a senior manager in a South African university aired his view to the author that if one were to give academics freedom, this would just lead to chaos.Footnote ¹⁸² The emergence of the ‘authoritarian’ or ‘disciplinary’ university – in South Africa as elsewhere – is not coincidental, but clearly intended. Another high-profile South African university manager in a talk juxtaposed ‘academic freedom’ and ‘relevance’ as ‘the two options available in research’, the insinuation being that academic freedom grants academics a right to do what is ‘irrelevant’, and that what is relevant should not be determined by academics themselves but by the state and university management.Footnote ¹⁸³ Academic freedom does not, of course, include a right to do what is ‘irrelevant’. However, it implies the right of academia, as opposed to government or university management, to define relevance. The latter have come to interpret ‘relevance’ as practical or economic usefulness. This clearly sets the road to dictatorship in science – a market-fundamental dictatorship in science.

Most commonly, the reaction of academics to this ideology is to keep quiet and acquiesce in this, what may be termed a ‘dispossessive’ model of the university and of science, designed for them (and society) by the state – and, after all, also by university management.Footnote ¹⁸⁴ However, increasingly, academics – living up to their role as immediate guardians of a system ‘adequate for (university) science’ – are becoming more vocal in contesting that ideology. The Manifesto: Reclaiming Our University, a document of 2016 prepared by staff and students of the University of Aberdeen, Scotland thus finds:Footnote ¹⁸⁵

In 1997, UNESCO adopted the Recommendation concerning the Status of Higher-Education Teaching Personnel – a code regulating the profession of teaching and research in higher education and, by way of such regulation, seeking to enhance the quality of the higher education system. Overall, the Recommendation is a commendable instrument. Although not legally binding like a convention, it has ‘a normative character in [its] intent and effects’.Footnote ¹⁸⁶ Politically, states are not free to ignore its provisions on academic freedom, institutional autonomy, self-governance, collegiality and tenure.Footnote ¹⁸⁷ Yet, many observers would now agree that the Recommendation, in its present form, would be unlikely to muster the support of a majority of states today. This is so because the idea of the university as a business producing for society has meanwhile ‘colonised’ the minds of policy makers in higher education and science. Teaching and research are to be useful. In 2003, Charles Clarke, then UK Secretary of State for Education, remarked that the state should only fund higher education teaching and research with a ‘clear usefulness’. He said, ‘I don't mind there being some medievalists around for ornamental purposes, but there is no reason for the state to pay for them’.Footnote ¹⁸⁸ Science – thus the buzzword these days – should demonstrate ‘impact’. Accordingly, in attempting to achieve such usefulness or impact, trust as a foundational principle of teaching and research in universities (as well as of other research serving the public interest) has been surrendered to that of control and management.Footnote ¹⁸⁹ Performance control in science is bound to destroy trust. This is a natural consequence of the ‘value incongruence’ between the tasks of scientists, which are highly uncertain, and quality management, which uses ‘inappropriately’ deterministic performance standards.Footnote ¹⁹⁰

4.2. Research Management as a Flawed Concept

As for research, the new ethos of distrust is reflected in control and management of researchers and their circumstances, of the research content, of the research process, and of the research purposes. For many reasons, however, research management is a flawed concept.

Firstly, research management consumes enormous resources, finance-, energy-, and time-wise. The most significant increase in appointments in universities these days, for example, may often be noted for management (rather than academic) staff.Footnote ¹⁹¹ States therefore invest more and more money in research management rather than in research itself. This is odd, to say the least. Moreover, publication duties, writing funding applications, preparing budget plans and reports, obtaining ethical clearance, progress reporting, performance appraisals (‘audits’) and administrative red tape relating to research nowadays consume ever more time and energy, which are not available for actual research. It has been observed that ‘[t]he push to make educational institutions more money-valuable … is the primary driver of the loss of thought-time’.Footnote ¹⁹² Academic freedom depends not only on the formal protection of the right to pursue research opposing the dominant money-value system, but it also requires the time to do so.Footnote ¹⁹³ The loss of thought-time threatens the social value of academic work.Footnote ¹⁹⁴ Quality research requires ‘time and tranquillity’.Footnote ¹⁹⁵

Secondly, research management seems not to produce any beneficial result. Creating financial incentives is seen as an important component of research management. Hence, in the United States, the Bayh-Dole Act of 1980Footnote ¹⁹⁶ – which subsequently had served as a model for similar legislation in many other countries – sought to fundamentally reform the relationship between university research and industrial innovation by giving universities extensive rights to exploit intellectual property rights with regard to innovative technologies. In their book Ivory Tower and Industrial Innovation, David Mowery and his colleagues, through a mix of historical research, economic analysis and case studies, demonstrate that the innovation that did result and flow into the market following the adoption of the Act would probably equally have done so without it. The much-praised Act seems not to be the key to explaining the contribution of universities to the US economy.Footnote ¹⁹⁷ Similarly, incentivising scholarly publishing has led to an exponential growth in the number of books, journals and articles being published. Yet, the amount of knowledge gained can hardly be said to have increased accordingly. It has been stated that ‘[o]n average the content of … papers gets increasingly irrelevant, meaningless, and redundant’.Footnote ¹⁹⁸ This is because scholars turn their thoughts away from scientific problems towards the process of submission, reviewing and publication.Footnote ¹⁹⁹ Current practices and norms in academic publishing ‘contribute to destroying or crucially damage preconditions for original research’, as more and better (‘cutting-edge’, as it is called) research in less and less time cannot be achieved.Footnote ²⁰⁰ Nothing is more time-consuming than good research.

Thirdly, research management undermines scholarly integrity. Imad A Moosa, Professor of Finance in Australia, describes the devastating effect that ‘publish or perish’ (POP) – a central tool of research management – has on science. Furnishing impressive proof, he shows how the pressure to publish extensively in ‘high-impact’ journals following ‘rigorous’ peer review has not only resulted in researchers publishing papers of deteriorating quality, but also for them on a grand scale to fabricate data, plagiarise, self-plagiarise, salami-slice, republish the same content, report biasedly, manipulate results, commit misconduct with regard to authorship, and publish results that are not reproducible.Footnote ²⁰¹ The way forward, he suggests, ‘is to abandon the POP culture’.Footnote ²⁰² Before its advent, academics enjoyed ‘fairly secure academic freedom’.Footnote ²⁰³ While most academics were teachers who did little research, only the best researchers published, their sole reward being recognition. ‘There is nothing wrong with this model – it is division of labour that leads to efficiency’.Footnote ²⁰⁴

Fourthly, research management often violates scientific or academic freedom. To mention an example from the South African academic context, which is representative of similar interventionist practices in other countries: the South African government, in its zealous efforts to guarantee that science in universities will produce progress, maintains a list of ‘accredited’ journals (journals it considers ‘appropriate’). For each article published in an ‘accredited’ journal, the government pays a subsidy to reward the relevant institution.Footnote ²⁰⁵ Largely underfunded universities compel their academic staff, up to a percentage, to rely on this income to pay for their own research activities. In practice, this means that staff who publish in ‘non-accredited’ journals will effectively not have sufficient funds available to attend conferences or pursue other academic activities that cost money. This constitutes a serious violation of academic freedom not only by universities but also the government, which must accept responsibility for the perverse consequences of the system it has installed. Under the UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel of 1997 there is a right to publish; this includes the choice of medium.Footnote ²⁰⁶ Scholars must be trusted to know which journal is ‘the right one’ for their research findings. Any government or university regulation as to what constitutes a suitable medium of publication for a university researcher is unacceptable per se. The decision where to publish falls within the scientist's ‘absolute freedom’ lying beyond government or university powers.Footnote ²⁰⁷ What makes the situation worse is that the stated list is highly arbitrary. Just one example: only three of the top 15 journals worldwide in the field of ‘international law’ are included on the list. The Virginia, Yale, and Chicago journals of international law, for instance, do not feature on it,Footnote ²⁰⁸ although many insignificant journals are included. Furthermore, assuming journals to have been accredited, an article of 80 pages in an internationally acclaimed journal counts for the same as a case note of 5 pages in an unknown journal. This is, of course, the likely result of having bureaucrats, disconnected from the inner workings of science, deciding questions relating to research.

Fifthly, an omnipresent state and ever-nagging research and teaching ‘managers’ tend to poison the atmosphere of freedom that should prevail in universities. This, in turn, impacts negatively on the motivation of staff. Among the academic staff of the increasingly corporate university motivation has dropped dramatically over the last two decades or so. For South Africa, for example, it has been found that the organisational culture of managerialism and performativity, and the huge assignment put to universities, for instance, in promoting economic productivity, have resulted in a severe burden being placed upon academic staff.Footnote ²⁰⁹ The reason for the stress and demotivation is that academics are no more mere scholars, but perform labour in three different paradigms: a scholarly community, a bureaucracy and a corporation, each with its own duties, with duties among these often conflicting.Footnote ²¹⁰

Sixthly, finally and very importantly, the endeavour to ‘manage the research imagination’ – as Rebecca Boden and Debbie Epstein have described practices of applying various disciplinary processes in universities directed at enhancing scholarly performance and the production of useful results – severely constricts critical thought.Footnote ²¹¹ Critical thinking cannot occur in circumstances where the realm of permissible research is narrowed down at the outset to what the economy will need and where hopelessly overworked and always accountable academics have no time for reflection. Boden and Epstein consider the constriction of critical thinking to have the following two manifestations:Footnote ²¹²

Cultural theorist Stuart Hall is reported to have said that ‘[t]he university is a critical institution or it is nothing’.Footnote ²¹³ Cognisant of his words, the scenario described above, in its final significance, naturally points to the end of the university as we know it. It is, therefore, understandable if experts on universities doubt whether universities can survive as critical organisations in the current time.Footnote ²¹⁴ Consequently, corporatism damages science. Ultimately, scientific or academic freedom remains the best guarantor of scientific progress in the interest of society at large.

5.1. The Recommendation's Key Areas and the Scientific and Academic Freedom Rights Protected

In an annex to its Resolution of 13 November 2017 adopting the Recommendation, UNESCO summarises the ten key areas addressed by the Recommendation. These are:

• • the responsibility of science towards the UN ideals of human dignity, progress, justice, peace, the welfare of humankind and respect for the environment;

• • the need for science to interact meaningfully with society and vice versa;

• • the role of science in national policy and decision making, and international co-operation and development;

• • the promotion of science as a common good;

• • inclusive and non-discriminatory work conditions and access to education and employment in science;

• • the need for scientific conduct to be subject to universal human rights standards;

• • balance between the freedoms, rights and responsibilities of researchers;

• • the importance of scientific integrity and ethical codes of conduct for science and research and their technical applications;

• • the importance of qualified scientific researchers for a sound and responsible science system; and

• • the role of member states in creating an enabling environment for science and research.Footnote ²¹⁷

Which aspects of scientific and academic freedom are then recognised by the Recommendation? A scrutiny of the document reveals the following:

• • Status (standing, working conditions): Scientific researchers should enjoy a status (standing, working conditions) which facilitates fulfilment of their duty towards achieving national and global science goals.Footnote ²¹⁸ This may be stated to presuppose the protection of scientific and academic freedom.

• • Scientific freedom in a more generic sense: In the Preamble to the Recommendation, member states recognise that the ‘open communication of the results, hypotheses and opinions – as suggested by the phrase ‘academic freedom’ – lies at the very heart of the scientific process, and provides the strongest guarantee of accuracy and objectivity of scientific results’.Footnote ²¹⁹ They should institute procedures which entitle scientific researchers to ‘the degree of autonomy appropriate to their task and to the advancement of science and technology’. Creativity of scientific researchers should be promoted ‘on the basis of utmost respect for the autonomy and freedom of research indispensable to scientific progress’.Footnote ²²⁰ The Recommendation emphasises that researchers should enjoy the right ‘to work in a spirit of intellectual freedom to pursue, expound and defend the scientific truth as they see it, an intellectual freedom which should include protection from undue influences on their independent judgement’.Footnote ²²¹

• • Specific scientific freedom rights of scientific researchers: The Recommendation recognises rights of scientific researchers to publish or communicate results,Footnote ²²² to share scientific data,Footnote ²²³ and to have access to scientific information.Footnote ²²⁴ Researchers should enjoy the right of conscientious objection – ‘to withdraw from … projects if their conscience so dictates’.Footnote ²²⁵ There are further provisions on ‘the principle of freedom of movement’Footnote ²²⁶ and rights related to freedom of association.Footnote ²²⁷

• • Employment security: Member states should develop employment policies that protect state employees against ‘precariousness due to mobility or limited-duration contracts’.Footnote ²²⁸

• • Certain rights of collegiality or participation: The Recommendation further grants to scientific researchers the right ‘to contribute to the definition of the aims and objectives of the programmes in which they are engaged and to the determination of the methods to be adopted’.Footnote ²²⁹ Participatory rights also exist in a broader national context.Footnote ²³⁰

• • Rights of employers, funders, institutions: Educational institutions are entitled to ‘the necessary and proper independence’.Footnote ²³¹ Persons or institutions that employ, fund or govern researchers or research enjoy certain rights equivalent to those of scientific researchers. These rights, however, must ‘not impede on the scientific researchers’ exercise of … rights’.Footnote ²³²

Consequently, on the above account the Recommendation includes quite a wide array of rights. The various rights implicate state duties at the levels of respecting, protecting and fulfilling rights. Except for very few provisions – notably paragraph 16(b) on the rights of employers, funders and institutions – the other provisions mentioned above were already present in an almost identical form in the 1974 instrument. However, what makes the situation rather critical from the perspective of scientific and academic freedom in the case of the new version of the Recommendation is that the latter introduces certain novel aspects with clear implications for scientific and academic freedom (such as peer review, ethics codes and committees, protection of confidential personal data, and so on), without providing sufficient safeguards.Footnote ²³³

The Recommendation does not always employ clear rights language. For example, it calls a right a ‘principle’,Footnote ²³⁴ or it states that granting a certain right is ‘desirable’.Footnote ²³⁵ Unlike the 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel, the 2017 Recommendation does not contain a provision stating that scientific researchers ‘should enjoy those internationally recognised civil, political, social and cultural rights applicable to all citizens’, then enumerating some of these rights.Footnote ²³⁶ Nor does it contain a full definition of scientific or academic freedom.Footnote ²³⁷

5.2. Scientific and Academic Freedom Play only a Secondary Role

The identification of the Recommendation's ten key areas in the Annex to the adopting resolution, together with a holistic reading of the Recommendation, demonstrate that scientific and academic freedom play a secondary role in its overall scheme. The Preamble prominently points out that science ‘open[s] up vast prospects for progress’, but also ‘entail[s] certain dangers’.Footnote ²³⁸ This connects with the crux of the Recommendation, the state designing science policy so as to serve progress, while at the same time making sure ‘humankind's vital interests’, human rights, fundamental freedoms and the dignity of the human person are safeguarded.Footnote ²³⁹ Only secondarily then – clearly making this nuance visible – ‘[it is] also recognis[ed]’ that academic freedom should be protected.Footnote ²⁴⁰ A further example of the secondary role accorded scientific and academic freedom can be found in paragraph 14(d), which mentions six goals of science education, such as the scientific method, intellectual integrity, skill in isolating ethical implications, and so on.Footnote ²⁴¹ Awareness of scientific and academic freedoms is conspicuously absent from the list. Is this secondary role perhaps the consequence of the fact that deeply distrustful policy makers have come to misconstrue freedom as ‘irresponsibility’?Footnote ²⁴² All taken together, appreciating – as has been shown in Section 4 above – that scientific or academic freedom is the best guarantor of scientific progress in the interest of society at large, this should at least have ranked on a par with the state's role in regulating science and devising policies geared towards accelerating scientific progress for the benefit of society.

5.3. An Instrumental Conception of Science and the Impact Agenda

Overall, the Recommendation reflects a rather instrumental conception of science. States are required to ensure that science ‘tackl[es] various world problems’, ‘strengthen[s] co-operation among nations’, ‘promot[es] the development of individual nations’,Footnote ²⁴³ helps ‘set[ting] up a society that will be more humane, just and inclusive’, ‘enhance[s] … the cultural and material well-being of its citizens’, ‘further[s] the United Nations ideals’,Footnote ²⁴⁴ and promotes ‘the achievement of national goals’.Footnote ²⁴⁵ ‘Research and development is not [to be] carried out in isolation’.Footnote ²⁴⁶ Does this leave room for science in the pursuit of knowledge for its own sake?Footnote ²⁴⁷ What about curiosity-driven, blue skies research? What are national goals? Does development mean pure economic growth? Do the above goals countenance a mere impact agenda in science, valuing research essentially for its contribution to the knowledge economy?

The reality is that the notion of ‘impact’ has become all-pervasive in science, also in universities. John Ziman accordingly finds that we are in the age of ‘post-academic science’, where instrumental has displaced disinterested science.Footnote ²⁴⁸ He holds that the ethos of trust sustaining disinterested science ‘is being fatally undermined by [its] enforced cohabitation with instrumental research’.Footnote ²⁴⁹ Philip Moriarty considers the impact agenda to systematically erode the Mertonian norms in academia,Footnote ²⁵⁰ this driving publicly funded university research closer and closer to the PLACE norms of industrial science.Footnote ²⁵¹ He says that ‘what is perhaps most dispiriting about the impact agenda is the extent to which the research councils and, most worryingly of all, universities themselves have abandoned any commitment to truly disinterested, curiosity-driven research’.Footnote ²⁵²

Moreover, what about science as an aspect of the right ‘to take part in cultural life’, as protected in Article 15(1)(a) of the ICESCR? Lea Shaver emphasises that the value of science is not purely instrumental, but that there is also a value inherent in the process itself. Engaging in scientific discovery ‘helps us to realise and express parts of our shared humanity, which has value from the perspective of individual development and the shared life of the community’.Footnote ²⁵³ To be sure, paragraph 4 of the Recommendation, at its very end, benevolently adds that ‘sufficient place [should be given] to science per se’, but in the overall scheme of the Recommendation the message of this coda very much vanishes into thin air.

5.4. Peer Review, Ethics and Intellectual Property Rights

The Recommendation does not resolve – it even exacerbates – conflicts between scientific or academic freedom and other rights, interests and values worthy, or potentially worthy, of protection. It does not, for example, address conflicts between scientific or academic freedom and anti-terror legislation, the protection of confidential personal data, or employers’ claims to honour and reputation. Three instances of conflict not resolved will be referred to here, namely:

• • conflicts between scientific or academic freedom and peer review;

• • conflicts between scientific or academic freedom and ethical regulation; and

• • conflicts between scientific or academic freedom and intellectual property rights.

The Recommendation even intensifies conflicts in the cases of peer review and ethics.

A new feature of the Recommendation not encountered in the 1974 version is the central role accorded to peer review. It is considered crucial to validate research findings.Footnote ²⁵⁴ The Recommendation further expressly applies with respect to ‘institutions and individuals responsible for … peer review’.Footnote ²⁵⁵ States are to ‘establish [peer review] as a norm for any scientific publishing’.Footnote ²⁵⁶ Finally, peer review is to form one component of performance appraisal for state employees.Footnote ²⁵⁷

It should, first of all, be pointed out that in the light of the high level of restraint required on the part of the state when it comes to organising science and scholarship referred to in Section 3, prescribing peer review as a requirement for scientific publishing, or for performance appraisals of at any rate academic staff in universities, lies beyond state powers. The forms of quality control that are necessary in a specific type of situation is a matter for the scientific fraternity to decide. Legislation can only (but must) oblige the scientific fraternity to give consideration to the issue.Footnote ²⁵⁸ The relevant provisions of the Recommendation must to that extent be regarded as unacceptable, therefore.

Peer review does have its place in science, but the sacrosanct status it is accorded in the Recommendation is not justified. With regard to the field of publishing, for example, it is generally not contested that peer review penalises innovation and non-conformity.Footnote ²⁵⁹ Imad Moosa identifies a whole list of problems associated with peer review. Notably, for a well-written paper the submission outcome is governed by a stochastic process: ‘Some academics would tell you that they had a paper rejected five times, only to be accepted for publication in a better journal at the end’.Footnote ²⁶⁰ Larry Wasserman says peer review creates ‘an illusion … [of] … quality control’.Footnote ²⁶¹ There are alternatives to current peer review.Footnote ²⁶² There is something to be said for old-fashioned editor review, for instance, which has proved to be fairly reliable.Footnote ²⁶³ There should also be forms of collaborative verification by the larger scientific community, for example, through open access archive systems.Footnote ²⁶⁴ Another option is to dispense totally with the need for a (structured) review process: ‘Good ideas will get recognised, used and cited. Bad ideas will be ignored’.Footnote ²⁶⁵ In any event, courts must be granted powers of review to adjudge compliance of peer review (or other forms of quality control) with scientific and academic freedom – also when such review or control is performed by, or on behalf of, commercial or other scientific publishers.Footnote ²⁶⁶

Another new feature of the Recommendation is the requirement that states should ‘establish … suitable means to address the ethics of science … specifically through establishing, promoting and supporting independent, multidisciplinary and pluralist ethics committees’. These are to provide ethical advice and assess scientific developments. In particular, they are ‘to assess the relevant ethical, legal, scientific and social issues related to research projects involving human beings’.Footnote ²⁶⁷ Due account is to be taken of ethics compliance in performance appraisals.Footnote ²⁶⁸ There are many other references to ethics.Footnote ²⁶⁹ The 1974 version of the Recommendation contained only three brief references to ethics. The importance of ethics assessments is undisputed in many cases, notably in the context of medical research. What is important to remember, however, is that every ethics assessment in principle impacts on scientific or academic freedom and, therefore, requires justification. The Recommendation does stipulate that employers should install ethics review boards.Footnote ²⁷⁰ Beyond that, however, the essential conflict between ethics and scientific or academic freedom is left unaddressed.

Ethics assessments are perhaps not a suitable instrument in the humanities and social sciences (HSS). The extra work and the delays they entail may disproportionately discourage research in these fields.Footnote ²⁷¹ It has been argued that ethical regulation in HSS ‘[causes] damage to wider interests in acquiring reliable and valid information about the social, political, economic and cultural life of our society’.Footnote ²⁷² Moreover, ethics assessment may easily assume the form of a broad moral review.Footnote ²⁷³ The great achievement of modern science lies exactly in the fact that it has been able to accomplish a demoralisation. Attempts of a remoralisation should be resisted.Footnote ²⁷⁴ Where does one draw the line between ethical regulation and censorship? What has become of scientific or academic self-duty?Footnote ²⁷⁵ Yet again, the state's duty of restraint in organising science and scholarship should be kept in mind. This is especially so when it comes to regulating instances beyond the clearer cases in which ethics assessment may or should be deemed compulsory, or where the specificities relating to the establishment of ethics codes and bodies in universities and research institutions, and beyond, are concerned. Again, courts must be granted powers of review to ensure that ethical regulation duly respects scientific and academic freedom, does not disproportionately undermine scientific progress, is guided by principles of a rational responsibility not to cause harm, and, when inspired by human dignity, only protects human dignity as a human rights (and not a moral) concept. Altogether, therefore, ethical regulation needs to steer much more of a middle course.

The Recommendation does not address conflicts between scientific or academic freedom and intellectual property rights in any more detail. The novelty requirement of patent law delays the publication of research results.Footnote ²⁷⁶ The copyright of scientific publishers obstructs access to scientific knowledge.Footnote ²⁷⁷ The Recommendation does call for ‘balancing between protection of intellectual property rights and the open access and sharing of knowledge’.Footnote ²⁷⁸ It should, however, also have included specific suggestions for statutory limitations and exceptions to copyright protection that states could implement to safeguard access to scientific knowledge in educational or scientific institutions, libraries and archives.Footnote ²⁷⁹ Insofar as the intellectual property rights of scientists themselves are concerned, the Recommendation does little to add to or strengthen these. It vaguely calls for ‘appropriate’ legal protection of intellectual property rights, provides that employers should respect (those) intellectual property rights (that scientists may be granted), and insists that intellectual property rights be ‘stated clearly’ in employment contracts (not saying, however, what must be included or may not be excluded).Footnote ²⁸⁰ Restrictions on the right to publish should be ‘strictly minimised’.Footnote ²⁸¹ Does this also apply to restrictions imposed on university researchers by government or industry commissioning research? The Recommendation ultimately mentions restrictions within the ambit of employment contracts only, but does not refer to contracts of independent contractors.Footnote ²⁸² In times where outside actors increasingly hold proprietary interests in the research findings of universities, the Recommendation should have offered clearer rights to university researchers in this context.

5.5. The Vigorous Entrepreneurialisation of Universities and Neoliberalism

It is now commonly stated that the university of the future is entrepreneurial in nature. The case for the entrepreneurial university has notably been made by Henry Etzkowitz.Footnote ²⁸³ Alongside teaching and research, the entrepreneurial university, according to Etzkowitz, has a third mission: the ‘capitalization of knowledge’.Footnote ²⁸⁴ Close links between university, industry and government are ‘the key to innovation and growth in a knowledge-based economy’.Footnote ²⁸⁵ For Etzkowitz, the entrepreneurial university is ‘an economic actor in its own right’.Footnote ²⁸⁶ Its endeavours are essentially directed at developing intellectual property through research and then organising the transfer of technology to the economy through patenting, licensing and incubation (creating spin-off firms).Footnote ²⁸⁷ For this new type of university to fulfil its mission successfully, there must exist ‘an entrepreneurial ethos among administrators, faculty, and students’.Footnote ²⁸⁸

Also Burton Clark has argued in favour of the entrepreneurial university.Footnote ²⁸⁹ Besides its traditional faculties and departments, the entrepreneurial university crucially requires an ‘expanded developmental periphery’, comprising interdisciplinary project-oriented research centres and further ‘professionalised outreach offices that work on knowledge transfer, industrial contact, intellectual property development, continuing education, [and] fundraising’.Footnote ²⁹⁰ Universities need to develop a ‘diversified funding base’.Footnote ²⁹¹ Major components of such a funding base are increased study fees and ‘third-stream income sources that stretch from industrial firms, local governments, and philanthropic foundations, to royalty income from intellectual property, earned income from campus services, … and alumni fundraising’.Footnote ²⁹² Clark similarly emphasises the need to create an ‘integrated entrepreneurial culture’ as an element in the process of transformation in universities.Footnote ²⁹³

Does the emergence of the entrepreneurial university constitute a threat to universities and university research? Ben Martin answers this question in the negative.Footnote ²⁹⁴ He argues that the ‘classical’ university should not be seen as the perfect and final embodiment of the idea of the university. The university is ‘a very adaptable organism’, he says.Footnote ²⁹⁵ Martin examines the role of the mediaeval university, universities and science academies of the Age of Enlightenment, the Humboldtian university, universities focusing on applied research, and teaching-intensive higher education institutions,Footnote ²⁹⁶ and concludes that the modern university with a third mission is not new.Footnote ²⁹⁷ He holds that this university represents a stage in an evolutionary process in which universities have always been (and will always be) either more or less instrumentally oriented, depending on the exact economic, social and political environment prevailing at the relevant time.Footnote ²⁹⁸

Martin's perspective is certainly interesting, but probably too naive. In this author's view, the entrepreneurial university of our time is not something that has been there previously, just in another guise. We are not merely, as a result of pressing needs of society, witnessing a reversion to more utilitarian conceptions of the university as they prevailed, for instance, during the Middle Ages or the Age of Enlightenment, or as manifest thereafter in the form of, for example, technical universities. What we are witnessing is rather a paradigm shift, entailing the wholesale abandonment of a thousand-year-old understanding of the university. For even if universities previously also served utilitarian goals, they always served the public good, facilitated comprehensive critical enquiry, and clearly related knowledge to the human being. The modern university, however, solely serves economic growth as an end in itself. Never before have universities forfeited criticality as absolutely as they do today. Ronald Barnett says that in today's university the ‘critical component is arrested at the instrumental level’.Footnote ²⁹⁹ Newer forms of study accept the world largely as given and merely seek to produce more effective operations within it.Footnote ³⁰⁰ Even the mediaeval university, with its strong emphasis on teaching practical skills, was not instrumental in this sense as the mediaeval curriculum was still premised on the notion that comprehension of the outer (technical) world had to be embedded in reflection on the person's inner world.Footnote ³⁰¹ Critical thinking is being displaced ‘in the wake of the emergence of “the entrepreneurial university” and the development of market principles in higher education’.Footnote ³⁰² Hence, what we are witnessing today is certainly new. There is a complete break with the idea of the university as it has existed hitherto. In the words of Basil Bernstein, ‘[k]nowledge, after nearly a thousand years, is divorced from inwardness and is literally dehumanized’.Footnote ³⁰³

It is often said that the entrepreneurial university is a response to the exigencies of our times.Footnote ³⁰⁴ With the end of the Cold War, globalisation, the worldwide opening of markets and increasing competition, it is claimed that national economies will be able to survive only if there is an enhanced emphasis on, and if governments pursue explicit policies towards, science, innovation and technology.Footnote ³⁰⁵ Simultaneously, student enrolments are to be increased substantially to meet the ever-growing needs of the knowledge economy.Footnote ³⁰⁶ Limited public resources, it is said, imply ‘increasing demands for accountability, effectiveness, relevance and value for money’ with regard to research and teaching.Footnote ³⁰⁷ All this is to delude us into believing that the entrepreneurial university, in the current economic, social and political context, is a necessary solution, following logically, as it were, from the applicability of some law of nature, rather than the product of choice based on ideology. One should agree with Ourania Filippakou and Gareth Williams in their holding that the entrepreneurial university is not so much the consequence of the expansion of higher education, but is ‘primarily the result of ideological changes which have led to the current global dominance of neoliberalism’.Footnote ³⁰⁸

Neoliberalism rejects the idea of the public good paid for by the state. It believes in private investment, that is, investment in the self. This, as Pierre Bourdieu points out, is really an extension of the Calvinist tenet that ‘God helps those who help themselves’.Footnote ³⁰⁹ Under neoliberalism, the individual, ‘[w]hether he is selling, making, or consuming … is investing in himself and producing his own satisfaction’.Footnote ³¹⁰ The individual who is political (homo politicus) and possessed of inherent dignity (homo humanum) is displaced by the homo oeconomicus, the economic person. Interestingly, as Michel Foucault explains, the homo oeconomicus of neoliberalism (unlike his classical counterpart) is surprisingly unfree and eminently governable.Footnote ³¹¹ This individual does not live freedom but is to be morally ‘responsibilicised’ through economics.Footnote ³¹² Also this is an extension of Calvinist notions of governing the subject through reward and punishment. Relying on these instruments, the state ceases to be a provider of welfare and governs from a distance. The sole purpose of the neoliberal project, as Wendy Brown stresses, is ‘macroeconomic growth and credit enhancement’.Footnote ³¹³

In this sense, then, higher education and science are increasingly ceasing to be public goods. Higher education and science are deliberately being underfunded. A range of ‘instruments of responsibilisation’ – incentives, hierarchies, standards, measures and audits – seek to induce universities, and the scientists they engage, to produce science for the economy. In the process, universities lose their independence and scholars their freedom of enquiry.Footnote ³¹⁴ The entrepreneurial university encompasses ideas of performance, accountability and capitalisation of self.Footnote ³¹⁵ While this type of university may legitimately play a supplementary role, it should not be the leitmotif for university development. Where homo oeconomicus becomes the measure for university development, this undermines human dignity as the foundational value of the REBSPA in Article 15(1)(b) of the ICESCR.Footnote ³¹⁶

The UNESCO Recommendation should have contrived an effective response to the dwindling independence of universities and the erosion of individual academic freedom in universities that have occurred since the mid-1980s, precipitated by the implementation of neoliberal higher education and science policies. Mathias Binswanger thus laments that the modern university is only marginally concerned with gaining knowledge. He says that today's universities are ‘fundraising institutions’ and ‘publication factories’, managed by principals who are ‘sort of a CEO’.Footnote ³¹⁷ Neoliberal policies – in the concrete form of what has been called corporatism above – have had a devastating effect on science in universities and research institutions.Footnote ³¹⁸ The Recommendation does not deal with the corporate threat to science at all. This is quite remarkable when one considers that the literature describes the current situation as one close to a ‘breakdown of scientific thought’.Footnote ³¹⁹

5.6. Accountability Excess and Staff Performance Appraisals

There is an obsession these days with accountability in higher education and science. Accountability appears to supersede rights. Even the Recommendation, before stating that scientific researchers are entitled to ‘freedom of research’, posits that ‘scientific researchers [must] respect public accountability’.Footnote ³²⁰ The Recommendation leaves open what ‘public accountability’ means. In so doing, it opens the door to states giving this a neoliberal interpretation. Accountability would then mean using taxpayers’ money only towards ‘useful’ science and producing sufficient quantifiable output. Performance is to be assessed. On closer scrutiny, public accountability has become more of a bogus concept, easily applied to restrict freedoms and exercise control. In higher education and science, its use is more hypocritical than sincere.Footnote ³²¹

It has already been pointed out above how resource-intensive – wasteful on taxpayers’ money – ‘accountability’, as currently understood, really is.Footnote ³²² To mention another example, the demand for academics performing peer review at the request of large publishing houses has increased exponentially. While the latter save on money for quality control, this is performed by academics (ultimately) paid by the state. The state accordingly subsidises private companies.Footnote ³²³ Subsequently, the state (or its money) purchases, or acquires licences in respect of, the same journals and books, the production of which it has subsidised, at excessive prices to resource research libraries, thus paying public money to the private sector for a second time.Footnote ³²⁴ By way of a third and final example, trying to meet performance measures of accountability involves a change of research strategy by scientists and their institutions – namely, the avoidance of risk in science to ensure that results and ‘output’ can be delivered.Footnote ³²⁵ However, with risk being a sine qua non for scientific progress, financing a science system destined not to yield scientific progress epitomises a waste of public resources. In many ways, the current accountability excess inhibits scientific progress.

As Stefan Collini points out, the public, supposedly claiming that state resources should not be squandered, in reality is bothered less about taxpayers’ money and accountability. It does not want to hear how much scholarship and science will contribute to the GNP. It wants to know that, ‘somewhere, human understanding is being pressed to its limits, unconstrained by immediate practical outcomes’.Footnote ³²⁶ He holds that, in fact, universities are now less efficient than they were twenty years ago. This is so, he argues, because a bureaucratic system of constant measurement leaves little room for two of the most important sources of efficiency in intellectual activity: voluntary co-operation and individual autonomy.Footnote ³²⁷

This then links up with another issue to be discussed here: staff performance appraisals. Whereas the 1974 version of the Recommendation considered ‘appraisals’ more of a conceivable instrument,Footnote ³²⁸ the 2017 Recommendation makes them mandatory for state employees: ‘States should … design … appraisal systems’.Footnote ³²⁹ The 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel considers the ‘major function [of appraisal] [to be] the development of individuals in accordance with their interests and capacities’.Footnote ³³⁰ The 2017 Recommendation does not mention this consideration at all. Both the 1974 and the 1997 Recommendations emphasised that appraisal would have to ‘take due account … of the difficulty inherent in measuring [a] personal capacity’.Footnote ³³¹ The 2017 Recommendation mentions this consideration in a rather subsidiary fashion.Footnote ³³² The emphasis is now on ‘all aspects of the work including, inter alia, contributions to publications, patents, management, teaching, outreach, supervision, collaboration, ethics compliance, and science communications’.Footnote ³³³ The test, as formulated, has a quantitative tick-box appeal, completely absent in the tests of both the 1974 and the 1997 Recommendations. As seems to happen in many countries, contributions are frequently simply quantified (number of publications, patents, and so on). The 2017 Recommendation states that ‘[a]ppropriate metrics [should be combined] with independent expert assessment (peer review)’.Footnote ³³⁴ Paternalistically, peer review is to be a magic cure to be prescribed by the stateFootnote ³³⁵ – and, recourse is to be had to metrics! Does the Recommendation honestly propose the use of metrics (that is, quantitative targets) in staff appraisals? This is corporatism at its worst. Metrics will often mismeasure because ‘[n]ot everything that counts can be counted’.Footnote ³³⁶ Metrics incentivise scholarly dishonesty, are inherently autocratic and based on distrust, and often have unintended, counterproductive consequences (such as the avoidance of risk in science).Footnote ³³⁷

Performance appraisals are part of a system that seeks to enhance scholarly output through rewards – financial or moral (researchers can become ‘rock star’ academic researchers)Footnote ³³⁸ – and punishment (refusal of funding, non-promotion, dismissal). However, as Collini points out, good scholarly work is not a quantitative goal – it cannot be measured by university administrators, but needs to be judged by the larger scientific community in the long term.Footnote ³³⁹ Moreover, no measure of appraisal can compel the production of the thing that matters most – intellectual quality in research.Footnote ³⁴⁰ This either exists, or it never will.

5.7. Inclusive Governance, Collegiality and Participation

Finally, in universities the protection of individual academic freedom presupposes the existence of arrangements to ensure that decisions on science that are collective in nature will be ‘adequate for science’.Footnote ³⁴¹ In effect, this lies at the basis of the requirements of self-governance and collegiality as provided for in the UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel of 1997.Footnote ³⁴² Apart from conferring on scientific researchers the right ‘to contribute to the definition of the aims and objectives of [research] programmes … and to the determination of the methods to be adopted’,Footnote ³⁴³ the 2017 Recommendation does not comment on issues of inclusive governance, collegiality and participation in institutions of science and their sub-units. While academic staff in universities will enjoy rights of self-governance and collegiality under the 1997 Recommendation (this constitutes lex specialis for university staff and will supersede the 2017 Recommendation whenever the standards of protection of the earlier Recommendation are higher),Footnote ³⁴⁴ the ‘adequacy for science’ of decisions on science that are collective in nature should similarly be ensured beyond the university context, notably in public non-university research institutes. These institutes will usually be headed by a director and there would be governing bodies with government representatives among the members. Although the employees of these research institutes do not enjoy the same measure of scientific freedom as is enjoyed by university staff, rights of participation or self-regulation need some form of protection here, too. Senates and other bodies composed of scientific staff, representation in governing bodies, voting rights, and so on, will usually have to be provided for.Footnote ³⁴⁵