“Articles 13 to 15 of the United Nations Covenant on Economic, Social and Cultural Rights of 1966 protect human rights sometimes broadly termed ‘cultural rights’. These include, inter alia, rights to education, ‘to enjoy the benefits of scientific progress and its applications’, ‘to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author’, and ‘freedom indispensable for scientific research’. These rights, it should be appreciated, create binding legal obligations for states parties. They need to be given effect in national education, science, and intellectual property law, policy and practice. This seminar presents a tour d’horizon of my research endeavours of the last few years, which have focused on ‘identifying’ the normative content of some of these rights,” said Klaus Beiter of the Faculty of Law at North-West University, South Africa.
Right to education
Beiter’s STIAS project is specifically to edit a research handbook on the right to education. “In the light of UNESCO’s recent call for a ‘new social contract’ for education, and for further attention to ‘the evolving right to education’, the handbook seeks to develop a blueprint for a reframing of the right to education, to serve as a potential guide to a redrafting of the right to education in international law,” he explained.
“The right to education has long been a subject of analysis, but its exact content has recently been contested,” he said. He noted that changed global circumstances since the adoption of the primary international human rights treaties, a multitude of scattered education rights norms, and new challenges including privatisation, commercialisation and digitisation require a reframing of the right to education in international law.
Beiter pointed out that the 1966 Covenant recognised the right of everyone to education with primary education compulsory and available free to all and secondary and higher education becoming progressively free. But, as he explained, this is only implemented in some of the signatory states with education often subject to very high fees.
“School fees are a political question and show lack of political will,” he said.
“Increasing privatisation of education divides the responsibility between the state and private sector in a way that incapacitates the state in the long run to guarantee free public education to all,” he added. “It’s making education a big-price package that can be sold. Also, acceptance to many private schools is based on merit – many are excluded who have the capacity but may not have performed well due to their life circumstances.”
He pointed to research showing that if social disadvantage is accounted for, private education does not perform better than public education.
“I’m also sceptical about the SDGs regarding education,” he continued. “There are no indicators on free education. The development of the SDGs and related indicators was heavily influenced by the private sector, thus according an undue status to private actors in the fulfilment of the SDGs.”
He also emphasised that, overall, education is in crisis and we are not even remotely addressing the big questions like whether current education is catering for sustaining life on the planet.
Beiter believes that phenomena like Western hegemony in education, inequality, exclusion and unsustainable development have their basis in neoliberal ideology and ‘rephrasing’ must be seen as an act of rescuing the right to education as a global ethical standard based on human dignity.
“Neoliberalism fatally believes that failure, irrespective of race, gender or socio-economic status, always is the result of insufficient investment in oneself, a lack of hard work. Education systems based on this assumption will invariably fail.”
Copyright, right to science, academic freedom
Turning to copyright and intellectual property, academic freedom and the right to science, Beiter pointed out that especially academic freedom and the right to science have – until recently – been largely neglected in international human rights law, and need to be concretised.
He indicated that the topics that should be explored critically include – peer review, ethical regulation, the state’s role, research finance and particularly incentivisation, the reward structure of science, limiting corporate evaluative powers, copyright and patents.
Article 15(1)(b) of the 1966 Covenant recognises the right of everyone to enjoy the benefits of scientific progress, but Article 15(1)(c) equally the right for authors to benefit from their work. Article 15(3) protects scientific or academic freedom.
“Increasingly, the interaction between these rights raises difficult questions: Authors may be entitled to copyright, but copyright can stifle education or research. Citizens’ right to science is sometimes in tension with academic freedom.”
“Also, protecting the personal bond between the creator and creative work doesn’t necessarily have to take place through IP rights or copyright. Moreover, IP today is often with companies not authors.”
It’s also not one size fits all with countries needing different levels of IP and copyright protection. Beiter pointed out that the groundbreaking 2002 Report of the UK Commission on Intellectual Property Rights called for developing countries to be allowed broad exemptions in their copyright laws in the interests of education and knowledge transfer.
We know, for example, that international copyright law doesn’t facilitate translation. “It’s important to protect indigenous languages – one dies every 14 days,” he continued.
“We know too that most IP protection in the Global South benefits shareholders in the Global North.” In this regard Beiter pointed to research showing that only 18 out of 200 countries are net exporters of licence fees and royalties.
“International IP law can also limit technology transfer – look at the example of the manufacture of COVID vaccines in the developing world,” he continued.
He pointed out that existing exceptions to IP rights rarely beneficially impact on development and social welfare. As an example, he pointed to his work on access to textbooks which showed that these are double the price in South Africa compared to the Global North in relation to household income.
In terms of academic freedom, he pointed to the increasing commercialisation/industrialisation and control of academic endeavour, the dangers of the ‘publish or perish’ mentality, and the limitations of peer review.
He noted that universities are increasingly using accounting-based measurements – “The rewards for academic achievement are reputation over time. Quantitative measures are an illusion of quality in science,” he said.
“Often universities and research councils are going for fashionable research topics for funding purposes instead of researching important issues. We need to have some competitive funding, but also more block funding that allows universities to freely decide how to spend the money. The modern university is based on mistrust, not trust.”
“Increasingly universities are engaged by governments to produce research that confirms government policies, not to discover truth in a disinterested manner. More and more research is directed at satisfying immediate market needs,” he said.
“I’m not arguing for not regulating science in any way. This is, however, in many ways the duty of the scientific fraternity. The state is merely to create a framework and further needs to jump in if scientists are in dereliction of their duties,” he added. “I’m arguing against a scheme where the state has carte blanche to regulate higher education and research for its own policies.”
“It’s dangerous to postulate the goals of science. You need free, disinterested science. Academic freedom is much more important than state regulation if you want scientific advance and benefits for people,” he concluded. “Quick solutions are not the main goal of academic science and the findings of science belong to humanity as a whole.”
Michelle Galloway: Part-time media officer at STIAS
Photograph: Noloyiso Mtembu