Introduction
Many countries still prosecute whistleblowers for exposing state secrets. In 2019, Dr. Li Wenliang bravely exposed a new strain of SARS in Wuhan before being silenced by Chinese authorities. This strain later became known as COVID-19.[i]
Given the severe danger whistleblowers face in exposing their governments, it is surprising that the international community has not built more solid protections. Proposing frameworks for creating such a protection system using the treaties, bodies, and laws already on the books offers a feasible pathway that considers the current stalemate in geopolitics.
Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 33 of the United Nations Convention Against Corruption (UNCAC)outline the two most significant protections for whistleblowers. Article 19 of UDHR broadly protects an individual’s right to “receive and impart information…through any media and regardless of frontiers.”[ii] Article 33 of UNCAC “…provide[s] protection against any unjustified treatment for any persons who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offenses established in accordance with this Convention.”[iii] While UNCAC is widely ratified by 191 countries, there are some significant gaps in the implementation of the Convention.[iv] In fact, the United Nations Office on Drugs and Crime (UNODC) has specifically delineated that 70% of countries that ratified UNCAC have not developed strong enough protections within their national laws to satisfy the requirements of Article 33. After the suppression of doctors exposing the virality and deadliness of COVID-19 in China, like Dr. Li Wenliang, UNODC made whistleblower protection one of its six focus areas.[v] The Office remains concerned that states have not been consistent in labeling whistleblowers as “reporting persons.”[vi] Without this designation, individuals—especially those flagging government transgressions—can be prosecuted for revealing state secrets, violating non-disclosure agreements, or espionage.
Background
There has been much debate around the ethics of whistleblowing in the past decade, primarily due to the actions taken by former military and intelligence officers in the United States. In 2010, Chelsea Manning released footage to WikiLeaks that depicted the US military shooting at and killing Iraqi civilians and a Reuters journalist. Manning was found guilty of violating the 1917 Espionage Actand faced a 35-year prison term.[vii] In 2013, Edward Snowden revealed an indiscriminate surveillance program of the National Security Agency (NSA) and was also charged under the 1917 Espionage Act. Instead of facing jail time, Snowden chose to flee to Russia, where he was granted asylum.[viii]
Given the high-profile prosecutions against notorious whistleblowers like Chelsea Manning and Edward Snowden, one cannot be blamed for assuming that leaking information concerning national security is inherently illegal; however, there has been a long history of whistleblowers raising awareness of malfeasance and obtaining protections from the state. In 1777, two naval officers, Samuel Shaw and Richard Marven, witnessed their supervisor, Esek Hopkins, torturing British prisoners of war. Shaw and Marven were dismissed from the Navy after reporting what they saw and faced libel suits. Seeking protection, Shaw and Marven brought their case to the Continental Congress, which sided with the men and enacted one of the first legal protections for whistleblowers. The Continental Congress made it a “duty” to report “misconducts, frauds or misdemeanors” of government agents.[ix]
In 1989, the United States enacted the Whistleblower Protection Act (WPA).[x] Although it has been amended several times, The WPA has some key components. First, it protects “executive branch employees” when they report “significant agency wrongdoing,” regardless of the whistleblower’s intent in sharing that information. The WPA legislation also lists “media” as an acceptable forum for disclosure of such wrongdoing and asserts that the right to share such information supersedes any restrictions imposed on an employee by a non-disclosure agreement. One of the main caveats of the WPA is that classified information must only be shared with a “properly cleared recipient in Congress.”[xi]
European courts have a history of protecting the right to transmit information using Article 10 of the European Convention on Human Rights.[xii] In 2008, the strength of Article 10 was put to the test in the case of Iocab Guja. Guja asserted that his rights were violated when he was fired from the Prosecutor General’s Office for publicizing a letter sent by police officers who were under investigation for unlawfully detaining suspects. Guja shared the letter’s contents because he believed the police officers were attempting to pressure his agency to suspend the inquiry. The European Court of Human Rights (ECHR) sided with Guja—even having his legal fees and damages covered (19,000 euros).[xiii] This case was groundbreaking as it was the first time whistleblowing was protected as a right in the ECHR.
Despite his victory, Mr. Guja was still asked to resign from the Prosecutor General’s Office, even after Moldova’s Supreme Court ruled that the Office should reinstate him to his former position. To make matters worse, Mr. Guja is still struggling to recover his pension from his former employer.[xiv] All of this demonstrates the limitations of international courts in preventing informal and formal retributions against whistleblowers. Such limitations further underscore the need for more comprehensive domestic legal protections.
Despite their shortcomings, the United States and Europe are leaders in building broad protections for whistleblowers who reveal acts of corruption; some international organizations have mirrored their approach.[xv] Within Article 5(6) of the African Union’sConvention on Preventing and Combating Corruption, there are protections for citizens who report on corrupt activities.[xvi] Similar language also exists in Article 3(8) of the OAS’ Inter-American Convention Against Corruption.[xvii] The OECD has also repeatedly called for the “establishment and reinforcement of protection frameworks for…whistleblowers” within its Anti-Corruption Action Plans.[xviii]
Since 2019, the G20 has requested that the OECD do more to address the “fragmented” protections for whistleblowers. The issue with this fragmented legal environment is that inconsistency in enforcement disincentivizes people from reporting information as they are uncertain about what consequences, if any, they may face. To generate some uniformity, the G20 has put together twelve High-Level Principles. These principles call upon member states to establish communication channels with each other, safeguard the anonymity of reporting persons, penalize those who retaliate against whistleblowers, and reiterate that any gag order does not prevent a person from reporting misdeeds.[xix]
Given the United States’ hesitation to uphold international treaties, it may appear odd that it had taken the initiative to establish whistleblower protections domestically. However, this makes more sense when considering that the United States has a domestic goal of defending American workers from exploitation and a strong interest in protecting the investment of American firms abroad. On the domestic front, the United States has a Whistleblower Protection Program under the Department of Labor (DOL).[xx] In October 2024, the Biden Administration touted the Department of Justice’s (DOJ) new Whistleblower Awards Pilot Program,which aims to “prosecute corporate crimes” abroad and provides reporting persons with a share of the seized assets.[xxi]
A significant issue with these protections is their emphasis on safeguarding whistleblowers who expose corporate misconduct and, occasionally, basic government corruption. This emphasis has led to differential treatment of whistleblowers. This priority can be gleaned from the fact that outside of UNCAC and UDHR, most protections for whistleblowers are written in pacts of intergovernmental organizations concerned with economic development issues (OECD and G20) or by organizations that are comprised of members seeking foreign-direct investment from developed countries (OAS and AU).
Sherron Watson was an executive at the Enron Corporation who called out “accounting irregularities” within the firm. Upon revealing this information and testifying to Congress, Enron collapsed, and Watson was named a Person of the Year in Time magazine’s 2002 edition.[xxii] In 2024, the Securities and Exchange Commission (SEC) awarded up to “$2.2 billion to 444 individual whistleblowers” for revealing crimes such as insider trading, bribery, and artificial pricing.[xxiii] Finally, although Antoine Deltour initially faced legal action for exposing that certain corporations were receiving preferential tax treatment in Luxembourg, he was later honored with the European Parliament’s Citizens’ Prize Award.[xxiv]
On the other hand, whistleblowers who disclose information on topics deemed relevant to national security must play by a different rulebook. While the cases of Julian Assange, Snowden, and Manning have been discussed at length, there is also the lesser-known case of Mordechai Vanunu, who exposed Israel’s secret nuclear program to the UK media in 1986. After being drugged and kidnapped by Mossad in Italy, Vanunu was held in detention for 18 years. Even after Vanunu’s release, the Israeli Supreme Court has placed heavy restrictions on his movement and speech; for example, Vanunu has been banned from traveling abroad and speaking to journalists.[xxv] Daniel Hale, an NSA analyst, was just released from prison after serving a 45-month sentence for leaking documentation that showed the high rates of civilian casualties caused by unmanned combat aerial vehicles (UCAV).[xxvi] In May 2024, David McBride an Australian who served in Afghanistan was found guilty and sentenced to almost six years in prison for sharing military documentation with the Australian Broadcasting Corporation. These documents detailed war crimes and use of force violations by the Australian Defence Force (ADF) that resulted in the death of 39 Afghans. McBride’s prosecution has caused uproar within Australian civil society, with many calling on the Australian government to strengthen its weak protections for whistleblowers.[xxvii]
Global Justice Implications
Attention to whistleblowers is merited because of their unique ability to hold powerful entities accountable. PricewaterhouseCoopers (PwC) found that whistleblowers are even more effective than auditors at uncovering fraud and abuse.[xxviii] Whistleblowers are considered to have soft accountability capabilities since they must rely on “answerability” in their pursuit of justice.[xxix] Sharing information with the relevant authorities or releasing information to the public are mechanisms for whistleblowers to exercise their “answerability” capacities. Whistleblower vulnerability lies in their lack of “enforceability” power. Whistleblowers must rely upon oversight agencies, prosecutors, supervisors, or the public to hold the culpable parties accountable.[xxx] [xxxi]
Even if the whistleblower can obtain the support of entities with “enforceability” powers, the fragmented nature of whistleblower protections means that there is no law enforcement apparatus capable of responding in a consistent manner. As can be seen in the case of Manning and Deltour, there were initial punishments levied against them by lower-level authorities that courts of appeals or executives then reversed. Additionally, since the government is being held accountable in such instances, there is no higher power capable of doling out the proper consequences to those being exposed if the government is not willing to police itself.[xxxii]
Those that ratified UNCAC might have also been incentivized by self-interest. The Convention sets up a framework for cooperating across borders to recover assets lost due to fraud and embezzlement.[xxxiii] Article 33 plays only a small role in the broader Convention, and states may have been willing to make a vague commitment to protect whistleblowers to gain the benefits of this information sharing network.
Recommendations: Legal Remedies and Political Considerations
While there may be a temptation to create new conventions where existing ones fall short, there is good reason to be cautious about taking this path. There has been widespread “treaty fatigue” since the start of the twenty-first century. Furthermore, the decline of multilateralism makes it unlikely that any new, distinct whistleblower convention would be widely adopted.[xxxiv] Despite the limitations of a ‘corruption framing’ around whistleblower protection, it makes more political sense to operate under UNCAC, which already has international credibility.
The National Whistleblower Center (NWC) should propose three significant reforms:
1. Expand the mandate of the Implementation Review Mechanism (IRM) under Article 63 of UNCAC.
Under UNCAC, the UNODC currently has the power to oversee the implementation of anti-corruption measures within ratifying countries. However, the review process relies on states self-reporting their adherence to the convention, peer assessments by two other states, and a final report outlining steps for addressing implementation concerns. While this mechanism is useful for ensuring that dualist systems continue to integrate UNCAC into their domestic laws, it also places too much focus on “criminalization [of corruption] …and asset recovery.”[xxxv] The NWC should recommend that the UNODC’s Implementation Review Mechanism establish a separate advisory group that monitors adherence to whistleblower protections under Article 33. Unlike the peer assessments conducted for the other elements of the Convention, this advisory group should be run by a panel of international human rights attorneys to prevent national security interests from interfering with the pursuit of just outcomes. These attorneys will review cases against whistleblowers worldwide and determine whether these prosecutions interfere with an individual’s right to share information; they will also evaluate whether the designation of exposed information as “classified” is legitimate or simply part of a cover-up. This approach is politically feasible because Article 63of UNCACgives the IRM broad latitude to create “any appropriate mechanism or body to assist in the effective implementation of the Convention.”[xxxvi]
2. Write a new optional protocol that establishes an Individual Complaints Procedure (ICP).
The NWC should draft an optional protocol to UNCAC that establishes the ICP. The ICP would function similar to the Committee Against Torture—which was created under Part II of the UN Convention Against Torture.[xxxvii] Having an ICP would allow individuals being persecuted by their state to circumvent a legal process that is biased against them. Furthermore, this procedure would also inhibit the weaponization of national security laws against whistleblowers.
After ruling in favor of a whistleblower, it will be vital that the ICP continue to monitor the treatment of these persons. The ICP should provide biannual reports highlighting any retaliation against the whistleblowers. Even having a few states adopt this protocol will engender some reputational pressure in the long run. Similar tribunals have been found to expedite the “justice cascade” and contribute to improved human rights conditions, especially as decisions made within these forums become absorbed into the legal culture of ratifying states.[xxxviii]
3. In collaboration with multilateral organizations, such as the OECD and UNHCR, develop financial incentives and expedited asylum processing for whistleblowers facing retribution or unjust prosecution.
The United States has built strong incentive mechanisms for individuals who report financial crimes and labor exploitation to the DOL, DOJ, and SEC. Similar systems can be formed within existing multilateral organizations. The OECD already has an Anti-Corruption Network for Eastern Europe and Central Asia (ACN) that could serve as a model for a broader network.[xxxix] The ACN’s Steering Group should put together a fund that is used to reward whistleblowers for bringing corrupt practices to its attention. Any new applicant seeking membership in the OECD must commit to participating in this network and contributing money to this fund as part of its efforts to meet the transparency requirements of the organization. Given that the OECD’s goal is to remove barriers to trade—and corruption is one of the most considerable barriers to the transport of goods and services—there should be no significant objection to such an initiative.
For whistleblowers facing unjust prosecution, UNHCR could facilitate an expedited asylum process if the ICP panel rules in favor of the whistleblower. The asylum claim would fall under Article 1A(2) the 1951 Refugee Convention that protects individuals from refoulement to a state where they are “threatened on account of their…particular political opinion.”[xl] If approved, these asylum claims would supersede a state’s obligation to bilateral extradition agreements.[xli] States initiating the prosecution might find this process preferable to an adversarial country harboring a whistleblower as leverage; for example, Mr. Snowden’s residence in Russia has intensified tensions between two nuclear-powered states and allowed the United States to discredit Snowden as a Russian asset. Having a more neutral asylum coordination process between UNHCR and UNODC could prevent such diplomatic frictions from arising.
Conclusion It is about time that the international community became serious about whistleblower persecution. In countries with stronger protections, only a certain kind of whistleblower is shielded from revenge when they serve as informants to agencies with limited resources to uncover fraud. In countries with weaker protections, tactical ratification has allowed them to benefit from the global financial system. However, these countries continue to repress individuals reporting on information that the governments would prefer to keep under wraps. When national systems fail, the international community must step up and clearly state that no country’s strategic interests supersede the right to information. Even some verbalized moral clarity may be enough to undermine baseless claims of espionage or dereliction of duty made against a person brave enough to hold their country accountable to the values it espouses.
[i] Stephanie Hegarty, “The Chinese Doctor Who Tried to Warn Others about Coronavirus,” BBC News, February 4, 2020, https://www.bbc.com/news/world-asia-china-51364382.
[ii] United Nations, “Universal Declaration of Human Rights,” United Nations (United Nations, December 10, 1948), https://www.un.org/en/about-us/universal-declaration-of-human-rights.
[iii] United Nations Office on Drugs and Crime, “United Nations Convention against Corruption” (New York: United Nations, October 31, 2003), https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf.
[iv] United Nations, “UNCAC Signature and Ratification Status,” United Nations: Office on Drugs and Crime – Corruption and Economic Crime Branch (United Nations Office on Drugs and Crime, August 7, 2024), https://www.unodc.org/corruption/en/uncac/ratification-status.html.
[v] Stephanie Hegarty, “The Chinese Doctor Who Tried to Warn Others about Coronavirus,” BBC News, February 6, 2020, https://www.bbc.com/news/world-asia-china-51364382.
[vi] “Focus Areas – Whistleblower Protection,” United Nations | Office on Drugs and Crime (United Nations Office on Drugs and Crime, n.d.), https://www.unodc.org/unodc/en/ft-uncac/focus-areas/whistleblower.html.
[vii] Dave Davies, “Chelsea Manning Shared Secrets with WikiLeaks. Now She’s Telling Her Own Story,” NPR, October 17, 2022, https://www.npr.org/2022/10/17/1129416671/chelsea-manning-wikileaks-memoir-readme.; Stelio Louka, “Topic Summary.”
[viii] Glenn Greenwald, Ewen MacAskill, and Laura Poitras, “Edward Snowden: The Whistleblower behind the NSA Surveillance Revelations,” The Guardian (The Guardian & Media Limited, June 11, 2013), https://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance.; Stelio Louka, “Topic Summary.”
[ix] Betsy George, “America’s First Whistleblowers,” Audit & Advisory Services (University of South Carolina, July 8, 2021), https://sc.edu/about/offices_and_divisions/audit_and_advisory_services/about/news/2021/americas_first_whistleblowers.php.
[x] “A Timeline of U.S. Whistleblowing,” The Employment Law Group (The Employment Law Group, P.C., 2017), https://www.employmentlawgroup.com/timeline-us-whistleblowing/.
[xi] Office of the Whistleblower Ombuds, “Whistleblower Protection Act,” Whistleblower Protection Act Fact Sheet (U.S. House of Representatives, March 2022), https://whistleblower.house.gov/sites/evo-subsites/whistleblower.house.gov/files/wysiwyg_uploaded/Whistleblower_Protection_Act_Fact_Sheet.pdf.
[xii] “European Convention on Human Rights – Article 10,” FRA (European Union Agency for Fundamental Rights, November 4, 1950), https://fra.europa.eu/en/law-reference/european-convention-human-rights-article-10.
[xiii] Robert Spano, Case Of Guja v. the Republic of Moldova (No. 2), Coe.int § 2 (European Court of Human Rights 2018).
[xiv] Madalin Necsutu, “Precedent-Setting Moldovan Whistleblower Still Seeking Justice,” Balkan Insight (BIRN, November 22, 2019), https://balkaninsight.com/2019/11/22/precedent-setting-moldovan-whistleblower-still-seeking-justice/.
[xv] “Guidance for Whistleblowers Outside the U.S.,” National Whistleblower Center (National Whistleblower Center, 2018), https://www.whistleblowers.org/know-your-rights/international-whistleblower/.
[xvi] “African Union Convention on Preventing and Combating Corruption,” Article 5(6) § (2003), https://au.int/sites/default/files/treaties/36382-treaty-0028_-_african_union_convention_on_preventing_and_combating_corruption_e.pdf.
[xvii] “Inter-American Convention against Corruption (B-58),” OAS (Organization of American States, March 29, 1996), https://www.oas.org/en/sla/dil/inter_american_treaties_B-58_against_Corruption.asp.
[xviii] “G20 Anti-Corruption Working Group: Anti-Corruption Action Plan 2022-2024,” United Nations | Office on Drugs and Crime (Vienna: United Nations Office on Drugs and Crime, 2021), https://www.unodc.org/documents/corruption/G20-Anti-Corruption-Resources/Action-Plans-and-Implementation-Plans/2021_G20_Anti-Corruption_Action_Plan_2022-2024.pdf.; Stelio Louka, “Low Stakes Assignment #2.”
[xix] “G20 High-Level Principles for the Effective Protection of Whistleblowers,” United Nations | Office on Drugs and Crime (Vienna: United Nations Office on Drugs and Crime, 2019), https://www.unodc.org/documents/corruption/G20-Anti-Corruption-Resources/Thematic-Areas/Public-Sector-Integrity-and-Transparency/G20_High-Level_Principles_for_the_Effective_Protection_of_Whistleblowers_2019.pdf.
[xx]“Whistleblower Protection Program,” Occupational Safety and Health Administration (U.S. Department of Labor, n.d.), https://www.whistleblowers.gov/.
[xxi]“Fact Sheet: U.S. Achievements in the Global Fight against Corruption | the White House,” The White House (The White House, October 16, 2024), https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2024/10/16/fact-sheet-u-s-achievements-in-the-global-fight-against-corruption/.
[xxii] “Sherron Watkins,” Government Accountability Project (Cause Inspired Media, May 7, 2020), https://whistleblower.org/whistleblower-profiles/sherron-watkins/.
[xxiii] Joseph Orr, “Top 5 SEC Whistleblower Awards of 2024,” Kohn, Kohn & Colapinto (Kohn, Kohn & Colapinto LLP., December 3, 2024), https://kkc.com/blog/top-5-sec-whistleblower-awards-of-2024/.
[xxiv] “Luxleaks Whistleblower Antoine Deltour Has Conviction Quashed,” BBC News, January 11, 2018, sec. Europe, https://www.bbc.com/news/world-europe-42652161.
[xxv] “Israel: ‘Vindictive’ Ruling Keeps Whistle-Blower Vanunu under House Arrest,” Amnesty International (Amnesty International, September 11, 2015), https://www.amnesty.org/en/latest/press-release/2015/09/israel-vindictive-ruling-keeps-whistle-blower-vanunu-under-house-arrest/.
[xxvi] The Associated Press, “Former Air Force Analyst Who Leaked Drone Info Sentenced to 45 Months,” NBC News (NBCUniversal Media, LLC, July 27, 2021), https://www.nbcnews.com/news/us-news/former-air-force-analyst-who-leaked-drone-info-sentenced-45-n1275233.
[xxvii] Tiffanie Turnbull, “David McBride: Australian Army Whistleblower Jailed for Leaking Documents,” BBC News, May 14, 2024, https://www.bbc.com/news/world-australia-69006714.
[xxviii] “Why Whistleblowing Works,” National Whistleblower Center (National Whistleblower Center, 2023), https://www.whistleblowers.org/why-whistleblowing-works/.; Stelio Louka, “Low Stakes Assignment #2.”
[xxix] Kathryn Sikkink, “Session 4: Understanding Different Meanings of Global Justice, Slide 11” (PowerPoint, Harvard Kennedy School, Cambridge, MA, September 16, 2024).
[xxx] Stelio Louka, “Low Stakes Assignment #2.”
[xxxi] Zadek, Simon. 2016. Review of The Meaning of Accountability. In Business and Human Rights: From Principles to Practice, edited by Dorothee Baumann-Pauly and Justine Nolan, 240–42. Routledge Publishers.
[xxxii] Ibid.
[xxxiii] United Nations Office on Drugs and Crime, “United Nations Convention against Corruption” (New York: United Nations, October 31, 2003), https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf.
[xxxiv] Pauwelyn, Joost, Ramses A. Wessel, and Jan Wouters. 2012. “When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking.” The European Journal of International Law 25 (3). https://doi.org/10.2139/ssrn.2871110.
[xxxv] “Implementation Review Mechanism,” United Nations | Office on Drugs and Crime: Corruption and Economic Crime Branch (United Nations Office on Drugs and Crime, n.d.), https://www.unodc.org/corruption/en/uncac/implementation-review-mechanism.html.
[xxxvi] United Nations Office on Drugs and Crime, “United Nations Convention against Corruption” (New York: United Nations, October 31, 2003), https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf.
[xxxvii] United Nations, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” Office of the United Nations High Commissioner for Human Rights (United Nations, December 10, 1984), https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading.
[xxxviii] Sikkink, Kathryn. 2011. “Introduction.” In The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics, 27–28. New York: W. W. Norton.
[xxxix] “Anti-Corruption Network for Eastern Europe and Central Asia,” OECD (Organisation for Economic Co-operation and Development, November 17, 2022), https://www.oecd.org/en/networks/anti-corruption-network-for-eastern-europe-and-central-asia.html.
[xl] “Convention and Protocol Relating to the Status of Refugees,” UNHCR (United Nations High Commissioner for Refugees, July 28, 1951), https://www.unhcr.org/media/convention-and-protocol-relating-status-refugees.
[xli] Sibylle Kapferer, “The Interface between Extradition and Asylum” (Geneva: United Nations High Commissioner for Refugees, November 2003).