Coronavirus and the Whistleblower: The (Missing) Role of International Law

April 14, 2020 by Digital Editor

By: Dimitrios Kafteranis*

The outbreak of coronavirus has provoked an international health crisis. Months ago, news started coming out of China, and more specifically its Wuhan region, that they were suffering from a new virus called coronavirus (COVID-19). While China made a big effort to control the disease, the whole world was holding its breath as there were fears that this virus might spread around the globe. These fears came true with Italy suffering a dramatic outbreak, temporarily making it the world leader in cases, only to be later overtaken by Spain and then U.S., which now has the greatest number of official cases. Precautionary measures to control the disease have been adopted that are necessary but also forebodingly similar to a war-time situation where citizens are forced to stay home, schools and universities are shut down, and social life comes to an end. This dire situation could have been avoided if whistleblowers had been listened to. In light of this new health “scandal,” there is an emerging need to adopt a Convention on the protection of whistleblowers worldwide.

Dr. Li Wenliang was the first doctor in Wuhan, China to sound the alarm about the coronavirus but he was silenced by the Chinese authorities as “rumormongering.” Other medical staff tried to sound the alarm but were censored by the Chinese authorities, just as had happened with Dr. Li Wenliang. Meanwhile, in the U.S., a whistle-blower at the Department of Health and Human Services complained that workers in the U.S. health system, especially those who received cases from Wuhan, were not properly trained. These whistleblowing cases highlight the need for an international legal response for the effective legal protection of whistleblowers. If the national legal framework is not responsive or inexistent, the whistleblower should have the possibility to refer to an international legal framework.

For the time being, the international legal provisions on the protection of whistle-blowers are sectoral. For instance, the Group of Twenty (G20) has produced outstanding work on the question of whistleblowing in order to fight corruption and to ensure transparency and the fairness of the markets. The Organisation for Economic Co-operation and Development (OECD) has the same goals and is a pioneer on the subject doing important work towards the protection of whistle-blowers. The World Bank and other international bodies are heading in the same direction.

While the efforts of the abovementioned international organisations are significant, the focus should be on the United Nations (U.N.) for two reasons. First, the U.N. gathers a big majority of States and, second, it was the first organisation to advocate internationally for whistleblowers’ protection. A Convention adopted by the UN on the protection of whistle-blowers would provide legal uniformity and ensure an agreement on common minimum standards worldwide.

A Convention on the protection of whistleblowers should provide a set of rules negotiated by the State Parties. It can serve as a reference for whistleblower protection at the national level. The Convention will need to clarify certain issues at the international level around whistleblowers including the definition of whistleblowing, the proper channels for disclosure and adequate protection. This would allow whistleblowers and States to have a blueprint for their national legislations in a clearer way.

In addition, the Convention could be used as an advocacy tool in order to improve the situation of whistleblowers. For instance, in countries where no legislation exists or the legislation is poorly written, such a Convention would help legal activism and put pressure on States to adopt or modify their national legislation according to international standards. Finally, the Convention would not only influence the legal landscape but also society. Whistleblowing has negative connotations in different countries. For example, the figure is problematic in Europe as it evokes the Nazi regime where certain citizens collaborated with the Nazi administration by denouncing others. A Convention on the protection of whistle-blowers could change this perception and educate people on the value of whistleblowers for society. The purpose would be to show that with the right rules, whistleblowing is important in order to combat wrongdoing.

The current international legal framework on the protection of whistleblowers is inadequate and piecemeal. The need for a Convention on the protection of whistleblowers is necessary as it would provide minimum rules and serve as an important tool towards the empowerment of whistleblowers. The U.N. should take the opportunity arising from this crisis to start the negotiations on such Convention. Given the recent legal developments on whistleblowing, we can hope that a global solution will be found soon. It may be just the right tool to avoid another future health, or other type of, crisis.

*Mr. Dimitrios Kafteranis is a PhD candidate at the Faculty of Law of the University of Luxembourg. He was a junior academic visitor at the University of Oxford, Trinity College Dublin and the University of Antwerp. Prior to starting his PhD, Dimitrios worked at the Court of Justice of the European Union.