State Responsibility for Marine Plastic Pollution in the Pacific Ocean

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Selma Mubarak mubarakselma@gmail.com

1277099

LLM Public International Law Natasa Nedeski

24 June 2019

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International law is failing our oceans. The law on state responsibility has deflected the costs of our negligent plastic consumption to the global commons. The saying out of sight out of mind is certainly true of the international efforts to mitigate marine plastic pollution. The five known oceanic gyres of floating plastic debris illustrate that stark reality. However, these gyres are not without consequence to us – evidence is surmounting a grave reality if our actions to mitigate marine plastic pollution do not start now. The need to create an international treaty on plastics has been recognised. Most states argue for reduction efforts with regards to plastic production and consumption, however some suggest the treaty should focus more on better waste management systems. The need to create an international treaty was initially recognised on the basis that current international law does not provide for substantive obligations on regulating plastic pollution, and specifically land-based sources of plastic pollution which contributes to an estimated 80% of marine pollution the majority of 1 which is plastic. Land-based sources of plastic waste enter the oceans via two main sources: a) from the coast and b) through rivers. Land-based sources of plastic waste flow through intricate current network systems and consequently accumulate in oceanic gyres forming the ‘garbage patches’. Literature addressing marine plastic pollution is often descriptive, whilst literature on international obligations related to land-bases sources of pollution is quite detailed though dismissive of its useful application to the global commons. An assessment of 2 the responsibility of a state for marine plastic pollution in the global commons might provide some useful guidance to the negotiations on the international treaty on plastics, by virtue of evaluating the objective standard of care required by a State to prevent or minimize the risk of marine plastic pollution. 3

1 _{UN General Assembly, ‘Oceans and the Law of the Sea: Report of the Secretary-General’, UN Doc. A/59/62/Add.1 (18}

August 2004), 29, para 97.

2_{D’Amato, Brown Weiss, Gundling, ‘What Obligations Does out Generation Owe to the Next?’ (1990) 84 American Journal}

of International Law 190

3 _{Roda Verheyen,} _{Climate Change Damage and International Law; Prevention Duties and State Responsibility,}

Developments in International Law (Leiden: Brill 2005)

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This thesis will focus on the largest known garbage patch; the North Pacific Subtropical gyre also known as the Great Pacific Garbage Patch. Several states have contributed to the accumulation of plastic pollution in the Great Pacific Garbage Patch (GPGP), but this thesis has chosen to focus on establishing China’s responsibility for plastic pollution in the Pacific. First to be considered in establishing responsibility is the primary rules that have been breached and consequently whether the breach triggers the secondary obligation to make reparation. The customary principle of sic utere tuo ut alienum non laedas applies in the context of land-based marine pollution. The principle imposes an obligation on states to ensure that discharges from land-based sources in their territory do not cause pollution to other State’s marine environments or to areas beyond national jurisdiction. This principle is enshrined in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in Article 194(2) and Article 207. Although, UNCLOS imposes procedural and substantive4 obligations concerning the land-based sources of marine pollution it does not contain specific mechanisms for ensuring compliance and provides merely a general framework. Other 5 global instruments addressing land-based sources of marine pollution do little but provide a framework building on the current UNCLOS obligations.

Subsequently, this thesis will rely on the no harm principle enshrined in UNCLOS obligations as the primary norm whose breach may give rise to responsibility. The first section of this thesis will provide an overview of plastic pollution and more specifically in the Pacific and the damages caused. Section 2 will establish China’s breach of its obligation to ensure discharges from land-based sources in its territory do not pollute areas beyond national jurisdiction. Section 3 will evaluate whether the breach has triggered the obligation to make reparation.

2. Marine Plastic Pollution; The Great Pacific Garbage Patch

4 _{United Nations Convention on the Law of the Sea, Montego Bay, (adopted 10 December 1982, entered into force 16}

November 1994) 1833 UNTS 3 (UNCLOS)

5 _{Yoshifumi Tanaka, ‘Marine Environmental Law, Prevention of Marine Pollution, Regulation of Land-Based Marine}

Pollution’ in David Joseph Attard, Malgosia Fitzmaurice, Norman Martinez and Riyaz Hamza (eds.), The IMLI Manual on International Maritime Law: Volume III: and Maritime Security (OUP 2016)

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International law must regulate global risks such as the Great Pacific Garbage Patch that threaten the maintenance of healthy oceans indispensable for our survival of life on Earth. 6 The ocean accounts for 71% of the plant, and plastic pollution is its biggest threat. The ocean is the Earth’s life support system providing 50 – 70% of our oxygen, it absorbs carbon dioxide and regulates our climate, supporting the most diverse and abundant life on this planet. Yet, the ocean is finite and exhaustible and today marine plastic pollution (MPP) 7 places our Earth’s support system under immense pressure. The 2030 Agenda for Sustainable Development recognised the need to conserve and sustainably use the oceans, seas and marine resources in Goal 14 . States have consistently reaffirmed support for Goal 14. In 8 2017 at the UN Conference to Support the implementation of Goal 14 of the 2030 Agenda, states adopted by consensus a declaration to affirm their strong commitment to the implementation of Goal 14; Our Ocean, Our Future: Call for Action. The resolution makes 9 specific reference to prevent and reduce plastic pollution, promote waste prevention and minimisation through sustainable consumption and production patterns and implement long-term strategies to reduce the use of plastics and microplastics. States are not alone, 10 there are a multiplicity of actors involved in seeking to prevent MPP and protect and preserve the oceans. Acknowledged as one of the major environmental threats today, MPP continues11 to grow exponentially. The majority of the world population lives in coastal areas understandably, as the ocean provides food and a source of income contributing to the livelihoods, culture and general wellbeing of people who embrace it. However, as populations continue to rise the production of waste has increased and transcend efforts to prevent it from causing damage to the environment. Marine plastic pollution is the unfortunate consequence of our love for plastic and throwaway culture.

The Great Pacific Garbage Patch (GPGP), is formed by currents rotating clockwise in a circular motion. This gyre acts as a rotating vortex collecting plastics through the California current, the Kuroshio current, the North Pacific current and the North Equatorial current. The GPGP is an illustration of how plastic is rapidly accumulating in the ocean. The Patch covers

6_{World Commission on Environment and Development,}_{Our Common future, 4 August 1987, UN Doc. A/42/427}

7_UCNLOS

8 _{UN General Assembly,}_{Transforming our world: the 2030 Agenda for Sustainable Development, 21 October}

2015, A/RES/70/1

9_{UN General Assembly,}_{Our Ocean, Our future: call for action, 6 July 2017, A/RES/71/312} 10_{Idib para.13 (g)(h)(i)}

11_{UNEP Clean Seas, Beat Pollution. NGO’s include 5Gyres, Ocean CleanUP}

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approximately 1.6 million square kilometres in the Pacific , in perspective that is twice the size of Texas, three times the size of France. Plastic production and consumption rates illustrate the growing issue of plastic waste and its fate and consequently ours. Global plastic production increased from 2 to 380 million tonnes from 1950 to 2015 and by 2025 it is estimated to double and subsequently quadruple by 2050 . A cumulative total of 8.3 billion metric tonnes (MT) of plastic has been produced as of 2017. The gyre has been studied since 1970’s, however in 2017 an estimate of 80,000 tonnes of plastic was found to have accumulated in the gyre, which amounted to 4 to 16 times more plastic than previously estimated. Approximately 1.8 trillion pieces of plastic were found floating in the gyre, which accounts for 250 pieces of plastic debris for every human being. A study conducted by the 15 Ocean Clean Up Foundation found that microplastic mass concentration in the patch is increasing exponentially, which proved that the input of plastic in the gyre is greater than that of the output. How surprising are those facts when 40% of plastic use is attributed to the packaging sector of which single use plastic contributed a cumulative of 6.3 billion MT of plastic waste globally and 61% of global beach litter. Although plastic production and16 consumption has risen exponentially, waste management systems have not been enhanced to effectively cope with the increase in plastic waste. Only 9% of plastic globally has been recycled, subsequently 80% ends up in landfills or the environment with an estimate of 4 million to 12 million MT of plastic waste entering our oceans yearly. If plastic production is estimated to double by 2025 and subsequently quadruple, it is estimated that by 2050 there will be more plastic than fish in our oceans. 19 12 13 14 17 18

3. Marine Plastic Pollution Damages

MPP comes at a substantial cost to marine ecosystems. Natural Capital analyst Trucost conducted research behalf of Plastic Disclosure Project, supported by the United Nations Environment Program and the Global Partnership on Marine Litter estimated a total of 13

12_{Laurent Lebreton, B.Slat et. Al ‘Evidence that the Great Pacific Garbage Patch is Rapidly accumulating Plastic’ (2018) 8:}

4666 Scientific Reports

13_{Resource efficiency, The Plastic Waste trade in the circular economy, European Environment Agency, 28 October 2019} 14_{R. Geyer, J. R. Jambeck, K. L. Law, ‘Production, use, and fate of all plastics ever made’ (2017) 3 Sci. Adv., e1700782} 15

Idib

16_{Brooks, A.L., Wang, S., Jambeck, J.R., ‘The Chinese import ban and its impact on global plastic waste trade’ (2018) Sci.}

Adv. 4 (6) eaat0131

17_{J. P. Schweitzer, S. Gionfra, M. Pantzar, D. Mottershead, E. Watkins, F. Petsinaris, P. ten Brink, E. Ptak, C. Lacey and C.}

Janssens, ‘Unwrapped: How Throwaway Plastic is Failing to Solve Europe’s Food Waste Problem (and what we need to do instead), (2018) Institute for European Environmental Policy

18_{Idib at 3}

19_{Ellen MacArthur Foundation, 2017. New Plastics Economy: Catalysing Action. Ellen MacArthur Foundation, Cowes, UK.}

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billion US dollars natural capital cost to the marine environment. The research highlighted the importance of preventing marine plastic pollution, but it also highlighted the question as to who should pay those damages, subsequently who can be held responsible for a portion of the damages associated with marine plastic pollution in the Great Pacific Garbage Patch.

The damage caused by MPP include but are not limited to the loss of biodiversity. MPP threatens marine animals either entangle in plastic pollution or ingest it. Larger items of plastic floating on the oceans surface may become entangle in marine animals resulting in injury or even death. Some items such as plastic bag may be confused by sea turtles as jellyfish and subsequently ingest it which will eventually starve the animal. Research suggested that there has been a 40% increase in the number of marine animals reportedly being affected by either entanglement or ingestion between 1997 and 2012. In 2011 a study found that 9.2% of fish in and around the GPGP had consumed fragmented plastic, which equals to an estimate of 12,000 to 24,000 tones of plastic consumed annually. 20

Research has also suggested that plastic waste acts a persistent organic polluter as its chemical composition absorbs potentially harmful chemicals which are then transported to different ecosystems and even wildlife. In the Great Pacific Garbage Patch, plastic debris has become contaminated with bioaccumlative toxic pollutant including polychlorinated biphenols which is subsequently consumed by marine animals who receive a concentrated exposure to bioaccumlative toxic pollutants eventually creeping up the food chain effecting humans. Emerging evidence has also illustrated not only the accumulation of plastic or toxic21 pollutants in our environments but also in our bodies. An increasing threat to the marine 22 environment is microplastics, which are tiny pieces of plastic approximately less than 5 millimetres in size which come from the fragmentation of larger pieces of plastic due to sun exposure or erosion. Microplastic contamination in the oceans is an emerging threat food security and food safety and ultimately to human health. 23

20_{P. Davison, RG. Asch, ‘Plastic ingestion by mesopelagic fishes in the North Pacific Subtropical Gyre’ (2011) 432 Mar}

Ecol Prog 173-180

21 _{Qiqing Chen et al., ‘Pollutants in Plastics within the North Pacific Subtropical Gyre’ (2018) 52 Environ. Sci. Technol}

446-456

22_{Center for International Environmental Law (CIEL) et al., Plastics & Health: The Hidden Costs of a Plastic Planet (2019)} 23 _{Luis G. A. Barboza et, al., ‘Marine microplastic debris: An emerging issue for food security, food safety and human}

health’ (2018) 133 Marine Pollution Bulletin 336-348

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The damaging consequences of marine plastic pollution is further exacerbated by it silent contribution to greenhouse gas emissions and climate change. Plastic is made from fossil fuels, namely crude oil amongst other materials. If plastic production continues to rise as it has done plastic will account for 20% of global oil consumption by 2050. Curbing plastic production will decrease carbon emissions; however, plastic continues to contribute to climate change once it ends up in the environment. A study conducted tests on various sources of plastic including plastic collected from the GPGP, detected ongoing emission of methane and ethylene. The research illustrated that the most commonly used plastics emitted measurable amounts of methane and ethylene when exposed to sunlight, consequently researcher could estimate the amount of greenhouse gas emission from MPP.

4. China as a Major Contributor?

The major contributors to marine plastic pollution are rivers, 10 of which carry 90% of the plastic waste ending up in the oceans. China is a major marine plastic polluter as one of its 24 rivers peak at the top 10 polluting rivers and in 2010 it generated 1.32 – 3.53 million MT of marine plastic pollution.25 China generates substantial amounts of MPP for three main reasons. Firstly, China’s plastic consumption has been increasing rapidly since its economic growth; Chinese consumers have purchased a quarter of the world’s plastic bottles for example. Plastic consumption has also worsened due to the increase in online shopping and26 food deliveries. Thirdly, China’s coastal population is most dense generating 1.3 – 3.527 million MT of marine plastic pollution annually. Secondly, China was also considered the largest importer of plastic waste, in 2017 it imported 7.3 million tonnes of plastic from developed states, notably Japan, the US and UK. Research by Jambeck et. al attributed28 China’s marine plastic pollution to the mismanagement of plastic waste which enters the oceans via rivers, wastewater outflow and transport by wind or tides. The research by Jambeck et. al also suggested the top five marine plastic polluters amongst China is Indonesia, the Philippines, Vietnam and Sri Lanka. Mcllgorm et al. valued the cost of damage

24_{Christian Schmidt, Tobias Krauth, and Stephan Wagner, ‘Export of Plastic Debris by Rivers into the Sea’ (2017) 51, 21}

Environmental Science & Technology 12246-12253

25_{J. R. Jambeck et al., “Plastic waste inputs from land into the ocean,” Science 347, no. 6223 (February 13, 2015): 768–771} 26_{China Development Brief, ‘1/4 of Global Plastic Bottles have Been Purchased by China: Urgent Need to Tackle Plastic}

Wastes’ (2017) China Development Brief

27_{Guanghan Song et. Al. ‘Packaging Waste from Food Deliver in China’s Mega Cities’ (2018) 130 Resources, Conservation}

& Recycling 226

28_{Amy L. Brooks, Shunli Wang, Jenna R. Jambeck, ‘The Chinese import ban and its impact of global plastic waste trade’}

(2018) 4 Sci. Adv, eaat0131

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by marine debris to Asian Pacific states amounting to 1.265 billion US dollars annually to the fishing, shipping and tourism industries, with the highest loss to marine tourism and the second to the fishing industry.29 Recent research illustrated that a relatively high concentration of plastic in Great Pacific Garbage Patch are mostly attributed to ocean plastic sources in Asia through the Kuroshio current system.30 Although this highlights the multiplicity of actors involved in contributing to the GPGP, this thesis will focus on establishing China’s responsibility.

5. State Responsibility for Marine Environmental Damages

5.1 Determination of the Wrongful Act

The basic elements to establish the responsibility of China for the GPGP require that the conduct consisting of an action or omission constitutes a breach of an international obligation which is attributable to it. China’s conduct must amount to a wrongful act consisting of either an action or an omission, otherwise state responsibility will not apply as it only applies to circumstances where the conduct constitutes a breach of a primary obligation. Article 12 31 accordingly determines a wrongful act as committed when conduct required of the obligation and the conduct actually adopted do not conform. Consequently, the determination of the breach of the primary obligation must be informed from the substantive elements of the rule itself. UNCLOS is relevant in the context of marine pollution, however it must contain duties of state conduct that can be breached. Article 13 provides that UNCLOS must be in force at the time China committed the wrongful act or omission. China has been a major plastic 32 contributor since 2010 and ratified UNCLOS in 1996. Article 15 applies to “a series of acts or omission defined in aggregate as wrongful”. Consequently, it must be established that 33 China’s cumulative behaviour does not conform to the standard of care to prevent land-based sources of pollution on its territory to areas beyond national jurisdiction. This section of the thesis will fist illustrate the limitations of UNCLOS in providing a primary norm sought to establish China’s breach. Subsequently, the thesis will rely on the no-harm rule as the

29_{Alistair Mcilgorm, Harry Campbell and Michael Rule, ‘The Economic Cost and Control of Marine Debris Damage in the}

Asia-Pacific Region’ (2011) 54 Ocean & Coastal Management 643

30

Idib

31 _{International Law Commission,}_{Draft Articles on Responsibility of States for Internationally Wrongful Acts, November}

2001, Supplement No. 10 (A/56/10), chp.IV.E.1, Article 12 (ARSIWA)

32_{Article 13,}_ARSIWA 33_{Article 15,}

ARSIWA

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primary norm to establish China’s responsibility. The application of the no-harm rule to China may entail important considerations for the regulation of land-based sources of marine pollution as the rule provides an objective standard of conduct required by all States. This application may provide guidance to negotiations on an International Plastics Treaty seeking to regulate land-based sources of marine plastic pollution.

5.1.1. United Nations Convention on the Law of the Sea

Article 192 obliges states to protect and preserve the marine environment. The GPGP is34 located in the pacific ocean subsequently the duty must apply to protect and preserve the marine environment in areas beyond national jurisdiction. The vague language of the obligation affords it quite a broad interpretation. Living marine resources and life are held to be included as part of the marine environment to be protected and preserved. The South 35 China Sea Tribunal confirmed its application to areas beyond national jurisdiction ,36 including marine biodiversity and even went as far to ensure the preservation and protection37 of the ocean from future threats with a view of ‘maintaining and improving its present condition. Whether Article 192 imposes substantive duties on states is hotly debated and38 essential in claiming state responsibility. The South China Sea Arbitration confirmed the normative status of the Article suggesting it imposed such distinct duties found in Part XII. 39 The duty to protect and preserve the ocean would thus entail the duty to ensure that land-based discharges in the marine environment do not cause pollution. Article 194 (1) provides:

“States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection” 40

34_{Article 192,}

UNCLOS

35_{Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2}

April 2015, ITLOS Case No.21 (IUU Advisory Opinion)

36_{South China Sea Arbitration (Merits) (2016) para. 940}

37_{South China Sea Arbitration (Jurisdiction and Admissibility) (2015) para. 284} 38_{South China Sea Arbitration (Merits) (2016) para. 941}

39_{South China Sea Arbitration (Merits) (2016) para. 942} 40_{Article 194 (1)}

UCNLOS

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The term any source suggests the provision covers all sources of pollution subsequently it will cover marine pollution from the coast and rivers. China’s major land-based source of marine pollution is its rivers and coastal areas both in large due to the density of populations located there. Plastic waste must be considered a pollutant in order to fall within the scope of the obligation and must be read in light of the definition of pollution in the Convention.

“the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazardous to human health, hinderance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction in amenities.” 41

UNCLOS has been drafted in fairly vague terms to allow it to adapt to take into account new unsuspected pollutants, which was ultimately to goal of the Group of Experts on the Scientific Aspects of Marine Environmental Protection. The definition of pollution was to 42 be drafted in sufficiently flexibility terms to allow it to evolve over time to meet new challenges and apply to new threats; marine plastic pollution. It is not doubt, as previously highlighted in Marine Plastic Pollution Damages, that plastic has resulted in damages to living marine recourses, marine life and the legitimate uses of the seas including fishing, tourism and maritime industries. This is particularly prevalent in Asia Pacific and the GPGP43 as these locations suffer disproportionately from deleterious effects of plastic pollution. Plastic is also considered a hazard to food safety with emerging evidence to support microplastic as a particular threat to human health. China consequently is obliged to take all 44 measures necessary to ensure that activities under its jurisdiction and control do not cause damage by pollution to the marine environment of other States or spread beyond the areas where they exercise jurisdiction. The measures taken should minimise as much as possible45 the release of toxic, harmful or noxious substances from land-based sources. Furthermore, 46

41_{Article 1 (4)}

UNCLOS

42 _{General Principles for Assessment and Control of Marine Pollution, Report of the United Nations Conference on the}

Human Environment, UN Document A/Conf.48/14/Rev.1 (1972)

43 _{McIlgorm, A. et al, 'The economic cost and control of marine debris damage in the Asia-Pacific region' (2011) 54(9)}

Ocean & Coastal Management 643-651

44 _{Luis G. A. Barboza et, al., ‘Marine microplastic debris: An emerging issue for food security, food safety and human}

health’ (2018) 133 Marine Pollution Bulletin 336-348

45_{Article 194(2)}_UNCLOS 46_{Article 194(3)}

UNCLOS

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UNCLOS imposes prescriptive and enforcement jurisdiction on regulating land-based sources of pollution to prevent, reduce and control it. States shall ‘take into account 47 internationally agreed rules, standards and recommended practices and procedures’. Article48 207 imposes further obligations with regard to land based sources of pollution. However whether the obligations in UNCLOS can be characterised as obligations of conduct capable of being breached is questionable. Unlike the UNFCCC , UNCLOS does not provide any 49 stabilisation or reduction targets of pollution, the obligations are general in character aimed towards a general goal, the protection and preservation of the marine environment. The obligations stemming from UNCLOS lack precision containing little guidance as to determine whether or not its obligations were in fact breached. Neither does UNCLOS offer 50 specific compliance mechanisms for land-based sources of marine pollution, consequently is regarded as merely providing a general framework. The primary norm relied on to establish 51 China’s breach must fall back on the no-harm rule considered now a part of the corpus of international law relating to the environment. 52

5.1.2 No-Harm Rule

Where UNCLOS has fallen short at providing substantive obligations concerning the regulation of land-based sources of marine pollution, the no-harm rule can provide a more robust basis to adjudge whether there has been a breach not to cause transboundary pollution. The principle has come to be a fundamental rule in international environmental law constituting customary international law. The origins of the rule are found in the Trail53 Smelter Arbitration which concluded that:

“Under the principles of international law… no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the

47_{Article 207 (1)}

UNCLOS

48_Idib

49_{UN General Assembly,}_{United Nations Framework Convention on Climate Change : resolution / adopted by the General}

Assembly_{, 20 January 1994, A/RES/48/189}

50 _{Yoshifumi Tanaka, ‘Land-Based Marine Pollution’ in Andre Nollkaemper and Ilias Plakokefalos (eds),}

The Practice of

Shared Responsibility in International law (CUP 2017) p.229

51 _{Yoshifumi Tanaka, ‘Marine Environmental Law, Prevention of Marine Pollution, Regulation of Land-Based Marine}

Pollution’ in David Joseph Attard, Malgosia Fitzmaurice, Norman Martinez and Riyaz Hamza (eds.), _{The IMLI Manual on} International Maritime Law: Volume III: and Maritime Security (OUP 2016)

52_{Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, International Court of}

Justice (ICJ), 8 July 1996, para. 29; Gabčikovo-Nagymaros Project, Hungary v Slovakia, Judgment, Merits, ICJ GL No 92, [1997] ICJ Rep 7, para. 41

53_{U.N. Doc.A/CN.4/1/Rev.1 (U.N. Pub. 1948. V.I(1)), (1949) at 39.}

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territory of another or the properties or persons therein, when the case is of serious consequence and injury is established by clear and convincing evidence.” 54

The International Court of Justice confirmed the rule as a “general obligation of State to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment.” The no-harm rule in the Trail Smelter case applies only to 55 bilateral relations, however in this instance the ICJ and ITLOS have extended it to apply to 56 areas beyond national jurisdiction.

It is the fundamental corpus of this thesis as the no-harm rule provides an objective standard of protection against pollution which is established as an obligation applicable to all states. 57 In establishing China’s breach of the rule this thesis will highlight how the rule might be applied to marine pollution damages and provide important guidance for future negotiations on an international plastics treaty. That is not to assume the rule is without limitations. The vagueness of rule has inspired various interpretations which influences the outcome of determining a breach. Higgins illustrated that “what is internationally wrongful is allowing … the harm to occur.” Subsequently, the rule obliges states not to cause harm, to prevent 58 foreseeable risk of damage and to minimise the risk thereof. Thus, where there is actual 59 harm the rule obliges states to compensate those directly or indirectly affected. This has limitations concerning damage caused in Pacific ocean since it questions whether a state other than an injured state can invoke the responsibility of the state polluting the high seas. States who may wish to invoke the responsibility of e.g China who are not considered injured States under Article 42 of ARSIWA may still be able to invoke responsibility on the basis 60 that the protection and preservation of the high seas is an obligation erga omnes owed to the

54 _The

Trail Smelter arbitration. Award of Arbitral Tribunal, 11 March 1941. 3 Reports of International Arbitral Awards

1965. (Trail Smelter)

55_{Idib at.46}

56_{In the matter of the South China Sea Arbitration before an Arbitral Tribunal constituted under Annex VII of the United}

Nations Convention on the Law of the Sea (Republic of the Philippines v. People’s Republic of China), PCA Case No.2013-19, Award (12 July 2016) (South China Sea Arbitration) para. 940

57 _{Roda Verheyen,} _{Climate Change Damage and International Law; Prevention Duties and State Responsibility,}

Developments in International Law (Leiden: Brill 2005) p.146

58_{Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press Oxford, 2003) p.165} 59_{Tullio Scovazzi, ‘State Responsibility for Environmental Harm’ (2001) 12 YbIEL p.49}

60_{Article 42}

ARSIWA

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international community.61 62 This will be further elaborated in the section establishing whether China’s breach triggers the secondary obligation to make reparation.

Moreover, the no-harm rule further limits the scope of its application by requiring a threshold of damage to be met in order to trigger a States’ responsibility for its breach. In this instance damages resulting from marine plastic pollution must meet the required threshold of damage. It is already accepted that damages resulting and expected to result from marine plastic pollution is significant and substantial. Although the threshold is difficult to define in 63 precise terms, the majority, including academics and jurisprudence hold that only significant or serious damage is required. The Trail Smelter and Lac Lanoux cases referred to serious 64 65 injury, whilst the International Law Commission interpreted the threshold of significant or serious damage to mean something more than detectable ‘but not at the level of serious or 66 substantial’. It is mostly accepted that the threshold is more than de minimis. Consequently67 the damages and risk thereof marine plastic pollution, addressed in section 2.2 of this thesis, will meet the required threshold to trigger the breach. Subsequently, the next section of this thesis will then assess whether China has met the standard of care to prevent hazardous discharges from land-based sources on its territory from causing significant pollution in the Pacific Ocean or the risk thereof.

5.1.3 Failure to Act with Due Diligence

The standard objective to adjudge whether China has breached its no-harm obligation is one of due diligence. In order to establish its responsibility the acts or omissions consisting of an internationally wrongful act must be attributable to it. The reasons for which China generates substantial volumes of marine plastic pollution, 30% of marine MPP globally, is due to 68

61 _{Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area,}

Advisory Opinion, Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, ITLOS Case No. 17 (2011) 50 ILM 458 at. 54, para. 180

62_{K. Kawasaki, ‘The injured State” in the International Law of State Responsibility’ (2000) 28 HJLP 17, at 22}

63_{Center for International Environmental Law (CIEL) et al., Plastics & Health: The Hidden Costs of a Plastic Planet (2019);}

Center for International Environmental Law (CIEL) et al., Valuing Plastics: The Business Case for Measuring, Managing and Disclosing Plastic Use in the Consumer Goods Industry (2014); Center for International Environmental Law (CIEL) et al., ‘Plastic & Climate: The Hidden Costs of a Plastic Planet’ (2019)

64

Trail Smelter

65_{Lake Lanoux Arbitration (France v Spain) Award of 1957, 12 R.I.A. 281; 24 I.L.R. 101}

66_{Roa (Special Rapportuer to the ILC), First resport on prevention of transboundary hazardous activities (1998), U.N. Doc.}

A/CN.4/487

67_{ILC Report 1998, chapter 4 Commentary to Art.2, para. 4. Rao, 1}

st_{Report, A/CN.4/531}

68_{Jenna R. Jambeck, et al, ‘Plastic waste inputs from land into the ocean’ (2015) 347 (6223) Science 768-771}

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mismanagement of discarded plastic waste. Discharges of plastic waste are due in most part 69 to activities of a multiplicity of actors and sources such as private entities and individuals within the territory. The consumption and production of plastic in China has transcended efforts to ensure effective waste management systems to cope with the increase in plastic waste. For example, China’s plastic recycling systems are mostly informal, fragmented and under-invested. The informal recycling networks consist of small to medium factories70 which are ill equipped and lack the appropriate technology to deal with increasing plastic waste.71 The law on state responsibility provides that conduct is attributable to a state if it is carried out by a state organ. This rule excludes the possibility of attributing the conduct of individuals or private entities to China, nonetheless, attributing the conduct in this instance would not be necessary. Instead, the rule provides that China’s responsibility will be established if it was under an obligation to prevent the discharges of plastic waste and failed to abide by the no-harm obligation. Subsequently, the standard of care China will be held to is one of due diligence. Importantly, if China has exercised due diligence, it will not be responsible for damages in the GPGP.

There is no concrete meaning of what due diligence means or entails and neither does state practice, writings of jurists, case law or treaties provide any conclusive answers. Due 72 diligence is ‘an elusive concept’ and the degree of its application will vary depending China’s technical, economic capabilities and effective territorial control e.g. Although due73 diligence attempts to provide an objective standard of conduct it also provides some flexibility to adapt to emerging threats in light of new scientific or technological findings. The Seabed Disputes Chamber held that:

“Among the factors that make such a description difficult is the fact that due diligence is a variable concept. It may change over time as measures considered

69_{Ocean Conservancy and McKinsey Center for Business and Environment, ‘Stemming the Tide: Land-Based}

Strategies for A Plastic Free Ocean’ (2015) Ocean Conservancy

70_{Pieter Van Beukering et, al., ‘Trends and Issues in Plastics Cycle in China with Special Emphasis on Trade} and Recycling’ (1997) CREED Working Paper Series No.16, 3

71_{Idib p. 10}

72_{Phoebe Okowa,}_{State Responsibility for Transboundary Air Pollution (OUP, 2000) p.77}

73_{Yoshifumi Tanaka, ‘Land-Based Marine Pollution’ in Andre Nollkaemper and Ilias Plakokefalos (eds),} _The

Practice of Shared Responsibility in International law (CUP 2017) p.297

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sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge” 74

This is especially important in seeking to establish the standard of care required in preventing land-based marine plastic pollution or the risk there of since new evidence continues to unveil the threats of MPP. Nonetheless due diligence amounts to a framework concept which must be given legal meaning for specific activities and risks. Generally it is conduct 75 expected of a good government. In this instance what constitutes the appropriate standard of 76 care is determined by looking at China’s means and capabilities at their disposal in an international context . The ILC commentaries to the 2001 Draft Article on Prevention on77 Transboundary harm from Hazardous Activities recognised due diligence as requiring states to

“take unilateral measures to prevent significant transboundary harm or at any event minimize the risk thereof… Such measures include, first, formulating policies designed to prevent significant transboundary harm or to minimize the risk thereof and, second implementing those policies. Such policies are expressed in legislation and administrative regulations and implemented through various enforcement mechanisms.” 78

Subsequently, acting in due diligence requires that China adopt policies and regulations with the aim of preventing or minimizing the risk thereof land based marine plastic pollution. The standard of care requires the assessment of a) opportunity to act b) foreseeability of harm and c) proportionality in the choice of measures to prevent or minimize the risk thereof.

5.1.3.1 Opportunity to Act

Advisory Opinion, Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, ITLOS Case No. 17 (2011) 50 ILM 458, para. 117

75_{Christina Voigt, ‘State Responsibility for Climate Change Damages’ (2008) 77 Nordic Journal of International Law 1-22}

p.10

76_{Roda Verheyen,} _{Climate Change Damage and International Law; Prevention Duties and State Responsibility,}

Developments in International Law (Leiden: Brill 2005) p.174

77_{Ch. Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (Recueil de Cours,}

281:1, 1999) p.280

78 _{International Law Commission, 2001}_{Draft Articles on Prevention of Transboundary Harm from Hazardous Activities,}

August 2001, 53rd_{Session, Commentary 393}

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China will have failed to act with due diligence if it did not act where it otherwise could have. In the context of marine plastic pollution in the GPGP several states in and around the Pacific have the opportunity to take measures to prevent or minimise the accumulation of plastic and subsequently its deleterious effects. Marine plastic pollution in the Pacific Ocean has been accumulating over years even prior to when China’s plastic consumption rapidly started increasing in the 1980s. The GPGP was discovered in the 1970’s and various debris collected from the gyre dated back to the 1970’s and 1980’s. Other states such as Japan and the US, for example, have been and are still major contributors to the debris accumulation in the GPGP. Considering then that the GPGP has been accumulating for years, the question is whether China’s efforts to reduce marine plastic pollution from land-based sources on its territory would actually effectively reduce the risk or prevent the harm caused by plastic debris in the Pacific. Proof of the effectiveness of the hypothetical measure would limit the norm to not apply to complex environmental phenomena’s such as the GPGP. Such a guarantee by 79 China that certain harm will be prevented is not required by the rule, due diligence instead is an obligation “to make every effort”. If China were under an obligation to effectively80 reduce risk of marine environmental harm in instances of multiple polluters it would be incapable of complying. 81

The due diligence rules provides it takes all necessary measures at its disposal to prevent significant harm. Lin and Nakamura considered the best way for China to mitigate the amount of waste plastics that end up as marine debris is to reduce the use of plastic in the economy. Notably, this would require substantial changes in both life-styles and technology, but importantly as mentioned previously, single use plastics are among the highest portion of plastic waste ending up in the oceans. In fact, pre-consumer plastic waste such as industrial packaging is recycled at a much higher rate than post-consumer packaging. The State 82 Council in China has issued various administrative decrees relating to the reduction of plastic waste. In 2008 it imposed nationwide limits on retailers distributing free plastic bags, production and sale and use of ultra-thin plastic bags. Another measure adopted was the 83

Developments in International Law (Leiden: Brill 2005) p. 177

80_{Riccardo Pisillo Mazzeschi, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’ (1992)}

35 GERM. Y.B. INT’L L. 9 p.48

81_{Idib p.177}

82 _{Hopewell, J., R. Dvorak and E. Kosior, ‘Plastic Recycling: Challenges and Opportunities’ (2009) 346 Philosophical}

Transactions of the Royal Society B 2362 - 2369

83 _{PRC State Council, ‘Notice of the General Office of the State Council on Restricting the Production, Sale and Use of}

Plastic Shopping Bags,’ PRC State Council Website, 8 January 2008; Jennifer Clapp and Linda Swanston, ‘Doing Away 17

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major reform plan seeking to cut down millions of tonnes of plastic waste imported from other states. In 2018, the State Council, issued interim regulations on express delivery84 encouraging the use of recyclable and degradable packaging materials. Though these are progressive steps taken by China to minimise plastic waste and more sustainable consumption, it should not be underscored as a major source of marine plastic pollution and specifically a major contributor to the GPGP, contributing to an estimated total of 30% of global plastic waste subsequently any percentage reduction of plastic waste would significantly reduce the amount polluting the Pacific.

As noted earlier, due diligence is a variable concept as such measures once considered diligent may no longer be in light of new scientific evidence or technological advances, subsequently the concept assumes appropriate the taking of measures to prevent or minimize the risk of MPP even if full scientific certainty does not exist. Acting with due diligence is not a static standard and will change over time as new scientific evidence presents that the risk involved and the damage is greater than expected. Such is true for marine plastic pollution where evidence continuously suggests it be a graver issue than once initially thought. Earlier, this thesis illustrated the emerging evidence suggesting deleterious effects of fragmenting plastic in the marine environment on the oceans food chain and ability to act as a carbon sink. Scientists were able to estimate the amount of carbon emission emitted from the GPGP. China is thus required to note the scientific developments and technological advances and inform mitigation measures to prevent and minimize the risk of marine plastic pollution.

5.1.3.2 Foreseeability

The no-harm rule does not prohibit the causing of harm per se, but rather prescribes for diligent prevention and control of the harm. In this instance a causal link is required between

with Plastic Shopping Bags: International Patterns of Norm Emergence and Policy Implementation’ (2009) 18(3) Environmental Politics 315 -321

84_{PRC State Council, ‘Notice of the General Office of the State Council on Issuing the Implementation Plan for Prohibiting}

the Entry of Foreign Garbage and Advancing the Reform of the Solid Waste Import Administration System’ (PRC State Council Website, 18 July 2017)

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that of the omitted activity and the injurious consequences. That causal link is establish on the basis that

“a state actually knew or foresaw or ought to have known or foreseen that (its) individual conduct was or would be part of a composite cause brining about inadmissible harm.” 85

In basic terms, the question is whether the injurious consequences of China’s conduct were foreseeable thus, constituting an internationally wrongful act. China should be informed by scientific estimates to be able to foresee what impact the discharges from its land-based sources have in the marine environment. The causal link between the conduct in question and the injurious consequence does not require China to have foreseen the precise magnitude or location of injury. This is evident in the jurisprudence on the matter of foreseeability. 86

In establishing Albania’s responsibility the ICJ held that Albania had a duty not to allow knowingly its territory to be used for acts contrary to the rights of states. The ICJ went as 87 far to conclude in the event of transboundary damage, a state cannot exonerate itself by being ignorant of the circumstance of the act and of its’ authors. This interpretation entails that circumstantial evidence is sufficient to prove foreseeability and that positive proof of knowledge is not necessary. Some argue that actual knowledge of a source of danger to be replaced by a test of due diligence with regard to the lack of suck knowledge. In the Trail 88 Smelter , the regulating regime to reduce fumes from the smelter was establish on the89 grounds that Canada could foresee that damage would continue to be caused if the smelter continued to emit to the extent it had before. This imposed a duty on Canada to emit less 90 and therefore refrain from causing any future injury.

In light this it should be sufficient that China is able to envision the general consequences of the plastic waste discharges from land-based sources within its territory to areas beyond

85_{ILA Report of the 64}

th_{Conference (1990)}

86_{Christina Voigt, ‘State Responsibility for Climate Change Damages’ (2008) 77 Nordic Journal of International Law p.11} 87_{Corfu Channel Case (United Kingdom v Albania); Merits, International Court of Justice, 9 April 1949}

Developments in International Law (Leiden: Brill 2005); Christina Voigt, ‘State Responsibility for Climate Change Damages’ (2008) 77 Nordic Journal of International Law

89_{Trail Smelter}

Developments in International Law (Leiden: Brill 2005)

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national jurisdiction. Considering it need not know the precise location, it would not be necessary to require China knew or foresaw the discharges from its land-based sources to accumulate in the gyre and cause pollution. Importantly, China should foresee that damage will continue to be caused if it continues to allow deleterious amounts of plastic waste into the oceans via its land-based sources; subsequently it should be under an obligation to reduce the amount of plastic waste entering the oceans via its land-based sources preventing and minimizing the risk of pollution. The reference point for determining foreseeability is todays best scientific knowledge. With respect to marine plastic pollution there is sufficient certainty today that damage will occur. It is accepted that marine plastic pollution has sever deleterious consequences for the oceans; posing a major threat to marine life, its resources, and biodiversity, the oceans natural capacity to act as a carbon sink, and to the legitimate uses of the sea. The GPGP has been studied since the 1970’s, however China should certainly have been aware of its contributions in 2015 when a study estimated China contributing to 30% of plastic waste globally. In 2007 Shanghai Rendu Ocean Centre mobilised thousands of volunteers for beach clean ups and other voluntary waste removal initiatives. scientific91 evidence deducing the harmful impacts of marine plastic pollution continually emerges, which will provide an even more robust basis for states to have foreseen that plastic waste discharges from its land-based sources will cause significant damages to the marine environment. It has even been established with sufficient certainty that plastic waste discharged from China’s land-based sources accumulate in GPGP via oceanic currents.

5.1.3.3 Proportionate Measures

Where China had the opportunity to act and ought to have foreseen damage resulting from its deleterious plastic waste discharges – according to the due diligent standard, what measure is it thus required to take? The assessment of a measure to be due diligent is that it must be proportionate. However, this assessment would entail the balancing of interests, which Pisillo-Mazzeschi illustrated, is the core and justification of due diligence. The basic 92 understanding is that it would require China to take proportionate or appropriate measures to prevent or minimize the risk thereof. It would require the assessment of the China’s technical and economic abilities. Although, China cannot guarantee the prevention of injury from

91_{Rendu Ocean, ‘Love the Source of Life’ (2017) Rendu <http://www.renduocean.org/jingtan1.html>}

92_{Riccardo Pisillo Mazzeschi, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’ (1992)}

35 GERM. Y.B. INT’L L. 9

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marine plastic pollution in the Pacific altogether, rather the weight is given here to the extent to which China has left deleterious discharges of plastic waste from its land-based sources to cause marine plastic pollution unmitigated. The ILC considered that proportionate measures ‘are to the extent practicable under the circumstance’ to prevent significant damage. The 93 essence is then that measure must be proportionate to the degree of risk of or the occurrence of transboundary harm and to the capacity and ability of the state in question to prevent it.

The degree of risk associated with marine plastic pollution is quite high as it entails serious economic loss, biodiversity loss and subsequently threats to food security. As noted earlier, if plastic production and consumption patterns continue to increase and waste management systems are still inefficient to deal with the plastic waste the amount of plastics in the ocean will increase exponentially. Plastics in the ocean would eventually become more abundant than if states do not control their plastic waste discharges from their land-based sources. The economic damages caused by marine plastic pollution in the Asia Pacific equates to 1.265 billion US dollars annually to the fishing, shipping and tourism industries. Neither should it be underestimated how much China contributes to MPP globally, namely 30%. A genuine effort by China to mitigate the risk of plastic pollution from its land-based sources, of which 80% of plastic waste enters the ocean, would already entail a substantial reduction in the damages caused by it. The costs and loss associated with marine plastic pollution need to be balanced with the benefits of early action to mitigate land-based sources of marine pollution. Reducing the consumption of plastic products targeting single use plastics would be a potential proportionate measure. As noted previously China has begun limiting the use of plastic shopping bags and also issued measures on express delivery encouraging the use of recyclable and degradable packaging. These measures, which have been questioned as being genuine efforts due to lack of enforcement; would not be proportionate to costs or damages caused by marine plastic pollution.

A study conducted by Lin and Nakamura evaluated the best marine plastic pollution94 mitigation measure which also realised the reduction of carbon emissions. Their study concluded reusing plastic waste to produce refuse plastic fuel, which would significantly

93_{Rao, 1}st_{Report, A/CN.4/487, 21}

94 _{Chen Lin and Shinichiro Nakamura, ‘Approaches to solving China’s marine plastic pollution and CO2 emissions}

problems’ (2019) 31 Economic Systems Research 2, 143-157

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mitigate both plastic pollution and carbon emissions. The system would require the introduction of liquefaction which needs formal recyclers. China’s recycling system would require better enforcement mechanisms. China’s ability to take proportionate measures to mitigate marine plastic pollution is balanced on its technical and economic ability. This is in line with the common but differentiated responsibility. China is an emerging economy if not already an already well established economy, equipped with technological advances required to take marine plastic pollution preventative measures. According to the Law of China on the Prevention of Environmental Pollution Caused by Solid Waste, the local infrastructure and Construction Bureau is responsible for the collection, storage, transportation and final disposal of municipal solid waste. However, most waste is collected informally by scavengers and junk buyers. Subsequently, the prevalence of informal recycles has been linked with the95 lack of formal recyclers. Therefore, where well-designed source-separated collection waste 96 plastics could be implemented and overseen by a formal institution, the proposal by Lin and Nakamura to mitigate marine plastic pollution and carbon emissions could be realised. However, this is presumptuous, a proportionate measure might mimic the proposal as argued for in the international plastic treaty the phasing out of certain plastics thereby curbing production and consumption.

The prohibition on causing transboundary harm is identified as the most important primary rule, which in this instance China has breached by virtue of failing to act with due diligence to prevent deleterious plastic pollution from its land-based sources causing damage or the risk thereof to the Pacific Ocean. Subsequently, it is possible to define due diligent standards in the context of preventing marine plastic pollution. This may provide guidance to the negotiations on the plastic treaty as to what standard of care states must act with in preventing marine plastic pollution. All states have the opportunity to act, but their measures to mitigate marine plastic pollution will be assessed according to technical and economic capabilities. Although, the breach of the primary obligation has been establish it will not necessarily entail China’s obligation to make reparation.

6. Legal Consequences

95 _{Chi et al., ‘Informal Electronic Waste Recycling: A Sector Review with Special Focus on China’ (2011) 31 Waste}

Management 713-742

96 _{Chen Lin and Shinichiro Nakamura, ‘Approaches to solving China’s marine plastic pollution and CO2 emissions}

problems’ (2019) 31 Economic Systems Research 2, 143-157

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China’s breach may entail legal consequences subsequently it will be obliged to cease the wrongful act and potentially make reparation. In this instance the multiplicity of actors involved make the task to establish the causal nexus between the activity and damage difficult, failing to trigger China’s obligation to make reparation. However, the reparation is not to owed to an individual state injured as determined by Article 42. The Pacific ocean is a global common, determined as the common heritage of human kind and subsequently the obligation preserve and protect it are obligations erga omens owed to the international community . Article 48 provides this multilateralist approach where states not injured in97 meaning of Article 42 can invoke under Article 48. Subsequently, it can only be demanded that China cease the internationally wrongful act and guarantee non-repetition.

6.1 Cessation

Article 30 requires the State obliged to cease the wrongful conduct. In this instance, there may ‘be cessation consisting in abstaining from certain actions’. The requirement to cease 98 wrongful conduct is based on the re-establishment of a legal situation prior to wrongful conduct occurred. Subsequently it would require China to regulate its marine plastic pollution. However, ceasing marine plastic pollution may not be an easy take to accomplish in a short period of time, especially not microplastics. The Draft Article on State Responsibility do not provide any flexibility with regards to the obligation to cease thus it is99 interpreted as an absolute obligation. In the Trail Smelter , it was noted that the arbitral 100 tribunal prescribed a particular course of conduct, a regulator regime to limit future harms, which resulted in the cessation of the wrongful act. Therefore, China is not under and obligation to cease the wrongful act i.e. regulate marine plastic pollution from its land-bases sources.

6.2 Reparation

Advisory Opinion, Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, ITLOS Case No. 17 (2011) 50 ILM 458 at. 54, para. 180

98_{Rainbow Warrior}_{(New Zealand v. France) ( 1990 ) 82 I.L.R. 500. In July 1985, 270}

99 _{International Law Commission,}_{Draft Articles on Responsibility of States for Internationally Wrongful Acts, November}

2001, Supplement No. 10 (A/56/10), chp.IV.E.1

100_{Trail Smelter}

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Reparation in the context of marine plastic pollution can draw analogy of what it entails for reparation for climate change in that it generally entails the implementation of measures that prevent residual damage which will include financing of concrete adaptation measures. The obligation to make full reparation can traced back to Chorzow Factory;

“reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if the act had not been committed. Restitution in kind, or, if this is not possible payment of a sum corresponding to the value which a restitution in kind would bear; the award… of damages for loss sustained which would not be covered by restitution in kind or payment in the place of it.” 101

Restitution to restore the situation ex ante, however might be physically impossible in the context of marine plastic pollution. The wiping out of all the consequences will be impossible also due in part that marine plastic pollution circulates in vast areas. Larger pieces of plastic also end up fragmenting into smaller microplastics thus changing the nature of the damage as well. In this instance ecological or environmental damage is captured by the obligation to make reparation as by enabling claims for preventative or adaptive measures. This would be better as regards preventative measures for China to mitigate marine plastic pollution. Furthermore, Article 31 defines injury as ‘including any damage whether material or moral’ caused by the internationally wrongful act. In this instance the damage is to the environment, but states who wish to invoke the responsibility of China who are not injured will do so on the basis of China breaching its obligation owed to the international community. However, as noted a natural capitalist analyst estimated economic costs of marine plastic pollution globally. Subsequently if China contributes to 30% of marine plastic pollution globally will that enable a state to claim a percentage from China for costs incurred in responding to marine plastic pollution?

An essential element to triggering the obligation to make reparation is the causal nexus between the activity and damage. Although the draft Articles fail to define the legal requirement of causation. Generally two types of causation can be distinguished; general

101 _{Chorzow Factory (Germany v. Poland) (1928) P.C.I.J., Ser. A, No. 17. By this judgment dated 13 September 1928}

(Merits) at. 47

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causation and specific causation. In general terms to the specific case; causation requires the link between plastic waste discharges from land-based sources of China and pollution in the Pacific Ocean – namely the Great Pacific Garbage Patch. As noted it is generally accepted that the major sources of marine plastic pollution comes from land-based sources. In the Great Pacific Garbage patch it is even possible to deduce a portion of where the waste comes from. This is however more difficult concerning microplastics. Specific causation on the other hand requires proof that specific activity caused a specific damage. The application of this type of causation is non-linear as it is almost impossible to attribute specific marine pollution to china. It might be possible to attribute a portion or determine the largest contributor of the GPGP to China which has already been done. Notably, as plastics fragment once exposed to the sun and form tiny pieces of plastic debris non-detectable to the naked eye. In this instance microplastic marine pollution is very similar to carbon emission. Furthermore, the oceanic currents which surround and forms the GPGP collect plastic debris from all corners of the Pacific. Given the vast area it covers and the multiplicity of actors contributing to the pollution it would be impossible to identify a single emitter. Consequently the but for test provides limited use. However, multiple contributors or causes in the Trail Smelter102 case did not deter the Court from determining causation. The Tribunal determined that, the fact that Canada had partially caused the injury by the polluting activity of the Smelter was sufficient. Although the link in the Trail Smelter provides an easier alternative to establish causation. Thus, in light the evidence provided in the earlier section it causation in this instance can be established. In Corfu Channel the ICJ hinted that the standard burden of proof be on the balance of probabilities. Subsequently, if a portion of GPGP can be traced back to China arguably causation can be established provided there is not break in the chain of causation.

102_{Trail Smelter}

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7. Conclusion

Several writers dismiss the role responsibility has in protecting the global commons; our Oceans, and instead highlight the importance of the obligation to cooperate. This thesis does not dismiss the duty to cooperate, but wants to highlight the importance or requiring and objective standard of care. Marine plastic pollution is a persistent issue in which needs to be addressed beyond a mere description on the inapplicability of various rules and regimes. The Great Pacific Garbage Patch is a complex environmental phenomena in which due diligence has a role in addressing. It provides an objective standard of care required of states to mitigate marine plastic pollution. Establishing such an objective standard of care might inform treaty negotiations as to how states of various economic and technical capabilities can effectively mitigate marine plastic pollution.

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Thesis Bibliography International Treaties

United Nations Convention on the Law of the Sea, Montego Bay, (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3

Other Law

International Law Commission, _{Draft Articles on Responsibility of States for Internationally}

Wrongful Acts_{, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1}

International Law Commission, 2001 _{Draft Articles on Prevention of Transboundary Harm}

from Hazardous Activities_{, August 2001, 53}rd_Session

General Principles for Assessment and Control of Marine Pollution, Report of the United Nations Conference on the Human Environment, UN Document A/Conf.48/14/Rev.1 (1972)

General Assembly Resolutions

UN General Assembly, _{Transforming our world: the 2030 Agenda for Sustainable}

Development_{, 21 October 2015, A/RES/70/1}

UN General Assembly, _{Our Ocean, Our future: call for action, 6 July 2017, A/RES/71/312} UN General Assembly, _{Innovative pathways to achieve sustainable consumption and}

production_{, 15 March 2019, UNEP/EA.4/Res.1}

UN Environment Assembly, _{Combating marine plastic litter and microplastics: An}

assessment of the effectiveness of relevant international, regional and sub regional

governance strategies and approaches, _{15 February 2018, UNEP/EA.3/INF/5}

Other

World Commission on Environment and Development, _{Our Common future, 4 August 1987,} UN Doc. A/42/427

U.N. Doc.A/CN.4/1/Rev.1 (U.N. Pub. 1948. V.I(1)), (1949)

Roa (Special Rapportuer to the ILC), First resport on prevention of transboundary hazardous activities (1998), U.N. Doc. A/CN.4/487

PRC State Council, ‘Notice of the General Office of the State Council on Restricting the Production, Sale and Use of Plastic Shopping Bags,’ PRC State Council Website, 8 January 2008

State Responsibility for Marine Plastic Pollution in the Pacific Ocean

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