*This article was originally published in Japanese on March 14, 2022. View the article
here.
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On February 28, 2022, the Asia and Middle East Program of the Sasakawa Peace Foundation (SPF) held an online event entitled "Engagement & Remedy Forum for Responsible Business Conduct 2022," focusing on the outcomes of efforts to implement the “Grievance Mechanism” concept in society.
Continuing the Will of Professor John Ruggie
In 2011, the United Nations (UN) Human Rights Council unanimously approved the Guiding Principles on Business and Human Rights. The three pillars of the Guiding Principles are: (1) the state duty to protect human rights, (2) the corporate responsibility to respect human rights, and (3) access to remedy. The Guiding Principles stipulate that when human rights violations occur, appropriate remedies must be provided through judicial, administrative, legislative, and other means. The mechanism or system for remedies based on this provision is the “grievance mechanism.” The term "human rights due diligence" refers to the formulation of measures and plans to prevent human rights violations by companies and others, or to deal with actual violations, including the identification of risks, and the assessment of the impact of corporate activities on human rights.
The forum was co-hosted by the Global Compact Network Japan (GCNJ), the Business and Human Rights Lawyers Network Japan (BHR Lawyers), and the Business and Human Rights Resource Centre (BHRRC). The event has been held annually since 2020 with the aim of promoting the grievance mechanism concept, and the forum in 2021 saw the expression of the intention to establish a center for engagement and remedy, as a collective operational-level grievance mechanism.
Marking the third in the series, this year's event was held with the aim of unveiling this center, the Japan Center for Engagement and Remedy on Business and Human Rights (JaCER), which will be launched in April 2022. An expert group of panelists reported on its objective and structure, and discussed its legitimacy and effectiveness. In the opening remarks, SPF Executive Director Itsu Adachi spoke of the passing of Harvard University Professor John Ruggie last year, who served as the special rapporteur of the UN Secretary-General on human rights and transnational corporations and other business enterprises, and is considered the "father" of the Guiding Principles on Business and Human Rights. Mr. Adachi paid tribute to his significant contributions to the field, saying “it is important for us to carry on his will.”
Purpose and Structure of JaCER
Prior to the start of the first session, a “memorial video” was shown of Prof. Ruggie’s keynote address from last year's forum, focusing on his remarks about grievance mechanisms. In his speech, Prof. Ruggie emphasized that "the most important criteria in any corporate-based redress system or grievance mechanism is that it should be what the parties involved believe to be a fair and honest system, accessible, predictable, and transparent.”
On February 15, 2022, Mr. Koichi Hagiuda, Japan’s Minister of Economy, Trade and Industry (METI), announced that human rights due diligence guidelines will be developed by this summer. At this forum, Mr. Ken Toyoda, Director of the Business and Human Rights Policy Office at METI, explained the latest efforts on this matter. Based on the National Action Plan on Business and Human Rights (NAP) formulated in October 2020, a special website was established on this theme and seminars have been held as part of efforts to raise awareness within Japanese industry. As a result of a survey conducted last year on the status of human rights initiatives in the supply chains of Japanese companies, he reported that while 70% of companies have formulated policies to protect and respect human rights, only 50% have actually conducted human rights due diligence, indicating the need to raise awareness on the issue. He mentioned plans to work with the International Labour Organization (ILO) in the future to jointly compile a collection of good practices that are conducted overseas and distribute it to Japanese companies.
Mr. Hidemi Tomita, President of LRQA Sustainability, who led the establishment of JaCER, pointed out that although there is a growing need to establish a grievance mechanism, human rights due diligence is currently the main issue for companies, with many of them not having the capacity to handle complaints. In particular, he emphasized that it is a hurdle for a single company to tackle issues surrounding the supply chain on its own.
To address these issues, the Japan Electronics and Information Technology Industries Association (JEITA), SPF and BHR Lawyers lead the establishment of the common framework, JaCER. The center will aim to "establish a joint platform for non-judicial grievance redress based on the UN Guiding Principles on Business and Human Rights, and to assist participating companies in resolving their grievances from a neutral standpoint." Specifically, the center will provide three functions: (1) operational support for the grievance mechanism, (2) provision of access points to third parties, and (3) dissemination and sharing of information.
Mr. Sakon Kuramoto of BHR Lawyers, who played a central role in the development of the “Engagement and Remedy Guidelines,” described JaCER as an “all-Japan” effort that goes beyond the existing whistleblower and compliance reporting systems of Japanese companies. He stated that the organization will promote and support dialogue and remedy efforts between Japanese companies and all stakeholders (interested parties) and aims to work with economic and industry organizations, NGOs (non-governmental organizations) and the government.
In response to these statements, Mr. Alan Jorgensen (OECD Center for Responsible Corporate Behavior), Mr. Nikolaj Pedersen (Principles for Responsible Investment), Mr. Phil Bloomer (Business and Human Rights Resource Centre), Mr. Hideki Wakabayashi (Japan NGO Center for International Cooperation: JANIC), Mr. Ryusuke Tanaka (ILO Japan) and Ms. Emiko Nagasawa (Keidanren (Japan Business Federation)) each gave their comments.
The panelists referred to the European Commission's announcement of a proposal on February 23, 2022, that would make human rights and environmental due diligence mandatory. Comments included, “there is an increased need for companies and investors to understand the UN Guiding Principles,” and “the objective of human rights and environmental due diligence is to ensure that workers, communities, and the environment are protected from injustice, and companies that comply with the law must also be held responsible under the law.” To enhance the effectiveness of the law, the panelists also mentioned the importance of monitoring the supply chain, engaging in dialogue with stakeholders, and utilizing the grievance mechanism. From a domestic perspective, the panelists expressed encouragement on the establishment of JaCER for its ease of reporting to a third-party organization. On the other hand, they suggested that in order to increase its effectiveness in Japanese society, where information disclosure is lagging and grievance mechanisms are not yet in place, it is important to proceed with discussions with a variety of organizations, and not just specific industries, and that the key will be to increase civil society's interest in the issue.
Legitimacy and Effectiveness
In the second part, under the theme of "Challenges towards realization of Grievance Mechanisms in Japan," Prof. Surya Deva (UN Business and Human Rights Working Group), Mr. Daisuke Takahashi (BHR Lawyers), Mr. Toshio Shikata (LRQA Sustainability), and Ms. Akiko Sato (Human Rights Now) discussed the legitimacy and effectiveness of JaCER.
Prof. Deva cited two important aspects of the UN Guiding Principles: that the mechanism be trusted by the user side and that it be independent. He added that legitimacy is one of the eight elements in the UN Guiding Principles and that they complement each other with the other elements. He listed six important elements of legitimacy: (1) joint participation of rights holders, (2) addressing the "power imbalance" between companies and victims, (3) independence, (4) availability of competent human resources, (5) responsiveness, and (6) effective results.
Mr. Takahashi stated, "To enhance its legitimacy as an organization, JaCER will establish an advisory board and stakeholder panel and operate in accordance with the Engagement and Remedy Guidelines. The establishment of an advisory board and an investigative committee, both of which are specialized bodies, will ensure the third-party nature of the organization.” He expressed his intention to create a platform where both companies and rights holders can learn from each other and communicate easily.
Mr. Shikata commented, "It has been pointed out that Japanese industry has been slow in taking action on human rights, but from the perspective of companies, it is also a subject presenting high hurdles. I think we were able to show that Japanese industry has finally started to take action. JaCER has been legitimized through the eyes of various people, including experts, with an impressive network of those involved in its establishment.”
Mr. Sato added, "It is all about providing relief to rights holders. Involving rights holders will lead to the fulfillment of transparency. Sharing what is an effective outcome from the rights holder's perspective is essential to fulfilling legitimacy.” He expressed that it is important for companies to create an environment where rights holders can speak out from a preventive perspective, and that this will lead to the development of trust with rights holders.
For JaCER to succeed in the future, Prof. Suriya concluded that it is important to "create a platform that allows rights holders to be involved and engage in dialogue even before its inception, review areas for improvement based on constructive criticism, and ensure that the right people are selected from the perspective of independence and diversity.”
