Beijing Law Review
2013. Vol.4, No.4, 185-197
Published Online December 2013 in SciRes (http://www.scirp.org/journal/blr) http://dx.doi.org/10.4236/blr.2013.44024
Open Access 185
Establishing a Different Dimension of Citizen Security: The Case
for Special Protection for Whistleblowers
David Lewis1, Joshua Castel l ino2
1Law Department, Middlesex University, London, UK
2School of Law, Middlesex University, London, UK
Email: D.B.Lewis@mdx.ac.uk, J.Castelli n o@ mdx.ac.uk
Received September 4th, 2013; revised O ctober 6th, 2013; accepted Novem ber 5th, 2013
Copyright © 2013 David Lewis, Joshua Castellino. This is an open access article distributed under the Creative
Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium,
provided the original work is properly cited.
The notion of citizens’ security has usually been viewed primarily as a binary relationship between the
State and the citizen in a Rousseauesque interpretation. This article argues for a broader conception of
citizens’ security focussing on the right to “blow the whistle” in an employment context. We believe that
with the growing importance of global business in society it is imperative that special measures are de-
signed for this important class of citizens. A failure to do so, in our opinion, is likely to harm the mainte-
nance of effective protection, especially in developing countries, to the detriment of citizens’ security.
Keywords: Employment Law; Freedom of Expression; Corporate Wrongdoing; Corporate Liability
The Universal Declaration of Human Rights unveiled in
1948 sought to identify a broad category of rights that would be
available to protect every individual on the basis of their being
part of the human community1. The rights envisaged were pur-
ported to guarantee their inherent dignity and worth2. However,
as it had been apparent in the centuries prior to the Declaration,
there existed and continued to exist, a fundamental difference
between the de facto access to rights and their de jure articula-
tion. In the context of the history of international law, the at-
tempt to bridge this difference is visible in the many lex spe-
cialis regimes that have been created in order to protect specific
categories of individuals who are classifiable as members of a
definable group. Special regimes have been designed to protect
women and children in the context of war (Durham 2002)3, and
minorities regarded as particularly vulnerable owing to their
location within states that did not fully represent them4. The
aim of such measures was to create an extra layer of citizen
protection in a bid to overcome the difficulties of access to
rights that members of such groups faced5.
Despite the re-articulation of the modern agenda of human
rights as rights applying equally to every individual, the trend
towards recognising lex specialis has continued. Among the
pantheon of such protection are instruments pertaining to in-
digenous peoples6, minorities7, women8, children9, migrant
workers (documented and undocumented),10 refugees11 and the
disabled12. In each context international treaties have been
signed and ratified containing a series of general human rights,
a list of specific rights distinct to the class of persons in ques-
tion, and in some cases, an additional mechanism designed to
6See Convention Concerning Indigenous & Tribal Peoples in Independen
Countries (ILO No. 169); United Nations Declaration on the Rights o
ndigenous Peoples (2007); Proposed American Declaration on the Rights
of Indigenous People s (1997).
7Declaration on the Rights of Persons Belonging to National or Ethnic,
eligious or Li nguistic Minorities (1993).
8Convention on the Elimination of All Forms of Discrimination agains
Women (1981); Optional Protocol to the Convention on the Elimination o
ll Forms of Discrimination against Women (2000); Declaration on the
rotection of Women and Children in Emergency and Armed Conflic
9Convention on the Rights of the Child (1989); Convention concerning the
mmediate Action for the Elimination of the Worst Forms
of Child Labour (ILO No. 182); Optional Protocol to the Convention on the
ights of the Child on the invol
ement of children in armed conflicts (2000)
Optional Protocol to the Convention on the Rights of the Child on the sale
of children, child prostitution and child pornography (2000). In addition
there are also guidelines concerning juvenile offenders such as Unite
ations Rules for the Protection of Ju
eniles Deprived of their Liberty,
(1990); United Nations Guidelines for the Prevention of Juvenile Delin-
quency (The Riyadh Guidelines) (1990) and the United Nations Standar
inimum Rules for the Administration of Ju
enile Justice (“The Beijin
10International Convention on the Protection of the Rights of All Migran
Workers and Members of Their Families (1990).
11Convention relating to the Status of Refugees (1954); Protocol Relating to
the Status of Refugees (1967); Guiding Principles on Internal Displacement
(1998); and the Cartagena Declarat ion on Refugees (1984).
12Declaration on the Rights of Disabled Persons (1975); Internationa
Convention on the Protection and Promotion of the Rights and Dignity o
ersons with Disabilities (2006); First Optional Protocol to the Interna-
tional Convention on the Protection and Promotion of the Rights and Dig-
nity of Persons with Disabilities (2006).
1For general reading on the Universal Declaration see Morsink, (1999)
2There has been some critique about the individuality (as opposed to collec-
tive nature) of the protections enshrined here, see Donoho (1990-1991);
Lewis (1995) and An-Na’im, Madigan and Minkley (1997) .
3There are 42 provisions referring to women in the 1949 Geneva Conven-
tions on the Laws of Wars and the 1977 Additional Protocols see Gardam &
Jarvis (2001). For an articulation of child rights during the League of Na-
tions see G eneva Decl a rat ion of the Righ ts of the Child of 1924.
4Among the most famous ancient treaty that is cited is The Promise of St.
ouis of France, 1250. See Thornberry (1991), especially Chapter I.
5For more on access to justice, which underpins this issue see Rhode (2004)
1-19, 103-120; Francioni (2007).
D. LEWIS, J. CASTELLINO
overcome the problem of the groups’ lack of access to general
rights (Alston, 1996). Most recently, the trend has also included
the creation of lex specialis at European level, for human rights
defenders, on the grounds that their rights are particularly dif-
ficult to guarantee13.
This article argues that in the context of developments in the
South, more specifica lly the eve r growing prominence of global
business, whistleblowers should be treated as a special class of
individual with a lex specialis designed to guarantee the full
recognition of their human rights and to safeguard their par-
ticular role in defending human rights in the workplace. The
opening section discusses the nature and scope of whistleblow-
ing and offers reasons why whistleblowers should receive spe-
cial protection. The second section seeks to clarify the extent to
which international human rights law has generated categories
of lex specialis, outlining their rationale and prime substantive
content. The final section outlines precedents from around the
world where this class of individuals has been given special
protection, with a view to: 1) supporting the argument for their
special protection through concrete examples, and 2) highlight-
ing the kinds of issues that ought to be considered within the
attempt to frame more uni versal regimes of protection.
Whistleblowers as a Particular Class in
Need of Protection
The popular media regularly provide stories about individu-
als who, often under threat of losing their job, opt to “do the
right thing” in seeking to address a wrong perpetrated by their
employer or other workers. Thus the whistleblower is fre-
quently portrayed as facing the moral dilemma of wanting to
raise a concern but being aware of the personal price that may
have to be paid. In addition to this classical view of whistle-
blowers, there are workers whose jobs require them to perform
a monitoring role, for example auditors, human rights defenders
and trade unionists. To make a clear-cut case for the special
protection of whistleblowers it is necessary to identify precisely
who ought to benefit from such protection. This will be at-
tempted in the following section.
Some Definitional Issues
A broad definition of whistleblowing would encompass dis-
closures of malpractice, as well as illegal acts or omissions. In
the UK the charity Public Concern at Work (PCAW) offers
help and free legal advice to people who have “a concern that
something seems to be seriously wrong, illegal or dangerous
which threatens the public interest”14. One obvious problem is
the lack of consensus about what constitutes “wrongdoing”15.
Because there is no universally accepted definition of whistle-
blowing, the Australian Senate Select Committee on Public
Interest Whistleblowing reached the conclusion that:
“…what is important is not the definition of the term, but the
definition of the circumstances and conditions under which
employees who disclose wrongdoing should be entitled to pro-
tection from retaliation” (Australian Senate Select Committee
on Public Interest Whistleblowing, 1994)16.
It should be noted that this article focuses only on whistle-
blowing in an employment context. While citizens who raise
concerns about wrongdoing in non-work situations also merit
protection against reprisals, we believe that the case for recog-
nising a separate category of lex specialis is strongest in rela-
tion to those who are broadly defined as workers, especially in
the context of countries in the South where, due to the need to
attract foreign direct investment, there may be less incentive to
design such protection measures. Human rights defenders as a
category are excluded from the scope of this article, since their
critique may not pertain directly to their employment. Another
caveat that needs to be highlighted is that our analysis pertains
to the context of individuals facing the dilemma of whistle-
blowing. Thus trade unionists operating within the mandate of
collective bargaining structures would also be excluded. Be-
sides the general need to delimit the scope of the definition, the
two excluded categories of individuals also already have lex
specialis in terms of their positions.
Another issue that arises in relation to workplace reporting is
whether it is necessary to distinguish internal from external
reporting17. There are good practical reasons for doing so. For
example, while disclosures to higher management might be
perceived by supervisors as disloyal, it cannot be treated as a
breach of the common law duty of confidence or fidelity18.
Internal reporting would seem to offer advantages all round.
The employer is given the chance to deal with concerns without
external pressure and, from the worker’s perspective, once a
problem has been aired externally they are more likely to suffer
reprisals. In addition, the public might gain from the speedy
rectification of wrongdoing without the need for investigation
or expenditure by government agencies19. Conversely, it could
be argued that internal disclosures are not necessarily in the
public interest since they facilitate cover-ups and may conceal
systemic failures. In the context of the need for special protec-
tion we are necessarily focusing on the situation where internal
reporting procedures have either been exhausted, or where the
nature of the circumstance makes internal disclosure non-viable.
Thus our attention is on the need to protect workers who have
either decided or felt compelled to make an external disclosure
in order to right a wrong or raise a concern.
Why the Right to Blow the Whistle Is Important
Perhaps the most compelling argument in favour of design-
ing special protection for whistleblowing is that it may directly
16The current definition used by Transparency In ternational(2013) is “the
disclosure of information related to corrupt, illegal, fraudulent or hazardous
activities being committed in or by public or private sector organisations
(including perceived or potential wrongdoing) which are of concern to or
threaten the public interest, to individuals or entities believed to be able to
17Some writers do not accept that internal disclosures amount to whistle-
blowing see Jubb (1999).
18The employee’s implied obligations of loyalty or fidelity have evolved
over the centuries and currently manifest themselves in the form of a duty
to co-op erat e. Thi s is clear ly b ased on the p r emise th at wo r ker s ar e eng aged
to promote the commercial interests of the employer. See Secretary o f St ate
or Employment v ASLEF (No. 2)  QB 455.
19Thus a major policy issue for legislators has been to decide whether or not
a statutory duty should be imposed on employers to establish and maintain
appropriate whistleblowing procedures. Several statutes require public
sector organizations to have such procedures, for example, Section 11
otected Disclosures Act 2000 (New Ze aland).
13See “Ensuring Protection: EU Guidelines On Human Rights Defenders”
http://www.consilium.europa.eu/u edocs/cmsUpload/Guid elin esDef enders.p
df [last accessed 27th November 2013.]
14The use of the expression “public interest” is not accidental here as the
common law defence to actions for breach of confidence depends on the
disclosure being in the public interest (see below).
15The Council of Europe’s Committee on Legal Affairs and Human Rights
(2009) defines whistleblowing as “concerned individuals sounding the
alarm in order to stop wrongdoings that place fellow human beings at risk”.
D. LEWIS, J. CASTELLINO
promote the right to life. According to Agalgatti & Krishna, the
world’s worst industrial disaster Bhopal, India, 1984 “is a
tragic example of what could have been averted by alert whis-
tleblowing” (Agalgatti & Krishna, 2004). At this Union Carbide
plant, where thousands died as a result of a gas leak, the con-
cerns of workers and a journalist were ignored by the local
authority. Detailed investigations revealed that series of warn-
ings were disregarded and cost-cutting measures had adversely
affected work conditions and the maintenance of safety systems.
Similarly, the investigation into the Herald of Free Enterprise
disaster outside Zeebrugge in 1987 found that employees had
aired their concerns on five previous occasions about the ship
sailing with its bow doors open. A member of staff had even
suggested fitting lights to the bridge to indicate whether the
doors were closed. The inquiry concluded: “If this sensible
suggestion had received the serious consideration it deserved
this disaster might well have been prevented” (Department of
The enquiry into the 1988 Piper Alpha oil platform disaster
in the North Sea found that: “workers did not want to put their
continued employment in jeopardy through raising a safety
issue that might embarrass management” (Public inquiry,
In addition to helping to expose financial scandals, like those
which occurred at BCCI20, Enron (Sterling, 2002) and World-
Com (Jeter, 2003), whistleblowing remains an important tool in
the fight against corruption, which itself contributes to poverty
(International Council for Human Rights Policy, 2009). Re-
duced levels of corruption would allow funds earmarked for
infrastructure to be expended on projects rather than enriching
contractors, administrators or politicians. Because corruption is
notoriously difficult to detect and address through formal legal
channels, especially in developing countries, it is vital to pro-
vide other means by which corrupt practices can be exposed.
The opportunity to blow the whistle offers an additional
mechanism for exposing financial and other forms of wrong-
doing (Carr & Lewis, 2010). Thus it is unsurprising that proce-
dures have been introduced by many employers as an aspect of
good corporate governance21. However, on a global scale, there
is currently no statutory right to whistleblow, with only Norway
imposing a general duty on employers to provide confidential
It has been argued elsewhere (Lewis, 2005) that reprisals
against whistleblowers are a form of unequal treatment that
constitutes a violation of human rights23. This is especially clear
at EU level, where all the Equality Directives adopted under
Article 13 EC place the right to equal treatment and non-dis-
crimination on a human rights basis24. In the UK, Section 3 of
the Equality Act 2006 (EA, 2006) imposes a general duty on
the Commission for Equality and Human Rights (EHRC) to
encourage and support “the development of a society in which
—(b) there is respect for and protection of each individual’s
human rights”. The other limbs of this section can also be in-
voked in relation to whistleblowing: thus individuals need to be
able to raise concerns about suspected wrongdoing if they are to
maintain their “dignity and worth” and to “participate in soci-
ety”25. However, if they suffer reprisals for doing so this would
not only be disrespectful but such discrimination might limit
their “ability to achieve their potential”26.
One of the most crucial factors relevant to our argument is
the influx of multinational corporations into developing coun-
tries. In many instances this is creating unequal bargaining
situations between communities and corporation to the grave
detriment of citizens’ security and, while the terms of the initial
contract determining access may itself be flawed, it becomes
vital to ensure the existence of adequate processes through
which wrongdoing can be addressed. The newly emerging
United Nations Framework on Multinational Corporations
(articulated through the work of Special Representative Profes-
sor John Ruggie) seeks to address this issue through the re-
quirement that corporate entities engage in human rights impact
assessment prior to the commencement of operations. A second
string of protection could be provided by insisting on the need
for entities to create a grievance procedure. However, in light of
the unequal bargaining positions that are likely to persist (with
communities needing the employment provided by the com-
pany, and the state requiring the investment) it becomes par-
ticularly important to protect those who might be unable to
raise concerns about wrongdoing through such mechanisms.
In the authors’ opinion it is because whistleblowing is often
in the interests of wider society that exceptional measures
should be taken to facilitate it. In the context of general human
rights development our focus has been exclusively on the rela-
tionship between state and citizen. Thus our conception of citi-
zen security is necessarily framed within this paradigm. How-
ever with the growing recognition of the international personal-
ity of businesses in general and multinational corporations in
particular, it is important to widen our view of who the key
actors may be in an understanding of citizens’ security. There is
abundant evidence about the extent and nature of reprisals that
have been suffered by whistleblowers in many countries over
the years (Glazer & Glazer, 1989; Rothschild & Miethe, 1994)
and research in both the US (Miceli, Near, & Dworkin, 2008)
and Australia (Brown, 2008) confirms that the fear of retalia-
tion is one of the two main reasons given for not reporting per-
ceived wrongdoing27. Unless a right to report suspected
wrongdoing is given special status and adequate measures put
in place to deter reprisals, the moral obligation28 to disclose
wrongdoing will continue to conflict with the individual’s self-
interest in preserving his or her job. In simple economic terms,
where the personal cost of reporting is high and the benefit is
low, whistleblowing will be discouraged29.
20The Bingham Inquiry (1992) found that there was a climate of intimida-
tion and staff felt that they could not voice the i r concerns.
21On the UK position see Lewis (2006).
22Section 3(6) of the Work Environment Act 2005.
23According to Judge Ansell in Virgo Fidelis School v Boyle  IRLR
268, subjecting a whistleblower to a detriment is a form of discrimination.
This approach has been universally adopted in subsequent cases brought
under Part IV A ERA 1996.
24A recital in their Preambles d eclares: The ri ght to equality b efore the law
and protection against discrimination for all persons constitutes a universal
right recognized by the Universal Declaration of Human Rights, the United
ations Convention on the Elimination of all Forms of Discrimination
against Women, the International Convention on the Elimination of al
orms of Racial Discrimination and the United Nations Covenants on Civi
and Political Rights and on Economic, Social and Cultural Rights and by
the European Convention for the Protection of Human Rights and Funda-
mental Free doms, to which all Member States are signatories.
Some might argue that whistleblowers are already protected
through the constitutional right of the freedom of speech. Al-
25See Section 3(c) & (d) EA 2006 respectively.
26See Sect i on 3(d) & (a) EA 2006 respectively.
27The other main reason is the belief that no action would be taken.
28This is based on utilitarian arguments: it is acknowledged that in the
deontological tradition of ethical theory a diff erent view is taken.
29For a more sophisticated economic approach see Heyes & Kapur ( 2009).
Open Access 187
D. LEWIS, J. CASTELLINO
though some countries provide a constitutional right to freedom
of speech30, more general reliance is placed on human rights
conventions31. For example, Article 10(1) of the European
Convention (ECHR) states that: “Everyone has the right to
freedom of expression…”32 However, there can be little doubt
that in most circumstances countries who impose limitations on
freedom of speech are able to justify their actions under Article
In addition, Article 33 of the UN Convention on Corruption
(UNCAC) 2003 provides that:
“Each State Party shall consider incorporating into its do-
mestic legal system appropriate measures to provide protection
against any unjustified treatment for any person who reports in
good faith and on reasonable grounds to the competent au-
thorities any facts concerning offences established in accor-
dance with this Convention”34.
This protects all types of people and is not restricted to those
who raise concerns from within an organisation. However, this
measure also requires the discloser to have “reasonable
grounds” and it is unclear whether these are to be subjectively
or objectively determined. It almost goes without saying that in
some situations it will be difficult to distinguish between strong
suspicions and reasonable grounds. Another problem is the
non-mandatory nature of the provision—it does not require
State Parties to have such measures in place but only that they
consider providing protection for those who report concerns.
Thus it is possible for States to argue that they have considered
art 33 but have decided not to adopt any measures as a conse-
Mention should also be made of Article 5(c) of International
Labour Organisation Convention No. 158 on Termination of
Employment35. This states that:
“…the filing of a complaint or the participation in proceed-
ings against an employer involving alleged violation of laws or
regulations or recourse to competent administrative authori-
ties’ does not provide a valid reason for dismissal”36.
This narrow formulation, which is only relevant to employ-
ment and does not deal with detriments short of dismissal, has a
limited impact on those deliberating about whether or not to
report suspected wrongdoing. Thus from the perspective of
global state practice and that of key international organisations
concerned with these issues, it could be argued that 1) whistle-
blowers necessarily need special protection in light of their role,
and that 2) the mechanisms currently in existence are either
inadequate or inappropriate to provide the necessary protection.
One limiting factor has been the traditional unitary view
within common law jurisdictions concerning loyalty and trust at
the workplace (Lewis, 2011). The assumed shared interests of
employers and employees inhibited the acknowledgement of
obligations towards the family, the workgroup, a professional
body or trade union, to consumers or wider society. Further,
there has been some confusion about the distinction between
fiduciary obligations and good faith or fidelity terms implied
into contracts of employment (Flanagan, 2008). Fiduciary obli-
gations are not mutual but derive from equitable principles
which require a person to act solely in the interests of another.
By way of contrast, the duty of fidelity (or good faith) requires
a party to take into consideration the interests of another but not
necessarily to act in that other’s interests. Thus, in theory, fidu-
ciaries have a positive duty to disclose information which is not
imposed on “ordinary” employees via implied contractual terms.
Whether or not it is desirable in principle, it is clear that the
distinction between “senior” and “ordinary” employees is dif-
ficult to sustain in practice. In Sybron Corporation v Rochem
Ltd37 which was argued on the basis of contractual rather than
fiduciary obligations, the UK Court of Appeal held that a senior
employee was in breach of duty in not disclosing that fellow
employ ees had establ ished rival organisations and were trading
in competition with Sybron. This case provides authority for
the proposition that there may be an implied contractual obliga-
tion to report the wrongdoings of others even if that requires the
disclosure of one’s own impropriety. Significantly, the duty to
report does not appear to be dependent on the employer pro-
viding a suitable procedure.
The common law has never given workers a general right to
disclose information about their employment. Even the revela-
tion of non-confidential material could be regarded as under-
mining the implied duty of trust and give rise to action for
breach of contract. In relation to confidential information ob-
tained in the course of employment, the common law protects
employers against disclosure through express and implied terms.
For many years express terms prohibiting the disclosure of
information acquired during employment have been standard in
a wide range of industries38. Particular problems arose in the
UK health service where staff had to reconcile a duty to raise
concerns with specific “gagging clauses” in their contracts. In
addition, some staff have to accommodate professional codes of
practice which are enforced (through de-registration if neces-
sary) by statutory bodies such as the UK’s General Medical and
the Nursing and Midwifery Councils. It seems almost inevitable
that in some situations professional staff will perceive a conflict
between the needs of patients and loyalty to the employer in the
health service market. Similarly, the implied duty of fidelity
can be used to prevent disclosures while the employment sub-
sists. However, where employ ees have allegedly disclosed con-
fidential information in breach of an express or implied term
they may seek to invoke a public interest defence to a legal
action. Although the common law allows the public interest to
be used as a shield against an injunction or damages, we will
see that it has been a weapon of uncertain strength (Cripps,
30It is a feature of whistleblowing disputes in the USA that government
loyees can comment on t heir employer an d have fr ee speech guarant eed
under the first and fourteenth amendments.
31In their report to the Parliamentary Assembly entitled “The protection o
whistle-blowers”, the Council of Europe’s Committee on Legal Affairs and
Human Rights (2009) recommended that the Committee of Ministers “con-
sider drafting a framework convention on the protection of ‘whistle-blow-
ers’” (Dra f t Recommendation 2.3).
32Guja v Moldova 2008. Application No. 14277/04 the Euro
ean Court o
Human Rights found an Article 10 violation when an employee of the
Prosecutor General’s office was sacked for leaking official letters to the
press dem on s trating political interference in ongoing investigations.
33Thus in R v Shayler the House of Lords (as it then was) found that the
UK’s Official Secrets Act 1989 inhibited the defendant’s freedom of ex-
pression under Article 10(1) but found that this was justified under Article
34This came into force in 2005. See also the Council of Europe’s Criminal
and Civil Law Conventions on Corruption (both 1999).
3568th Session. 1982.
36Article 5 (c) ILO Convention No. 158 on Termination of Em ploy m en t.
Since Initial Services v Putterill39, the UK Court of Appeal
has allowed an exception to the principle of non-disclosure of
37 Ch 112.
38In some instances these existed alongside codes of conduct or ethics
which encouraged the reporting of concerns about wrongdoing!
39(1968)1 QB 396.
D. LEWIS, J. CASTELLINO
confidential information where there is “any misconduct of such
a nature that it ought in the public interest to be disclosed to
others”. Here a sales manager was sued for breach of confi-
dence to stop him passing documents relating to unlawful
price-fixing to a national newspaper. However, the disclosure
must be to someone who has an interest in receiving it and, in
this case, Lord Denning was of the opinion that the media had a
sufficient interest for these purposes. In Lion Laboratories v
Evans40, two employees gave a national newspaper copy of
internal documents doubting the reliability of the breathalysers
manufactured by their employer. The company sought an in-
junction to prevent publication of the information on the
grounds of breach of confidence. The action failed because the
employees were found to have “just cause or excuse” for dis-
closure. However, the Court of Appeal indicated that the press
might not always be the appropriate medium for disclosure.
Subsequently, in Re a Company’s Application41, the High
Court refused to grant an injunction preventing an employee in
the financial services sector from disclosing confidential infor-
mation about his company to a regulatory body, notwithstand-
ing that the disclosure might be motivated by malice. Although
Scott J. continued an injunction against general disclosure, he
held that an employee’s duty of confidence did not prevent
them disclosing matters to regulatory authorities whose man-
date included the duty to investigate. Thus, apart from the
situation where an employee reports a breach of statutory duty
to a relevant regulatory body, the common law has not provided
reliable guidelines about what could be disclosed and to whom.
However, one enduring feature of the public interest defence at
common law is that it could be available even if a disclosure
was tainted by malice. This may still be relevant because the
whistleblowing statutes in the New Zealand, Ghana and South
Africa normally deny protection to those who are shown to
have acted in bad faith42.
Before we consider the impact of public interest disclosure
legislation, we will again use the UK as an example to outline
the types of statutory provisions which require individuals to
blow the whistle. In addition to the general duty to report sus-
pected acts of terrorism43, Sections 330-332 of the Proceeds of
Crime Act 2002 makes it an offence not to disclose information
about money laundering which is acquired “in the course of a
business in the regulated sector”. Similarly, Regulation 14 of
the Management of Health and Safety at Work Regulations
1992 requires employees to inform employers of any work
situation which could reasonably be considered to represent a
serious and immediate danger to health and safety, and of
shortcomings in the employer’s protection arrangements which
have not previously been reported44.
Toward the Articulati on o f a Substantive
Right to Whistleblow
Many countries have introduced public interest disclosure or
whistleblower protection laws45. It is impossible to examine
them in detail here but in order to make our case for a lex spe-
cialis human right to report suspected wrongdoing, we will
highlight some of the basic shortcomings of existing legislation,
before seeking to identify the key elements that need to be con-
sidered in the formulation of such a right at international level
(Lewis, 2001). The UK’s Public Interest Disclosure Act 1998
(PIDA, 1998) inserted a new Part IVA into the Employment
Relations Act 1996 (ERA, 1996). PIDA 1998 was the model for
South Africa’s Protected Disclosures Act 2000 and has been
regarded as an exemplary piece of legislation in debates in other
countries46. According to its Long Title, the sole purpose of this
statute is “to protect individuals who make certain disclosures
of information in the public interest”47. By way of contrast, a brief
review of fourteen whistleblowing statutes in 200948 revealed
that their main objectives are to: protect disclosers (13 jurisdic-
tions); facilitate/provide means for disclosures (11); investigate
disclosures (5); encourage disclosures (4); address disclosures/
impropriety (4); provide a Fund for rewarding whistleblowers (1)49.
In relation to the types of wrongdoing that can be disclosed
and by whom, it should be noted that some jurisdictions have
decided as a matter of principle, not to deal with whistleblow-
ing in the private sector50 or the security services. Since there is
no clear demarcation between the public and private sectors and
events have demonstrated that corruption and other malprac-
tices occur in both, we suggest that there is no case for exclud-
ing the private sector from the scope of whistleblowing protec-
tion. There should be a right to report suspected wrongdoing
wherever it occurs. Thus reporting should be allowed whether
or not the suspected wrongdoing occurs outside a particular
territory or legal jurisdiction51. This is important as a matter of
principle and could have a particular impact in relation to con-
cerns about the activities of foreign governments and transna-
tional enterprises. Similarly, instead of excluding the security
services altogether, countries might be allowed to have special
rules for reporting suspected wrongdoing in relation to security
matters52. Another critical issue is whether protection should be
45Although paragraph 4 of the Draft Resolution contained in the Report by
the Committee on Legal Affairs and Human Rights (2009) to the Parlia-
mentary Assembly of the Council of Europe records that most member
states have no comprehensive laws for the protection of whistleblowers.
46Including in the Netherlands, New Zealand and Australia, see Vande-
47This is also the sole objective of Queensland’s Whistleblower Protection
48The countries are: the UK, Japan, South Africa, New Zealand, Canada,
Ghana and eight Australian states/territories.
49The legislation in New South Wales, Victoria and Tasmania have all five
objectives; the Northern Territory has four objectives; NZ and Ghana have
three; Japan, Canada, Western Australia, South Australia and South Africa
all have two and the Australian Capital Ter r i to r y has one.
50The vast majority of the eight Australian states and territories exclude the
private se ctor and it is not clear to what extent finan cial irregularities in the
private sector are covered by the New Zealand legislation.
51Section 43B(2) ERA 1996 provides: …it is immaterial whether the rele-
vant failure occurred, occurs or would occur in the United Kingdom or
elsewhere, and whether the law applying to it is that of the United Kingdom
or any other country or territory.
52See Sections 12-14 Protected Disclosures Act 2000 (NewZealand). On
2nd October 2013 the Council of Europe Parliamentary Assembly adopted
a resolution on “National Security and access to information”. This under-
lines that “legitimate, well-defined national security interests” are valid
grounds for withholding information held by public authorities, but invok-
ing “national security” as a ground for secrecy should be subject to reason-
able limits. Crimes such as murder, enforced disappearances, torture or
abduction committed by state agents do not d eserve to be protected as “state
secrets”. However, it should be noted that existing European Convention
rights frequently have a na tional security exemption.
40(1985] QB 526.
41 IRLR 4.
42This was also the situation in the UK until 2013.
43See Terrorism Act 200 0 Section 19 (as amended).
44Supported by Sections 44(1)(c) & 100(1)(c) of the Employment Rights Ac
1996 (ERA 1996) which provide that, where there is no safety representa-
tive or it is not reasonably practicable to raise the matter through such a
resentative or safety committee, it is unlawful to dismiss or take action
short of dismissal against employees who “have brought to his attention, by
reasonable means, circumstances connected with his work which he rea-
sonably believed were harmful or potentially harmful to he alth and safety”.
Open Access 189
D. LEWIS, J. CASTELLINO
afforded to employees or a broader category of worker53. If a
future instrument focuses only on employment relationships, it
is suggested that rights should be given broadly to all persons
who work for and receive remuneration from another person or
As regards what can be disclosed, legislators should adopt a
broad approach to the definition of reportable matters and
should allow disclosures about suspected past, current and fu-
ture wrongdoing, irrespective of whether the information relates
to the discloser or his or her employment context. Although it
might be tempting to provide a right to report suspected
“wrongdoing” and leave that word undefined, we believe this
would cause significant practical difficulties. Potential disclos-
ers are only likely to report if they know in advance they will
be protected55 and this can be achieved by providing a water-
tight list of circumstances56. Given the widespread international
support for the approach taken by the current UK legislation,
we suggest that “wrongdoing” should cover the matters treated
as “qualifying disclosures” in Section 43B(1) ERA 1996. These
include: 1) a criminal offence; 2) a failure to comply with any
legal obligation; 3) a miscarriage of justice; 4) danger to the
health and safety of any individual; 5) damage to the environ-
ment; 6) the deliberate concealment of information tending to
show any of the matters listed above57. It is critical to avoid
additional “public interest” tests since this would create uncer-
tainty and act as a disincentive to potential whistleblowers who
may not be prepared to run the risk of a future court or tribunal
reaching an adverse decision on such a notoriously subjective
There is also the important question of whether whistleblow-
ers need to establish good faith as well as a reasonable suspicion
that there was, is, or will be wrongdoing59. It would be unfor-
tunate if the examination of motive deterred disclosures, espe-
cially in relation to health and safety or serious crimes. If indi-
viduals have an honest belief that information they disclose is
true, their motive ought not to be relevant. The public interest is
best served if malicious reporting is addressed through denying
protection to those who knowingly make false allegations60 with
the possibility of disciplinary proceedings to follow. This may
encourage individuals to di sclose accurate informat ion they would
not have reveale d but for a desire to i nflict harm on other s. How-
ever, that would arguably be an acceptable price to pay in order
to encourage reporting of suspected wrongdoing. As regards
disclosures that investigating bodies believe frivolous, vexa-
tious or trivial, a refusal to take action would be justifiable but
ought not to result in the removal of protection from the discloser.
The next issue is whether a right to whistleblow ought to be
conditional on disclosures being made in a specified way to
designated recipients: a feature of some existing legislation
(Lewis, 2001). Although trade unionists might naturally prefer
to raise concerns with their local official, many workers are not
organised in such unions. Thus, while negotiated reporting
procedures often give unions a significant role, whistleblowing
legislation tends not to mention them. Making protection con-
tingent on adherence to particular procedures is risky because
such procedures may not be in place, may be defective or sim-
ply not communicated adequately. In relation to external dis-
closures, while it might be desirable that concerns are raised
with a regulatory authority rather than the press, it is not always
clear to potential whistleblowers who the appropriate regulator
is, and that reporting to the media would not achieve the desired
result more speedily. Indeed, whistleblowers can benefit from
the ability of journalists to protect their sources61.
Related to this is the question of anonymity. It goes without
saying that if a whistleblower’s identity remains concealed they
should not suffer any detriment for reporting. The major prob-
lem with anonymity is that it can inhibit investigations in a way
that confidential disclosures would not. Yet confidentiality
cannot always be guaranteed. Not only does it depend on trust
in the competence and integrity of the recipient of a concern but
the identity of an informant may become obvious from the na-
ture of the inquiries made. Although it is important that whis-
tleblowers feel confident enough to be identified, anonymous
reporting would have be tolerated on the basis that it is better to
have some information about suspected wrongdoing than none62.
53We note here that those who report concerns in their capacity as a trade
union official should hav e statutory protection by virtue of that sta t u s. Often
concerns about suspected wrongdoing will have a collective dimension but
our case for the recognition of a lex specialis is in relation to individuals
rather than trade unions.
54The UK legislation only protects “workers” as defined by Section 43K
ERA 1996. This does not include j ob seekers or volu nteers.
55In this respect the EAT’s recent decision in Cavendish Munro Profes-
sional Risks Management Ltd v Geduld  IRLR 38 seems particularly
unhelpful in drawing a distinction between a “disclosure” and a “commu-
56For this reason we would not use such categories as maladministration or
mismanagement or such expressions as “serious wrongdoing”.
57Paragraph 6.1.1 of the Draft Resolution contained in the Report by the
Committee on Legal Affairs and Human Rights to the Parliamentary As-
sembly of th e Council of Europe (2009) p r ovides the following definition o
protected disclosures: all bona fide warnings against various types of un-
lawful acts, including all serious human rights violations which affect or
threaten the life, health, liberty and other legitimate interests of individuals
as subjects of public administration or taxpayers, or as shareholders, em-
ployees or customers of private companies.
58Thus we agree with the view that: Relevant legislation must first and
foremost provide a safe alternative to silence, whilst avoiding offering
otential whistleblowers a ‘shield of cardboard’ which would entrap them
by giving them a false sense of security. Para. 5, Draft Resolution contained
in the Report by the Committee on Legal Affairs and Human Rights to the
Parliame ntary Assembly of the Council of Europe (2009).
59Good faith is no longer required for protection to be obtained under the
UK legislation but lack of it can affect the amount of compensation
awarded. The Enterprise and Regulatory Reform Act 2013 now makes
protection for whistleblowers conditional on a public interest test being
satisfied in all situations, including internal disclosures!
If a right to report suspected wrongdoing acquires the special
status argued for here, the question of remedy for its infringe-
ment follows. Arguably it is appropriate to underline the im-
portance of raising concerns by making the victimization of
whistleblowers a criminal offence63. Civil remedies would be
less contentious, although even unlimited compensation may
not stop reprisals or lead to their discontinuance. Thus it seems
sensible to make victimization a tort and to provide for injunc-
tive relief, remedial action and exemplary damages64.
60See Section 10 Whistleblower Protection Act 19 93 (South Austra lia).
61See the supportive ruling of the European Court of Human Rights in
Tillack v Belgium. 2007. Application No. 20477/05. In this case the jour-
nalist’s sources had provided information about irregularities in the EU’s
62Anonymous reporting may be the only reasonable option for whistle-
blowers in countries where the institutional environment is weak.
63Such an approach is reinforced by the fact that, in certain circumstances,
harassment is already an offence, for example, under the UK’s Protection
rom Harassment Act 1997.
64In New Zealand Section 25 Protected Disclosures Act 2000 (PDA 2000)
deals with victimisation by amending Section 66(l) of the Human Rights
ct 1993 in order to protect persons (and relatives or associates) who: 1)
intend to make or have made a disclosure or have encouraged disclosure by
some other person under PDA 2000; or 2) have given information or evi-
dence in relation to any complaint, investigation or proceeding arising out
of a disclosure under PDA 2000. Under Sections 13 & 14 of Ghana’s Whis-
tleblower Act 2006 complaints of victimization go to the Commission on
Human Rights and Administrative Justice.
D. LEWIS, J. CASTELLINO
Lex Specialis and Its Substantive Content
The precedent for creating special regimes for defined
classes of persons is one of the fundamental axes along which
public international law itself evolved65. Safeguards afforded to
diplomats are probably among the earliest efforts to engage a
system that would provide protection to those in a particularly
vulnerable position66. The annals of history have numerous
examples of peace-makers seeking an end to wars finding
themselves in unfortunate positions behind enemy lines where
they are hung, drawn and quartered. This persisted until it was
realised that peace envoys needed special immunity to engage
in their task without it being compromised ab initio. As a result
special regimes for diplomats evolved that shaped themselves
into complicated systems of protection available in contempo-
rary diplomatic law67.
Alongside the special protection afforded to diplomats, the
rights of minorities were another equally important axis along
which international law itself evolved. The Promise of St. Louis
of France in 1250 is one of the earliest documented treaties that
enshrines such protection (Thornberry, 1991). Mindful of the
precarious position of the Maronites—a Christian minority
living within the Muslim dominated Ottoman Empire, St Louis
of France issued a promise in 1250 (renewed twice by succes-
sors in subsequent centuries) to protect these individuals from
harm. The underlying notion appeared to be the need to accept
that minorities (usually distinguishable from the rest of the
population of the state on grounds of their distinct religion,
language or traditions) would always be vulnerable to the tyr-
anny of the majority68. There are several examples of such trea-
ties which were regularly signed in various parts of Europe69,
culminating in one of the most sophisticated legal systems for
the protection of minorities under the auspices of the League of
Nations (Stone, 1932). The dramatic failure of this regime is
visible in the decimation of Jewish and other minorities during
the Nazi conquest of Europe. Chastened by this experience, the
new United Nations argued for a mainstreaming of rights rather
than the fragmentation of regimes on different group bases.
Thus the preamble and the actual Charter of the United Nations
makes no mention of minority rights, stressing the rights of all
instead. Despite this reluctance it is clear from the discussion
above, that different categories of lex specialis continue to be
the manner in which international law seeks to plug the reality
gap between the stated and realisable rights of different classes
Using this lens we argue that the nature of contemporary so-
ciety justifies the need for the creation of a robust special
mechanism for the protection of whistleblowers. The range of
human rights violations perpetrated by multinationals is per-
haps unsurprising70: they seek to operate within systems that
would enable them to maximise their profits. The litigation
against such corporations through the Alien Tort Claims Act71
in the United States of America and similar legislation in other
parts of the world72, has stalled recently, removing a layer of
protection that provided limited access. Providing protection to
citizens that could potentially highlight violations taking place
within the ambit of their workplace becomes a crucial cog in
seeking greater accountability for actions that violate the in-
herent dignity and worth of all human beings.
Protection in UN Based International Human Rights
Based Treaty Law
Under public international law and international human
rights law a strong precedent exists for creating special protec-
tion for certain classes of individuals. This brief section seeks
to reflect on existing special regimes, explaining the protection
afforded and the mechanism created for overcoming barriers to
access. The relevant human rights instruments are briefly con-
All nine fundamental human rights treaties seek to articulate
a range of specific rights73. They also create specific state obli-
gations to uphold these rights, and generate a system whereby a
State-elected treaty-monitoring body is given the mandate to
ensure compliance. Of these treaties, the following can be iden-
tified as offering distinct special protection to a class of indi-
1) International Convention for the Elimination of All Forms
of Racial Discrimination, 1965;
2) International Convention for the Elimination of All Forms
of Discrimination Against Women, 1979;
3) Convention for the Rights of the Child, 1989;
4) International Convention for Migrant Workers and their
5) International Convention on the Protection and Promotion
of the Rights and Dignity of Persons with Disabilities, 2008.
The preambles of these treaties demonstrate their rationale as
seeking to overcome the gap between the de jure situation of
the class in question and their de facto position in society. Each
treaty articulates a series of general human rights available to
all and, in addition, specific rights that accrue to the category of
people they seek to protect. The tension that inevitably exists
with such regimes is the extent to which they can be generated
without creating unfair discrimination against the rest of the
population. This tension is best demonstrated in the context of
70This despite the clear articulation of an argument about the role that vari-
ous non-state actors are obliged to play. For more see, Clapham (2006).
Also see the l atest attempt to regulate business Ruggie (2006).
7128 U.S.C. § 1350.
72For an update on the cases, their progress and the discussions they have
entailed see http://www.business-humanrights.org/Home [last consulted
ovember 27 th 2013].
73These are: International Covenant on Economic, Social and Cultura
ights (1966); International Covenant on Civil and Political Rights (1966);
nternational Convention on the Elimination of All Forms of Racial Dis-
crimination (1965); Convention on the Elimination of All Forms of Dis-
crimination against Women (1981); Convention against Torture and Othe
Cruel, Inhuman or Degrading Treatment or Punishment (1984); Conven-
tion on the Rights of the Child (1989); International Convention on the
rotectionof the Rights of All Migrant Workers and Members of Their
amilies (1990); International Convention on the Protection and Promo-
tion of the Rights and Dignity of Persons with Disabilities (2006); Interna-
tional Convention for the Protection of All Persons from Enforced Disap-
65See generally, WG Grewe translated by M Byers (2000).
66Ibid. p.1 63ff.
67For a general insight into diplomatic law see generally, Frey & Frey
68While there is no universally accepted definition of minorities, the fol-
lowing definition framed by UN Rapporteur Francesco Capotorti is consid-
ered indicative: A minority is a group that is numerically inferior to the rest
of the population of a state, in a non-dominant position, whose mem
being nationals of the state, possess ethnic, linguistic and religious charac-
teristics that differ from the rest of the po
ulation, and who maintain, i
only implicitly, a sense of solidarity directed towards preserving their iden-
tity see Ca p o torti (1977).
69See e.g. Convention for the Settlement of the Frontier between Greece &
Turkey 1881, full text available in M Hurst, Key Treaties of the Grea
Open Access 191
D. LEWIS, J. CASTELLINO
the International Convention for the Elimination of All Forms
of Racial Discrimination, which creates the obligation on states
to create affirmative action measures to address the gap be-
tween those who are identifiable and face discrimination on
racial grounds (identified broadly as covering race, ethnicity,
decent, nationality and linguistic differences)74 and the rest of
the population. The sub-article in question is 2(2):
“States Parties shall, when the circumstances so warrant,
take, in the social, economic, cultural and other fields, special
and concrete measures to ensure the adequate development and
protection of certain racial groups or individuals belonging to
them, for the purpose of guaranteeing them the full and equal
enjoyment of human rights and fundamental freedoms. These
measures shall in no case entail as a consequence the mainte-
nance of unequ al or separat e rights for d ifferent ra cial groups a fter
the objectives for which they were taken have been achieved”75.
However to ensure that the systems created do not justify
segregation a la apartheid (Richardson, 1978)76, Article 1(4)
seeks to highlight that such rights can only be enshrined in a
positive context. Thus:
“Special measures taken for the sole purpose of securing
adequate advancement of certain racial or ethnic groups or
individuals requiring such protection as may be necessary in
order to ensure such groups or individuals equal enjoyment or
exercise of human rights and fundamental freedoms shall not
be deemed racial discrimination, provided, however, that such
measures do not, as a consequence, lead to the maintenance of
separate rights for different racial groups and that they shall
not be continued after the objectives for which they were taken
have been achieved”77.
In recent years the Committee for the Elimination of Racial
Discrimination (CERD) has sought to reiterate its mandate by
identifying various groups that could be identified as needing
further protection. Among these are: women facing multiple
discrimination78, the Roma79, indigenous peoples80 and non-
citizens81. What underlies the identification of these groups is
that discrimination is often experienced by individuals on the
basis of belonging to a particular sub-category.
The special protection afforded to women is questioned by
some feminists who argue that the creation of a specific cate-
gory of women’s rights is detrimental because it promotes the
view that these rights are somehow different from human rights
(Bunch, 1990)82. Such individuals argue that gender-based
rights ought to be mainstreamed rather than segregated
(Charlesworth, Chinkin, & Wright, 1991). There is evidence
that putting women’s rights into a separate category has not
been the most adept way to overcome de facto distinctions that
exist in society vis-à-vis the rights of women, especially in
relation to family law, inheritance and property rights and ques-
tions of citizenship and nationality (Otto, 2009). However, by
and large, the approach taken by the International Convention
for the Elimination of All Forms of Discrimination Against
Women (CEDAW) was to emphasise the value of seeking
“elimination” of “all forms” of discrimination against women.
It also took a clear position on a debate that continues to echo
through society: the extent to which culture is a determining
factor in the rights allocation (Donnelly, 2007; Castellino &
Dominguez Redondo, 2006). The position of the regime in
framing state obligations in this respect is clear. In the language
of 2(f) it underlines that:
“States Parties condemn discrimination against women in all
its forms, agree to pursue by all appropriate means and without
delay a policy of eliminating discrimination against women and,
to this end, undertake”:
… (f) To take all appropriate measures, including legislation,
to modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against women83;
The Convention on the Rights of the Child (CRC) identifies
the four principles that should provide the basis for regarding
children as a special category in need of protection:
1) The Right to Life;
2) The Best Interests of the Child;
3) The principle of Non-Discrimination, and
4) The Principle of Partici p at ion84.
By way of contrast, the International Convention on Migrant
Workers’ and their Families addresses a different challenge by
illuminating the issue of those who normally do not gain rights
given by law to citizens. The traditional model of human rights
has been based on the Rousseausque vision of the “social con-
tract” between the individual and her/his state (Minnow, 1986-
1987). This is reflected in the fact that the human rights treaties
enshrine rights primarily intended for citizens or nationals of a
state. However, it is clear that the de facto situation, especially
in more developed societies, is that those who face the most
persistent and widespread discrimination tend to be non-na-
tionals85. The traditional position was that such individuals
were somehow beyond the mandate of the state, except in rela-
tion to the broadest forms of protection. This position has been
gradually eroded through realisation that lack of protection for
this category of people constitutes such a fundamental loophole
in the system as to undermine its efficacy and claim to uphold
the rights and dignity of every individual. Most United Nations
conventions now accept this position and will challenge States
where persistent rights violations occur against migrant workers.
The Migrant Workers’ Convention goes a step further in ad-
dressing the issue of “undocumented workers”, who are mostly
invisible in the societies in which they live86. These individuals
are particularly vulnerable and, while their status as migrant
74Article 1.1. International Convention on the Elimination of All Forms o
acial Discrimination. For a clarification of the scope of this articlesee
CERD General Comment XXXII “The Meaning and Scope of Special
Measures in the International Convention of the Elimination of Racial
Discrimi n ation”, 75th session, August 2009.
75Article 2(2) International Convention on the Elimination of All Forms o
acial Discrimination. For more see Castellino (2006).
76The concern that this article seeks to address is that of segregation or
77Article 1(4) International Convention on the Elimination of All Forms o
78CERD. General Recommendation XXV on Gender Related Dimensions o
acial Discrimination. Fifty-sixth session, 2000,
79CERD. General Recommendation XXVII On Discrimination agains
oma, 57th session 2000
80CERD. General Recommendation XXIII On the Rights of Indigenous
eoples, 51st session 1997.
81CERD. General Recommendation XI on Non-Citizens, 42nd Session, 1993
and General Recommendation XXX Discrimination Against Non-Citizens,
1st October 2004.
82The slogan “Women’s Rights are human Rights” has been reflected upon
much but recently got a public airing in Hillary Clinton’s speech at the
Beijing Conference in 1995, see H R Clinton, “Women’s Rights Are Hu-
man Rights” in 29 Human Rights (2002) p. 2.
83Article 2(f). For more see Sepper (2008-2009) pp. 585-640. On reserva-
tions see Schabas (1997) and Riddle, (2002-2003). For globalisation o
women’s rights see Resnik (2001-20 02).
84As contained in Articles 2, 4, 9 and 12. For more see Van Bueren (1 998).
85As discussed in the context of the General Comment formulated by
86See overview of migration and rights at
consulted Fe bruary 2nd, 2010].
D. LEWIS, J. CASTELLINO
workers gives them a legal personality of sorts, its realisation
remains one of the great contemporary challenges of modern
human rights law when societies are increasingly viewing the
question of non-formalised migration in the context of security
The International Convention on the Protection and Promotion
of the Rights and Dignity of Persons with Disabilities as one of
the most modern human rights documents, synthesises its ar-
ticulation of rights as truly indivisible, encompassing economic,
social cultural, civil as well as poli tical rights. It offers a definition
of discrimination in Article 2, which contains these elements:
“‘Discrimination on the basis of disability’ means any dis-
tinction, exclusion or restriction on the basis of disability which
has the purpose or effect of impairing or nullifying the recogni-
tion, enjoyment or exercise, on an equal basis with others, of
all human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field. It includes
all forms of discrimination, including denial of reasonable
Protection through Non-Treaty Based Mechanisms
Thus the principle underlying the United Nations treaty-
based system is clear: the articulation of legal obligations, the
implementation of these in State jurisdictions and their over-
sight (monitoring) by a designated body. The United Nations
human rights regime, however, also includes Charter based-
bodies that operate more in line with investigative and research
activities. The history of these mandates is interesting, particu-
larly the manner in which the special regime holders have de-
veloped their own mandates and working conditions88.
Today, the United Nations Charter-based system can be said
to operate on the principle of documenting, investigating, high-
lighting and seeking remedies for any of the following: 1) par-
ticular kinds of violations, such as torture and disappearances89;
2) contemporary issues that need articulating, such as extreme
poverty and the lack of food90; 3) seeking to generate society-
wide discussions on contemporary problems, such as realising
international solidarity or working on environmental issues91;
or 4) seeking to highlight the position of particular groups in
specifically vulnerable positions, such as minorities, indigenous
peoples and human rights defenders92. It is the fourth category
that is of interest to us in this article, and the best examples of
such mandates are the following:
1) Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people93;
2) Representative of the Secretary-General on the human
rights of internally displaced persons94;
3) Special Rapporteur on the human rights of migrants95;
4) Independent Expert on minority issues96; and
5) Special Rapporteur on Human Rights Defenders97.
The underlying purpose of identifying these groups/indi-
ividuals is to be able to lift the veil of state sovereignty and
highlight violations that are taking place within different na-
tional jurisdictions, at a universal level. The inherent premise is
that articulating these categories at universal level has the bene-
fit of creating awareness of a supervening structure of inter-
locutors who are keen to ensure that the rights of these catego-
ries are not forgotten. Writing in 1984, Alston was particularly
concerned about the proliferation of new rights through the
action of bodies such as the General Assembly (Alston, 1984).
Others, too, have been concerned about the overt fragmentation
of the international legal system (Koskenniemi & Leino, 2002;
Higgins, 2006; Craven, 2003). This proposal, we would argue,
does not engage either of these two challenges: it does not pro-
pose any new rights, and does not propose a new system that
would conflict with existing ones. Rather it is an attempt to
consolidate the gains made by human rights law and ensure
their applicability in the context of the ever-growing and ever
more complicated circumstances of the workplace.
Despite the prominence of contemporary human rights
mechanisms, it is important to note that lex specialis regimes
existed in international law prior to such mechanisms. These
mechanisms provided the theoretical justification and practical
precedent for the creation of the global human rights system
(Koskenniemi, 2001). Among traditional regimes that have
existed for particular classes of people in international law are:
protection against slavery98, protection for women and children
93See http://www2.ohchr.org/english/issues/indigenous/rapporteur/ [last
accessed 27th November 2013].
94For Internally Displaced Persons see
http://www2.ohchr.org/english/issues/idp/index.htm [last accessed 27th No-
95Available at http://www2.ohchr.org/english/issues/migration/rapporteur/
[last accessed 27th November 2013].
accessed 27th November 2013].
97Available at: http://www2.ohchr.org/english/issues/def enders/index.htm
[last accessed 27th November 2013].
98For a range of legal standards on the issue of slavery and trafficking in the
context of public international law see Slavery, Servitude, Forced Labou
and Similar Institutions and Practices Convention of 1926; Internationa
Convention for the Suppression of the Traffic in Women of Full Age 1934;
rotocol amending the Slavery Convention 1953; Supplementary Conven-
tion on the Abolition of Slavery, the Slave Trade, and Institutions and Prac-
tices Similar to Slavery 1957; Convention for the Suppression of the Traffic
in Persons and of the Exploitation of the Prostitution of Others 1951; Pro-
tocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, Supplementing the United Nations Convention
gainst Transnational Organized Crime 2001; Protocol Against the Smug-
ling of Migrants by Land, Sea and Air, Supplementing the United Nations
Convention Against Transnational Crime 2001; International Agreemen
or the Suppression of the “White Slave Traffic,” 1904. Also see the United
ations Special Rapporteur on Contemporary Forms of Slavery, available
accessed 27th November 2013].
87Article 2, International Convention on the Protection and Promotion o
the Rights and Dignity of Persons with Disabilities, 2008.
88For more on these mechanisms and the evolution of their legal basis, see
Domínguez Redondo (2 0 05).
89See http://www2.ohchr.org/english/issues/torture/rapporteur/; for Arbi-
trary Dete n tion see
http://www2.ohchr.org/english/issues/disappear/index.htm [last accessed
27th November 2013].
90For Extreme poverty see
http://www.ohchr.org/EN/HRBodies/CMW/Pages/CMWIndex.aspx; for Right
to Food see http://www.ohchr.org/EN/Issues/Food /P ages/FoodIndex.aspx
[last accessed 27th November 2013].
91For International Solidarity see
http://www2.ohchr.org/english/issues/isolidarity/index.htm; for Adverse
Effects of the Movement and Dumping of Toxic and Dangerous Products
and Wastes on t he Enjoyme nt of Human Rights see
accesse d 27th November 2013].
92For the Minority Issues see
http://www2.ohchr.org/english/issues/minorities/expert/index.htm; for In-
digenous Peoples see
http://www2.ohchr.org/english/issues/indigenous/rapporteur/; for Human
Rights Defenders see
http://www2.ohchr.org/english/issues/defenders/index.htm [last accessed
27th November 2013].
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D. LEWIS, J. CASTELLINO
in times of war99, protection of prisoners of war as a particular
category under the laws of armed conflict, protection of sol-
diers100, and the protection of those living under occupation101.
Many of the regimes created under the auspices of the laws of
armed conflict continue to be operational today and are regu-
larly called upon to explain/justify actions in the context of
international and non-international armed conflict102. In addi-
tion to these, a modern regime has grown to protect the rights
of refugees (The Geneva Convention for the Protection of
Refugees, 1951)103 which now comes under the direct auspices
of the United Nations High Commissioner for Refugees104.
Some older Guidelines also exist for the protection of juve-
Under international law it would seem that regimes have
been generated in response to the need to afford a specific kind
of protection to a defined group of individuals, mindful that
existing mechanisms are limited in affording them adequate
protection. We suggest that for the reasons outlined in Section I,
whistleblowers fall within this rationale: 1) they are definable
as a group based on the type of role that they may adopt in their
employment context and, 2) that the mechanisms that currently
exist for the protection of their rights are of limited utility in the
context of the particular precarious position they are likely to
place themselves in. We also argue that the growing reach and
influence of multinational corporations and the combined need
to ensure human rights in the context of their operation in dif-
ferent theatres, creates a compelling case for the need to protect
those who would blow the whistle about wrongd o in g .
Designing an Intern at ional Regime for
the Protection of Whistleblowers
This poses the subsequent question as to the nature of the
protection that ought to be created. The process of negotiating a
treaty for special protection is complex and fraught with diffi-
culties. It is also important to be mindful of the fragmentation
of international law into separate regimes that may be in con-
flict with one another. In addition, the creation of a treaty is a
costly process that States are unlikely to be willing to bear.
Against this, however, the expanding network of Special Rap-
porteurs offers a cost-effective if not efficient way of focussing
attention upon the situation of whistleblowers. Unlike the hu-
man rights regimes discussed in subsections above, special
rapporteurs and treaties created under international law en-
shrining these categories do not necessarily have an oversight
body to ensure compliance, nor a named interlocutor who can
act on their behalf. However, non-governmental organisations
and some governments have often championed these rights and
ensured that they are viewed in the same light as those that are
specifically enshrined in more specific human rights conven-
The value of International Declarations, too, cannot be un-
derstated. These usually precede the creation of a treaty, but
even in instances where they have not led to the celebration of a
Treaty among State parties, they are often an important state-
ment of intent of the need of the values of international society.
In this light it is worth briefly highlighting the following three
international Declarations each of which seek to afford protec-
tion to specific classes of individuals:
2) Indigenous Peoples107
3) Human Rights Defenders108
These declarations could be classified as “emerging” owing
to the fact that they remain “soft law” instruments rather than
legally binding treaties. However, the trend in each of these is
clear: identifying particular classes of individuals that need
protection, articulating the specific nature of the rights that are
at stake, and seeking to establish a regime that spells out avail-
able remedies in each context. The last of these is of particular
interest to us, since it could be argued that they resemble, in
clearest form, the category of whistleblowers.
Conclusion: Implementation of Special
Protection for the Right to Blow the Whistle
99For a range of international standards pertaining to this issue see Conven-
tion with Respect to the Laws and Customs of War on Land (Hague, II)
(1899); Convention Respecting the Laws and Customs of War on Lan
(Hague IV) (1907); Declaration on the Protection of Women and Children
in Emergency and Armed Conflict (1974); Office of United Nations High
Commissioner for Refugees, Guidelines on International Protection: Gen-
der-Related Persecution within the Context of Article 1a(2) of the 1951
Convention a nd Its 1967 Protocol R elating to the Status of Refugees (2002).
100For legal standards, contemporary issues and commentary on this issue
see the website of the International Committee of the Red Cross, specifi-
rsons_and_property?OpenDocument [last accessed 27th November 2013].
101For more on the issue of occupation, including the relevant standards and
commentary see the website of the International Committee of the Red
Cross specifically http://www.icrc.org/Web/Eng/siteeng0.nsf/html/634KFC
[last accessed 27th Novembe r 2013].
102These issues came to a head most recently in the context of Guantanamo
Bay see Rose (2009).
103For key standards on the issue of Refugee Law see Convention relatin
to the Status of Refugees1954; Protocol Relating to the Status of Refugees
1967; Cartagena Declaration on Refugees1984.
104For details on the mandate and operations of the Office of the United
ations High Commissioner for Refugees see
http://www.unhcr.org/cgi-bin/texis/vtx/home [last accessed 27th Novem
105The key int ernational st andards in thi s area are United Nations Rules fo
the Protection of Juveniles Deprived of their Liberty (1990); United Nations
Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guide-
lines) (1990); and the United Nations Standard Minimum Rules for the
dministratio n of Juvenile Justice (“The Beijing Rules”) (1985).
Local cultural environments can play an important role in
promoting the disclosure of wrongdoing (or otherwise) (Park,
2008) and an institutional environment that supports the values
of accountability, transparency and the rule of law would seem
to be a prerequisite for effective whistleblowing protection. In
addition, these values would coincide with the basic conditions
necessary within society for a robust regime that effectively
protects the human rights of all to flourish. Clearly, the particu-
larities of various States act as a bulwark against negotiating
instruments at international level. However, this challenge has
been overcome dramatically in the erection of international
regimes that subvert the traditional notion of state sovereignty
and contribute to the creation of universal values. In the spe-
cific context of whistleblowing, even where such statutes are
introduced that take account of local cultural factors, they will
not achieve their objectives if the public are unaware of them.
On the basis that people are more likely to learn about a special
status human right than the details of particular national laws,
106Declaration on the Rights of Persons Belonging to National or Ethnic,
eligious or Li nguistic Minorities (1993).
107Declaratio n on the Rights of Ind igenous People s (2007).
108For an authoritative Fact-Sheet on the issue of Human Rights Defenders
see http://www.ohchr.org/Documents/Publications/FactSheet29en.pdf [last
accesse d 27th November 2013].
D. LEWIS, J. CASTELLINO
we advocate that the right to report where a worker has a rea-
sonable suspicion109 that wrongdoing has taken place, is taking
place or will take place, should be recognised as well as the
existing pantheons of rights, such as the freedom of expression,
which only offer limited protection.
Recognition of such a right would be most robust if rein-
forced by an agreed international standard, whether through the
articulation of a Declaration or Guidelines that set out any re-
strictions that are considered to be legitimate and how the right
can be enforced. In relation to possible restrictions, in order to
get international support it might be necessary to allow coun-
tries to provide that reports relating to the security services etc.
must be channelled through a designated statutory procedure.
As regards enforcement, we believe that redress should be
made available to people who believe that they have been vic-
timised at any time110 for disclosing or attempting to disclose,
and that those who exercise this right should be immune from
civil111 or criminal liabilities. For the right to be meaningful, it
would also be appropriate to require states to establish a spe-
cialist public agency, for example, an Ombudsman for Public
Interest Disclosures. Such a body could provide advice and be
mandated with the task of educating the general public about
the importance of exercising their right to “speak up” in appro-
priate circumstances. In addition, a specialist agency might be
obliged to ensure that reports of suspected wrongdoing are
investigated, that remedial action is taken where appropriate
and could be an appropriate recipient of complaints about the
victimisation of whistleblowers112.
Having outlined the bare ingredients of a lex specialis human
right to whistleblow, we are aware that it has also been argued
that workers should have a reciprocal duty to report wrongdo-
ing113. However, we believe there are practical reasons for re-
jecting such a notion. A legal duty to whistleblow would inevi-
tably lead some conscientious people to make premature dis-
closures i.e. before they had sufficient grounds to believe that
the information disclosed was true. Such precautionary report-
ing would be understandable as a means of avoiding defaulting
on their obligation. However, according to our suggested for-
mula, if honest belief could not be established the right would
not be engaged and the discloser would have to face the conse-
quences. Conversely, if a person fails to fulfil a duty to report
suspected wrongdoing, the question arises about whether the
sanctions should be civil or criminal. Whatever the answer,
there would clearly be difficulties where one person performed
their duty to report but a large number of others, who were
apparently in the same position, failed to do so.
In arguing for the recognition for a lex specialis human right
for workers to blow the whistle, we have accepted that it would
be more difficult to provide adequate mechanisms for protect-
ing freedom of speech outside the employment context. Yet
workers are not the only citizens to observe wrongdoing or
malpractice in society. Indeed, existing legislation deals with
the complaints about discrimination in education, premises,
goods, facilities and services. There can be little doubt that
giving special status to workers who “speak up” would help to
create a more positive cultural attitude towards whistleblowing
generally114. It would send an important general message about
the practical value of human rights in modern society and
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