Why should they be protected
The right to access to information is an essential tool for the public’s participation in political affairs, democratic governance and accountability. Whistleblowers are individuals who inform on a person or organisation engaging in unlawful or immoral activity and who makes access to information possible. They play an essential role in highlighting cases of malpractice, wrongdoing and abuse, which would often remain unchallenged and uninvestigated and as such, deserve the strongest protection in law and in practice. The recent example of UN whistleblower Anders Kompass is a timely reminder of the lack of protection they often receive and the retaliation they can face.
What international standards say
There are a number of core protections afforded to sources of information and whistleblowers resting upon a core right to freedom of expression. Article 19 of the Universal Declaration of Human Rights guarantees the right to seek, receive and impart information and ideas through any media and regardless of frontiers. The International Covenant on Civil and Political Rights enshrines the same rights in article 19, which emphasizes that the freedom applies to information and ideas of all kinds. Sources and whistleblowers enjoy the right to impart information, but their legal protection when publicly disclosing information rests especially on the public’s right to receive it. That right has been emphasized by previous special rapporteurs and experts in the European, African and inter-American systems. The Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child also obliges States parties to ensure that children (Art. 17) and persons with disabilities (Art. 9 (2)) have access to information.
A report just issued on the promotion and protection of the right to freedom of opinion and expression highlights the key elements of a framework for the protection of sources and whistleblowers clarifying the absolute need to ensure adequate protection mechanisms are in place.
UN failure to protect whistleblowers
The principles of whistleblower protection adopted by States and regional mechanisms apply with equal force in the context of international organisations like the UN, and many have adopted rules and regulations with the purpose of enabling whistleblowing and prohibiting retaliation against those who disclose wrongdoing. However, basic structural gaps in international organisations have put whistleblowers at risk and allegations of retaliation against whistleblowers continue to plague international organisations with few UN whistleblower complaints being fully and appropriately investigated.
The recent report on the promotion and protection of the right to freedom of opinion and expression found that between 2006 and 2014, only 15 cases from a total of 403 “inquiries” sent to the Ethics Office of the UN were found to meet prima facie standards for retaliation. Only 4 were established as retaliatory cases. This sends a message to employees that the UN reporting system will not provide effective protection or redress.
While well intentioned mechanisms do exist, they lack independence and effectiveness. Those who identify wrongdoing, especially evidence of serious legal violations and human rights abuses, such as sexual and gender-based violence — should be protected from retaliation when they make public disclosures to the media, civil society or Governments.
The Special Rapporteur made a number of recommendations for international organisations to consider in order to improve their approaches:
Firstly, whistleblower definitions should apply broadly to encourage all disclosures of wrongdoing that implicate the interests of the organisation and all stakeholders, including governments and civil society.
Punishment of those who retaliate should be serious, not merely disciplinary, and should include the possibility of removal from their post and personal liability.
Lastly, international organisations should adopt serious and effective policies of transparency to enable the public to have greater access to information.
Though disclosures should respect the rights and reputations of others, in the absence of effective internal systems, external disclosure provides a necessary safety valve to promote accountability and ensure that the public has information about serious wrongdoing.
Whistleblowing international network: Whistleblower Protection has its Day at the United Nations
International Business Times: Whistleblowers and sources must be protected by all Governments