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FOCUS June 2017 Volume 88

Issues and Tasks: Human Rights in Asian Business

Jefferson R. Plantilla

The recent workshop on “Business, Human Rights, and Access to Justice,” held in Mandaluyong City,1 raised the serious need to use the “United Nations Guiding Principles on Business and Human Rights: Implementing the United Nations ’Protect, Respect and Remedy’ Framework” (UNGP) as another tool in addressing human rights issues that have long been affecting the marginalized sections of societies in Asia. The workshop also emphasized the need to maximize the opportunities for resolving human rights concerns arising from companies and governments supporting this UN initiative.2

Persistent Issues
Workshop presenters from China, Korea, Mongolia, Japan, Nepal, Malaysia, and the Philippines discussed issues that have been lingering in the Asian region for decades.

Workers still suffer from a variety of problems including prohibition to stage strikes, bad working conditions, and illegal recruitment for migrant workers. The exploited, undocumented foreign migrant workers in the Malaysian palm plantations suffer even at the stage of deportation. Communities likewise continue to suffer from company operations especially those related to natural resources exploitation. Effective labor movements hardly exist in China and Mongolia. The All-China Federation of Trade Unions (ACFTU) and other local unions are trying to promote collective bargaining in some pilot cases and projects, while the trade unions in Mongolia have not been functioning effectively. Also, labor contracts are not enforced to protect the interests of the Mongolian workers.

The Japanese labor bureau has been receiving complaints of bad working conditions. As Yasunobu Sato of the Human Security Forum (Tokyo University) reported: 

In 2015, out of 5,173 cases investigated by the labor standards inspection office, violations of legislations related to labor standards were found in 3,695 cases (71.4%) and only 46 serious or vicious cases were sent to prosecutors. These violations pertain to working hours, among others.

Illegal recruitment of workers for jobs abroad remains rampant, while employers in the country of destination continue to exploit them. Daryll Delgado of Verité explained that ”most of the problems lie in the operation of intermediaries — illegal recruiters such as sub-agents, brokers (independent or otherwise), and even human traffickers.”3

On the other hand, although big Asian companies, including state-owned enterprises in the case of China, have declared subscription to the UNGP, many small and medium-sized enterprises, whose role in the over-all economy of countries is significant, are seemingly largely uninvolved. Many so-called “technical in tern trainees” in Japan, who come mostly from China, Vietnam, Indonesia, and the Philippines, are being deployed to be “trained” at small and medium-sized enterprises where they suffer from labor exploitation and other problems.

Some Developments
In the case of Japan, the 2020 Tokyo Olympics provides the opportunity to introduce measures that would protect workers, foreign construction workers in particular, from being abused while they help construct facilities related to the games. Other human rights issues related to business (such as discrimination against non-Japanese) will have to be addressed, as well. Urantsooj Gombusuren of the Centre for Human Rights and Development reported the following developments in Mongolian laws:

● Granting of legal standing to non-governmental organizations (under the new  Administration Law, July 2016) to enable them to file claims before the courts in public interest cases;
● Recognition of the participation of people in more than a hundred laws that have provisions on the rights to access information, participation in different decision-making processes, participation in the implementation processes (including monitoring), and filing of complaints to demand accountability with upper level government offices or the courts. 

Zhong Huang of Wuhan University Public Interest and Development Law Institute (PIDLI) noted the improvement of environmental laws in China but remarked, “the crippling court costs deterred pro-environment NGOs from pursuing their advocacies, citing instances where they were ordered to pay expensive court fees.“5

Geeta Sangroula of the Kathmandu Law School noted the initiatives in India related to corporate social responsibility and the enactment of amendment of a number of laws, especially after the Bhopal Gas Disaster in 1984: the National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business in 2011; the corporate social responsibility provisions in the Company Act (2013), which affect Indian companies operating inside and outside of the country; the Model Bilateral Investment Treaty (BIT) in 2015; and the court intervention in development projects.

Commissioner Jerald Joseph of the Human Rights Commission of Malaysia (SUHAKAM) cited its (SUHAKAM’s) Memorandum of Understanding (MOU) on business and human rights with the Federal Land Development Authority (FELDA) of Malaysia and Felda Global Ventures Holdings Berhad (FGV), which is the biggest palm plantation company in the world. The two-year MOU, according to the report in the FGV website,6

…offers mutual assistance and commits the parties to share knowledge and expertise relating to business and human rights in Malaysia, as well as to implement several initiatives including establishing a plan of action to ensure compliance and respect [for] human rights principles, to conduct stakeholders consultations and to implement capacity building programmes.

Necessary National Tasks
The United Nations recommends that governments adopt national action plan on business and human rights (BHR NAP) in collaboration with industry, labor, and other sectors of society. Current experiences show both progress and delays in adopting the BHR NAPs.

Pillkyu Hwang observed that the Korean government had not been consulting the labor sector and the civil society in drafting its NAP. The government seemed to be reluctant in accepting the BHR NAP suggestions from the National Human Rights Commission of Korea. Also, the government avoided sensitive issues like underemployment and “precarious” labor in its NAP deliberations.

In the Philippines, the role of the Commission on Human Rights of the Philippines (CHRP) is crucial in promoting multisectoral deliberation on the BHR NAP. Commissioner Roberto Cadiz explained that the “guide to inform and assist” (GIA) framework developed by the CHRP was employed in holding a series of round table discussions (beginning in 2012) on the human rights impact assessment of mining communities and on consultative processes of the government towards the development of the Philippine BHR NAP. But still, he found the situation to be a “start-stop“ process.

Commissioner Joseph reported that a Minister had been tasked to take care of the drafting of the BHR NAP of Malaysia, but finalizing it would take time because of the consultations with many groups and sectors. Way back in 2010, several rounds of consultations with various stakeholders, including government agencies, community-based organizations (CSOs), and business organizations, had been organized. The commissioner viewed BHR NAP as necessary in promoting policy coherence across the government bureaucracy, and in 

● Creating a platform for policy cross-fertilization between states in Malaysia;
● Crystallizing leadership for business and human rights;
● Widening participation in NAP implementation;
● Facilitating dialogue and trust-building; and
● Promoting sustainable development. 

The Philippine and Malaysian human rights commissioners emphasized that the process of drafting BHR NAP must be state-owned and state-led. However, governments must take serious consideration of the views and concerns of the stakeholders on what should be the content of the BHR NAP.

International support is likewise important, as shown in the case of the Philippines. The Philippine offices of the International Labour Organizations (ILO) and the United Nations Development Programme (UNDP) have been supporting the government in drafting its BHR NAP. Dianne Respall (Senior Programme Officer of ILO Manila) explained that the ILO promoted the Decent Work Agenda (with four pillars: rights and national standards, employment, social protection, and social dialogue) as a necessary framework in dealing with labor issues. Judith R. Fortin (Project Manager of CHR Projects: Nurturing a Culture of Human Rights and Empowering Citizens to Deepen Democracy), on the other hand, discussed how the UNDP facilitated discussion on policy reform. The UNDP has been supporting the integration of the international human rights standards in national development plans and corporate laws. Aside from the UNGP, UNDP is also promoting the use of the United Nations Guiding Principles on Extreme Poverty and Human Rights7 in addressing business and human rights issues. The UNDP facilitated the government review of the Philippine National Development Plan 2017-2022 to find areas of support for human rights and supported the drafting of proposed amendments to the Corporation Code.

Additional Tasks
The nature and impact of operations of big companies as well as the movement of workers require crossborder cooperation among governments, labor unions, and companies. The workshop participants discussed a number of tasks relevant to business and human rights issues that cross national borders.  

A networking system among groups engaged in different fields of work – within and among countries – would help circulate information as well as collaboration on crossborder issues. A crossborder initiative for Southeast Asia can focus on the most vulnerable workers, such as those in the fishery, agriculture (i.e., palm oil), apparel, food manufacturing, electronics, and service sectors. Other crossborder issues concerning foreign workers should cover abuses by recruitment agencies (illegal collection of fees, unwarranted high fees, fraudulent labor contracts, etc.). Finally, a crossborder networking system should help address human rights issues in the supply chains.

International support in resolving national issues is also important. In the humidifier disinfectant case in Korea, a UN Special Rapporteur on human rights and hazardous substances8 helped increase pressure on the company involved to resolve the issue. This pressure complemented a “public petition coupled with significant media coverage and eventually a court action [that] forced it (the company) to address the issue with a public apology and a compensation program.”9

A crossborder network can also engage in research and publication. The results of research can be subsequently used in lobbying for reforms at the national level, as well as in training workers and company officials. Verité’s research in Japan revealed how workers co mmunicated among themselves, accessed remedy, and helped each other. Improved “communication,” however, also exposed them further to risks of illegal recruitment. The main challenges consisted of maximizing this model while avoiding negative impacts. Workers were encouraged to link fellow workers to organizations that could help them.10

Jefferson R. Plantilla presented the basic featutres and contents11 of the training manual entitled Business, Human Rights and Northeast Asia: A Facilitator's Training Manual.12 Training and other educational activities on the integration of human rights in business operations are important tasks that have to be undertaken by all stakeholders.

Jefferson R. Plantilla is the Chief Researcher at HURIGHTS OSAKA.

For more information, please contact HURIGHTS OSAKA.

Endnotes
1 This workshop was jointly organized by the Asian Consortium for Human Rights-based Access to Justice, GoJust Project-Commission on Human Rights of the Philippines (CHRP) and the Asia-Pacific Human Rights Information Center (HURIGHTS OSAKA) on 11-12 March 2017 at St. Francis Square, BSA Twin Towers, Ortigas Center, Mandaluyong City, Philippines.

2 The following discussion is based on the report entitled "Workshop on Business, Human Rights and Access to Justice – Workshop Report," Quezon City, 2017.

3 Ibid., page 12.

4 Ibid., page 11.

5 Ibid., page 6.

6 See “FGV, FELDA and SUHAKAM Collaborate to Promote Respect and Compliance for Human Rights in Business Operations,” FELDA Global, www.feldaglobal.com/fgvfelda-and-suhakamcollaborate-to-promoterespect-and-compliance-forhuman-rights-in-businessoperations/#sthash.owLSFnf9.dpuf.

 7 See United Nations Guiding Principles on Extreme Poverty and Human Rights, www.ohchr.org/Documents/Publications/OHCHR_ExtremePovertyandHumanRights_EN.pdf.

8 See report of the Special Rapporteur, “End of Visit Statement by the United Nations Special Rapporteur on human rights and hazardous substances and wastes, Baskut Tuncak (Republic of Korea 12 - 23 October 2015).” Statement available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16639&LangID=E.

9 "Workshop Report," op. cit., page 9.

10 Ibid., page 14.

11 See powerpoint presentation of Jefferson R. Plantilla entitled Facilitator’s Training Manual on Business and Human Rights.

12 Published by HURIGHTS OSAKA in 2016 in cooperation with the Northeast Asia members of the Asian Consortium for Human Rights-based Access to Justice (HRBA2J-Asia).


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