HRN has released a statement calling on the government of Japan to take measures to protect migrants from the effects of COVID-19. This includes their rights to health and access to relevant information, e.g., by expanding free/low cost medical care; the rights to work and social security to ensure their livelihoods, e.g., by protecting foreigners’ residential status and access to public assistance; the right to education for foreign students, e.g., through multi-language textbooks and better access to emergency support aid; and ending discrimination, e.g., by punishing hate speech and preventing xenophobic speech in media coverage. Recommendations are also made for businesses.
The full statement is written below, and you can get a pdf version of it by the following link: HRN Statement on Covid19 and Migrant Workers.pdf
HRN Statement Concerning the Effects of
COVID-19 on Migrant Workers in Japan
Introduction
The global COVID-19 pandemic has been seriously affecting not only people’s health, but also the basis of people’s lives such as employment and education. As stated in the Sustainable Development Goals (“SDGs”), the Japanese government and companies must not leave anyone behind while countering the pandemic.[1] In this vein, according to the Office of High Commissioner for Human Rights (“OHCHR”) in its guidelines concerning COVID-19 and the human rights of migrants, “The current public health crisis caused by COVID-19 disproportionately affects people and communities who are already in vulnerable and marginalized situations,” and migrants are counted as one such community.[2]
The world’s migrant population in 2019 was 272 million, which amounts to 3.5% of the world’s population.[3] Among the approximately 1.6 million migrant workers in Japan, 25.2% are nationals of China, followed by Vietnam (24.2%), and the Philippines (10.8%).[4] People choose to migrate to Japan because they have social connections to Japan through repeated migration over many decades.[5] In addition, some of them make decisions based on national policies such as the Economic Partnership Agreement (“EPA”), migratory business by brokers and multinational enterprises, and the pressing need to financially support their families.[6]
According to relevant human rights conventions, the government must ensure the fundamental rights of every individual residing in its territory regardless of nationality.[7] Furthermore, businesses also have the duty to respect the human rights of individuals within their enterprise and within their supply chains, as required under the United Nations Guiding Principles on Business and Human Rights.[8]
Given these facts, Human Rights Now (HRN) strongly urges the Japanese government and businesses to take effective measures to prevent and address the disproportional and negative effects caused by COVID19 against migrants, including technical interns.
In the text that follows, we submit policy recommendations for four different issues.[9]
- The Right to Health and Access to Relevant Information
According to article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), every individual shall enjoy the right to highest attainable standard of health.[10] To ensure this right, state parties are required to provide all individuals equal access to medical facilities and services,[11] even under the COVID-19 crisis.[12] Migrants’ enjoyment of the right to health is often hindered due to language, culture, cost, lack of information, and discriminatory attitudes.[13] Therefore, the “special needs” of migrants must be prioritized during responses.[14]
Indeed the government has taken measures such as providing multilingual information through its website.[15] However, a survey shows that 30% of migrant workers have failed to attain sufficient information for their support.[16] Moreover, there are reported cases that migrant workers have lacked access to medical facilities. Some migrant workers have reported fever to their employers only to see them reluctant to take any measures.[17] Also, some cannot visit hospitals due to financial difficulties.[18]
Given the above, HRN urges the Japanese government to take the following measures concerning the right to health.
- Implement effective measures to spread necessary information to migrant workers by engaging with regional governments.
- Implement measures to enlarge the free/low cost medical care system under the Social Welfare Law for people in need.[19]
| Recommendations for Businesses
Businesses also have the responsibility to ensure the right to health for the employees within their enterprise and supply chains. It is especially important to provide care to each individual employee to supplement the government’s efforts. As ordered by the Ministry of justice and Ministry of Health, Labor and Social Welfare, businesses which employ technical interns must monitor their health through consultations and medical checkups.[20] Businesses must understand their employees’ health situation and take measures to facilitate their visits to medical facilities when necessary. |
2. Ensuring Lives of Migrants: Right to Work and Social Security
a. Right to Work
Under articles 6 and 7 of the ICESCR, state parties must ensure the right to work of foreign nationals and ensure just and favorable labor standards equal to or better than its nationals.[21] According to the Committee on Economic, Social and Cultural Rights, migrant workers frequently endure exploitation, long working hours, and unfair wages, and the unfavorable position of migrant workers becomes even more vulnerable when their visas depend on their work and its connection to a specific business office.[22] In this respect, the International Labour Organization (ILO) has also stated that for equal job security, the visas of foreign nationals should not be deprived just because they have failed to find employment.[23]
First of all, international human rights organizations and foreign governments have for years criticized Japan for harsh labor conditions against migrant workers (especially technical interns).[24] Given the lockdown in many cities around the world, the Japanese government has decided to take exceptional measures such as visa renewals allowing six months of labor and unconditional permission for activities permitted other than that of residential status.[25] However, since the only work that is permitted is that which is identical to their previous work, migrants working in industries with low labor demand have the high possibility of seeing a decrease in their wages or the termination of their employment.[26] Furthermore, if migrants cannot find work within three months of becoming unemployed, the Minister of Justice has the discretion to withdraw their visa even before its expiration.[27] These circumstances cumulatively push migrant workers to the edge.
b. Right to social security
According to the UN Human Rights Council (HRC), workers cannot be forced to work if it causes a risk of infection.[28] Hence, the importance of the right to social security under article 9 of the ICESCR is increasing.[29] In this respect, organizations within the HRC and the ILO concerned with migration are demanding that states provide job security to migrant workers even during a pandemic irrespective of their residence status.[30] In fact, Portugal has taken extraordinary measures to provide permanent residence to all residing foreign nationals to secure a basic living for them.[31] Countries such as Brazil, Chile, New Zealand and some parts of the United States have provided financial support especially for migrants.[32]
Considering that many migrant workers in Japan work in manufacturing, retail and restaurants,[33] unemployment or a high risk of infection is highly probable.[34] Therefore, sufficient living support must be provided so that migrant workers can live safely at home. However, the handling of residential status when deciding financial support varies by local government, which many times causes confusion.[35] It is not an exaggeration to say that the right to life of migrant workers is not protected.
c. The livelihood security of undocumented migrants and people temporarily released
Many migrants have become undocumented in Japan for various reasons, e.g., migrants with visas that do not permit the holders to alter their employer or quit due to harsh labor conditions, migrants experiencing withdrawal of their residential status after three months of unemployment, and migrants residing for asylum claims.[36] In this respect, the basic human rights of undocumented migrants must be ensured without any discrimination on the basis of race, sex, religion and nationality.[37] Undocumented migrants are not only unable to access relevant public medical and social services, but they tend to refuse such services in fear of detection of their irregular status.[38] In fact, many statements published by the HRC often mention undocumented workers as especially vulnerable communities in society.[39]
Although migrant workers become predictably undocumented to protect their own right to a livelihood, they cannot receive financial aid due to a lack of documentation.[40] Furthermore, undocumented migrant detainees provisionally released due to coronavirus suffer immensely from employment and travel restrictions.[41] Thus, for the protection of their fundamental human rights, especially the right to a livelihood, sanctions against undocumented migrants must be suspended, and they must be made to legally reside in the country in order to receive necessary aid.[42]
Given the above points in parts (a), (b), and (c), HRN urges the Japanese government to take the following measures concerning the right to work and to social security.
- At least as an extraordinary measure, suspend article 22-4-6 of the Immigration Control Act in order to not deprive foreigners of residential status based on unemployment.
- At least as an extraordinary measure, grant permanent residence to all foreign nationals (including undocumented migrants) in order to ensure at least a minimum living standard through public assistance.
| Recommendations for Businesses
Businesses must not only comply with national labor laws but protect basic human rights under international human rights law regardless of people’s residential status. Data from many countries show that migrant workers are forced to have their labor contracts terminated or their pay cut compared to national workers,[43] and such cases are reported in Japan often.[44] Businesses must positively provide necessary information from the government to employees within their enterprise and supply chains and fully use government subsidies such as employment control aid in order to prevent the contracts of migrant workers from being terminated. In addition, there are many cases where no allowance is paid for time taken off in violation of article 26 of Labor Standards Act.[45] |
- Right to Education
a. Foreign students in pre-secondary education
Under article 13 of ICESCR and article 28 of the Convention on the Rights of the Child, all individuals have the right to education regardless of nationality, religion or sex.[46] Although pre-secondary education is not compulsory for foreign students,[47] the Japanese government must make efforts to ensure that foreign students have the same standard of education as nationals.[48] For example, Peru provides educational programs through more than 300 radio stations in 9 native languages other than Spanish for children having difficulties to commute due to COVID-19.
In Japan, however, educational facilities implement online education due to the closedown of schools during the pandemic.[49] When introducing online education, however, states must provide the essential equipment (internet service, PCs, Tablets, etc.) to those in need in order not to cause educational inequality.[50]
b. Foreign Students above Secondary Education
As part of ensuring the right to education, access to opportunity for education must be given in a non-discriminatory manner.[51] In this respect, the Japanese government decided in a May 19th governmental meeting to provide financial aid to students, including foreign students who need support.[52] However, foreign students are required to satisfy extra strict requirements not required for national students, such as academic achievement and attendance. It is said that only 20 to 30% of foreign students satisfy these requirements.[53] Even in situations of income shortages, many of those who need financial support for tuition fees and living expenses cannot receive the aid.
Given the above points in parts (a) and (b), HRN urges the Japanese government to take the following measures concerning the right to education.
- Implement measures to provide English and multilingual textbooks to foreign nationals, especially in the most spoken native languages such as Portuguese, Chinese and Filipino.[54]
- Rescind the extra requirements for foreign students for student emergency support aid.
| Recommendation for Businesses
Although some businesses and NGOs have started free online education services in accordance with the government’s demands to closedown schools, most of the textbooks are in Japanese.[55] Sufficient support to non-native Japanese speakers is crucial for the effectiveness of these otherwise favorable efforts. |
- Xenophobic Media Coverage against Foreigners
Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination prohibits the justification and facilitation of racial discrimination, and state parties must take positive measures to eliminate such discrimination.[56] The UN Secretary General has raised concerns about the spread of hatred and xenophobic attitudes towards foreigners of specific nationalities due to COVID-19. For instance, racial discrimination has occurred against Chinese people in the United States and Europe and against African people in China.[57] Such discriminatory speech can also be found in Japan as seen from the “Japanese only” signs at restaurant entrances and from the opinions of people who want to exclude foreigners from government aid.[58] Moreover, some Japanese universities have started joint research projects based on the hypothesis that the infection rates of COVID-19 are influenced by racial or genetic factors.[59] Such research might possibly justify and promote xenophobic attitudes if not reported with care.
Given the above, HRN urges the Japanese government to take measures addressing xenophobic media coverage against foreigners, including:
- To enact a comprehensive racial discrimination and hate speech restriction act accompanied by necessary sanctions.
- To prevent the justification and promotion of xenophobic speech and attitudes against foreigners caused by media coverage and research on COVID-19.
| Recommendation for Businesses
Due to the fears of a new virus, people are very sensitive towards any information concerning COVID-19. Hence media companies and Internet providers must take necessary measures to prevent the promotion of xenophobic speech and attitudes against foreigners. |
Conclusion
As discussed above, the measures taken by the Japanese government for migrant workers given the COVID-19 crisis do not meet the standards required under international human rights law, and they violate Japan’s obligation to ensure human rights regardless of nationality. The government must recognize the vulnerability and severe conditions that migrants face and take necessary measures immediately to guarantee their right to the security of their livelihood and other fundamental rights. Moreover, businesses must understand the human rights situation of migrant workers within their company and within their supply chains, and they must handle the situation in accordance with international human rights standards.
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[1] Committee on Economic, Social and Cultural Rights (hereinafter “Committee on ESCR”), Statement on the Coronavirus Disease (COVID-19): Pandemic and Economic, Social and Cultural Rights (hereinafter “Statement on COVID-19”), U.N. Doc. E/C. 12/2020/1, 17 Apr. 2020, para. 2.
[2] Office of the United Nations High Commissioner for Human Rights (OHCHR), COVID-19 and the Human Rights of Migrants: Guidance, 7 Apr. 2020, at 1.
[3] International Organization for Migration, World Migration Report 2020 (2019), at 19.
[4] Ministry of Health, Labor and Welfare, Summary of “Foreign National Employment Situation” (October 2018), https://www.mhlw.go.jp/stf/newpage_03337.html (There are approximately 80 thousand undocumented migrant workers in Japan); Ippei Torii, Nation and Migrants: Migrant Workers and the Future of Japan (2020), at 20.
[5] Kikuko Nagayoshi, Migrants and Japanese Society: Current and Future Situation Demonstrated by Data, 13-19 (2020).
[6] Ibid.
[7] See, e.g., International Covenant on Civil and Political Rights (hereinafter “ICCPR”), art. 2(1), 999 U.N.T.S. 171, 179, 16 Dec. 1966; International Covenant on Economic, Social, and Cultural Rights (hereinafter “ICESCR”), art. 2(2), 963 U.N.T.S. 3, 7, 16 Dec. 1966.
[8] OHCHR, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, at 25, U.N. Doc. HR/PUB/11/04, 16 June 2011.
[9] For the issuant of this statement, HRN thanks Mr. Makoto Iwahashi from POSSE (NGO) for his special advice based on their on-the-ground actions concerning this matter.
[10] ICESCR, supra note 7, art. 12(1).
[11] Committee on ESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.12/2000/4, 11 Aug. 2000, para. 43(a) ; Cf. International Labor Organization, ILO Standards and COVID-19 (corona virus): Key Provisions of International Labor Standards Relevant to the Evolving COVID-19 Outbreak, 29 May 2020, at 35.
[12] Committee on ESCR Statement on COVID-19, supra note 1, para. 17.
[13] OHCHR, “COVID-19 and the Human Rights of Migrants: Guidance”, 7 Apr. 2020, at 2.
[14] Committee on ESCR Statement on COVID-19, supra note 1, para. 14.
[15] Ministry of Justice, A Daily Life Support Portal for Foreign Nationals (English), http://www.moj.go.jp/EN/nyuukokukanri/kouhou/m_nyuukokukanri10_00001.html.
[16] Ayami Taka & Hideaki Sato, No Work, No Pay, No Information for Support, The Suffering of Migrant Workers (hereinafter “The Suffering of Migrant Workers”), Asahi Shinbun Digital, 19 May2020, https://digital.asahi.com/articles/ASN5K6T20N5GOIPE01H.html.
[17] I am not just part of Labor Force, Surprised with the Worries that Foreign Nationals Face, Asahi Shinbun Digital, 23 May 2020, https://digital.asahi.com/articles/ASN5P3H76N5MUHBI00Z.html.
[18] Fever during Temporary Release, What Service can be used, Asahi Shinbun Digital, 6 June2020, https://digital.asahi.com/articles/ASN625RWGN51UTIL00C.html.
[19] COVID-19, Restart check-ups for Foreigners, Maehashi/Gunma, Mainichi Shinbun, 31 Aug. 2020, https://mainichi.jp/articles/20200831/ddl/k10/040/049000c.
[20] Ministry of Justice & Ministry of Health, Labor and Social Welfare, Notice No. 1: Basic Instructions for Adequate Implementation of Technical Intern and their Protection, at 6; Ministry of Justice and Ministry of Health, Labor and Social Welfare, Order for Standards of Specific Technical Intern, art. 1 (2)-1.
[21] ICESCR, supra note 7, art. 6 & 7.
[22] Committee on ESCR, General Comment No. 23 on the Right on Just and Favorable Condition of Work (Article 7 of the International Covenant on the Economic, Social and Cultural Rights, U.N. Doc. E/C. 12/GC/23, 27 Apr. 2016, para. 47(e).
[23] International Labour Organization, ILO Standards and COVID-19 (coronavirus) FAQ Key Provisions for International Labour Standards Relevant to Evolving COVID-19 Outbreak (hereinafter “ILO Standards and COVID-19 FAQ”), 29 May 2020, at 36.
[24] See, e.g., Human Rights Committee, Concluding Observation on the Sixth Periodic Review of Japan, para. 16, U.N. Doc. CCPR/C/JPN/CO/6, 20 Aug. 2014; U.S. Department of State, Trafficking in Person Report, June 2020, at 282-286.
[25] Ministry of Justice, Visa Applications of Technical Interns given the Spread of COVID-19, http://www.moj.go.jp/nyuukokukanri/kouhou/nyuukokukanri07_00026.html.
[26] Many migrant workers have visited lawyers to consult about labor cuts. Interview with Mr. Iwahashi.
[27] Immigration Control and Refugee Recognition Act, art. 22-4(5), 4 Dec. 2019, https://elaws.e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/detail?lawId=326CO0000000319 #517.
[28] Committee on ESCR Statement on COVID-19, supra note 1.
[29] ICESCR, supra note 7, art. 9.
[30] Committee on ESCR, General Comment No. 19: The Right to Social Security (article 9), U.N. Doc. E/C.12/GC/19 8 Feb. 2008, para. 37 & 59(a); UN Committee on Migrant Workers & UN Special Rapporteur on the Human Rights of Migrants, Joint Guidance Note on the Impacts of the COVID-19 Pandemic on the Human Rights of Migrants, 26 May 2020, at 2 (hereinafter “Joint Guidance Note”); ILO Standards and COVID-19 FAQ, supra note 23, at 36.
[31] International Labour Organization, ILO Brief: Protecting Migrant Workers during the COVID-19 Pandemic Recommendations for Policy-makers and Constituents, Apr. 2020, at 3.
[32] Id.
[33] Ministry of Health, Labor and Welfare, Summary of “Foreign National Employment Situation”, Oct. 2018, https://www.mhlw.go.jp/stf/newpage_03337.html, 15 Jan 2019; Interview with Mr. Makoto Iwahashi.
[34] Interview with Mr. Makoto Iwahashi; Cf. Committee on ESCR Statement on COVID-19, supra note 1, para. 5.
[35] The Suffering of Migrant Workers, supra note 16.
[36] Cf. Interview with Mr. Makoto Iwahashi.
[37] Nationality is included as a prohibited basis of discrimination although not explicitly prescribed, ICCPR, supra note 7, art. 2(1); ICESCR, supra note 7, art. 2(1) & 2(2); Committee on ESCR, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (article 2(2) of the International Covenant on Economic, Social and Cultural Rights), U.N. Doc. E/C.12/GC/20, 2 July2009, para. 30, (the non-discrimination principle is a universal principle prescribed by global and regional human rights treaties.) OHCHR, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation, 26 & 36, U.N. Doc. HR/PUB/14/1, Oct. 2014.
[38] Joint Guidance Note, supra note 30, at 1
[39] See, e.g., id.
[40] See, e.g., Ministry of Internal Affairs and Communication, Special fix price aid, 1 May 2020, https://www.soumu.go.jp/menu_seisaku/gyoumukanri_sonota/covid-19/kyufukin.html.
[41] Fever during Temporary Release, What Service can be used, Asahi Shinbun Digital, 6 June 6 2020, https://digital.asahi.com/articles/ASN625RWGN51UTIL00C.html?iref=pc_ss_date.
[42] Joint Guidance Note, supra note 30, at 3.
[43] Joint Guidance Note, supra note 30, at 2.
[44] Interview with Mr. Makoto Iwahashi.
[45] Id.
[46] ICESCR, supra note 7, art. 13; Convention on the Rights of Child, art. 28, 1577 U. N.T.S. 3, 12, 2 Sept. 1990; Committee on ESCR, General Comment No. 13: The Rights to Education (article 13 of the International Covenant on Economic, Social and Cultural Rights), U.N. Docs. E/C.12/1990/10, 8 Dec. 1990, para. 6(b).
[47] Ministry of Education, Culture, Sports, Science and Technology, Acceptance of Foreign Residence Students to Public Compulsory Education Schools, https://www.mext.go.jp/b_menu/shingi/chousa/shotou/042/houkoku/08070301/009/005.htm.
[48] Cf. United Nations Children Fund (UNICEF) & National University of Lanus Argentina, Economic, Social and Cultural Rights of Migrant Children and Children Born to Migrant Parents: Challenges, Good Practices, and Recommendations, March, 2010, at 17.
[49] Foreign Students during closedown of schools, Education Shinbun Digital, 27 Apr. 2020, https://www.kyobun.co.jp/news/20200427_01/.
[50] Committee on ESCR Statement on COVID-19, supra note 1, para. 7.
[51] Committee on ESCR, General Comment No. 13, supra note 46, para. 19.
[52] Ministry of Education, Culture, Sports, Science and Technology, Emergency Student Support Handout for Continuing Studies, (May 19, 2020), https://www.mext.go.jp/a_menu/koutou/hutankeigen/mext_00707.html.
[53] Only Foreign Students at Top of the Class to Get Handouts in Japan, The Japan Times, https://www.japantimes.co.jp/news/2020/05/22/national/students-eligible-handouts/; Higher Education Only Top Foreign Students in Japan to Receive Corona Virus Aid, Times, https://www.timeshighereducation.com/news/only-top-foreign-students-japan-receive-coronavirus-aid.
[54] Ministry of Education, Culture, Sports, Science and Technology, The Situation of Acceptance concerning Foreign Students who need Japanese Language Education in 2018, 27 Sept. 2019.
[55] Iki Tanaka, Japanese Language Schools Closing due to COVID-19, Children with Foreign Roots Losing the Opportunity to Study, Urgent Measures Needed, Yahoo! News, 13 March 2020, https://news.yahoo.co.jp/byline/tanakaiki/20200313-00167470/.
[56] International Convention on the Elimination of All Forms of Racial Discrimination, art. 3, 12 March 1969 660, U.N.T.S. 195, at 3.
[57] Shoji Rokuhuji, The Truth Voice of China’s COVID-19 Support Diplomacy Revealed from Racial Discrimination against Africans, 27 Apr 2020, https://www.newsweekjapan.jp/mutsuji/2020/04/post-90.php.
[58] Natsuki Yasuda, Weird Sense of Atmosphere of Justifying “Discrimination” in Japan under COVID-19 Crisis, Ronza (Asahi Shinbun), 29 Apr. 2020, https://webronza.asahi.com/politics/articles/2020042200013.html?page=1.
[59] Goki Hatagawa & Ryutaro Ito, The Mystery of Aggravation of COVID-19, 7 Universities Tackle by Genetic Analysis, Focus on Racial Differences, Asahi Shinbun Digital, 22 May 2020, https://digital.asahi.com/articles/DA3S14484977.html?iref=pc_ss_date.