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Daisuke Takahashi

Shinwa Sohgoh Law Offices, Tokyo

takahashi@shinwa-law.jp

 

Raquel Nahmad Vazquez

TNV Abogados, Mexico City and Tokyo

rnahmad@tnvlaw.com

 

 

Part I: Covid-19’s impact on human rights in Japan

Impact on the Tokyo Olympics and beyond

The global Covid-19 pandemic has had a serious negative impact both on business and society. In Japan, the postponement of the Tokyo 2020 Olympic Games has tremendously disappointed our people and businesses, who had expected to welcome many athletes and people from all around the world by hosting the event.

However, the impact of Covid-19 has not been limited to the Olympics. There is a serious concern that socially vulnerable groups, such as children, older persons, women, persons with disabilities, and foreigners, have been disproportionately and significantly affected both inside and outside Japan.

In the context of the unprecedented Covid-19 crisis and its impact on both business activities and human rights, it has been questioned as to how states can fulfil their duty to protect human rights and fulfil their responsibilities to respect human rights under the United Nations Guiding Principles on Business and Human Rights (the ‘Guiding Principles’)[1].

Research report by the Japan COVID-19 & BHR Research Project

Based on these circumstances, in April 2020, Japanese lawyers affiliated with the Business and Human Rights Lawyers Network Japan established the ‘Japan COVID-19 & BHR Research Project’ and published a research report entitled COVID-19 Impacts on Human Rights and Guidance on Japanese Business Response by collecting information inside and outside of Japan[2].

This report summarised the impacts and responses across the following six areas of particular concern:

• supply chains;
• migrant workers;
• non-regular employment, gig workers and informal workers;
• healthcare workers;
• children, older persons, women, persons with disabilities, foreigners, etc.; and
• privacy.

Serious impact on ‘non-regular employment’ in Japan

As an example, let us examine the situation of ‘non-regular employment’ such as part-time workers and fixed term contract workers in Japan. According to Chapter 3 of the report, the rate of non-regular workers in Japan was approximately 38 per cent in 2019, with women accounting for two-thirds of this rate. The number of people who are self-employed as their own main business and are not employed by others (such as individual contractors, freelances, cloud workers, and home occupation) amounts to about 1,200,000 (via the Japan Institute for Labour Policy and Training (JILPT)’s surveys and estimates of people who engage in ‘employment-like working style’).

The multifaceted economic and social impacts and limitations associated with responding to Covid-19 have left many non-regular workers in a vulnerable situation, resulting in impoverishment and infringement of their rights unless they’re provided with adequate protection. Unfortunately, in Japan, dispatched workers being made unemployed, single mothers and women working in the entertainment sector living in poverty, and day labourers and online cafe refugees living homeless, has been reported.

Challenges faced by foreigners and migrant workers in Japan

As mentioned, another vulnerable group to consider are foreigners and migrant workers in Japan. This group faces particular challenges.

Even people that have been living in Japan for many years have suddenly been faced with difficulties with the local language that they might not have experienced before. Most of the news and advice regarding measures to take are first reported in Japanese and at the beginning of the pandemic, much was lost in translation. Nevertheless, the government acknowledged the right to access the information and was quick to try to publish important information in different languages and in ‘easy Japanese’[3].

Due to the rise of labour instability, the Ministry of Justice saw the need to publish the basic labour rights of foreign workers in many languages. The main advice is that foreigners should not be treated any differently than Japanese employees simply because they are foreigners.[4]

One of the most salient issues for migrants in Japan during this pandemic concerned the re-entry bans placed by the government, which apply to any non-Japanese, including to permanent residents[5]. 

This had a cascade of consequences, which also affected business and the human rights of foreigners and placed them at a disadvantage. Non-Japanese people working in Japan could not leave Japan under any circumstance because of the re-entry ban, meanwhile Japanese nationals had freedom of movement. At the same time, many foreigners who already had contracts with Japanese companies could not enter the country. This inequality prompted the American Chamber of Commerce in Japan (ACCJ), the Australian and New Zealand Chamber of Commerce in Japan (ANZCCJ), the British Chamber of Commerce in Japan (BCCJ) and the European Business Council (EBC) to voice their concern about the unequal treatment.[6]

As of September, the government has changed its policy and allows for the re-entry of foreigners that have the status of residents of Japan. Nevertheless, there are still further requirements for foreigners wishing to re-enter the country than for Japanese nationals.[7]

Chapter 2 of the report also focused on the impact of Covid-19 on migrant workers in Japan. The report recommended that Japanese companies conduct human rights due diligence on whether migrant workers are involved in their own business, including those in business supply chains; whether migrant workers and their families are adversely affected by Covid-19; whether their safety and health and livelihoods are secured; and whether the operation of the business does not impose adverse impacts on their human rights[8].

Part II: Promoting innovative and responsible business conduct for building back better from the Covid-19 crisis

Formulation of Japan COVID-19 & BHR Basic Actions

In a situation where both businesses and human rights face a crisis as described above, companies are expected to take innovative and responsible actions to minimise the negative impact on human rights as much as possible through dialogue and collaboration with other stakeholders.

At the same time, the Covid-19 crisis also provides an opportunity for businesses to share and realise their values through respect for the human rights of stakeholders, and to be transformed into truly sustainable businesses by adding value and fulfilling their responsibilities to society. This effort would enhance business resilience to crises, strengthen business continuity, and increase corporate values in the medium to long term.

Against this backdrop, in May 2020, Business and Human Rights Lawyers Network Japan formulated the Japan COVID-19 & BHR Basic Actions - Basic Actions for Promoting Innovative and Responsible Business Conduct for Building Back Better from COVID-19 Crisis[9].

Details of the Basic Actions

The preamble of the Basic Actions emphasises the importance of leadership by corporate management. To build back better from the Covid-19 crisis, Japanese businesses are expected to work towards the following ten Basic Actions on responsible business conduct, engaging and collaborating with stakeholders and disclosing the status of their efforts to the extent possible. In promoting these efforts, company management are expected to demonstrate leadership and strengthen corporate governance for enhancing the resilience of business and society in an innovative way.

The Basic Actions list ten actions that Japanese companies are expected to take to promote responsible business conduct in accordance with the UN Guiding Principles during and beyond the Covid-19 crisis.

The commentary on the Basic Actions explains the rules, guidance and tools, the initiatives and recommendations by business and other stakeholders, and the points to note for each of the ten Basic Actions.

 

Multisectoral support for the Basic Actions

The Basic Actions intend to promote responsible business conduct and responsible supply chains, as well as initiatives in line with UN Sustainable Development Goals (SDGs), which aim to leave no one behind; environmental, social and governance (ESG) investing; and the Corporate Governance Code.

Opportunities have arisen through the Covid-19 crisis as Japanese institutional investors have increased their interest in the ‘social’ aspects of corporate behaviour in terms of ESG investing. Leading Japanese institutional investors have also endorsed the Basic Actions. For example, Zeniya Miyuki, Head of Sustainable Finance at the Dai-ichi Life Insurance Company said: ‘As an institutional investor, we expect companies to promote responsible business conduct in the COVID-19 crisis. If companies support this initiative and actively disclose the information related to their efforts, we will positively evaluate such efforts of companies, which can serve as a role model for other companies. We hope that many companies can demonstrate the SDGs’pledge “Leave No One Behind” for this occasion.’

The Basic Actions have been also supported by international organisations as contributing to the SDGs. Tetsuo Kondo, Representative of the United Nations Development Program (UNDP) in Japan, stated, ‘We support the “Japan COVID-19 & BHR Basic Actions”, which promote responsible business conduct based on the vision of [the] Sustainable Development Goals (SDGs). UNDP has published a tool, “Human Rights Due Diligence and COVID-19: Rapid Self-Assessment for Business”, which enables […] businesses [to] consider and manage the human rights impacts of their operations. We hope that companies can use the tool together with the Basic Actions in order to proactively respond to human rights impacts, promote sustainable business management, and contribute to the society where no one is left behind.’

Incorporation of Covid-19 impacts into Japan’s National Action Plan

The Japanese government is currently preparing to publish its National Action Plan (NAP) in autumn 2020.

In line with the formulation of the Basic Actions described above, in June 2020, all the stakeholder members from the Working Group on the NAP on Business and Human Rights jointly requested that the government incorporate the impact of the Covid-19 crisis on human rights and its response into the NAP.[10] The request letter stated: ‘Japan’s NAP should promote responsible business conduct, maximize positive impacts of business on human rights, and convey the message that our world, because it has experienced COVID-19, will act toward sustainable development. To this end, we request the government be more creative in drafting Japan’s NAP, which will possibly be the first NAP in the world that has been formulated in the face of a pandemic crisis.’

Responding to the request, the Japanese government agreed to at least mention the impact of the Covid-19 crisis on human rights and its response as a critical viewpoint in the NAP.

While the common understanding on Covid-19 and business and human rights has been established in Japan through the initiatives described in this article, we face challenges ahead on how the government and business can take effective actions.

Notes

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