Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

I. Referring to its earlier comments, the Committee notes the information provided by the Government in its reports received on 13 and 30 September 2010, as well as in the Government’s communications received in November 2009 and November 2010.

In its earlier comments, the Committee examined the issues of wartime industrial forced labour and sexual slavery (so-called “comfort women”) during the Second World War. It refers in this regard to its earlier considerations and conclusions concerning the limits of its mandate in respect of these historical breaches of the Convention. In its previous observation, the Committee expressed the hope that, in making further efforts to seek reconciliation with the victims, the Government would take measures in the immediate future to respond to the claims of the aged surviving victims. The Government was also requested to continue to provide information about recent judicial decisions and related developments.

The Committee notes communications received in 2009 and 2010 from the following workers’ organizations:

–           All-Japan Shipbuilding & Engineering Union (AJSEU) (dated 10 August 2009 and 20 August 2010);

–           Federation of Korean Trade Unions (FKTU) and the Korean Confederation of Trade Unions (KCTU) (dated 26 August 2009 and 27 August 2010);

–           Teachers’ Union of Nagoya Municipal High School (dated 12 August 2009 and 20 August 2010);

–           National Federation of Construction Engineering Workers’ Unions for Japan (JCEW) (dated 18 August 2010);

–           International Trade Union Confederation (ITUC) (dated 16 September 2009 and 1 September 2010);

–           The Netherlands Trade Union Confederation (FNV) (dated 30 August 2010).

Copies of the above communications from workers’ organizations were forwarded to the Government for any comments it might wish to make on the matters raised therein. The Committee notes the Government’s response to these communications received on 13 September and 19 November 2010.

Some of the above communications of the workers’ organizations referred, inter alia, to positive developments, such as settlement of certain forced labour cases. Thus, the Nishimatsu Construction Company, a private company profiting from industrial forced labour during the Second World War, reached an agreement with all 360 former victims of forced labour at the Yasuno Power Plant in Hiroshima Prefecture on 23 October 2009; it also reached an agreement with 183 Chinese victims of forced labour at a power plant in Niigata Prefecture on 26 April 2010. These settlements were reached after the decision of the Supreme Court of Japan of 27 April 2007, according to which Chinese plaintiffs had no legal right to seek compensation for the damages caused by forced labour exacted by the Nishimatsu Construction Company, but the Court suggested in conclusions that the parties involved (the Nishimatsu Company and the Government) take voluntary measures to relieve the pain of the victims. The settlement provides 250 million yen to 360 victims in the Hiroshima case and 128 million yen to 183 victims in the Niigata case.

The communications from the workers’ organizations also referred to the issue of military sexual slavery as it continues to be taken up by the United Nations bodies, in particular, in the form of recommendations of the Committee on the Elimination of Discrimination Against Women (CEDAW), which examined the issue of “comfort women” at its forty-fourth session (20 July to 7 August 2009). This issue was also referred to in the report of the Special Rapporteur on violence against women, its causes and consequences, submitted to the United Nations Human Rights Council on 23 April 2010 (A/HRC/14/22).

Some of the above communications also referred to resolutions adopted by the local councils of Japan. Since March 2008 and up to August 2010, 30 local councils adopted resolutions urging the Government to solve the Japanese military sexual slavery issue, to restore dignity and justice to the victims, to provide them with compensation, and to further educate the public.

The Committee notes the Government’s indication in its report received on 13 September 2010 that, during the period from 1 June 2008 to 31 May 2010, the courts “pronounced” on two cases regarding the “comfort women” issue (one decision by the Supreme Court and one judgment at the high court level) and on 16 cases regarding “conscripted forced labourers” (six decisions by the Supreme Court, nine judgments at the high court level and one judgment at the district court level), in which the plaintiffs claimed state compensation for damages. The Government states that, in all these cases, the plaintiffs’ claims for compensation against the Government of Japan have been dismissed, in accordance with the relevant international agreements and joint communiqués on the settlement of problems. The Government also indicates that, as of 31 May 2010, there were no cases pending in the Japanese courts concerning the “comfort women” issue and only five cases still pending in courts concerning “conscripted forced labourers”.

The Committee takes due note of the Government’s statement in the report that the Government of Japan has sincerely and faithfully dealt with the issues of reparations, property and claims relating to the Second World War, including those related to the issue of “comfort women”, in accordance with its obligations under the San Francisco Peace Treaty, bilateral peace treaties and other relevant treaties and agreements. Concerning, more particularly, the issue of “comfort women”, the Government reiterates that it remains committed to the position expressed in the August 1993 statement of the then Chief Cabinet Secretary, Yohei Kono, where he expressed sincere apologies and remorse to the former “comfort women”, while recognizing that this issue was, with the involvement of the military authorities of the day, a grave affront to the honour and dignity of a large number of women. This statement embodies the Government of Japan’s official position on this matter which remains unchanged. The Government also states that the Government of Japan has since expressed its sincere apologies and remorse on many occasions. In addition, when the activities of the Asian Women’s Fund (AWF) were implemented, the Prime Minister, on behalf of the Government of Japan, sent a letter expressing apologies and remorse directly to each former “comfort woman”.

The Committee previously noted from the Government’s earlier statements in its reports that, with regard to non-legal measures to respond to the claims of surviving victims of wartime industrial forced labour and military sexual slavery and to meet their expectations, the Government has placed emphasis on the AWF and its related activities, an initiative launched in 1995 and continued until the Fund was dissolved in March 2007, after it had completed its objectives. As the Committee has considered in its 2001 and 2003 observations, the rejection by the majority of former “comfort women” of monies from the AWF because it was not seen as compensation from the Government, and the rejection, by some, of the letter sent by the Prime Minister to the few who accepted monies from the Fund as not accepting government responsibility, suggested that this measure had not met the expectations of the majority of the victims. The Committee therefore expressed the hope that the Government would make efforts, in consultation with the surviving victims and the organizations which represent them, to find an alternative way to compensate the victims in a manner that would meet their expectations.

The Committee notes the Government’s statement in its report that it will continue to implement follow-up activities of the AWF. The Government indicates that, as part of such follow-up, the Government of Japan has entrusted the people who were involved in the AWF to implement visiting care activity and group counselling activity (Republic of Korea and the Philippines), as well as exchange of opinions with government officials and academia (Indonesia and the Philippines). The Committee also notes the Government’s statement in its communication received on 19 November 2010, that the Government of Japan is arranging an occasion for a government member in a responsible position to meeting with former “comfort women” to directly convey the views of the Government of Japan and to listen carefully to their current living circumstances, past experiences and their personal sentiments.

Given the serious long-standing nature of the case and noting the abovementioned government indications, the Committee reiterates its hope that, in making these further efforts to seek reconciliation with the victims, the Government will take measures, in the immediate future, to respond to the claims being made by the aged surviving victims of wartime industrial forced labour and military sexual slavery, the number of whom has continued to decline with the passing years. Please provide information, in particular, on the implementation of the follow-up activities of the AWF referred to above and on any other measures, taken or envisaged, including any follow-up to the information received on 19 November 2010.

II. Articles 1(1) and 2(1) of the Convention. Industrial Training and Technical Internship Programme. The Committee notes the communications received from the Labour Union of Migrant Workers dated 26 May and 10 August 2010, which contain information concerning the implementation of the Industrial Training and Technical Internship Programme (“Foreign Trainee” Programme), as well as the Government’s response to these communications dated 15 October 2010.

The Committee notes that the abovementioned programme was established in order to develop the human and industrial resources of developing countries, with the aim of securing the transfer of industrial technology, skills and knowledge. Under this programme, foreign nationals can enter Japan as “trainees” for one year and become “technical interns” for another two years; they are required to go back to their country thereafter. The programme has been monitored by the Japan International Training Cooperation Organization (JITCO), under the supervision of the government organizations concerned, including the Immigration Bureau and labour standards inspection bodies.

Before the revision of the programme in July 2010, foreign trainees were not covered by the labour law and were not considered as workers, but more as students; therefore, they did not receive any wages, but an allowance. According to the allegations contained in the above communications from the Labour Union of Migrant Workers, trainees were extremely vulnerable to employers’ abuses: they were often used as cheap labourers, in violation of the minimum wage law, and were obliged to do unpaid overtime; employers used to confiscate trainees’ and interns’ passports and forced them to put their wages and allowances into saving accounts, partly to prevent them from running away. The Union further alleged that there were also restrictions on the freedom of movement of the trainees, such as a prohibition of mobile phone possession, prohibition of going out, staying out, etc.

The Union has referred in this connection to the concluding observations concerning Japan of the United Nations Human Rights Committee (CCPR/C/JPN/CO/5, 18 December 2008), and the CEDAW (CEDAW/C/JPN/CO/6, 7 August 2009), in which both committees expressed concern about the vulnerable situation of foreign industrial trainees and technical interns, who are often exploited by their employers due to the lack of protection. It has also referred to the report submitted by the Special Rapporteur on trafficking in persons, especially women and children (A/HRC/14/32/Add.4), annexed to the communication dated 10 August 2010, in which the Special Rapporteur recommended, inter alia, that the Government should take full responsibility for the Training and Technical Internship Programme and its monitoring, by creating an independent body with no connection to the participating companies, which should closely supervise such companies and ensure the full respect of the rights of trainees; that a law to better regulate the programme should be adopted; and a hotline and an office to report abuses under this programme should be established.

The Committee further notes that, in its communication dated 10 August 2010, the Union refers in detail to the revised Training and Technical Internship Programme, which was put into effect in July 2010. The revision was based on the amendments made on 15 July 2009 to the Immigration Control and Refugee Recognition Act, which extended the applicability of labour laws to foreign trainees and therefore entitled them to be paid the minimum wage and to have the same labour rights as other Japanese workers. Among other features of the revised programme are the following: reinforcement of guidance, supervision and support system by the accepting organizations, as well as enhanced transparency of management; increased penalties for the organizations violating laws and guidelines, creation of disqualification provisions suspending the right of such organizations to accept trainees (for example, in case of violation of immigration laws or in cases of misconduct, such as, for example, confiscation of passports, non-payment of wages, violation of human rights); prohibition to collect “guarantee money” from trainees, etc.

However, the Union states that it may be premature to assess how effective the above remedies would be, since the accepting organizations still have absolute control over the status of trainees, who are afraid of deportation and have no other option but to accept whatever is available. It also refers to the statistical information published by the JITCO concerning the death of the foreign trainees and technical interns as a result of work-related accidents and diseases in 2009.

In its response to the above communications, the Government states that forced labour is prohibited within the structure of the Training and Technical Internship Programme, that the organizations concerned (including JITCO, the Immigration Bureau and labour standards inspection bodies) have been monitoring the programme in order to prevent any improper cases, and that no cases that might fall under the category of forced labour have been recognized in the course of the operation of the programme. As regards the application of section 5 of the Labour Standards Law, which prohibits the use of forced labour by employers by means of physical violence, intimidation, confinement or any other unfair restraint on the mental or physical freedom of workers, the Government states that there have been no cases of violation of this provision since 1993 (the earliest year to which the labour standards inspection bodies can trace violation data).

The Government indicates, however, that there have been reports on cases in which certain accepting organizations have treated trainees as low-wage labourers, and therefore efforts have been made to identify any misconduct on the part of such organizations and to stop them from receiving trainees. In accordance with the established procedure, when a labour standards inspection office receives allegations from a worker concerning violations of labour laws, such as the non‑payment of wages or compulsory savings, the office investigates the facts and, if violations have been proved, it provides guidance to the employers for correcting them and then confirms that corrections have been made by the employers. If the case is considered malicious, a labour standards inspector sends papers to a prosecutor for a violation of the labour law. The Government indicates that, in some cases of this kind, employers have been found guilty and convicted in courts; it refers in this connection to a case described in the Union’s communication dated 26 May 2010, in which the employer was convicted in court and his right to accept trainees was suspended.

The Government further states that, in case of any abuse of human rights, such as violence against trainees or taking custody of their passports, the Immigration Bureau conducts the necessary investigation and, after having recognized a misconduct of relevant organizations or companies, takes measures to suspend their acceptance of trainees and technical interns. As regards information concerning the death of the foreign trainees and technical interns as a result of work-related accidents and diseases, the Government indicates that the labour standards inspection offices have been taking appropriate action, such as conducting investigations into industrial accidents and occupational diseases and providing administrative guidance, as well as sending papers to prosecutors.

As regards the revision of the Training and Technical Internship Programme, which entered into force in July 2010, the Government states that it has strengthened the protection of trainees and technical interns, who have been given a status of residence of “Technical Intern Training” for a maximum period of three years and shall be protected under labour laws and regulations, such as the Labour Standards Law and the Minimum Wage Law, while engaging in skill-building activities under their employment contract. In addition, collection of guarantee money and penalty charges by dispatching organizations and accepting organizations and companies shall be prohibited, and the suspension period during which organizations found guilty of human rights abuses are not allowed to accept technical interns is extended from three years to five years. The Government states that it has also strengthened the system of supervision against violations, through substantial investigations conducted by the Immigration Bureau and administrative guidance provided by the labour standards inspection offices, but also through strengthening on-site guidance by the JITCO and improving a telephone counselling hotline in the native languages of trainees.

The Committee notes this information and requests the Government to continue to provide information on the application in practice of the various measures taken in the course of the revision of the Training and Technical Internship Programme referred to above with a view to strengthening the protection of foreign technical interns. The Government is also requested to provide information on the measures that it continues to take to identify the abuses, through appropriate inspections and monitoring, supplying statistics on the numbers of cases of prosecutions and convictions, and indicating the penalties imposed on perpetrators.

III. Articles 1(1), 2(1) and 25. Trafficking in persons. Referring to its earlier comments, the Committee notes with interest the comprehensive information regarding measures taken by the Government in its ongoing efforts to combat trafficking in persons provided in its report received on 30 September 2010. The Committee also notes the 2009 Action Plan to combat trafficking in persons communicated by the Government on 6 October 2010, which is aimed at eliminating the crime of trafficking in persons. The 2009 Action Plan, like the previous 2004 Action Plan, aims to prevent trafficking by achieving close cooperation among all government ministries and agencies concerned and enhancing cooperation with international organizations and NGOs. The Government indicates that the 2009 Action Plan intends to raise the awareness of the general public to understand the definition of trafficking in persons, the fact that victims of trafficking include but are not limited to non-Japanese women and children, and that the crime should be tackled by the society as a whole. The Committee also notes the comments received from the Japanese Trade Union Confederation (JTUC–RENGO) concerning anti-trafficking measures, communicated by the Government with its report, in which JTUC–RENGO calls, inter alia, for the implementation of a multifaceted support system in accordance with the 2008 recommendations of the United Nations Human Rights Committee, encompassing a broad range of measures, including procedures aimed at ensuring the protection of victims’ human rights, as well as assistance in repatriation and resettlement in their home countries.

The Committee notes the information supplied by the Government concerning various measures taken in the areas of prevention and awareness raising, protection of victims, law enforcement, prosecution of offenders, and cooperation with foreign governments and international organizations. It notes, in particular, the following information:

–           information about the work of the Inter-Ministerial Liaison Committee (Task Force) in reviewing the implementation of the National Action Plan and elaborating of the draft 2009 Action Plan, which was adopted at the ministerial meeting on 22 December 2009;

–           information on preventive measures, such as the reinforcement of immigration control measures and measures to raise public awareness of trafficking in persons;

–      information on measures relating to the protection of victims of trafficking, including the functioning of the Women’s Consulting Offices (which is a network of multi-service public shelters providing various forms of assistance to the victims), improvement in the status of residence of the victims and assistance for the victims’ repatriation;

–           statistical information concerning the numbers of trafficking prosecutions; and

–           information on international cooperation with the Governments of the countries concerned, on cooperation between the Japanese National Police Agency and law enforcement agencies of other countries in the investigation and prosecution of traffickers, and on the contribution of the Japanese Government to the efforts made by the international organizations to prevent, suppress and punish human trafficking and to protect the victims.

The Committee hopes that the Government will continue to provide, in its future reports, information concerning the implementation of various measures provided for in the 2009 Action Plan to prevent, suppress and combat trafficking in persons, including, in particular, information on the application of criminal sanctions to the perpetrators and supplying available statistics.