https:/undocs.org/en/A/HRC/56/55/Add.1
Human Rights Council Fifty-sixth session 18 June–12 July 2024 Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
Visit to Japan
Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises*
Summary The Working Group on the issue of human rights and transnational corporations and other business enterprises visited Japan from 24 July to 4 August 2023. The Working Group was encouraged by the important advancements of Japan, including developing a national action plan on business and human rights and issuing the Guidelines on Respecting Human Rights in Responsible Supply Chains. However, challenges remain concerning the business community’s capacity to understand and implement human rights due diligence across value chains. The Working Group also expressed concern about the significant difficulties observed in addressing deeply embedded harmful gender and social norms, which was particularly evident in the workplace discrimination and harassment experienced by women, Indigenous Peoples, Buraku people, persons with disabilities, migrant workers and LGBTQI+ persons, among other groups. Government and business initiatives to promote diversity and inclusion and to safeguard the rights of these at-risk groups are crucial moving forward.
* The summary of the report is being circulated in all official languages. The report itself, which is annexed to the summary, is being circulated in the language of submission only.
Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises on its visit to Japan
I. Introduction
1. Pursuant to Human Rights Council resolutions 17/4, 26/22, 35/7 and 44/15, the Working Group on the issue of human rights and transnational corporations and other business enterprises, represented by Working Group members Pichamon Yeophantong and Damilola Olawuyi, visited Japan, at the invitation of the Government, from 24 July to 4 August 2023. During the visit, the Working Group assessed the efforts made by the Government and business enterprises, in line with the United Nations Guiding Principles on Business and Human Rights, to identify, prevent, mitigate and account for the adverse impacts of business-related activities on human rights.
2. During the visit, the Working Group met with the then-Special Adviser to the Prime Minister of Japan on International Human Rights Issues and the Ambassador for Human Rights and International Peace and Stability. The Working Group also met with representatives of the following Government ministries, agencies and State bodies: Ministry of Foreign Affairs; Ministry of Economy, Trade and Industry; Ministry of Justice; Institute of Developing Economies-Japan External Trade Organization; Ministry of Health, Labour and Welfare; Cabinet Office; Consumer Affairs Agency; National Contact Point for Responsible Business Conduct; Ministry of Agriculture, Forestry and Fisheries; Financial Services Agency; Japan International Cooperation Agency; Japan Bank for International Cooperation; Ministry of Finance; and Ministry of the Environment. The Working Group met with representatives of local governments, including the Osaka Prefectural Government, the Tokyo Metropolitan Government and the Sapporo Government, and the Japan Association for the 2025 World Exposition. In addition, the Working Group held meetings with members of the National Diet (parliament).
3. During the Working Group’s meetings in Tokyo, Osaka, Aichi, Hokkaido and Fukushima, the Working Group met with representatives of the following businesses and industry associations: Ajinomoto; Akao Nenshi K.K; Asahi Group Holdings; Fast Retailing Group and Uniqlo; Fuji Oil Group; Fujitsu; Global Compact Network Japan; Johnny and Associates (now Smile-Up); Keidanren (Japanese Business Federation); Kirin Group; McDonald’s; Mitsubishi Corporation; Mitsubishi UFJ Financial Group; National Conference of Association of Small Business Entrepreneurs; Rakuten; Sony Group Corporation; Suntory; Takase Kanagata Molding Systems; Tokyo Electric Power Company; and Consumer Goods Forum. The Working Group also met with civil society representatives, including human rights defenders, journalists, academics, workers and representatives of trade unions, as well as with representatives of international organizations operating in Japan, such as the International Labour Organization (ILO).
4. The Working Group is grateful for the open and constructive discussions that it had with government officials, members of the business community, civil society, industry associations, trade unions and academia, workers, lawyers and other stakeholders on the progress, opportunities and challenges in the implementation of the Guiding Principles in Japan.
5. For the present report, the Working Group builds on its preliminary assessment from the end-of-mission statement on such salient issue areas as diversity and inclusion, discrimination and harassment, labour-related abuses, including sexual violence, the regulation of finance and value chains, as well as the impact on the right to health, the right to a clean, healthy and sustainable environment and climate change.
6. The Working Group drew on written submissions from businesses, civil society, international organizations, industry associations and other stakeholders, received in response to the call for input issued before the visit. In addition, it considered the insights derived from the stakeholder consultations held during the country visit and from the wealth of information, including reports, academic studies, statements and briefing notes, that were shared with the Working Group before, during and after the visit. It also built on relevant work done by the Working Group, the Office of the United Nations High Commissioner for Human Rights (OHCHR), the Organization for Economic Co-operation and Development (OECD) and ILO.
II. Context A. State duty to protect human rights
7. In addition to being the second country in the Asia-Pacific region to develop a national action plan on business and human rights, in 2020, Japan released the Guidelines on Respecting Human Rights in Responsible Supply Chains in 2022. Amid these positive developments, the Working Group’s visit provided the Government an opportunity to share its ongoing efforts and growing leadership in promoting responsible business conduct at the national, regional and global levels. As recognized in its national action plan, 2020–2025, raising awareness about business and human rights can contribute not only to “the protection and promotion of human rights for society as a whole”, but also serve to “enhance trust in and the reputation of Japanese business enterprises and contribute to ensuring and enhancing the international competitiveness and sustainability of Japanese business enterprises”.1
8. The Working Group welcomes the Government’s efforts in implementing the current national action plan and developing a second one. The Working Group also commends efforts to develop the national action plan through multi-stakeholder consultation processes. The Working Group further acknowledges the Government’s work to promote business and human rights overseas by, for example, pushing for the inclusion of relevant language in the Hiroshima Leaders’ Communiqué of the Group of Seven2 and deepening dialogue on the Guiding Principles beyond the Group of Seven countries.
9. However, the Working Group observed a general lack of domestic awareness of the Guiding Principles and the national action plan, especially outside Tokyo. There is considerably more work to be done to ensure that all relevant actors, including local governments, businesses and business associations, trade unions, civil society, community representatives and human rights defenders, fully understand their rights, duties and responsibilities under the Guiding Principles and the national action plan. Thus far, these actors seem not to have been sufficiently engaged in the development and implementation of the national action plan, with many stakeholders at the local level indicating no knowledge of the plan’s existence. The Working Group also heard from diverse stakeholders about how the lack of transparency vis-à-vis the implementation status of the plan had contributed to practical barriers in realizing the Guiding Principles and, more broadly, in human rights protection in Japan. The national action plan review process thus provides an opportunity for the Government to fully engage with all relevant stakeholders. It also presents an excellent opportunity to assess and enhance the accessibility of the plan, given that it has yet to be made available to persons with visual challenges.
10. The Government also has an opportunity to strengthen efforts so that State-owned enterprises3 lead by example. The Working Group highlights its reports on State-owned enterprises and development finance institutions for further guidance in this regard.
1 See https://www.ohchr.org/sites/default/files/Documents/Issues/Business/NationalPlans/JapanNAP.pdf, p. 4.
2 See https://www.mofa.go.jp/policy/economy/summit/hiroshima23/documents/pdf/ Leaders_Communique_01_en.pdf?v20231006.
3 State-owned enterprises are understood here as commercial entities wholly or majority owned or controlled by the State to provide public goods o
11. While the publication of the Guidelines is a positive development, the Working Group received reports that the public consultation period was not adequate, 5 concerns about the Guidelines’ voluntary nature and the limited definition of human rights without explicit mention of international instruments or the environment or climate change as dimensions of human rights due diligence and uncertainty over how the Guidelines would be practically enforced among State-owned enterprises. The Working Group was pleased to learn of additional positive initiatives, such as the release of the Guidebook for Respecting Human Rights in Food Enterprises. Adopting mandatory human rights due diligence measures to supplement voluntary guidelines would however enhance the smart mix of measures in Japan and its position as a leader in addressing business-related human rights issues, in particular in the Asia-Pacific.
B. Corporate responsibility to respect human rights
12. Business stakeholders reported emerging positive practices, such as initiatives to provide employees with continual human rights education and the development of operational-level grievance mechanisms, including reporting hotlines. They acknowledged however that considerable gaps remained, including with regard to the treatment of migrant workers and technical interns, the culture of overwork and businesses’ ability to monitor and reduce human rights risks in the upstream and downstream of value chains.
13. The Working Group observed three overarching issues. Significant gaps persist in understanding and implementing the Guiding Principles among different businesses. Especially pronounced are the discrepancies between large businesses, in particular transnational corporations that have an advanced comprehension of the Guiding Principles and small and medium-sized enterprises that constitute 99.7 per cent of the total number of companies in Japan and which, according to the 2018 baseline study, provide 70 per cent of all employment.6 The low level of awareness of the Guiding Principles among small and medium-sized enterprises led stakeholders to underscore the need for the Government to provide tailored guidance and capacity-building to small and medium-sized enterprises. Noting how businesses strongly articulated the need for more robust civil society participation in such efforts, the Working Group welcomes initiatives by the Sapporo Government and LGBTQI+ civil society groups to engage local small and medium-sized enterprises in raising awareness about LGBTQI+ rights and promoting an inclusive society, including through the Sapporo Rainbow Pride event.
14. Business representatives also spotlighted how increased efforts were required to encourage the uptake of the Guiding Principles by general trading companies and retailers. Given the diversity of the products that they trade and sell, these businesses are especially well-positioned to exercise their leverage in a variety of sectors and encourage national brands and suppliers along their value chains to apply the Guiding Principles.
15. Moreover, businesses and industry associations communicated the need for the Government to be more active in discharging its duties under the Guiding Principles. They requested more practical guidance from the Government, in particular the Ministry of Economy, Trade and Industry, the Ministry of Health, Labour and Welfare, the Ministry of Foreign Affairs and the Ministry of Justice, on such exigent issues as how to conduct heightened human rights due diligence, establish and operate grievance mechanisms, exit responsibly and conduct human rights due diligence along value chains. Most businesses whose representatives the Working Group met with during the visit, including from the financial sector, also indicated the desirability of mandatory human rights due diligence measures, which can assist with levelling the playing field and allow for greater coherence of the Government’s policies and standards with the Guiding Principles. Absent more robust human rights due diligence requirements, the members of the business community suggested that small and medium-sized enterprises in particular would have little incentive to adopt the Guiding Principles.
16. The need for timely, tailored and needs-driven capacity-building measures was a recurring message conveyed by members of the business community. Some stakeholders noted, for example, the growing demand for auditor training on human rights and on how small and medium-sized enterprises could better conduct stakeholder engagement. The Working Group spotlights its reports on capacity-building alongside the important role that civil society can play in meeting this demand. 7
5 Other publicly available information includes, for example, https://media.businesshumanrights.org/media/documents/WBA-BHRRC_public_comment.pdf; and https://media.businesshumanrights.org/media/documents/CSO_statement_for_Guidelines_on_Respect_for_Human_Rights_ in_Responsible_Supply_R9zQR83.pdf.
6 See https://www.mofa.go.jp/files/000455152.pdf.
C. Access to remedy
1. State-based judicial mechanisms
17. During the visit, the Working Group identified salient areas of concern regarding access to justice and effective remedies, including obstacles to access to courts in Japan. One critical issue is the low awareness among judges about the Guiding Principles and broader human rights issues in the context of business activities, including those concerning LGBTQI+ persons. The Working Group also learned from stakeholders how lengthy court proceedings could hinder access to remedy and received testimonies about cases where plaintiffs did not receive adequate financial or other forms of compensation due to a lack of adequate sanctions and application of court decisions.
18. The Working Group heard about the work of the State-funded Japan Legal Support Center in providing legal services to Japanese citizens and foreign nationals lawfully residing in Japan with limited financial resources. The Working Group welcomes such initiatives by the Ministry of Justice to facilitate access to remedy, including through human rights promotion and protection activities and the digitalization of civil proceedings.8 2. State-based non-judicial grievance mechanisms
19. While recognizing the critical roles of the human rights bodies of the Ministry of Justice in investigating instances of human rights abuses 9 and the labour offices of the Ministry of Health, Labour and Welfare in receiving workers’ complaints, the Working Group remains deeply concerned by the lack of a national human rights institution in Japan. Many stakeholders noted that this absence created a significant gap in government efforts to promote respect for human rights among businesses and enforce corporate accountability.
20. Indeed, although the Human Rights Bureau of the Ministry of Justice can investigate allegations of human rights violations, this function does not fulfil the role of a national human rights institution. National human rights institutions are crucial to enhancing remediation of business-related human rights abuses, facilitating inter-agency coordination on human rights issues and promoting business and human rights training for private sector actors, auditors, judges and public defenders.10
21. The absence of a national human rights institution can substantially encumber access to justice and effective remedy, in particular among people at risk, and create barriers to seeking remedy based on international human rights standards. It also negatively affects the global image of Japan. 11 Considering the emphasis in its national action plan on promoting the business and human rights agenda in the international community,12 the Working Group views the establishment of a national human rights institution as a vital step towards achieving this goal.
7 A/HRC/32/45 and A/HRC/53/24.
8 See https://www.moj.go.jp/content/001404170.pdf.
9 Ibid.
10 See A/HRC/47/39/Add.3.
11 Of the 38 OECD countries, Japan is one of only eight that do not have a national human rights institution. See https://ganhri.org/membership/.
12 See https://www.ohchr.org/sites/default/files/Documents/Issues/Business/NationalPlans/JapanNAP.pdf.
22. Japan established its National Contact Point under the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, in 2000, with the mandate to handle disputes related to business and human rights and, more generally, to promote responsible business conduct. However, the Working Group received complaints that the National Contact Point lacked visibility and impact,13 with only 15cases having been taken up in its 23 years of existence. To address these issues, the National Contact Point must be deemed independent and credible by all stakeholders. The revision of the national action plan constitutes an excellent opportunity to enhance its visibility, impact and independence.
23. The creation of a human rights ombudsperson can also help victims to gain access to remedies.14 The Working Group notes as a positive practice the establishment of specialized ombudspersons, such as those for children and persons with disabilities.15 3. Non-State-based grievance mechanisms
24. The Working Group emphasizes the importance of effective non-State-based grievance mechanisms for addressing business-related human rights issues in Japan. A 2021 survey by the Ministry of Economy, Trade and Industry and the Ministry of Foreign Affairs indicated that only about 49 per cent of the 760 businesses surveyed had guidelines and procedures to provide remedy to victims and correct problems. 16 Although most large businesses that met with the Working Group had operational-level grievance mechanisms in place, some workers still feared reprisals (e.g. losing their jobs) for reporting workplace misconduct.
25. The 2020 revision of the Whistle-blower Protection Act, which became effective in June 2022, requiring businesses with over 300 employees to establish a system for internal whistle-blowing disclosures, is a positive step. However, stronger protections and enforcement are needed. A report found that 70 per cent of businesses with over 1,000 employees had internal hotlines for whistle-blowers, compared with 57.4 per cent of businesses with 301 to 1,000 employees and 36 per cent with 101 to 300 employees.17 The Working Group notes that, while the scope of protection has been expanded to include company directors and employees within one year of their retirement, the definition of whistle-blowers in the Act remains narrow and excludes those who are self-employed (e.g. actors, artists and television personalities), contractors and suppliers, as well as their attorneys and family members, unless they are acting with the whistle-blower’s approval and are making the disclosure on behalf of the whistle-blower in accordance with their consent. Furthermore, while the Act prohibits retaliation, there are currently no criminal or administrative penalties against businesses that do not have internal hotlines or that retaliate against whistle-blowers, although those employees who are or were engaged in dealing with whistle-blowing disclosures, including those managing hotlines, are subject to a penalty should they fail to respect whistle-blowers’ confidentiality. The Working Group highlights the importance of ensuring that the Consumer Affairs Agency has sufficient resources and access to information to carry out its mandate effectively. To foster an environment where whistle-blowing is respected, there is a need to combat retaliation and reward those who speak up. The Working Group underscores the importance of raising awareness and takes note of the efforts of the Consumer Affairs Agency to share videos about the Act through the media. 26. Positive practices that the Working Group observed include establishing grievance mechanisms open to all stakeholders and setting up dedicated grievance mechanisms for the value chain. The Engagement and Remedy Platform by the Japan Center for Engagement and Remedy on Business and Human Rights is a notable example, accumulating know-how and offering a non-judicial platform for its members to achieve redress based on the Guiding Principles. Another example is Ajinomoto’s multi-language hotline for migrant workers,
which operates in eight languages and is run in collaboration with a non-governmental organization. 18 27. The Working Group was also pleased to learn about some State agencies’ grievance reporting hotlines and commends in particular the establishment of the Japan Platform for Migrant Workers towards Responsible and Inclusive Society, which includes a grievance mechanism available in nine languages to migrant workers and provides expert consultation services. III. At-risk groups 28. While this section is focused on women, LGBTQI+ persons, persons with disabilities, Indigenous Peoples, minority groups, including Buraku communities, children and older persons, it is important to stress that this is not an exhaustive list of at-risk stakeholder groups in Japan. The Working Group was also informed about issues in relation to, for instance, the exploitation of sex workers and discrimination against homeless people. 29. The crux of the challenges faced by at-risk stakeholder groups is the lack of diversity and inclusion in the labour market, on the one hand, and the prevalence of discrimination, harassment and violence in the workplace and society at large on the other. Indeed, ongoing disparities in these groups’ ability to gain access to employment opportunities, fair wages and a living income are closely linked to structural inequality, workplace discrimination and related problems, including poverty and social exclusion. 19 While personal attributes, such as ethnicity, race, age, gender and sexual orientation, should not prejudice an individual’s job opportunities or perception of their work competencies, this is often the case in reality. 20 Indigenous Peoples, ethnic minorities, migrant workers and women, many of whom work in lower-paid and informal economy jobs, generally receive lower wages than the rest of the population. Beyond the moral imperative to ensure inclusion, inequality can be economically and politically damaging. 21 To achieve sustainable growth and leave no one behind, as promised in the 2030 Agenda, it is important for government policies and business activities to champion inclusion and social justice by first reaching at-risk peoples, who are often those left the furthest behind. 22 A. Women 30. The Working Group expresses its concern about the persistent gender wage gap in Japan, as it was ranked 125 out of 146 countries in the 2023 gender gap index.23 Full-time female workers earn only 75.7 per cent of their male counterparts’ wages. 24 Moreover, women are frequently restricted to roles involving assistance, temporary employment, or part-time work, resulting in limited career advancement opportunities and fewer benefits. Women account for 68.2 per cent of non-regular workers,25 earning only 80.4 per cent of what their male counterparts earn. The Working Group commends the Government’s requirement for large businesses to disclose their gender wage gaps 26 as a positive step forward. 31. The participation of women from minority groups in the labour market likewise serves as a revealing indicator of discrimination. In contrast to the average annual earnings among women, which stands at about 3 million yen, Buraku women earn only about 2 million yen and Ainu women receive less than 1.5 million yen,27 despite performing the same job with equal productivity. Resident Korean women also reported fewer job opportunities compared with Korean men and Japanese women.
13 See also https://www.oecdwatch.org/ncp/ncp-japan/.
14 See A/75/224.
15 See A/HRC/53/24/Add.2.
16 See https://www.meti.go.jp/press/2021/11/20211130001/20211130001-1.pdf (in Japanese).
17 See https://www.tdb-di.com/2023/11/sp20231130.pdf (in Japanese).
18 See https://www.ajinomoto.com/sustainability/news/ajinomoto-co-inc-started-operating-a-multilanguage-hotline-for-migrant-workers.
19 See https://www.un.org/esa/socdev/rwss/2016/full-report.pdf.
20 Ibid.
21 Thomas Piketty, Capital in the Twenty-First Century (Belknap Press, Cambridge, MA); and Joseph Stiglitz “The price of inequality”, New Perspectives Quarterly, Vol. 30, No. 1.
22 See https://sdgpulse.unctad.org/inclusive-growth/#Ref_P56NBYW5.
23 See https://www3.weforum.org/docs/WEF_GGGR_2023.pdf.
24 See https://www.mhlw.go.jp/english/database/db-l/ordinary2020.html.
25 See https://www.gender.go.jp/kaigi/senmon/keikaku_kanshi/siryo/pdf/ka22-1.pdf (in Japanese).
26 Through the 2022 revisions to the Ministerial Ordinance on the Act on Promotion of Women’s Participation and Advancement in the Workplace.
32. The approval of the fifth basic plan for gender equality, formulated on the basis of the Basic Act for Gender Equal Society, demonstrates the Government’s commitment to increasing the representation of women in executive management. Keidanren’s goal to increase the proportion of women executives to 30 per cent by 2030 further reflects positive efforts from businesses. However, the current underrepresentation of women in executive management, at merely 15.5 per cent of employed individuals,28 remains a concerning trend that demands greater attention from the Government and the private sector. Reports of women being denied promotions and worrying cases of sexual harassment highlight the need to promote gender diversity in leadership and decision-making roles.
33. The Government’s introduction of one of the world’s most generous paternity leave provisions marks another positive step in addressing gender inequality in the workplace. Nevertheless, the low uptake (17.13 per cent in 2022) falls significantly short of the Government’s goal of achieving a 50 per cent ratio by 2025.29 Concurrently, addressing concerns about instances of pregnant women facing job dismissals requires immediate attention.
B. LGBTQI+ persons
34. Throughout the visit, the Working Group was informed of instances of discrimination against LGBTQI+ persons. The Working Group is particularly concerned about such practices as demanding that transgender individuals disclose their legal names and pretransition photos on job applications. Furthermore, there are notable issues surrounding hate speech targeting LGBTQI+ communities, in particular online. While the Working Group acknowledges the Government’s enactment of a law, the Act to Promote Public Understanding of Diversity of Sexual Orientation and Gender Identity, the Law lacks a clause prohibiting discrimination against LGBTQI+ individuals and lacks a clear definition of discrimination.
35. Despite these challenges, there have been positive developments, such as the Supreme Court’s ruling on restroom access for transgender individuals and an increasing number of local governments implementing partnership systems for same-sex couples. Notably, the Tokyo Metropolitan Government and the Sapporo Government actively engage with the private sector to encourage the utilization of partnership certificates. These initiatives ensure that LGBTQI+ employees can avail themselves of various benefits. Indicating a growing awareness and appreciation for LGBTQI+ issues in the private sector, the Pride Center in Osaka is supported by several businesses. Another emerging positive practice is the Sapporo Government’s LGBT-Friendliness Index System,30 which evaluates and registers businesses promoting LGBT-friendly initiatives based on specific indicators. Although public awareness of the system remains limited, it represents an important initiative for greater inclusion. C. Persons with disabilities
27 See https://www.nta.go.jp/publication/statistics/kokuzeicho/minkan/gaiyou/2022.htm#a-01 (in Japanese).
28 See
https://stats.oecd.org/Index.aspx?QueryId=54753. 29 See https://www.weforum.org/agenda/2023/10/could-japans-paternity-leave-policy-help-narrow-thegender-gap/.
30 See https://www.city.sapporo.jp/shimin/danjo/lgbt/sihyo.html (in Japanese).
36. A pressing challenge in Japan concerns the inclusion of persons with disabilities in the labour market and workplace. The Working Group heard with concern the experiences of persons with disabilities who were exposed to workplace discrimination and lower salaries.
Moreover, the Working Group has received concerning reports indicating instances of “false employment” and “proxy employment”, whereby businesses provide a venue for work for persons with disabilities to fulfil another business’ employment obligations, but these individuals are often segregated from other employees, working with other persons with disabilities only, thus contributing to further workplace inequality.
37. The Act for the Promotion of Employment for Persons with Disabilities, inter alia, sets legal employment quota rates for persons with disabilities. The legal quota for the private sector from April 2024 is 2.5 per cent and 2.8 per cent for State entities.31 There are persons with disabilities and intractable diseases who are not considered eligible in this system, however. Expanding the narrow and exclusive criteria used to calculate the quota is essential for promoting employment opportunities for persons with disabilities.
38. The Working Group also found that the current provision of personal assistance services for persons who require more intensive support, does not adequately support persons with disabilities during commuting and working hours. Feedback received by the Working Group indicates that the system is complicated to use, posing challenges for employers and exacerbating the marginalization of workers with disabilities.
39. The Ministry of Health, Labour and Welfare reported a record high of 4,138 persons with disabilities experiencing abuse, including while working in companies, in 2022. 32 Discriminatory practices, such as denial of the opportunity to travel with infants or rejection by real estate agents due to landlords’ unwillingness to rent to persons with disabilities, compound the challenges that they face. It is especially important to consider the intersectionality of disability and gender, as women with disabilities often face aggravated discrimination. D. Minority groups and Indigenous Peoples
40. The recognition of the Ainu people as Indigenous Peoples and the passing of the Ainu Measures Promotion Act of 2019 mark a positive move towards acknowledging their rights. However, the absence of a comprehensive census of the Ainu population, one that is predicated on an Ainu definition of their own Indigenous identity, renders discrimination against them invisible and uncounted, with Ainu people still facing discrimination in various domains, including education and the workplace.
41. The Working Group was informed of a lawsuit against the central and prefectural governments seeking to reclaim the Ainu people’s fishing rights. Article 28 of the Act on the Protection of Marine Resources prohibits, with limited exceptions, the harvesting of freshwater salmon by all Japanese citizens, including the Ainu people. However, this measure does not adequately consider the Ainu people’s traditional salmon fishing rights as an Indigenous People whose way of living has historically involved the hunting and harvesting of salmon from rivers. The measure only permits harvesting for cultural and ritual purposes, failing to support the Ainu’s traditional livelihood from salmon fishing. The Working Group is concerned that this situation limits Ainu rights and instead benefits businesses permitted to take salmon from the sea, warranting re-examination by the Government.
42. The absence of free, prior and informed consent from the Ainu people for various development projects, including those in the renewable energy sector, is likewise troubling. The Working Group notes with apprehension the adverse impact of these projects on the Ainu people and their rights. Stakeholders have brought to the Working Group’s attention issues of grave concern, including the leasing of State-owned forests to businesses to construct large-scale windmill complexes and resort developments without the Ainu people’s consent. Although prior notification of project details to local residents is required for certification under the feed-in tariff and feed-in premium programmes, this is different from obtaining free, prior and informed consent from the Ainu people as Indigenous Peoples.
Furthermore, the Ainu Measures Promotion Act allows Ainu people to collect forest products only for the purpose of promoting the Ainu people’s culture. While the Working Group acknowledges the law’s recognition of the Ainu people as the nation’s Indigenous People, it is unfortunate that the Government does not recognize the Ainu people’s collective rights to forest management and hunting.
31 https://www.mhlw.go.jp/content/001064502.pdf (in Japanese).
32 See https://barrierfreejapan.com/2023/12/20/japans-ministry-of-health-labor-and-welfare-reports3079-cases-of-abuse-against-disabled-confirmed-by-local-governments-in-2022-highest-recordednumber/.
43. The Working Group has also received reports of a surge in hostile and distorted views on the Ainu people, which may be categorized as hate speech, in printed materials and on the Internet. Noting the Government’s efforts to promote cultural education about the Ainu people through tourism, for example, the Working Group is concerned about reports received of racial harassment and psychological stress faced by Ainu workers at the National Ainu Museum and Park.
44. Equally concerning to the Working Group are the cases of discrimination against ethnic Korean and Chinese workers, including repeated acts of hate speech by employers.33 Certain hate speech-related cases filed by victims reportedly took many years to go through the Japanese court system, and, according to testimonies received, even when the plaintiffs won, there was no financial compensation, undermining access to remedy.34 It is worth noting that many of the ethnic Korean workers who continue to suffer discrimination and harassment are third-generation (or longer) residents in Japan, and their mother tongue is Japanese. Relatedly, a survey published in 2017 by the Ministry of Justice showed that, of those who suffered discriminatory treatment at work, 25 per cent were refused employment because they were foreigners, 19.6 per cent received lower wages and 12.8 per cent experienced poorer working conditions than their Japanese counterparts. 35
45. Furthermore, the Working Group learned about human rights issues surrounding Buraku people, who are still subject to various types of discrimination in their daily lives. Such discrimination severely affectstheir ability to gain access to the labour market and enjoy equal employment opportunities. While Japan approved the Act on the Promotion of Elimination of Buraku Discrimination of 2016, the Working Group was alerted to a pattern of hate speech used, in particular online and in the publishing industry, and of workplace discrimination (e.g. through invasive job screening questionnaires). While some Buraku people have successfully won lawsuits against discrimination, the Working Group was notified of how long court proceedings in Japan make it challenging to gain access to remedies effectively.
46. Despite requests under the Act on the Protection of Personal Information, the Personal Information Protection Commission issued an opinion that information contained in the family register, which may be used to discriminate against Buraku people, is not within the scope of “sensitive personal information” covered by the law. Similarly, the Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behaviour against Persons Originating from Outside Japan of 2016 (also known as the Hate Speech Elimination Act) does not define discrimination or include penalty provisions or remedy. Furthermore, it only covers “foreigners” legally residing in Japan. As such, it does not cover discrimination against Buraku people. The Working Group was pleased to note however that, during a meeting of the Cabinet Committee of the Upper House, the Secretary-General of the Personal Information Protection Commission orally agreed that Buraku falls under the definition of “social status”,36 which is within the scope of “sensitive personal information” covered in the Act and, as such, the Working Group hopes that this opinion will be added to the guidelines for the Act’s implementation.
47. The Working Group did learn of positive practices, which include coordination committees comprising businesses that work with affected stakeholders to reduce discrimination through, for instance, providing training programmes to employees. Other examples include initiatives by local governments to raise awareness and fight discrimination, the consultation channels of the Ministry of Justice and the guidance of the Ministry of Health, Labour and Welfare on establishing a human rights focal point for businesses with 80 or more employees. As indicated by the fair recruitment and human rights awareness promoter scheme, employers are required to ensure “fair recruitment selection based on the understanding and recognition of human rights issues, such as [Buraku] issues”.37
33 See, for example, https://www.bbc.com/news/business-55345080 and https://www.asahi.com/ajw/articles/14714919.
34 See https://www.business-humanrights.org/en/latest-news/japan-lawsuit-against-leading-real-estatefuji-corp-over-alleged-distribution-of-documents-containing-racist-expressions-constituting-hatespeech-company-comments-compensation-orders-unacceptable/.
35 See https://www.moj.go.jp/JINKEN/stophatespeech_chousa.html (in Japanese).
36 Recording available on https://www.webtv.sangiin.go.jp/webtv/index.php (in Japanese) by navigating to 7 December 2023 and selecting the video of the Cabinet Committee.
48. The Working Group underlines that, without adequate regulation or laws that prohibit discrimination, it is extremely difficult for victims of discrimination to file complaints or gain access to remedy. Discrimination against Indigenous Peoples and ethnic Korean, Chinese and Buraku people falls under the scope of the International Convention on the Elimination of All Forms of Racial Discrimination, to which Japan has acceded. Furthermore, the Working Group specifically reiterates the role that social media and technology businesses should play in promoting respect for human rights across their platforms and preventing harm. 38
