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FOCUS December 2020 Volume 102

Japan's National Action Plan on Business and Human Rights: An Unfinished Project

Hideki Matsuoka

The Japanese government launched its National Action Plan on Business and Human Rights (2020-2025) (NAP) on 16 October 2020, almost four years since the government announced its intention to prepare such plan at the United Nations (UN) Forum on Business and Human Rights in November 2016. Japan is the 24th country in the world to have a standalone NAP, and the second in Asia after Thailand, which published its NAP in October 2019. It should also be noted that it is the first NAP to be completed since the start of the COVID-19 pandemic.

National Action Plan on Business and Human Rights (2020-2025)

The formulation of NAP has been urged by the UN Working Group on Business and Human Rights to implement the UN Guiding Principles on Business and Human Rights (UNGPs). The UN Working Group, through its Guidance on National Action Plans on Business and Human Rights, defined the NAP as an “evolving policy strategy developed by a State to protect against adverse human rights impacts by business enterprises in conformity with the UN Guiding Principles on Business and Human Rights (UNGPs).”1

The Formulation Process

The Japanese government undertook a baseline study in 2018 “with the aim of capturing the current landscape to what extent current legislation and policies provide for the protection of human rights in the context of business.”2 After ten consultation meetings, a report on the results of the study was published by the end of the year.

International and other relevant organizations in the field of industry, labor, law, consumers and civil society took part in the drafting process of the NAP, including in the consultation meetings.

Since 2019, discussions continued in the Advisory Committee for the NAP on Business and Human Rights and the Working Group on the NAP on Business and Human Rights to formulate the structure of the NAP.

Overview of the NAP

The NAP consists of four chapters: Chapter 1 explains the situation in Japan regarding business and human rights as well as the formulation process of the NAP; Chapter 2 sets forth the contents of the NAP; Chapter 3 expresses the government’s expectations for the business sector; and Chapter 4 provides the frameworks for implementation as well as for the update of the plan.

In Chapter 1, it is notable that there is an emphasis on the relationship with the Sustainable Development Goals (SDGs), as seen in the phrase “the achievement of the SDGs and the protection and promotion of human rights are mutually complementary and are two sides of the same coin.” It also acknowledges the impact of COVID-19 on human rights around the world that create hardships, particularly for the most vulnerable people in society.

Five general priority areas are listed in Chapter 2, as well as Action Plans for Individual Sectors with fifty-five “specific measures to be taken” along with the names of responsible ministries and agencies. The measures are described in relation to each of the three pillars of the UNGPs, namely “the State duty to protect human rights,” “the corporate responsibility to respect human rights,” and “access to remedy.” The section also introduces cross-sectoral issues, such as labor (including promotion of decent work), protection and promotion of child rights, human rights associated with development of new technologies, rights and roles of consumers, equality before the law (including for people with disabilities, women, and those with different types of sexual orientation and gender identity), and acceptance and coexistence of foreign nationals, with corresponding measures for each of the issues.

Inclusiveness and Transparency

In February 2020, eight months before the publication of the NAP, a draft NAP was published with request for comments from the public. Out of the seventy- eight comments received, one hundred twenty-nine issues were listed and published along with the response from the government in October 2020. In addition, the organizations participating in the formulation process discussions since 2018 also provided numerous views in their statements and documents in the meetings.

The Guidance on National Action Plans on Business and Human Rights includes “inclusiveness and transparency” as “essential criteria” for the formulation process and implementation of NAP, and states that it is “central to a rights-compatible approach and the degree to which relevant stakeholders participate in the NAP process will determine, amongst other things, the legitimacy and effectiveness of a NAP.”3 In order to understand how the government considered the numerous views collected during the formulation process and how they were reflected in the NAP, the discussions during the process must be carefully followed and verified. While the record of the discussions was published to a certain degree on the Foreign Ministry’s website, there was still a need to validate whether or not the transparency of the process was sufficient to enable such verification.

Collaboration among Stakeholders

The members of the Working Group, who have been directly involved in the formulation process, submitted two “Stakeholder Common Requests.” The first, submitted in November 2019, included requests on inclusion of proposals in five areas, “disclosure of non-financial reporting,” “foreign workers,” “human rights due diligence and supply chain,” “public procurement,” and “access to remedy.” The requests constituted the minimum set of proposals that the stakeholders coming from different backgrounds, such as industry, labor and civil society, could all agree on.

The second, submitted in June 2020, repeated the request to have the issues in the five areas set forth in the first submission reflected in the NAP, and also called for formulation of specific process for implementation, monitoring and update with the participation of all stakeholders, as well as of inclusion in the NAP of the human rights impact of COVID-19 and the corresponding government response.

On 9 November 2020, after the publication of the NAP, the Advisory Committee and the Working Group issued their joint comments respectively. Such collaboration among stakeholders representing different positions is noteworthy.

Remaining Issues

On 16 October 2020, the day the NAP was published, the Civil Society Platform for Japan’s National Action Plan on Business and Human Rights (BHR-NAP Platform) in which HURIGHTS Osaka is also participating, issued a statement saying that everything depends on future efforts.

In the statement, the eight issues which the Platform has been requesting consistently throughout the formulation process were reiterated, namely:

(1) ensure an inclusive and transparent formulation process;

(2) ensure that the plan is based on international human rights standards and the UNGPs;

(3) ensure policy coherence,

(4) ensure meaningful consultation with stakeholders;

(5) identify adverse human rights impacts and analyze the gaps;

(6) fully consider specific measures to address the adverse impacts,

(7) take full account of vulnerable and marginalized people, as well as of the principle of equality and non- discrimination, and

(8) include a concrete roadmap towards establishing a national human rights institution.

The draft NAP underwent a number of revisions and additions based on some of the views of the BHR-NAP Platform on the eight issues, views expressed in the public comments, and views and requests from stakeholders and experts. BHR-NAP Platform again requested for the consideration of the eight issues even though they were partially referred to in the NAP, whose effective implementation “depends on future efforts.”

The fact that the formulation process went ahead without analyzing the gaps in order to examine whether or not the current policies were sufficient to identify adverse human rights impacts and to address them in particular, may create major problems ahead. Many of the “measures” listed in the NAP are taken from existing policies, and do not consider results of sufficient analysis of gaps. Also, the five “general priority areas” have not been determined through identification of adverse human rights impacts and gap analysis.

Unfinished Project

The NAP is an “evolving policy and is supposed to be a living document that would be continuously updated. Japan's NAP will also be revised after five years. In that sense, the NAP remains essentially “unfinished.”

However, Japan’s NAP is an unfinished project in another sense. It is also unfinished in the sense that at the moment there is no confirmation that the fifty-five “specific measures to be taken” are based on the UNGPs and therefore are designed to address the adverse human rights impacts. That confirmation is left to the future implementation, monitoring and revision process.

Meanwhile, the NAP has been launched. Regardless of its substance, it will have certain impact in the Japanese society and will be discussed in many ways. The most important point in the UNGPs, and hence in the NAP, is to protect people from adverse human rights impacts caused by business enterprises, and to provide remedies. Would we be any closer to even a little lessening of the adverse human rights impacts exacerbated by the COVID-19 pandemic and climate change crisis within and outside of Japan, and to creating a society in which people are treated with respect? Everything depends on future efforts.

 

Hideki Matsuoka is a Researcher of HURIGHTS OSAKA.

For further information, please contact HURIGHTS OSAKA.

 

Endnotes

1 Guidance on National Action Plans on Business and Human Rights, UN Working Group on Business and Human Rights, page i, www.ohchr.org/Documents/Issues/Business/UNWG_NAPGuidance.pdf.

2 “Business and Human Rights,” Ministry of Foreign Affairs, www.mofa.go.jp/fp/hr_ha/page23e_000551.html.

3 Guidance on National Action Plans on Business and Human Rights, op. cit., page 4.


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