Introduction

Freedom of speech is the cornerstone of human rights for enlightened democracies. Democracy without this substantial right could be considered deformed. The international community has acknowledged this fact ever since the United Nations was created. The General Assembly of the United Nations, the Commission on Human Rights and the Human Rights Committee have affirmed this right repeatedly in many covenants, declarations, and resolutions. The International Covenant on Civil and Political Rights is the legal cornerstone for the right to freedom of speech.

This article demonstrates how and why whistleblower protection is essential to fully implement freedom of speech, and why it is so crucial in a democratic society. The significance of separate and independent international legislation for whistleblower protection will be presented as well.

The right to freedom of speech through the freedom to blow the whistle

The main source of the right to freedom of speech is the International Covenant on Civil and Political Rights (ICCPR). Article 19 of this covenant is the most comprehensive and obligatory for freedom of speech. According to this article everyone shall have the right to freedom of expression, which includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print.

The international community has acknowledged the right to freedom of speech on many other occasions. In 1948 the Universal Declaration of Human Rights provided in article 19 that everyone has the right to freedom of opinion and expression.

In 1981, Article I of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief declared, inter alia, the freedom of speech. In 1993, the Vienna Declaration and Programme of Action declared in section C paragraph 6 the importance of the promotion of freedom of expression. General Assembly resolution 52/122 of December 12, 1997, Elimination of all Forms of Religious Intolerance, again highlights the importance of freedom of speech as a human right. That same year the Commission on Human Rights drafted a resolution expressing the critical significance of this right.

Through the years, the tendency in the abstract has been to interpret the scope of the right to freedom of speech very widely, i.e., in a way that includes any kind of expression. The sometimes all-consuming exceptions reflect pragmatic restrictions due to consequences from free speech, in theory based on respect for the rights or reputations of others, and for the protection of national security or of public order, health or morals.

What is the relationship between whistleblowing and free speech? The Oxford English Dictionary defines whistleblowing as "bringing an activity to a sharp conclusion as if by the blast of a whistle." The British Parliamentary Nolan Committee defined it as "raising concerns about misconduct within an organization or within an independent structure associated with it." The Chambers Dictionary defines whistleblowing as "giving information (usually to the authorities) about illegal and underhand practices," while the Brewer Dictionary defines it as "exposing to the press a malpractice or cover-up in a business or a government office." The U.S. Whistleblower Protection Act of 1989 protects any lawful disclosure evidencing a reasonable belief of illegality, gross waste, gross mismanagement, abuse of authority, or a substantial and specific danger to public health or safety. All these definitions lead to the conclusion that any credible vision for freedom of speech inherently includes an employee's right to blow the whistle on lawlessness and other misconduct that undermines the public interest or abuses institutional power.

The right of whistleblowers to protection

In order to fully implement the right of employees to challenge workplace corruption and mismanagement, whistleblowers must be offered a genuine protection -- metal shields behind which they can survive professionally, rather than cardboard shields that virtually assure they will die. Based on the United States’ experience, the classic responses of employers to whistleblowing are well-established patterns of retaliation tactics.

Secrecy and silence through intimidation and fear are the ultimate objectives and methods underlying classic organizational reprisal techniques. The goal is to convince employees that the power of the organization is stronger than the power of individuals -- that the only lasting difference they will accomplish by speaking out is to hurt themselves. Employers typically use numerous tactics in an effort to silence, terminate or harass whistleblowers into resigning. In addition to conventional dismissal, examples include spotlighting whistleblowers to distract from the wrongdoing they expose; building a damaging record against them; threatening them; isolating them; publicly humiliating them; setting them up for failure; prosecuting them; physically attacking them; eliminating their jobs; paralyzing their careers; and blacklisting them.

These archetypal responses to whistleblowing often stop workers from making a difference by actively bearing witness, and cause them to sustain the status quo by standing idle as passive, silent observers. Whistleblower protection is indispensable for freedom of speech to be a meaningful right.

The role of whistleblowers as eradicators of corruption

Whether corruption is government or corporate, it is like a cancer in the human body. It must be eradicated, or the organism will die. Whistleblowers are the human factor that constitutes the Achilles heel for corruption in democracies. Typically, corruption and mismanagement are covered up by the wrong doers. Wrongdoers inevitably suppress exposure of information that threatens to redirect their priorities from self interest to the public's interest. A primary tool to tell the difference between a sick bureaucracy that perpetuates corruption, and a healthy institution that serves the public, is whether it tolerates, accepts or even welcomes the bitter medicine that whistleblowers personify. As U.S. Supreme Court Justice Brandeis said, "Sunlight is the best disinfectant."

Beyond a reasonable doubt, the consequences of bureaucratic secrecy are avoidable tragedies. In the United Kingdom, for example, the Zeebrugge ferry sank and 193 people died because it had been sailing with its bow doors open. The inquiry found that on five previous occasions staff had reported this was happening, but their concerns were hidden by middle management. In the United States a nuclear weapons production plant released over two million pounds of radioactive dust into the environment around Cincinnati, Ohio before disclosures by whistleblowers helped force its shutdown. The most dramatic example occurred when the Challenger accident was broadcast internationally as it happened. The tragedy would not have occurred if government and corporate institutions had not suppressed a whistleblower's warning that, based on close calls under less dangerous circumstances, the tragedy was almost inevitable in the weather conditions that provided during the launch.

These examples involve the U.S. and the U.K., which have traditions of free speech. In nations without the context of legal and cultural support, the consequences more likely can be termination of life, instead of merely employment. Anti corruption mandates cannot survive unless whistleblowers have a reason to believe they can survive personally as well.

In order to establish a foundation of institutional accountability for emerging globalization and free trade, responsible whistleblowing must be recognized as an invaluable tool of institutional accountability that is encouraged and honored. International trade will not be functional for the public, unless there are personal checks and balances to expose corruption.

The need to formulate a specific article for whistleblowers protection

Although whistleblower protection can be derived from preexisting international covenants protecting freedom of speech, it is not enough to rely solely on this broader human right to protect whistleblowers. That is why the U.S. enacted a Whistleblower Protection Act to implement the First Amendment constitutional right. Representatives of North and South American governments had a similar reason to include a whistleblower protection clause in the Inter-American Convention Against Corruption, article III(8).

Globally, these precedents must evolve into a specific international whistleblower protection clause for all covered by freedom of speech in Article 19 of the International Covenant on Civil and Political Rights. The ICCPR is an appropriate covenant for this right. In the Western Hemisphere, the next step is incorporating whistleblower protection into domestic legislation. It is time for the U.S. to extend its unanimous legislative support for whistleblower protection at home to the context of anti-corruption internationally. Then comes the hardest part -- exercising effective leadership to turn the rhetoric of whistleblower protection into reality.

Future articles will -- 1) illustrate the tangible ways whistleblowers have proven they can make the difference between winning and losing the fight against corruption; 2) suggest model language and mechanisms to implement global whistleblower protection; and 3) advocate a vision of models for public and private institutions to act on a commitment even more meaningful than protection against harassment -- the pledge to listen and work with the messengers, instead of shooting them.

* Jasmin Keshet is International Program Director for the Government Accountability Project. Tom Devine is GAP's Legal Director.