Where Have All the Scientific and Academic Freedoms Gone? And What Is ‘Adequate for Science’? The Right to Enjoy the Benefits of Scientific Progress and Its Applications

Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights protects the right of everyone to enjoy the benefits of scientific progress and its applications (REBSPA). While the interpretation of this provision has not really been a focus of attention in the past, this is changing. A danger lies in construing this provision as entitling states to comprehensively regulate the field of science, at the expense of scientific and academic freedom. Scientific or academic freedom, rather than state regulation, guarantees creativity and innovation in the field of science for the benefit of society at large. This article raises four caveats to guide all those tasked with interpreting Article 15(1)(b) – specifically, the UN Committee on Economic, Social and Cultural Rights, right now preparing a General Comment on Article 15(1)(b). Firstly, it is crucial to have conceptual clarity of, and understand the differences between, the REBSPA, freedom of science, academic freedom, freedom of expression, and the right to education. Secondly, science, by its very nature, is not susceptible to being managed. An ‘adequate’ framework for science should limit state intervention and empower the scientific fraternity. Thirdly, regulation has lately often entailed the adoption of a corporatist approach to science in universities and research institutions. This damages science. Fourthly and finally, UNESCO's recent Recommendation on Science and Scientific Researchers of 2017 constitutes only an imperfect blueprint to guide interpretation of the REBSPA. It fails to address various threats (impact agenda science, peer review, ethical regulation, entrepreneurialisation, accountability excess, absence of rights of participation in governance, and so on) to scientific and academic freedom. Relying throughout on the notion that a science system must be ‘adequate for science’, the article concludes with a set of 22 recommendations on how the REBSPA should be construed so as to duly respect scientific and academic freedom. The current science regime needs to be fundamentally rethought in the light of such freedom. Otherwise – and many experts concur – we shall soon witness the fatal collapse and disintegration of modern science. Freedom as a pillar of science, and of the REBSPA, is in danger of being lost.


AVERTING THE COLLAPSE OF MODERN SCIENCE
In his book, Scientific Freedom: The Elixir of Civilization of 2008, Donald Braben remarks that managed science may sound like a good idea. However, he warns that as we do not properly scientific and academic freedom (Section 6). Future research would have to concretise the exact implications of the suggestions made.
The discussion occasionally refers to German law. This must be understood in the context of the fact that freedom of science is historically a 'German' idea. 14 Freedom of science has its roots in the philosophy of Wilhelm von Humboldt (1767-1835), the Frankfurt Constitution of 1849, and the German concept of 'Wissenschaftsfreiheit' (freedom of science). This notion subsequently influenced legal developments in other Continental European countries and also the United States. Today, German case law probably constitutes the richest interpretative source of the concept of freedom of science.
Freedom of science, scientific freedom, and freedom of (scientific) research are used as synonyms in this article. 'Science', in this article and as internationally understood, refers to the organised attempt of individuals or groups to objectively study any field of knowledge, including the humanities and social sciences (economics, education, history, law, linguistics, philosophy, politics, psychology, and so on), in which theoretical elements are capable of being validated. 15 2. THE NEED FOR CONCEPTUAL CLARITY: THE REBSPA, FREEDOM OF SCIENCE, ACADEMIC FREEDOM, FREEDOM OF EXPRESSION, AND THE RIGHT TO EDUCATION Caveat 1 (Conceptual Clarity): One should not confuse conceptual issues. Doctrinal clarity should prevail on how the REBSPA, freedom of science, academic freedom, freedom of expression and the right to education in the UN Human Rights Covenants interrelate. This is necessary in order to adequately ascertain and delimit the entitlements of different right-holders under the various rights and to set appropriate limits for state regulation under the REBSPA.
As an overview of this section, Article 15(1)(b) of the ICESCR protects every person's right to benefit from science. This right has three accepted pillars: freedom of science, enjoyment of the benefits of scientific progress, and protection from adverse effects of science. Regarding the first pillar, freedom of science, this entitles right-holders to claim that the freedom of another person, the scientist, be respected. Scientists, however, enjoy freedom of science as their own right, too: implicitly under Article 15(1)(b) and expressly under Article 15(3) (this referring to freedom of scientific research). Academic freedom is a special, 'enhanced' form of freedom of science, applicable to academics in higher education institutions only. The UN Human Rights Covenants, while thus expressly referring to scientific freedom, do not expressly mention academic freedom. Yet, Article 15 provides a common basis for recognising the rights of all scientists, within and beyond the higher education sector. However, academic freedom, entailing as it does clearly nuanced and more robust rights than 'ordinary' freedom of science, is probably 14 See Christian Starck, 'Freedom of Scientific Research and Its Restrictions in German Constitutional Law ' (2006) 39 Israel Law Review 110, 110-11 ('a German creation … reproduced … in many … European state constitutions'). 15 See, notably, UNESCO Recommendation 2017 (n 13) para 1(a) (definition of 'science', 'sciences').
better dealt with under Article 13 of the ICESCR on the right to education. Both scientific and academic freedom differ significantly from freedom of expression. In various ways, the state's active regulation under the REBSPA, intended to benefit citizens, may readily impact on scientific and academic freedom as a precondition for scientific progress, and thus, ironically, actually impede science benefiting society. Finally, the right to science, the REBSPA, attains human rights quality only if its focus is on disinterested, that is, purpose-free science, as accompanied by freedom of enquiry. • freedom of science; • enjoyment of the benefits of scientific progress; and • protection from adverse effects of science. 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. 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'. 18 Another question relates to who should do the balancing. As will be explained 16 See Saul, Kinley and Mowbray (n 6) 1215 (identifying these three aspects of the right in art 15(1)(b)). See also UNESCO, The Right to Enjoy the Benefits of Scientific Progress and Its Applications (Venice Statement), 2009, 13-20, para 13 (recognising, more or less, these three aspects of the right in art 15(1)(b) in para 13(a), (b) and (c), respectively). 17 See the sources cited at n 43 in this regard. 18 The term 'adequacy for science' as used in this article is modelled on the German law concept of 'Wissenschaftsadäquanz', which has a related meaning, often used as a yardstick when assessing whether governance arrangements in institutions of science are constitutional in the sense that they ensure that decisions on science that are collective in nature will be 'adequate for science': see, for example, BVerfG (Federal Constitutional ISRAEL LAW REVIEW [Vol. 52:2 238 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. 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 Applicationsadopted following experts' meetings initiated by UNESCO in 2007UNESCO in , 2008 and 2009 20elaborates 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; 21 secondly, enjoyment of the benefits of scientific progress (on a non-discriminatory basis); 22 and, thirdly, protection from the abuse and adverse effects of scientific progress. 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'. 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). 25 The enabling environment for science to be created 'implies inter alia academic and scientific freedom'. 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 Court, Germany), BVerfGE 127, 87 -Hamburgisches Hochschulgesetz [Hamburg University Law], 20 July 2010, para 91 (the court in this case emphasising that the participation of scientists in the organisation of science is to offer protection against decisions that are 'inadequate for science' ('wissenschaftsinadäquat')). 19 See subs 3.3 below. 20 UNESCO, Venice Statement (n 16). 21 ibid para 13(a). 22 ibid para 13(b). 23 ibid para 13(c). 24 ibid para 8. 25 ibid para 12(d). 26 ibid para 13(a). 2019] two headings. 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. 28 State obligations to respect the REBSPA include the duty 'to respect the freedoms indispensable for scientific research'. 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, 30 which benefits from science only where it is free and can lead to a discovery of the truth. 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' truthas 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'. 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. 33 Furthermore, science can never be as non-partisan and in the common (nonparticular 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 27 See subss 2.2 and 2.3 below. 28 In this regard, the reader is referred to subs 5.1 below, which summarises the scientific and academic freedom rights protected by UNESCO Recommendation 2017 (n 13). 29 UNESCO, Venice Statement (n 16) para 14(a). 30 It should be noted that the 'sense of duty' does not imply that scientists should work 'for the economy'. As the further discussion will demonstrate (see, eg, subss 2.5, 3.1 (first four paragraphs), 4.1 or 5.3 below), this duty is owed to society at large. It is about elevating humanity, not about producing 'useful' insights. 31 For this reason, freedom of science is described in German constitutional theory as a fundamental right 'in favour of' third parties ('drittnütziges Grundrecht'  34 and positive state obligations to fulfil (that is, realise) the righttriggered, in particular, by Article 15(2) and (4) as read with Article 2(1). 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. 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'. 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"'. 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'. 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'. 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 rightssome of them of human rights pedigreethat should prevail in education, either generally or at specific levels of the education system. 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 34 The private sector is financing around 60 per cent of research and development in industrialised countries: Audrey R Chapman, 'Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and Its Applications ' (2009)  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. 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. 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. 44 It is: the right … of higher-education teaching personnel …, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies. 45 To buttress this right, it needs to be accompanied by institutional autonomy, self-governance, collegiality and tenure. 46 Institutional (or university) autonomy 'is the institutional form of academic freedom'. 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. 48 Collegiality means shared responsibility, participation of all concerned in internal 42 Like a former UN Special Rapporteur on the Right to Education, this author refers to these as 'rights in education' rather than 'academic freedom': Klaus D Beiter, The Protection of the Right to Education by International Law: Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social and Cultural Rights (Martinus Nijhoff 2006) 476-78, 492-506, and the references there to the reports of the first UN Special Rapporteur on the Right to Education, Katarina Tomaševski. Academic freedom stricto sensu should be seen as one of the several human rights covered by academic freedom in this wide sense. 43 See, for example, Ronald Dworkin, 'We Need a New Interpretation of Academic Freedom' in Louis Menand (ed), The Future of Academic Freedom (University of Chicago Press 1996) 181, 185-89 (identifying discovery of the truth and the promotion of ethical individualism as the rationales); Eric Barendt, Academic Freedom and the Law (Hart 2010) 53-63 (discovery and non-suppression of the truth and intellectual independence as rationales); Beiter, Karran and Appiagyei-Atua (n 7) 128-32 (discovery and non-suppression of the truth and ethical individualism, both as functions of human dignity, as rationales). See also text to n 17. 44 UNESCO General Conference, Recommendation concerning the Status of Higher-Education Teaching Personnel, UNESCO Doc 29 C/Res 11 (1997). 45 ibid para 27 (emphasis added). 'Higher-education teaching personnel' means not only teachers, but also researchers in higher education: ibid para 1(f). 46 See the following provisions of the Recommendation dealing with these aspects: ibid paras 17-21 (institutional autonomy), paras 31-32 (self-governance and collegiality), paras 45-46 (security of employment, including tenure). 47 Tenure entails permanent employment  contracts for academic staff, not easily terminable on operational grounds (and obviously not terminable for exercising one's academic freedom). 50 The UNESCO Recommendation of 1997 makes it clear that individual academic freedom, self-governance and collegiality are essential components of institutional autonomy. 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', 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'. 53 What the Committee perhaps meant to say is that 'rights in education' are to be enjoyed throughout the education sector. 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 administratorsplay no role whatsoever. 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. 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. 57 As the term 'academic freedom' already indicates, this freedom applies to academics only. Academics are members of a 49 ibid para 32. 50 55 On the term 'adequacy for science', see n 18 and accompanying text. 56 Freedom of science is also termed 'intellectual freedom', 'scientific freedom', or 'Wissenschaftsfreiheit': see Barendt (n 43) 38. 57 Very clear in this sense: see ibid 38, 54-55 (explaining that academic freedom is a special case of the more general freedom of science, the former applicable in universities and comparable institutions only). 2019] WHERE HAVE ALL THE SCIENTIFIC AND ACADEMIC FREEDOMS GONE? 243 university who teach or do research. 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. 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. 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. 61 Although non-university research institutes, whether governmental or non-governmental (NGOs)as the term is used hereserve 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. 62 58 See 'Academic', Definition, Collins English Dictionary, https://www.collinsdictionary.com/dictionary/english/ academic (last visited 23 September 2018). Academic freedom may also be claimed by students in higher education. In terms of Humboldtian ideas, academic freedom comprises, inter alia, Lernfreiheit (freedom of study), Lehrfreiheit (freedom of teaching), and Forschungsfreiheit (freedom of research): see, for example, Sylvia Paletschek, 'Die Erfindung der Humboldtschen Universität: Die Konstruktion der deutschen Universitätsidee in der ersten Hälfte des 20. Jahrhunderts' (2002) 10 Historische Anthropologie 183, 183-84 (in German). Students in higher education are the main beneficiaries of freedom of study. Moreover, to the extent that they engage in research, they also hold freedom of research. In this vein, see also Barendt (n 43) 37-38. 59 See Beiter, Karran and Appiagyei-Atua (n 7) 184-85 (academic freedom applicable in higher education institutions in this sense). Academic freedom can, therefore, also apply in teaching-intensive higher education institutions (polytechnics, colleges, Fachhochschulen, grandes écoles) or universities focusing on applied research (technical universities, institutes of technology). See Tight (n 53) 121 (suggesting that, in certain ways, academic freedom may also apply in institutions such as 'polytechnics, colleges, [and] many present day universities'). How extensive academic freedom rights are will depend on the specific contextfor example, the type of institution involved or the academic rank of the right-holder concerned: see Beiter, Karran and Appiagyei-Atua (n 7) 184; in the same vein, see also Tight (n 53) 121. 60 See Beiter, Karran and Appiagyei-Atua (n 7) 171-74, 186 (stressing the need for enhanced forms of protection for academics vis-à-vis other scientists and justifying this on the basis of their special responsibility). 61 Barendt (n 43) 37. 62 On how 'academic freedom' applies to universities and 'freedom of science' also beyond these to non-university research institutes and private companies, see subs 3.2 below.

ISRAEL LAW REVIEW
[Vol. 52:2 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. 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. 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. 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. 66 The Recommendation concerning the Status of Higher-Education Teaching Personnel of 1997, applicable to teachers and researchers in higher education, 67 refers to Article 13(2)(c) of the ICESCR on the right to higher education 68 and speaks of 'academic freedom'. 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', 70 alludes to Article 15 of the ICESCR 71 and prefers the term 'intellectual freedom'. 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. 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. 74 In all these instancesand provided science as defined is pursued 75 -'ordinary' freedom of science applies. 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 interestthat 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. 77

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: 78 in the absence of a specific reference in Article 15 to the very context in which academic freedom operatesthe sphere of higher educationit may be meaningful … to find an additional basis, a more natural 'home', for the right to academic freedom in the U.N. Human Rights Covenants.
We argued that Article 13 of the ICESCR on the right to education provides that natural 'home'. 79 Extensively supporting this view, we explained that the first sentence of Article 13(1), which 74 See ibid 185 fn 267. 75 See n 15 and accompanying text. 76 Freedom of science accrues to every person involved in scientific endeavour. It may thus be claimed by ordinary citizens as researchers, researchers working for NGOs, researchers employed by state corporations or public nonuniversity research institutes pursuing a set research agenda, private companies conducting research, researchers in private companies, scientific publishers, as well as teachers, researchers and students in universities: see Beiter, Karran and Appiagyei-Atua (n 7) 167-68. 77 Academic and scientific freedom can also be enforced directly against non-department public bodies, such as independent research councils or organisations, and against state libraries and archives. Some rights can potentially also be enforced against NGOs as philanthropic funders of research. Academic and scientific freedom can be enforced directly against university and even commercial scientific publishers. 78  '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. 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. 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 sciencescience, rather than 'instruction', being what universities are for. 82

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. 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 -'[a] … way to think about academic freedom is as a right to education that has individual and collective dimensions that can only be discharged through complex relationships between students, faculty, institutions, the government, and the society', and further that 'a human right to education injects an ethical dimension into academic freedom'). 80 Beiter, Karran and Appiagyei-Atua (n 7) 179-80 (in support of such an interpretation relying on Beiter (n 42) 460-62, and Pius Gebert, Das Recht auf Bildung nach Art. 13 des UNO-Paktes über wirtschaftliche, soziale und kulturelle Rechte und seine Auswirkungen auf das schweizerische Bildungswesen (Leo Fürer 1996) 286-88 (in German)). 81 Beiter, Karran and Appiagyei-Atua (n 7) 180-82. 82 The Committee on Economic, Social and Cultural Rights, in its General Comment No 13, deems academic freedom to be encompassed by art 13: General Comment No 13 (n 52) paras 38, 59 ('[T]he Committee has formed the view that the right to education can only be enjoyed if accompanied by the academic freedom of staff and students. … [V]iolations of article 13 include … the denial of academic freedom of staff and students'). The first UN Special Rapporteur on the Right to Education had held that academic freedom forms a part of the 'acceptability'alternatively, the 'availability'criterion of the right to education: UN Economic and Social Council, In the latter case, however, three judges, in a separate opinion, recognise that 'academic freedom transcends the scope of Article 10 in certain areas': Erdogȃn v Turkey, joint concurring opinion of Judges Sajó, Vučinićand Kūris, para 3. For a discussion of the Court's approach, see Beiter, Karran and Appiagyei-Atua (n 7) 155-59. The UN Human Rights Covenants protect the right to freedom of expression in art 19 of the ICCPR (n 12). 2019] WHERE HAVE ALL THE SCIENTIFIC AND ACADEMIC FREEDOMS GONE? 247 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. 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. 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'. 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). 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. 88 In the context of ordinary speech protected by freedom of expression, such controls do not really exist, 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. 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 84 See Barendt (n 43) 21 (academic freedom covering permissible conduct; examples of permissible conduct). 85 See Zoontjens (n 64) 81-83 (academic freedom as organisational principle in universities). 86 This is, for example, how the US Supreme Court decision in Susan B. Anthony List v Driehaus 573 US __ (2014) may be interpreted, potentially legitimising the right to make false statements in political campaigning. 87 See Barendt (n 43) 18-19, 54-55, and also Erdogȃn v Turkey (n 83) joint concurring opinion of Judges Sajó, Vučinićand Kūris, paras 5-6 (highlighting these differing rationales). 88 Barendt (n 43) 20-21. Beyond quality requirements, however, and '[w]ithin the field of expertise, scientific freedom protects virtually every utterance': Michael Hartmer, 'Was darf ein Hochschullehrer äußern?' (2015) 22(11) Forschung & Lehre 908 (in German). 89 Barendt (n 43) 20-21. 90 Beiter, Karran and Appiagyei-Atua (n 7) 161. Regulating a fundamental right means for a competent actor, such as the legislator, to concretise that right, notably by clarifying its (pre)existing limits, through a process of identifying limits flowing from the very purpose of that right, and by balancing it with other fundamental rights, interests and values, thus establishing 'practical concordance' between that right and the various other rights, interests and values. Limiting a fundamental right means imposing new limits. As this measure is more drastic, it requires 'constitutional' permission in terms of an explicit general or specific limitation clause and may occur only by means of a law that meets narrowly defined requirements. Consequently, it will be exceptionally difficult to justify any limitation of scientific or academic freedom under the general limitation clause of art 4 of the ICESCR.

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[Vol. 52:2 the case of intra and extra-mural speech, academics speak within their area of expertise to experts and non-experts, respectively. 91 In the case of off-topic speech, they speak outside their area of expertise. 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 speechwhich, in fact, enjoys protection as ordinary speech under freedom of expression. 93 The different levels of protection reflect 'the (presumed) quality of the opinion and its (potential) contribution to the general interest'. 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 sciencethat is, that form of science best suited to promoting the emergence of 'maximum' truth, thus benefiting the common rather than particular interests, 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, 96 states that science only unfolds its value for society if it provides insights 'adding to knowledge' 97that is, insights that explain the world. Science must, however, not be guided by notions of value or worth, 98  . It is the 'academic' element that distinguishes extra-mural from off-topic speech: see Erdogȃn v Turkey (n 83) joint concurring opinion of Judges Sajó, Vučinićand Kūris, para 6. Speech has an 'academic' element if (i) the person making the speech is an academic; (ii) the comments fall within the sphere of that person's research; and (iii) that person's comments amount to conclusions based on his or her academic expertise: ibid para 8. 93 Vrielink, Lemmens and Parmentier (n 91) paras 48-56. Obviously, an arguable but scholarly statement on the Holocaust made by a professor of history in class to his or her students (intra-mural speech) must be treated differently from the same statement made by that professor on the radio and addressed to the ordinary public (extramural speech), in turn to be treated differently from the lay opinion on the Holocaust expressed by, say, a professor of economics in a public market place (off-topic speech). 94 ibid para 48. The scheme outlined may be further refined by making it applicable to scientists who are not academics (and thus entitled to freedom of science rather than academic freedom) in the following way. They will similarly enjoy protection for intra-mural, extra-mural and off-topic speech on an equivalent sliding scale of degrees of protection described above. However, based on the public interest rationale, their intra and extra-mural speech enjoy lower respective levels of protection than that of academics. 95  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. 101 The scientific community to this day continues to regard these criteria as essentially valid. 102 According to John Ziman, science in the Mertonian CUDOS sense constitutes 'real science'. 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). 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'. 105 This is so because it has to obey the material interests of bodies outside science. 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. 107 Only this vision allows for the emergence of comprehensive, untainted, 'commonly-owned' truth as a precondition for scientific progress that benefits all.

THE REBSPA, POSITIVE AND NEGATIVE STATE DUTIES, 'THE MANAGEABILITY' OF SCIENCE, AND A SCIENCE SYSTEM 'ADEQUATE FOR SCIENCE'
Caveat 2 ('Adequacy for Science'): One should not overemphasise the state's positive duties of regulation under Article 15(1)(b) of the ICESCR at the expense of its negative duties under that provision. Science is inherently 'unmanageable'. Legislation in the field of science is important. It must protect freedom of enquiry and should assign ultimate competence for regulation and decision making to the scientific fraternity itself. The state's power of regulation under the REBSPA, and, likewise, protection levels for freedom of enquiry, should be different for private companies conducting research, non-university research institutes, and universities. The overall science system must be 'adequate for science'.

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'. 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'. 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'. 110 His adversary, John Bernal, a political supporter of communism, however, believed that the ideal of pure science was 'a form of snobbery'. 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. 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. 113 Little did theyand other social scientists building on their work, all with sympathies for the political leftknow 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. 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. 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? 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 '? 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 rightthe REBSPAis 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. 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: 119 [T]he academic literature so far has focused on the right to freedom of scientific research as an aspect of the right to enjoy the benefits of scientific progress and its applications, generally putting the stress on the positive obligations of states to regulate the sphere of science, according rather stepmotherly attention to negative obligations of restraint. Important as securing a wider participation of society in the enjoyment of the benefits of science is, excessive state regulation (and choice of the wrong regulatory instruments), failing to appreciate that science, in principle, is not susceptible to 'being managed', may well 'suffocate' freedom of scientific research.
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 115  science. 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 wellrun 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. 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. 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. 123 Hence, many groundbreaking inventionsbe they penicillin, polyethylene (plastic), Teflon, vulcanised rubber or X-rayswere, in this sense, made 'by mistake'. 124 They did not flow from specific research plans with deadlines. 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 120 BVerfG (Federal Constitutional Court, Germany), BVerfGE 35, 79 -Hochschul-Urteil [University Judgment], 29 May 1973, para 128. The case concerned the question whether legislation in the early 1970s violated scientific freedom. The legislation granted participatory rights in the self-governance of universities to academic staff other than full professors, students and non-academic staff. The Court held that it did not, provided professors retained a prominent or decisive influence with regard to questions of teaching and research, respectively. Of importance here are the Court's general observations on the limits of state regulation in the field of science in universities. The Court explained that, while the state had a duty to ensure the functionality of the university system as a whole (paras 132, 145), the scientist's freedom of scientific endeavour entailed a certain space of 'absolute freedom from any interference by the state. This space covers especially all those processes, behaviours and decisions in gaining, interpreting and communicating insights which are based on the autonomous character of science ('wissenschaftliche Eigengesetzlichkeit'). … To ensure that research and teaching can orient themselves towards the pursuit of the truth without impediment … science has been declared a sphere of personal and autonomous responsibility of the individual scientist free from state heteronomy' (para 128).

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independent with a focus on intellectual creativity. They value a secure and stable environment where they can do their work alone'. 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. 127 Yet, states seem to have farreaching 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. 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. 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'. 130 The truthwhich, as Stefan Collini underlines, does not connote mere 'usefulness' 131benefits 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'. 132 Genuine institutional autonomy, individual academic freedom, academic self-duty, 133 self-governance, collegiality, and employment security and tenure are in 126 135 See Section 4 below, where this is commented on in the light of the existing literature. See also n 10 and accompanying text. 136 See, for example, Albert Einstein, 'Prologue' in Max Planck, Where Is Science Going? (WW Norton 1932) 10 ('There is only the way of intuition, which is helped by a feeling for the order lying behind the appearance and this Einfuehlung is developed by experience'); more recent, Peter J Bowler, 'Philosophy, Instinct, Intuition: What Motivates the Scientist in Search of a Theory?' (2000) 15 Biology and Philosophy 93, 100 (following an analysis of approaches adopted in science, the author concludes that 'rational argument often plays a surprisingly limited role in the decisions that shape the choice of world view or research strategy'. One has to do with 'personalitydriven factors corresponding to the "instinct"'). Hence, government and university bureaucrats ordinarily neither possess nor understand this instinct or intuition. 137 John Hurley, in his book Organisation and Scientific Discovery, addresses the question of how most effectively to organise science in order to best facilitate creativity. He identifies the following as preconditions for 'scientific' or 'academic intuition', and thus scientific discovery: scientific knowledge and ability of researchers, their personality characteristics, adequate organisational resources, and appropriate organisational dynamics. The latter entail, inter alia, autonomy for scientists, a positive organisational culture, low hierarchies, trust, and reduced emphasis on evaluation: Hurley (n 127). 138 Braben (n 1) 89. 139 ibid. 140 Also Eric Barendt seems to approve of this categorisation for purposes of determining the ambit of rights: Barendt (n 43) 133-58. In the European Union, for example, roughly 45% of researchers work in the 'business enterprise sector', 12% in the 'government sector', 42% in the 'higher education sector', and 1% in the 'private 2019] WHERE HAVE ALL THE SCIENTIFIC AND ACADEMIC FREEDOMS GONE? 255 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. 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. 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. 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). 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. 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. 146 The various incentive measures mentioned play a role primarily in the sphere of applied science. Their role diminishes as pure or basic sciencethe hallmark of the universitygains significance. In private companies, maximum freedom for the employer, and also for employees vis-à-vis their employer, makes good sense. 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 creatorthat is, the state in respect of public instituteshas 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 definedthat 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. 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. 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'. 151 He explains that if the research-intensive university were to be 148 It has been stated that '[t]he characteristic … that enable[s] [companies] to attain … diversity in [their] product line is a policy of what has generally come to be called "intrapreneurship". The basic idea is to allow employees of large corporations to behave within the company as they would as individual entrepreneurs in the outside world': Henry Petroski, The Evolution of Useful Things (Vintage Books 1994) 83-84. 149 See Barendt (n 43) 37 ('[T]here can surely be nothing wrong in the authorities at a specialist institute … of government … determining what it wants to research and directing its employees how to set about it'). This is also true for private companies: ibid. 150 See, for example, Jonathan Wolff, 'Britain's Bullied Universities Should be Speaking Truth to Power', The Guardian, 10 April 2018, https://www.theguardian.com/education/2018/apr/10/britain-bullied-universities-jonathan-wolff ('I fully endorse the idea that universities should be the conscience and critic of society'). See further New Zealand's Education Act 1989 (1989 No 80), s 162(4)(a)(v) (Universities 'accept a role as critic and conscience of society'). See also subs 2.2 above, where this point was made from the perspective of differences between the concepts of freedom of science and academic freedom. The discussion there pointed out differences in the operation of individual freedom rights, self-governance, collegiality and security of employment in different types of entity. 151

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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'. 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. 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. 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. 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. 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. 152 ibid 178. Franz Himpsl has devised an interesting model in terms of which science may occur in one of four forms: (i) as politicised science, with the goals and methods predefined; (ii) as science for the production of insights ('Wissenschaft als Erkenntnismaschine'), with the goals, but not the methods predefined; (iii) as science as a game ('Wissenschaft als Spiel'), with neither goals nor methods predefined, but yet led by a sense of priorities; and (iv) as maximally free science, with neither goals nor methods predefined and led by pure curiosity: Franz Himpsl, Die Freiheit der Wissenschaft: Eine Theorie für das 21. Jahrhundert (JB Metzler/Springer 2017) 141-95 (in German). In terms of this model, science in universities (unless it involves commissioned research) falls largely within the sphere of science as a game. There must, however, also be ample room for maximally free science. Commissioned research in universities, much or most science in non-university research institutes, and essentially all research in private companies would be examples of science for the production of insights. Science should never be politicised science. 153

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. 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. 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 selfgovernance and collegiality. 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 securitytenure in the case of universitiesshould 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. 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 157 It is trite that in the state based on the rule of law, all state action needs to be buttressed by formal law. Such formal law (legislation), which is to be adopted by a democratically elected parliament, needs to take all fundamental decisions (guiding principles, rights, limitations, enabling framework, organisation, finances, etc) regarding the sector concerned. On the requirement of legislation specifically as it relates to freedom of enquiry in universities, see Klaus

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WHERE HAVE ALL THE SCIENTIFIC AND ACADEMIC FREEDOMS GONE? 259 well suited to the management of scientific research'. 161 Bureaucracy is inimical to risk, but risk is a prerequisite for science. Creativity and accountability are mutually exclusive concepts. 162 It has been stated correctly that: [o]verall, a 'model of regulated self-regulation' thus becomes visible, deducing its adequacy for science from the 'correct' mix of instruments, entailing legislation in the field of science exhibiting a more pronouncedly procedural character and [only] a medium level of complexity or density of regulation and, on an equal footing, the application of sets of rules produced by the scientific fraternity itself. 163 … It is this self-regulation by the scientific fraternity which becomes the idea of freedom of science. 164 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'. 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. 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' topics 167 and, therefore, tends to corrupt 161 169 The prospect for these scientists to enjoy reverence in the scientific community is more than sufficient incentive. 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'. 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. 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 supervisingwithin the bounds of the law, which, in itself, must comply with human rightsand thus be 'adequate for science', as understood here.

CORPORATISM IN SCIENCE VERSUS SCIENTIFIC AND ACADEMIC FREEDOM
Caveat 3 (Corporatism v Freedom): One should not accord legitimacy to corporatism in science to advance socio-economic progress. Enforcing a focus on science 'useful to the economy', through methods drawing on a false analogy between scientific endeavour and doing business, depletes science of most of its value. Research management is a flawed concept. Scientific or academic freedom remains the best guarantor of scientific progress in the interest of society at large.
The previous section underlined the undesirability of government's overregulation of the science sector. It made suggestions in respect of an 'adequate' framework for organising or regulating science. This section focuses on the principal ideology underlying present-day overregulation in sciencecorporatism. It explains briefly what corporatism entails and how 168 For example, state subsidy for articles published in journals appearing on a government list of 'accredited' journals, ratings (linked to funding) awarded to researchers, performance bonuses paid by universities, promotion, etc. This is not to deny the role of patents or innovation prizes, as discussed in subs 3.2 above, granted for actual innovative solutions in the field of applied research. 169 See n 119 and accompanying text. 170 Generally of incentivisation strategies in (UK) science, Philip Moriarty states that they 'run counter to the ethos of publicly funded academic science, and significantly compromise the societal value (and trustworthiness) of university research, but they are, perhaps counter-intuitively, of economically questionable value': Philip Moriarty, 'Science as a Public Good' in John Holmwood (ed), A Manifesto for the Public University

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. 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. 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. 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'. 176 In a 173 We have reported on this in a few journals: see, for example, Klaus D Beiter, Terence Karran and Kwadwo Appiagyei-Atua, '"Measuring" the Erosion of Academic Freedom as an International Human Right: A Report on the Legal Protection of Academic Freedom in Europe' (2016) 49 Vanderbilt Journal of Transnational Law 597, and our study mentioned in n 157. In a second phase, we intend to look at the factual protection of academic freedom (inter alia, as a result of institutional, faculty and/or departmental regulations, policies and customs) in the same countries, relying on a survey: see https://www.surveymonkey.com/r/AcademicFreedomSurvey. Our findings confirm the perception among many academic leaders in Europe. Dieter Lenzen, former spokesperson for the German universities at the Conference of Rectors of Higher Education Institutions, thus states: 'It is … obvious that individual freedom for professors and students has been significantly limited by the

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[Vol. 52:2 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. 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. 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'. 179 Universities have become 'the arm of national economic policy'. 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. 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. 182 The emergence of the 'authoritarian' or 'disciplinary' universityin South Africa as elsewhereis 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. 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 sciencea market-fundamental dictatorship in science. 177 There exists such a vast body of literature here on what is termed corporatism in higher education and science that it can hardly be cited properly; yet, some of it is mentioned at n 319. One may point out that most of the literature is 'non-legal' in nature. 178  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 stateand, after all, also by university management. 184 However, increasingly, academicsliving 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: 185 We stand at a pivotal moment in the long history of our university, a fork in the path that offers two ways forward. One is to follow the business model of higher education to its logical conclusion, in a competition for students, research funding and ratings that values constant change as an end in itself. The other is to rediscover the civic purpose of the university as a necessary component of the constitution of a democratic society, with the responsibility for educating its citizens and furnishing them with the wisdom and understanding that will enable them to fashion a world fit for future generations to live in.
In 1997, UNESCO adopted the Recommendation concerning the Status of Higher-Education Teaching Personnela 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'. 186 Politically, states are not free to ignore its provisions on academic freedom, institutional autonomy, self-governance, collegiality and tenure. 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 184

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[Vol. 52:2 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'. 188 Sciencethus the buzzword these daysshould 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. 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. 190

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 timewise. The most significant increase in appointments in universities these days, for example, may often be noted for management (rather than academic) staff. 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'. 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. 193 The loss of thought-time threatens the social value of academic work. 194 Quality research requires 'time and tranquillity'. 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 1980 196which subsequently had served as a model for similar legislation in many other countriessought 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. 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'. 198 This is because scholars turn their thoughts away from scientific problems towards the process of submission, reviewing and publication. 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. 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 managementhas 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. 201 The way forward, he suggests, 'is to abandon the POP culture'. 202 Before its advent, academics enjoyed 'fairly secure academic freedom'. 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 modelit is division of labour that leads to efficiency'. 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. 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. 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. 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, 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. 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. 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 206 '[H]igher-education teaching personnel should be free to publish the results of research and scholarship in books, journals and databases of their own choice': UNESCO Recommendation 1997 (n 44) para 12. 207 On this space of 'absolute freedom', see n 120. It should be noted that also 'the protection of science' against predatory journals is not a legitimate reason for interfering with the absolute freedom granted to scientists in this context. The proliferation of predatory journals is the direct consequence of the over-incentivisation of scholarly publishing. If this were to be done away with, predatory journals would soon disappear. 208  Cultural theorist Stuart Hall is reported to have said that '[t]he university is a critical institution or it is nothing'. 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. 214 Consequently, corporatism damages science. Ultimately, scientific or academic freedom remains the best guarantor of scientific progress in the interest of society at large. The recently adopted UNESCO Recommendation on Science and Scientific Researchers of 2017, a reworked version of the 1974 Recommendation on the Status of Scientific Researchers, 215 in its Preamble refers to Article 27(1) of the Universal Declaration of Human Rights of 1948. This protects, inter alia, everyone's 'right … to share in scientific advancement and its benefits', which constitutes the predecessor of what subsequently became the REBSPA in Article 15(1)(b) of the ICESCR. In a way, the UNESCO Recommendation, which is a soft law instrument, may therefore be seen as an interpretation of the REBSPA in Article 15(1)(b). 216 However, does it also adequately address scientific and academic freedom, one of the three pillars of the REBSPA? Does it achieve the balance between positive and negative state obligations under the REBSPA that would make the science system 'adequate for science'?

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. 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. 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 opinionsas 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'. 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'. 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'. 221 • Specific scientific freedom rights of scientific researchers: The Recommendation recognises rights of scientific researchers to publish or communicate results, 222 to share scientific data, 223 and to have access to scientific information. 224 Researchers should enjoy the right of conscientious objection -'to withdraw from … projects if their conscience so dictates'. 225 There are further provisions on 'the principle of freedom of movement' 226 and rights related to freedom of association. 227 • Employment security: Member states should develop employment policies that protect state employees against 'precariousness due to mobility or limited-duration contracts'. 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'. 229 Participatory rights also exist in a broader national context. 230 • Rights of employers, funders, institutions: Educational institutions are entitled to 'the necessary and proper independence'. 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'. 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 provisionsnotably paragraph 16(b) on the rights of employers, funders and institutionsthe 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. 233 The Recommendation does not always employ clear rights language. For example, it calls a right a 'principle', 234 or it states that granting a certain right is 'desirable'. 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. 236 Nor does it contain a full definition of scientific or academic freedom. 237

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'. 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. 239 Only secondarily thenclearly making this nuance visible -'[it is] also recognis[ed]' that academic freedom should be protected. 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. 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'? 242 All taken together, appreciatingas has been shown in Section 4 abovethat 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.

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', 243 helps 'set[ting] up a society that will be more humane, just and inclusive', 'enhance[s] … the cultural and material wellbeing of its citizens', 'further[s] the United Nations ideals', 244 and promotes 'the achievement of national goals'. 245 'Research and development is not [to be] carried out in isolation'. 246 Does this leave room for science in the pursuit of knowledge for its own sake? 247 What about curiositydriven, 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. 248 He holds that the ethos of trust sustaining disinterested science 'is being fatally undermined by [its] enforced cohabitation with instrumental research'. 249 Philip Moriarty considers the impact agenda to systematically erode the Mertonian norms in academia, 250 this driving publicly funded university research closer and closer to the PLACE norms of industrial science. 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'. 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'. 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.

PEER REVIEW, ETHICS AND INTELLECTUAL PROPERTY RIGHTS
The Recommendation does not resolveit even exacerbatesconflicts 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. 248 Ziman (n 103) 67-68. 249 John Ziman, 'The Continuing Need for Disinterested Research' (2002) 8 Science and Engineering Ethics 397, 399. Not denying a role for agenda science as well, Arne Jarrick accordingly underlines that 'the scientific mission can only be properly executed if society provides … researchers with an arena for basic research, protected from meddlesome interferences by too shortsightedly, too medially alarmist, and too ideologically or politically motivated encroachments': Jarrick (n 173) 63. 250 257 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. 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. 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'. 260 Larry Wasserman says peer review creates 'an illusion … [of] … quality control'. 261 There are alternatives to current peer review. 262 There is something to be said for oldfashioned editor review, for instance, which has proved to be fairly reliable. 263 There should also be forms of collaborative verification by the larger scientific community, for example, through open access archive systems. 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'. 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 freedomalso when such review or control is performed by, or on behalf of, commercial or other scientific publishers. 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'. 267 Due account is to be taken of ethics compliance in performance appraisals. 268 There are many other references to ethics. 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. 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. 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'. 272 Moreover, ethics assessment may easily assume the form of a broad moral review. 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. 274 Where does one draw the line between ethical regulation and censorship? What has become of scientific or academic self-duty? 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. 276 The copyright of scientific publishers obstructs access to scientific knowledge. 277 The Recommendation does call for 'balancing between protection of intellectual property rights and the open access and sharing of knowledge'. 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. 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). 280 Restrictions on the right to publish should be 'strictly minimised'. 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. 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.

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. 283 Alongside teaching and research, the entrepreneurial university, according to Etzkowitz, has a third mission: the 'capitalization of knowledge'. 284 Close links between university, industry and government are 'the key to innovation and growth in a knowledge-based economy'. 285 For Etzkowitz, the entrepreneurial university is 'an economic actor in its own right'. 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). 287 For this new type of university to fulfil its mission successfully, there must exist 'an entrepreneurial ethos among administrators, faculty, and students'. 288 Also Burton Clark has argued in favour of the entrepreneurial university. 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'. 290 Universities need to develop a 'diversified funding base'. 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'. 292 Clark similarly emphasises the need to create an 'integrated entrepreneurial culture' as an element in the process of transformation in universities. 293 282 ibid (restrictions to be 'properly communicated … in the terms and conditions of … employment'). See also ibid para 40(a) ('written provisions [on rights of exploitation] to be included in the terms and conditions of employment'). 283  Does the emergence of the entrepreneurial university constitute a threat to universities and university research? Ben Martin answers this question in the negative. 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. 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, 296 and concludes that the modern university with a third mission is not new. 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. 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'. 299 Newer forms of study accept the world largely as given and merely seek to produce more effective operations within it. 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. 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'. 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. 294  In the words of Basil Bernstein, '[k]nowledge, after nearly a thousand years, is divorced from inwardness and is literally dehumanized'. 303 It is often said that the entrepreneurial university is a response to the exigencies of our times. 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. 305 Simultaneously, student enrolments are to be increased substantially to meet the ever-growing needs of the knowledge economy. 306 Limited public resources, it is said, imply 'increasing demands for accountability, effectiveness, relevance and value for money' with regard to research and teaching. 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'. 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'. 309 Under neoliberalism, the individual, '[w]hether he is selling, making, or consuming … is investing in himself and producing his own satisfaction'. 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. 311 This individual does not live freedom but is to be morally 'responsibilicised' through economics. 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'. 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 auditsseek 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. 314 The entrepreneurial university encompasses ideas of performance, accountability and capitalisation of self. 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. 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'. 317 Neoliberal policiesin the concrete form of what has been called corporatism abovehave had a devastating effect on science in universities and research institutions. 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'. 319