November, 2020

Daisuke Takahashi

Shinwa Sohgoh Law Offices / BHR Lawyers Network Japan

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(This article is based on a speech draft for the session “Preventing business-related human rights abuses in Asia Pacific: Actors and actions” at the 9th UN Forum on Business and Human Rights on  November17th, 2020)​

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Based on my experiences related to business and human rights (BHR) inside and outside Japan, I would like to highlight three aspects of the lawyers’ role in preventing business-related human rights abuses in Asia Pacific.

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1. Guiding and Supporting Clients with a Common Understanding of BHR

Firstly, lawyers can guide companies as well as support victims in preventing and remediating human rights abuses. Regardless of our roles as business lawyers or as human rights defenders, we can take actions in our respective positions to fill the gaps in recognition on human rights issues that would exist between the business sector and other stakeholders.

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Recognizing the importance of sharing a common understanding of BHR, Japan Federation of Bar Associations (JFBA) published “Guidance on Human Rights Due Diligence” for Japanese lawyers and companies in 2015.

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In 2018, lawyers active in diverse areas ranging from business law practices to human rights advocacy launched BHR Lawyers Network Japan, an information-sharing network established through the collective action. This is also a part of our response to the call by the UN Working Group on Business and Human Rights for a Global Pro-bono Lawyers Network on BHR. In 2020, BHR Lawyers Network started implementing a BHR training program for Japanese lawyers, in collaboration with International Bar Association.

 

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2. Investigating Cases and Assessing Impacts in line with International Norms

Secondly, lawyers can investigate cases and assess the impacts of business activities on human rights in line with international norms. Such work can be done either as lawyers guiding companies or as lawyers supporting civil society and workers.

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As a business lawyer advising companies, I have been also engaged with due diligence practices for my clients through my daily legal practices. In addition to our private practice, we can also use our professional investigation skills for public interests. The pandemic of COVID-19 has had a serious negative impact on human rights. My colleagues in BHR Lawyers Network and I organized "Japan COVID-19 & BHR Research Project" and published a research report "COVID-19 Impacts on Human Rights and Guidance on Japanese Business Response". Our report summarizes the impacts and responses in the following six areas of particular concern: supply chains; Migrant Workers; Non-regular Employment; Health Care Workers; socially vulnerable groups; and privacy.

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3. Facilitating Dialogues and Solving Disputes among Business and Stakeholders

Lastly, lawyers can facilitate dialogues and solve disputes among business and stakeholders.

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I especially acknowledge our role and responsibility in ensuring the access to remedy for victims. In 2019, BHR Lawyers Network in collaboration with Global Compact Network Japan took the lead in publishing “Engagement and Remedy Guidelines”, a practical guide and basic actions for Japanese business to establish effective operational level grievance mechanisms. This Engagement and Remedy project has been supported also by OECD, ILO, and BHR-NAP Platform.

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Non-skilled migrant workers, such as technical intern trainees are placed in vulnerable situations in Japan. In 2020, BHR Lawyers Network collaborated with lawyers’ groups supporting migrant worker victims in jointly publishing "Supply Chains Migrant Workers Guidelines".

 

I have observed, through my experience, that lawyers can contribute to facilitating dialogues between business and stakeholders even through the policy making process such as the formulation of the National Action Plan (NAP). In October 2020, the Japanese government published the NAP. I had an opportunity to serve as a member of the working group on the NAP representing the JFBA. In the NAP process, the JFBA could provide a dialogue platform for business and other stakeholders by hosting regular meetings and events in collaboration with other stakeholders. As a result of this meaningful engagement among different participants, all the stakeholder working group members, from business to trade unions and civil society, with different views and positions, reached a consensus to publish the “Stakeholder Common Requests” on the NAP and proposed them to the government. We believe that such initiatives are unique even compared to the NAP processes in other countries.

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4. Importance of Collaborating with Other Stakeholders

What I have learned through my work and activities related to BHR is, however, that lawyers cannot work alone. Collaborating with various actors including the government, business, workers, and the civil society is critical for preventing human rights abuses.

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Attorney Makoto Saito, my mentor and a pioneer lawyer on BHR in Japan, gave me an important advice when I started working on BHR issues. “Do not behave just as an expert. You also need to position yourself as part of the stakeholders and closely communicate with them”. Keeping his words in mind, I would like to continue my BHR activities in collaboration with various stakeholders.

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