As in many parts of the world, an anti-investor-State dispute settlement (ISDS) discourse has been propagated also in Japan. In the Japanese Diet (Japan’s parliament), ISDS is criticized as infringing State sovereignty; as being incompatible with the Japanese Constitution; as unduly restricting regulatory space and government procurement; as being biased in favor of the United States; and as being acceptable only in relation to developing States. These criticisms are difficult to sustain and in fact ineffective as investment treaties continue to be approved by the Diet by unanimity or by a large majority. An analysis of the rhetoric of these criticisms and of actual voting records suggest that investor-State arbitration itself is not an independent political issue in Japan, but used as a pretext to manifest an anti-American sentiment or to criticize the incumbent government.
The obligation of the coastal state to have due regard to the rights and duties of other states (Law of the Sea Convention (LOSC) Art 56(2)) did not suddenly appear with the LOSC. It was gradually formed corresponding to the increasing recognition of the rights of the coastal state in adjacent maritime zones. The practice prior to the Third United Nations Conference on the Law of the Sea and the travaux préparatoires of the LOSC indicate that this obligation requires something more than the negative obligation not to interfere with the exercise by the coastal State of its rights and competences, and that the ‘rights and duties’ to which due regard is to be paid are not limited to those explicitly listed in the LOSC, such as the freedoms of navigation, overflight and of laying of submarine cables and pipelines.