하단의 논문은 서울대학교 아시아태평양법연구소 아시아태평양법 국제교류기금의 학술연구비 지원을 받은 학술논문입니다.
Masaki Iwasaki , "인권 옹호자로서의 내부 고발자: 일본의 내부고발자 보호법"（ " Whistleblowers as Defenders of Human Rights: The Whistleblower Protection Act in Japan" ）, Business and Human Rights Journal , Vol. 8 (2022), pp.103-109.
In October 2020, the Government of Japan formulated a National Action Plan (NAP) on Business and Human Rights in response to the United Nations Guiding Principles on Business and Human Rights (UNGPs) and ensuing greater international awareness of violations of human rights by corporations.1 In the NAP, the government of Japan stated that on the basis of the UNGPs, it expects companies to (i) formulate human rights policies, (ii) conduct due diligence with respect to human rights, and (iii) establish grievance mechanisms.2 In order to achieve these goals, businesses need to understand whether and how they are violating human rights and prepare appropriate solutions. Whistleblowers play a crucial role in this process.
In order for companies to formulate appropriate human rights policies and conduct human rights due diligence, it is necessary for them to accurately identify whether human rights are being violated as a result of their business activities. Companies may conduct topdown internal investigations or audits for this purpose. However, investigators do not always have enough information to discover abuses, and organizational concealment of violations at the departmental level may cause investigators to miss relevant facts. Therefore, a bottom-up approach to human rights due diligence is essential as a supplement to the work of investigators; i.e., an approach in which the facts of human rights violations are detected as a result of whistleblowing by such third parties as the victims of human rights abuses or people who have witnessed the abuses.
The problem is that whistleblowing almost always results in retaliation against the whistleblower by the wrongdoer. If the whistleblower is an employee of a company, the retaliation may take the form of reduced pay, suspension of promotion, or termination.3 Laws have been enacted at the global, regional and national levels to protect whistleblowers from retaliation. Examples at the global level include the International Labor Organization’s Termination of Employment Convention, 1982 (No. 158); and at the regional level, the European Union’s Directive on Whistleblowing 2019/1937 (EU Directive on Whistleblowing). In addition, over the past thirty years many countries have enacted laws to protect whistleblowers from retaliation. In the United States, several federal and state laws provide such protection. In the United Kingdom, the Public Interest Disclosure Act of 1998 does so.
UNGP 29 and UNGP 31 state that companies should establish an effective grievance mechanism for victims and concerned parties. To be viable, such a mechanism requires a broader system of remedy that includes a company’s internal reporting or whistleblowing system. According to UNGP 31, the effectiveness of a grievance mechanism depends on whether it is fairly administered, accessible to all concerned parties, transparent, equitable, and predictable in its procedures. It should also provide for dialogue with stakeholders. However, without adequate protection for whistleblowers, it is difficult to establish an effective mechanism. Laws to protect whistleblowers must therefore be carefully designed to give companies incentives to establish an appropriate internal reporting system that does protect whistleblowers. Using Japan’s Whistleblower Protection Act as a foil, this paper considers the optimal design of a whistleblower protection law that would be effective in addressing human rights abuses. The Japanese law was originally enacted in April 2006, but it was deeply flawed. In June 2022, the government enacted a revised version of the Act. It still has significant deficiencies.
Although victims of corporate abuses sometimes blow the whistle, whistleblowing by third parties who are not the victims of corporate wrongdoing is becoming increasingly common in Japan.4 Using the law to protect whistleblowers from retaliation is the key to preventing abuses of human rights associated with business activities, but the law must be robust enough to do so.
Corporate grievance mechanism, Guiding Principles, Human rights defender, National Action Plan, Whistleblower