Bridging the accountability gap: designing a China-Japan-Korea judicial cooperation framework for transboundary marine plastic pollution

Abstract

Marine plastic pollution in Northeast Asian seas exhibits significant transboundary characteristics, yet existing governance regimes—particularly the Northwest Pacific Action Plan (NOWPAP)—lack judicial enforcement mechanisms to hold polluters accountable. The diffuse nature of pollution renders traditional tort law’s causation requirements inoperative. Objective: This study constructs a trilateral judicial cooperation framework among China, Japan, and Korea to address the accountability vacuum in transboundary marine plastic pollution cases. Employing comparative legal analysis of international environmental tort precedents (Trail Smelter, Pulp Mills cases) and institutional design methodology, this research adapts the U.S. market-share liability doctrine to transboundary pollution contexts and proposes a three-tier cooperation mechanism. The proposed framework comprises: (1) evidence collection and sharing protocols utilizing chemical fingerprinting and oceanographic drift modeling; (2) jurisdictional coordination rules to prevent forum shopping and parallel litigation; and (3) mutual recognition and enforcement mechanisms for environmental judgments. The framework leverages the existing Tripartite Environment Ministers Meeting (TEMM) platform while transforming it into an enforceable judicial architecture. By reconstructing causation requirements through pollution contribution ratios and establishing systematic judicial cooperation, this framework provides a replicable model for regional ocean governance. It directly contributes to ongoing International Plastics Treaty (INC) negotiations on transboundary liability provisions and demonstrates how soft law regimes can evolve into hard enforcement mechanisms. Yet the framework’s practical realization ultimately depends on participating states’ political will, their readiness to accept reciprocal enforcement obligations, and the gradual evolution of existing regional arrangements. Accordingly, the analysis treats the proposed architecture as a normative blueprint and feasibility exploration rather than an immediately operational regime. Given uneven doctrinal development and limited publicly accessible case law in Japan and Korea, the comparative assessment is necessarily selective, highlighting areas where further empirical and diplomatic work will be required.

1 Introduction

1.1 Problem statement: the causation dilemma in diffuse marine pollution

Marine plastic pollution in Northeast Asian seas exemplifies a fundamental challenge to contemporary environmental law: the governance of transboundary ecological harm characterized by diffuse sources, indeterminate causation, and jurisdictional fragmentation. The oceanographic dynamics of the Yellow Sea and Sea of Japan facilitate extensive cross-border movement of plastic debris. Documented evidence demonstrates Korean-origin materials accumulating on Chinese coastlines and Japanese fishing gear washing ashore in Korean waters, illustrating the spatial externalization of pollution that generates distinctive legal predicaments (Jambeck et al., 2015; Isobe et al., 2015).

The core of the problem is a mismatch between tort doctrine and how marine debris actually forms and travels. Classic liability rules expect a clean, traceable line from one actor’s discharge to one victim’s loss; with ocean plastics that line almost never exists. Debris leaves many jurisdictions, fragments, drifts on currents and winds for long periods, and arrives intermixed with matter from countless sources. In such conditions the demand for a determinate “polluter–damage” chain is not merely difficult but structurally out of reach. What results is the well-described “causation deficit”: harm is observable, yet attribution to a particular defendant cannot be made to the level the doctrine requires (Steel, 2018).

That deficit appears at three institutional layers. Internationally, UNCLOS art. UNCLOS instructs states to “prevent, reduce and control pollution of the marine environment”, but the regime is framed around ex ante prevention and does not build a cross-border liability mechanism that turns breach into compensable loss (Oude Elferink, 2020). Regionally, arrangements such as the Northwest Pacific Action Plan serve as coordination platforms—good for information sharing and capacity building—without adjudicative fora or enforcement tools. Domestically, when releases occur outside the forum’s territory, courts run into jurisdictional limits and evidentiary dead ends: service, applicable law, and proof of source become practical barriers to assigning responsibility.

The doctrinal consequences are clear. Where a discrete pipe or outfall can be identified, environmental law comfortably uses strict liability or negligence and channels compensation with workable proof rules. Marine plastic pollution does not fit that template: its diffuse-source character collapses the causal nexus on which those theories rely, making ordinary proofs—who did what, when, and to whom—unattainable in most cases. Injured communities can show injury but cannot name a tortfeasor; putative defendants may accept that they contribute in general to ocean plastics while credibly denying that their materials caused the particular damage alleged. The evidentiary gap becomes a remedial gap: ecosystems go uncompensated, and deterrent signals fail to reach upstream producers and disposers.

These doctrinal and institutional deficits are compounded by Northeast Asia’s contentious maritime politics. China, Japan and Korea hold divergent interpretations of key UNCLOS provisions and advance overlapping claims to exclusive economic zones and maritime features in the East China Sea and parts of the Sea of Japan. Any attempt to construct a trilateral judicial framework in this setting risks being perceived as implicitly endorsing one side’s boundary position. A realistic design must therefore be carefully jurisdiction-neutral: it must operate without pre-judging delimitation disputes or altering states’ formal legal positions under UNCLOS, while still supplying functional tools for addressing concrete pollution events.

1.2 Research objectives and theoretical significance

The project tackles the accountability gap by designing a China–Japan–Korea judicial cooperation scheme anchored in two pillars: a refreshed account of tort causation suited to diffuse marine pollution and a practical blueprint for regional environmental adjudication. The analysis proceeds through three linked aims that move from doctrinal repair, to institutional architecture, to policy uptake across the region. A further aim is to gauge the political and legal feasibility of such a scheme in light of China–Japan–Korea relations, their differing UNCLOS readings, and the constraints of existing regional cooperation platforms. Rather than presuming feasibility, the article identifies the legal preconditions and political conditions that would need to be satisfied for the framework to move from analytic proposal to operational regime.

The theoretical move is more than a transplant. It shifts environmental tort from an act-based to a risk-weighted paradigm: the unit of responsibility is each actor’s measurable share of the risk that eventuated in harm. This framing accommodates uncertainty while preserving deterrence and compensation, and it aligns with contemporary work in environmental law that emphasizes proportionality, the precautionary orientation, and epistemic humility in complex socio-ecological systems.

Institutionally, the paper proposes refitting the Tripartite Environment Ministers Meeting (TEMM) from a diplomatic forum into a judicial cooperation infrastructure with enforceable tools. Borrowing from European Union practice on cross-border environmental adjudication and from international arbitral experience, it sketches a three-layer design: joint fact-finding and evidence-sharing protocols; jurisdiction-allocation and coordination rules to curb forum shopping; and a mutual-recognition track for environmental judgments and settlements (Cuniberti and Rueda, 2011; Sand, 1999). The objective is to escape the soft-law cul-de-sac by converting political commitments into justiciable rights and obligations.

1.3 Literature review and research gaps

A recurring weakness in much environmental-law writing is the leap from ideals to outcomes: we refine principles, but too often stop before the nuts-and-bolts work that makes them bite. What is missing are the mechanics—text for treaty clauses, pathways for allocating and coordinating jurisdiction, and devices that turn breach into consequences. The present article tries to close that gap by laying out an institutional blueprint at a usable level of detail, including model provisions and step-wise procedural protocols that can be lifted into negotiations or implementing instruments.

1.4 Research design and methodology

On the domestic-law front, a purposive construction identifies room to project Chinese law outward without overstepping constitutional bounds. Article 2 of the Marine Environment Protection Law defines “jurisdictional waters” in narrow textual terms, yet its protective purpose can be read in harmony with UNCLOS art. UNCLOS’s environmental jurisdiction of coastal states. Likewise, Civil Code arts. Civil Code–1229 on burden-shifting in environmental torts contain no express territorial bar (Civil Code of the People’s Republic of China, 2020); read against their drafting history and structure, they can ground relief in cases with cross-border facts (Wang, 2022).

This article relies on desk-based comparative legal analysis using public sources and case law; the proposals are analytically derived and will require empirical validation and intergovernmental uptake, conditional on jurisdictional politics and monitoring/attribution capabilities. Because publicly accessible case law and doctrinal materials on marine plastic disputes remain sparse in Japan and Korea, the comparative analysis focuses on statutory frameworks and representative scholarship rather than exhaustive empirical treatment. Conceptually, we situate the contribution within polycentric ocean governance and subsidiarity, offering an analytical institutional design—a court-to-court cooperation architecture—rather than an empirical generalization.

2 Theoretical reconstruction: from market-share liability to transboundary environmental torts

Viewed in this light, the “causation problem” in diffuse-pollution cases is not something a court can fix with a few procedural tweaks; it reflects a structural mismatch between what tort doctrine assumes and how the harm actually arises. Classic tort rules were built for discrete encounters between named parties—the car crash, the ruptured pipe—where one can trace contact and sequence with some precision. By contrast, cross-border environmental injury is produced by many actors, acting at different times and under different legal orders, with effects that accumulate and interact over long horizons. That is a different species of event. Meeting it requires rebuilding the causal and responsibility architecture of tort law, not merely adjusting burdens of proof or evidentiary presumptions at the margins.

2.1 Market-share liability: doctrinal foundations and theoretical transplantation

The market-share liability doctrine emerged to address situations where doctrinal causation requirements collide with distributive justice imperatives. In Sindell v. Abbott Laboratories, daughters of women prescribed DES during pregnancy developed cancer decades later but could not identify which manufacturer produced the specific pills consumed by their mothers. Faced with fungible products, long latency periods and missing records, the California Supreme Court abandoned strict specific causation and apportioned liability according to each defendant’s share of the relevant product market. Subsequent doctrinal elaboration has emphasized three foundations: alternative risk contribution (collective causation is certain although individual causation is indeterminate), joint enterprise (defendants collectively created and profited from the risk), and loss-spreading (manufacturers are better positioned than victims to distribute residual risks through pricing and insurance). Market-share liability thus represents a structured way of translating probabilistic evidence about groups of tortfeasors into proportional liability for individual firms.

Courts have cabined this innovation through three threshold requirements and flexible computational methods. Plaintiffs must first show genuine impossibility—not mere inconvenience—in identifying specific tortfeasors, ensuring that market-share liability remains an exceptional device rather than a routine shortcut. Defendants joined to the action must collectively account for a substantial proportion of the relevant market, so that aggregate liability approximates actual causal responsibility. Finally, the products must be sufficiently fungible that distinguishing among manufacturers is scientifically impossible. Within these constraints, courts have experimented with different measures of “market share” (national sales, regional sales, or risk-weighted contributions), underscoring that defining the relevant market is itself a normative choice about fairness and deterrence rather than a purely technical exercise.

The proportionality rule therefore needs to be re-specified for marine plastic pollution. Classic market-share liability rests on a simple linear intuition: a firm with twenty percent of a fungible product market is treated as carrying roughly twenty percent of the chance of causing each injury. Marine plastic pollution shares with DES cases the impossibility of tracing individual injuries to specific producers, but it adds at least three complicating features. First, ecological responses are non-linear: loads accumulate until local assimilative capacity is breached, small increments can push ecosystems across tipping points, and mixtures of polymers and additives can interact so that the whole is more harmful than the sum of its parts. Second, sources are structurally mixed across land-based and vessel-based activities, making discharge volumes a poor proxy for marginal damage. Third, plastics’ persistence and long-distance transport mean that historical discharges and current practices jointly shape present harms. In this setting, a more faithful allocation must draw on ecology and toxicology—exposure at the receptor, persistence and transport characteristics, marginal damage functions, and source–receptor modeling—to generate weighted shares based on marginal risk contributions rather than simple market percentages.

The transplantation of market-share liability to transboundary pollution requires grounding in international environmental law’s normative architecture. Customary international law establishes foundational principles that, while developed for state-to-state relations, provide doctrinal resources for constructing private transboundary tort liability.

The transformation from interstate responsibility to private transboundary tort liability requires institutional innovation bridging public international law and private law remedies. Three doctrinal steps accomplish this transformation. First, reconceptualizing state obligations as creating correlative private rights: if states bear duties to prevent transboundary pollution, potentially affected private parties possess corresponding entitlements to pollution-free environments actionable through domestic courts. This move parallels developments in human rights law where treaty obligations generate individually enforceable rights. Second, operationalizing causation through pollution contribution ratios: where international law recognizes collective state responsibility for shared water bodies or atmospheric commons, domestic tort law can apportion private liability proportionally among contributors. Third, establishing judicial cooperation mechanisms enabling cross-border enforcement: international agreements creating evidence-sharing protocols, jurisdictional coordination, and judgment recognition transform abstract state duties into concrete remedial pathways.

The normative justification for this institutional transformation rests upon corrective justice principles and deterrence imperatives. Corrective justice demands that wrongdoers bear responsibility for harms their conduct causes; when structural features prevent identifying specific wrongdoers yet collective wrongdoing appears certain, proportional liability approximates corrective justice more closely than systematic immunity. Deterrence functions require that polluters internalize externalities; when diffuse causation prevents attributing costs to specific actors, proportional allocation based on contribution ratios channels deterrence signals more effectively than liability’s complete absence.

Legitimacy here rests on a familiar premise: sovereignty includes not only the power to supply domestic remedies for breaches of international obligations, but also the power to decide how those remedies interlock with other states’ systems. A state that can, by treaty, accept compulsory dispute settlement can equally consent to rules on mutual recognition of environmental judgments and to ex ante coordination of jurisdiction and lis pendens. The framework proposed is consent-based and negotiated rather than imposed; no court loses its constitutional identity. Instead, judges operate under standards their governments have endorsed (with room for reservations and review), preserving sovereign control while giving cross-border remedies practical force.

2.2 Reconstructing tort elements: a bifurcated causation framework

General causation addresses whether the class of polluters’ collective conduct caused the type of harm suffered. For marine plastic pollution, general causation inquires: did transboundary plastic discharge from China, Japan, and Korea collectively cause marine ecosystem damage and coastal community losses in the affected region? This inquiry admits resolution through scientific evidence demonstrating: plastic accumulation in marine environments; ecological harms (entanglement, ingestion, habitat degradation) attributable to plastic pollution; and geographic correlation between discharge sources and damage locations. General causation requires only showing that defendants’ collective conduct caused harm of the type suffered, without individuating specific causal pathways.

Specific causation addresses each defendant’s proportional contribution to aggregate harm. The pollution contribution ratio methodology quantifies individual responsibility through: chemical fingerprinting identifying debris origin jurisdictions; oceanographic drift modeling tracing transport pathways; and statistical analysis calculating proportional loading contributions (Xu et al., 2023). (Andrady, 2011). Unlike traditional specific causation requiring proof that defendant X caused plaintiff Y’s particular harm, this reconstructed framework determines that defendant X contributed Z percent to aggregate harm, justifying Z percent liability allocation.

This burden-shifting device gives concrete effect to the polluter-pays idea while tackling the stark information imbalance in cross-border pollution disputes. Claimants rarely control foreign discharge records, PRTR/DMR data, ship logs or AIS tracks, nor do they command the laboratory capacity and oceanographic modeling needed to isolate a particular source. By contrast, the alleged polluters—whether firms or state entities—hold emissions inventories and monitoring results, can commission fingerprinting and drift analyses, and have the resources to audit supply chains and outfalls. Once plaintiffs establish general causation in the sense of showing injury plus a credible pathway linking defendants’ activities to the affected marine area, the evidentiary load properly moves to defendants to produce quantified contribution evidence or point to alternative sources. The arrangement evens out informational asymmetries without foreclosing a full defense: those who can document limited or de minimis contributions retain ample room to contest responsibility.

The liability apportionment formula incorporates scientific quantification with legal policy considerations. The baseline allocation employs pollution contribution ratios: if chemical fingerprinting and drift modeling attribute thirty percent of accumulated debris to Korean sources, Korean defendants bear thirty percent of aggregate damages. However, equitable adjustments may reflect: temporal factors (recent discharges warranting greater responsibility than historical contributions already assimilated); mitigation efforts (defendants implementing pollution reduction measures deserving proportionate credit); and technological capacity (distinguishing among defendants based on ability to prevent pollution).

The redesigned scheme keeps tort law’s core jobs intact while fitting the unruly facts of diffuse pollution. Deterrence bites because each actor’s liability is keyed to its measured share of the load: a higher pollution-contribution ratio means a larger bill, and thus a concrete reason to cut discharges. Compensation aims at rough justice: even when no single tortfeasor can be named, victims recover from a pool funded in proportion to the defendants’ aggregated shares. As for corrective justice, the allocation tracks causal responsibility as closely as current science allows—using source-apportionment tools rather than guesswork—so that major contributors do not enjoy de facto immunity and minor players are not singled out arbitrarily.

The theoretical significance extends beyond marine plastic pollution. This bifurcated causation framework offers methodological insights for other diffuse transboundary environmental harms—atmospheric pollution, transboundary water pollution, climate change damages—where traditional causation requirements prove structurally inadequate. By disaggregating causation into general (collective responsibility for harm types) and specific (proportional individual contributions), tort law can address twenty-first century environmental challenges while maintaining doctrinal coherence with underlying principles of responsibility, deterrence, and corrective justice.

2.3 Operationalizing marine plastic pollution standards in judicial proceedings

Translating this reconstructed causation framework into courtroom practice requires specifying what, exactly, counts as “marine plastic pollution” for legal purposes. For the purposes of a trilateral regime, a workable definition would encompass macroplastics and mesoplastics that enter the marine environment from land-based or vessel-based activities and subsequently accumulate in coastal or offshore areas in concentrations exceeding baseline levels, as well as associated damage to marine ecosystems and coastal socio-economic interests. States may, through implementing instruments, decide whether to extend the regime to microplastics and degraded particles; but even a narrower initial scope must make clear which categories of debris (e.g., abandoned, lost or otherwise discarded fishing gear, consumer packaging, industrial pellets) fall within the adjudicatory mandate. The aim is not to fix a once-and-for-all ecological definition, but to provide sufficiently determinate legal thresholds to trigger jurisdiction, evidence-gathering, and liability allocation.

Liability allocation likewise needs operational content. Under the proposed framework, courts would begin from scientifically derived pollution contribution ratios—combining chemical fingerprinting, drift modeling and discharge inventories—to estimate each defendant’s share of the aggregate plastic load in the relevant marine area. Those quantified shares would serve as the baseline for proportional liability, subject to structured adjustments for factors such as temporal proximity (recent discharges carrying greater weight than historic ones), mitigation efforts (documented reductions in plastic leakage warranting partial credits), and the relative technological and financial capacity of defendants to prevent harm. In this way, the regime uses science to generate a starting point while openly acknowledging the normative judgments that must govern final apportionment.

For domestic courts, Joint Investigation Committee reports and their embedded pollution contribution ratios would function as rebuttable expert evidence rather than conclusive determinations. Treaty text would require that JIC methodologies—including sampling strategies, modeling assumptions, uncertainty estimates and sensitivity analyses—be fully disclosed to the parties, who may cross-examine JIC experts or submit counter-expert testimony. Courts would be instructed to treat JIC findings as presumptively reliable where procedural safeguards have been observed, but retain discretion to adjust contribution ratios when parties demonstrate serious methodological flaws or context-specific factors not captured in the original modeling. This calibrated standard of review seeks to harness the epistemic advantages of joint scientific investigations without displacing judicial responsibility for evidentiary assessment.

On the remedies side, the trilateral framework would not prescribe a single uniform measure, but rather define a menu of admissible responses that domestic courts can tailor within their own legal systems. At a minimum, this menu would include orders to finance ecological restoration and waste-removal operations, compensation for economic losses suffered by affected communities and industries, and, where domestic law allows, administrative fines or enhanced civil damages aimed at deterrence. Treaty text could require that the aggregate level of relief be commensurate with the scientifically established scale of harm and contribution ratios, while leaving modalities—lump-sum judgments, staged remediation projects, or payments into a shared fund—to national procedures.

These standards would not displace Chinese, Japanese or Korean environmental and civil liability regimes, but rather operate as a layer of coordination on top of them. Each state would remain free to maintain its own doctrinal tests for environmental harm, causation and damages in purely domestic cases, while committing, for transboundary plastic disputes falling within the treaty’s scope, to apply the agreed definitions, attribution methods and proportionality principles. In this respect, the framework functions less as a supranational code and more as a common template that channels domestic adjudication toward convergent outcomes.

2.4 The structural deficiencies of soft law regimes

The Northwest Pacific Action Plan (NOWPAP), established in 1994 under UNEP’s Regional Seas Program, exemplifies the institutional limitations inherent in soft law environmental governance. Despite nearly three decades of operation coordinating marine environmental protection among China, Japan, Korea, and Russia, NOWPAP’s contribution to addressing transboundary marine plastic pollution remains confined to informational and technical cooperation, lacking enforceable mechanisms for liability attribution or remedial action (Yoon and Kim, 2020).

The fundamental deficiency resides in NOWPAP’s normative architecture. As a regional action plan rather than a binding treaty, NOWPAP generates political commitments without creating justiciable legal obligations. Member states voluntarily participate in information exchange, capacity-building workshops, and joint monitoring programs, yet retain unilateral discretion regarding implementation and compliance (Kim and Lee, 2021). This soft law structure reflects a deliberate institutional choice: states preferring flexibility and sovereignty preservation over binding commitments accepted coordination mechanisms precisely because they impose minimal constraints on domestic policy autonomy.

2.5 TEMM’s political functions and comparative lessons from the EU

TEMM’s institutional architecture differs critically from NOWPAP in its explicit political orientation. Rather than technical coordination among environmental agencies, TEMM facilitates high-level political engagement among ministers possessing domestic policy-making authority. This structural feature creates transformation potential: ministerial agreements can mobilize domestic legislative and administrative resources in ways that technical agency cooperation cannot. When environment ministers jointly commit to institutional innovation, they exercise political authority capable of overcoming bureaucratic inertia and sovereign resistance that stymie lower-level technical cooperation.

The European Union’s system of cross-border environmental adjudication provides instructive comparative insights for Northeast Asian institutional design, notwithstanding fundamental contextual differences. The Brussels I Recast Regulation establishes comprehensive jurisdictional rules enabling plaintiffs to sue defendants across EU member states while preventing forum shopping and parallel litigation (Cuniberti and Rueda, 2011). Key design features merit detailed examination for potential adaptation.

The Brussels regime implements a “plaintiff’s choice” jurisdictional rule for tort litigation: plaintiffs may sue either in the defendant’s domicile or at the place where the harmful event occurred. For environmental torts, the Court of Justice interpreted “place where harmful event occurred” to encompass both the place of causal action (pollution discharge) and the place of damage (environmental harm), granting plaintiffs strategic forum selection (Briggs, 2014). This dual-track approach accommodates diffuse pollution scenarios wherein discharge and damage locations diverge spatially and temporally.

2.6 Existing trilateral environmental commitments and political will

Existing China–Japan–Korea environmental instruments already supply modest but important footholds for such a transformation. Ministerial joint statements under the Tripartite Environment Ministers Meeting have repeatedly identified marine litter and ocean health as shared priorities and have endorsed cooperation on monitoring, data exchange and capacity building. Trilateral summit communiqués and sectoral action plans likewise recognize the need for coordinated responses to transboundary environmental risks, even if they stop short of judicial cooperation or binding liability provisions. These texts are politically soft, but they demonstrate that marine environmental protection occupies a stable place on the trilateral agenda.

At the same time, the limited legal bite of these arrangements underscores the gap this article seeks to address. NOWPAP and TEMM documents typically frame commitments in best-efforts language and entrust implementation to domestic administrative agencies, leaving courts almost entirely outside the picture. The framework developed here therefore builds horizontally on existing political understandings—avoiding a wholesale new regime—while adding a vertical dimension: clear remedial pathways through domestic courts backed by agreed rules on evidence, jurisdiction and recognition. Whether such a shift occurs in practice will depend less on textual drafting than on whether governments perceive sufficient environmental and strategic benefits to justify the additional sovereignty costs.

2.7 The imperative for institutional transformation

From a strategic imperative, regional institutional leadership opportunities emerge from transformative initiatives. Northeast Asian states collectively account for substantial shares of global plastic production and marine pollution; demonstrating effective regional governance provides international credibility and normative influence. As International Plastics Treaty negotiations proceed, states presenting functional regional models exercise disproportionate influence over global treaty design. Institutional innovation thus serves not merely regional environmental interests but broader strategic objectives of norm entrepreneurship and global governance participation.

Phase-by-phase reform offers a realistic route that marries ambition with what states will actually accept. Stage one targets low-cost technical cooperation: shared evidence protocols, joint fact-finding, and common attribution standards. These procedural tools create habits of cooperation, let officials compare methods, and demonstrate tangible benefits without forcing anyone to sign up to immediate liability. Stage two moves into substantive alignment: converging rules on forum and jurisdiction, a narrowed set of choice-of-law defaults, and guaranteed procedural standing for cross-border claimants. These steps supply the legal plumbing needed for liability without yet compelling any particular outcome. Stage three completes the arc with enforcement: recognition and effect of foreign environmental judgments, cross-border asset measures, and pooled remediation funds. A stepwise design respects sovereignty anxieties while keeping momentum toward genuinely workable judicial cooperation.

These three stages should be understood as an indicative sequence rather than a rigid timetable. In practice, movement from one stage to the next would depend on demonstrable success in the preceding phase, the stability of broader diplomatic relations among China, Japan and Korea, and domestic political willingness to accept deeper cooperation. Historical experience with regional integration elsewhere, including in Europe, suggests that building trust, institutional routines and shared expectations typically takes decades rather than a single planning cycle. The framework therefore sketches a direction of travel while recognizing that implementation is likely to be uneven, contingent and reversible.

Table 1 highlights that the crucial difference between NOWPAP and the proposed trilateral framework lies not in rhetorical commitment but in the location and nature of enforcement authority. Under NOWPAP, implementation depends on environment ministries’ willingness to translate soft recommendations into domestic measures; non-compliance carries, at most, reputational and diplomatic costs. By contrast, a judicially anchored system creates concrete, individualized obligations backed by enforceable remedies and the threat of asset seizure or compulsory restorative measures. This shift from voluntary to compulsory enforcement is not merely a legal technicality: it alters polluters’ incentive structure by making the expected cost of non-compliance more predictable and harder to externalize. Politically, the framework attempts to overcome the barriers that have historically prevented binding arrangements under NOWPAP by narrowing the subject-matter scope (marine plastic pollution), limiting participation to three closely affected states, and designing sovereignty-sensitive safeguards such as subsidiarity, reciprocity and jurisdictional neutrality. In doing so, it seeks to convert NOWPAP’s informational and institutional achievements into an enforceable yet politically credible next step rather than a wholesale institutional rupture.

3 Jurisdictional framework: China’s legal instruments and their extraterritorial application potential

3.1 Domestic statutory foundations for extraterritorial jurisdiction

The analytical inquiry into China’s capacity to exercise jurisdiction over transboundary marine plastic pollution requires systematic examination of domestic statutory architecture and its interpretive possibilities. The Marine Environment Protection Law (MEPL), as amended in 2023, constitutes the primary legislative instrument governing maritime environmental governance (Liu and Wang, 2024). Article 2 defines the statute’s territorial scope as “the internal waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf of the People’s Republic of China” (Marine Environment Protection Law of the People’s Republic of China, 2023), employing geographic descriptors drawn directly from UNCLOS. This textually restrictive formulation appears to preclude extraterritorial application, confining statutory authority to maritime zones subject to Chinese sovereignty or sovereign rights.

Purposive, or teleological, interpretation—now a familiar technique in PRC adjudication—allows statutes to be read in line with their objectives rather than confined to literal boundaries (Zhang, 2021). The 2023 revisions declare “ecosystem-based management” and the “comprehensive protection of the marine ecological environment” as guiding norms in Article 3 (Marine Environment Protection Law, 2023), signaling a legislative purpose that cannot be cabined by rigid geography. Because marine ecosystems operate as integrated units, pollution introduced in one area predictably propagates into neighboring waters. A construction that gives effect to those aims therefore reads “jurisdictional waters” in functional terms: where protection of ecosystems within the jurisdiction so requires, regulatory reach may address sources located beyond the coastline in order to safeguard the integrity of waters within Chinese competence. This article addresses three questions: **Q1** how to litigate diffuse, cross-border plastic harms; **Q2** how to allocate liability via **pollution-contribution**; and **Q3** how to enable **court-to-court cooperation** without creating a supranational body.

Comparative public-international-law materials support this orientation. Under UNCLOS art. UNCLOS, coastal states possess jurisdiction for protection and preservation of the marine environment within the EEZ (United Nations Convention on the Law of the Sea, 1982). Read together with Articles 211(5) and 220, that grant is commonly interpreted to permit coastal-state prescriptive and enforcement measures against vessel-source pollution consistent with generally accepted international rules and standards (Oude Elferink, 2020). By contrast, land-based sources are governed principally by Article 207—implemented through domestic legislation and cooperation obligations (see also Article 213)—rather than by Article 56. Although flag-state control remains the default for ships, Article 220 authorizes coastal-state enforcement against foreign vessels that cause pollution in the EEZ, subject to specified procedural conditions. The absence of explicit language on extraterritoriality in Chinese statutes should not be over-read as a prohibition; it is equally consistent with a legislative assumption that UNCLOS furnishes the international-law footing for protective jurisdiction with respect to vessel-source pollution and cooperation-based responses to land-based impacts.

The 2020 Civil Code crafts special rules for environmental torts: Article 1229 imposes strict liability on polluters, and Article 1230 shifts the burden of proof, requiring defendants to negate causation or fault (Civil Code of the People’s Republic of China, 2020). Wang (2021) notes that neither provision contains territorial qualifiers, which raises interpretive questions about application to cross-border fact patterns. Drafting records indicate that the drafters deliberately avoided geographic limits to leave space for evolving adjudicatory practice and international cooperation. Given the Code’s systemic role as general private law, the better reading is presumptive applicability wherever Chinese parties or cognizable Chinese interests are implicated, absent an express statutory carve-out.

The interpretive pathway forward therefore requires distinguishing between unilateral extraterritorial application (internationally controversial and practically unenforceable) and treaty-based cooperative jurisdiction (internationally legitimate and practically feasible). Chinese statutory provisions possess latent extraterritorial potential that judicial cooperation agreements can activate: the MEPL’s ecosystem protection mandate and Civil Code’s environmental tort rules provide domestic legal foundations, while international treaties supply the international legal authorization and enforcement mechanisms necessary for effective application. This bifurcated approach preserves formal respect for territorial sovereignty while enabling functional governance of transboundary pollution through consensual cooperation.

Before developing judicial cooperation mechanisms, understanding substantive law convergences and divergences across China, Japan, and Korea proves essential. While each jurisdiction possesses distinct legal traditions—China’s socialist legal system, Japan’s post-war civil law framework, Korea’s hybrid civil-common law structure—environmental tort doctrines exhibit surprising functional similarities alongside critical differences affecting cooperation design.

Table 2 consolidates a ten-factor comparison that matters for cross-border pollution litigation. The grid shows a notable meeting of minds on core liability doctrines—strict liability and calibrated burden shifting—while flagging points of separation in remedies and procedural entitlements that would need to be managed through a cooperation instrument rather than left to chance.

For institutional design, these similarities and differences pull in different directions. Convergence on strict-liability baselines and burden-shifting doctrines means that courts in all three jurisdictions already accept, at least in principle, the idea that complex pollution harms may justify easing plaintiffs’ proof burdens—an essential premise for any regime built on probabilistic causation and contribution ratios. By contrast, divergence in standing rules and remedial arsenals implies that the treaty cannot simply harmonize procedure downward to the most restrictive model. Instead, it must accommodate China’s expansive public interest litigation, Japan’s and Korea’s stronger emphasis on victim-initiated suits, and varying appetites for punitive or exemplary damages. The proposed framework responds by using treaty-based minimum standards (e.g., access for representative claimants in transboundary cases) while allowing states to maintain more generous domestic mechanisms and to treat certain remedies—such as punitive damages—as optional add-ons. Table 2 therefore does not merely describe the legal landscape; it identifies exactly where the cooperation instrument must coordinate, tolerate or deliberately leave room for pluralism.

Recent comparative work in environmental law urges attention to function over form: cooperation succeeds when institutions deliver equivalent policy effects, even if the black-letter rules differ (Bodansky and Rajamani, 2023). A function-first lens allows a trilateral scheme to respect legal diversity while still producing decisions that travel across borders.

3.2 Japan’s jurisdictional framework for marine environmental torts

Japan’s regulatory architecture for marine environmental harm combines general civil-law doctrines with specialized environmental and maritime statutes. Under the Civil Code, injured parties may pursue tort claims for unlawful acts causing damage, and courts have developed flexible approaches to causation and proof in pollution cases, particularly where scientific uncertainty is pronounced. These private-law avenues operate alongside framework legislation on environmental protection and sectoral laws addressing marine pollution and waste management, which provide administrative enforcement tools and, in some instances, explicit bases for civil liability.

From a jurisdictional standpoint, Japanese courts apply standard rules on international civil procedure: defendants domiciled in Japan can generally be sued there, and jurisdiction may also be grounded where harmful events occur within Japanese territory or territorial waters. In environmental cases, courts have been willing to hear claims arising from harms manifesting in Japan even when conduct took place partly abroad, so long as a substantial part of the damage is felt domestically. While published case law on transboundary marine plastic disputes is scarce, these doctrinal elements suggest that Japanese courts possess at least a latent capacity to hear cross-border marine pollution cases where Japanese coastlines or fishery interests are affected.

For purposes of trilateral cooperation, the key implication is that Japan’s system can accommodate the proposed evidence-sharing and jurisdiction-allocation rules without radical renovation. The main adjustments would lie in recognizing treaty-based presumptions grounded in joint scientific investigations and in accepting, within defined bounds, judgments rendered by Chinese and Korean courts in cases implicating Japanese defendants or interests.

3.3 Korea’s jurisdictional framework for marine environmental torts

Korea similarly operates a mixed regime in which general tort principles interface with dedicated environmental and marine protection legislation. The Civil Act provides a broad negligence-based cause of action, and Korean courts have developed doctrines easing the evidentiary burden for victims in complex pollution disputes, including by accepting probabilistic proof and inferences where direct causation evidence is difficult to obtain. Statutes governing marine environment management, fisheries and waste control complement these private-law tools by empowering administrative agencies to regulate discharges and to seek recourse for environmental damage.

In terms of international civil jurisdiction, Korean courts may exercise authority over defendants domiciled in Korea and over disputes sufficiently connected to Korean territory, including cases where environmental harm materializes along Korean coasts or in waters under Korean control. Academic commentary and a limited number of cross-border environmental cases indicate a cautious willingness to hear claims with foreign elements when domestic communities or resources bear significant impacts. While the existing jurisprudence does not yet address marine plastic pollution as such, the legal infrastructure needed to host such cases is largely in place.

For a trilateral judicial cooperation framework, these features mean that Korea could, in principle, participate in shared attribution mechanisms and coordinated jurisdiction rules without overturning domestic doctrine. Treaty provisions would primarily need to clarify how Korean courts should receive Joint Investigation Committee reports, apply agreed contribution ratios, and interface with foreign proceedings to avoid duplicative litigation and conflicting outcomes.

3.4 Public interest litigation: institutional innovation and extraterritorial challenges

China’s Environmental Public Interest Litigation (EPIL) is a case in point. The 2017 Civil Procedure Law revision authorizes procuratorates to bring civil public-interest suits “where conduct harms the public interest in areas including ecological environment and resource protection, and no statutory organ or organization brings suit” (Civil Procedure Law of the People’s Republic of China, Article 55, 2017 Amendment). That standing reform reconfigured enforcement: beyond victim-specific torts, state organs can now vindicate collective ecological interests without requiring individualized injury.

Early results suggest a material shift in practice. From 2017 to 2023, procuratorates initiated more than 18,000 environmental public-interest cases, securing roughly RMB 7.8 billion in ecological restoration and driving on-the-ground remediation (Zhang and Li, 2024). Campaigns under the Supreme People’s Procuratorate—such as “Protecting Blue Sky, Clear Water, and Pure Land”—demonstrate the capacity to mobilize coordinated legal responses to degradation. The natural next question is whether that same capacity could be directed, through proper legal channels, at transboundary EPIL targeting foreign-source marine pollution that harms Chinese waters.

By contrast, Japan and Korea currently rely more heavily on victim-initiated litigation and administrative enforcement, with only limited avenues for public-interest suits, a divergence that any trilateral framework would need to accommodate when designing standing rules.

The extraterritorial application of EPIL confronts formidable legal obstacles rooted in sovereignty principles and jurisdictional limitations. First, the state immunity doctrine generally precludes domestic courts from exercising jurisdiction over foreign sovereign acts. If pollution originates from foreign government operations—state-owned enterprises, military facilities, or regulatory failures—sovereign immunity may bar Chinese judicial proceedings regardless of environmental harm severity (Fox, 2020). While the restrictive immunity doctrine (distinguishing sovereign acts from commercial acts) theoretically permits suits addressing commercial activities, environmental pollution often involves governmental regulatory functions falling within sovereign immunity’s core.

3.5 Private international law: choice-of-law coordination and conflicts resolution

The Law on the Application of Law to Foreign-Related Civil Relations (LALFRCR), enacted in 2010, governs choice-of-law questions in cross-border civil litigation. Article 44 addresses environmental tort conflicts of law: “The law of the place where the tortious act occurred or the law of the place where the result of the tortious act occurred may be applied to claims for damages arising from environmental pollution” (Law of the People’s Republic of China on the Application of Law to Foreign-Related Civil Relations, 2010). As Xiao (2012) explains, this provision grants plaintiffs strategic choice between lex loci delicti commissi and lex loci damni.

However, permitting unfettered plaintiff choice generates international friction when domestic law systematically exceeds international standards’ stringency. Foreign defendants may perceive Chinese courts applying Chinese law to foreign conduct as jurisdictional overreach, potentially triggering diplomatic protests or retaliatory measures. This concern motivates proposals for harmonized choice-of-law rules through international agreement—essentially, treaty-based convergence on applicable law reducing conflicts and enhancing predictability.

Similar patterns can be observed in Japanese and Korean private international law, where environmental torts are typically governed by some combination of the law of the place of conduct and the place of injury, with room for party choice and flexible connecting factors in complex cases. Although doctrinal formulations differ, all three systems already recognize the need for adaptable conflicts rules in pollution disputes, creating a foundation on which treaty-based coordination can build.

The proposed trilateral judicial cooperation framework addresses these choice-of-law conflicts through several mechanisms. First, the treaty itself could specify applicable law through unified conflicts rules: for example, mandating application of damage-location law for all transboundary marine pollution torts. This approach sacrifices plaintiff choice for international harmony, accepting that Korean plaintiffs suing Chinese defendants would apply Korean law (and vice versa) despite potential disadvantages. Second, the treaty could harmonize substantive tort standards—causation requirements, liability allocation, damage calculation—reducing the practical significance of choice-of-law questions. If Chinese, Japanese, and Korean environmental tort law converge through treaty coordination, which specific national law applies becomes largely irrelevant.

Third, the framework could implement a “most significant relationship” approach incorporating multiple connecting factors: pollution source location, damage location, parties’ nationalities, and regulatory interests. This approach seeks optimal law application through holistic analysis rather than mechanical rules. While scholars have critiqued such flexible methodologies for indeterminacy (Wautelet, 2023), they accommodate transboundary pollution’s complexity and case-specific variations. While generating less predictability than bright-line rules, flexible approaches accommodate transboundary pollution’s complexity and case-specific variations.

Transboundary pollution litigation inevitably generates concurrent jurisdiction: multiple states possess legitimate authority to adjudicate based on pollution source location, damage occurrence, defendant domicile, or affected resource location. This jurisdictional multiplicity creates forum competition wherein plaintiffs strategically select favorable venues while defendants forum-shop for dismissal or advantageous substantive law. Absent coordination mechanisms, concurrent jurisdiction produces duplicative litigation, inconsistent judgments, and enforcement conflicts undermining legal certainty (Baumgartner, 2023).

The European Union’s Brussels I Recast Regulation offers an alternative model through multilateral coordination. Article 29 implements strict lis pendens rules: when related proceedings are pending in different member state courts, later-seized courts must stay proceedings until the first-seized court establishes jurisdiction. This temporal priority rule prevents forum shopping while respecting all member courts’ potential jurisdiction (Cuniberti and Rueda, 2011). However, critics note that temporal priority rewards strategic forum selection through early filing, potentially disadvantaging plaintiffs requiring time for investigation before initiating suit.

The proposed trilateral framework adopts a modified lis pendens approach balancing temporal priority with substantive appropriateness. The draft treaty provision specifies: “Where proceedings involving the same parties and substantially identical issues are brought in courts of different States Parties, the court second seized shall stay proceedings. The court first seized shall decline jurisdiction if the court second seized possesses substantially greater connection to the dispute, considering: (a) location of pollution source; (b) location and extent of damage; (c) availability of evidence; (d) parties’ residence; and (e) applicable law.” This formulation preserves temporal priority’s efficiency benefits while incorporating flexibility for clearly inappropriate forum selection.

The construction of an enforceable judicial cooperation framework requires careful attention to institutional design principles balancing effectiveness imperatives with political feasibility constraints. The analytical framework developed here draws upon new institutional economics and comparative regime analysis to identify design features maximizing cooperation likelihood while addressing identified governance failures (Ostrom, 2014).

At the same time, these design choices must be situated within a political landscape marked by episodes of diplomatic tension and competing maritime claims. In recent years, China–Japan–Korea relations have been periodically strained by security incidents, fisheries disputes and disagreements over maritime jurisdiction, while domestic policy agendas prioritize economic growth, energy security and strategic competition alongside environmental protection. Any judicial cooperation scheme that appears to compromise core sovereignty symbols or redistribute regulatory burdens in visibly asymmetric ways is therefore likely to encounter domestic resistance. The framework proposed here is explicitly designed to minimize such flashpoints by limiting trilateral obligations to clearly transboundary functions, preserving national discretion over domestic enforcement, and sequencing reforms so that their benefits are demonstrated before more politically sensitive commitments are contemplated.

Three foundational principles structure the institutional architecture. First, the subsidiarity principle allocates authority to the lowest effective governance level, reserving trilateral mechanisms for issues genuinely requiring collective action. This principle respects national sovereignty by limiting international obligations to functions demonstrably unachievable through domestic institutions alone. For transboundary marine plastic pollution, certain functions—pollution source attribution, oceanographic modeling, cross-border evidence collection—inherently require multilateral cooperation; others—domestic enforcement, remedial fund management, public participation—can operate nationally with coordination rather than centralization.

Third, the reciprocity principle ensures balanced burden distribution avoiding asymmetric obligations that generate perceptions of unfairness. Each state party assumes comparable jurisdictional obligations, evidence-sharing duties, and enforcement responsibilities. This structural symmetry addresses collective action problems wherein individual states might free-ride on others’ enforcement efforts while shirking domestic obligations. Reciprocity mechanisms—including conditional commitment structures where obligations activate only upon all parties’ ratification—prevent defection and stabilize cooperation (Keohane and Victor, 2016).

Recent empirical studies of environmental treaty negotiations identify several strategic approaches for overcoming political obstacles (Betsill and Corell, 2001). Issue linkage connects environmental cooperation to broader bilateral interests—trade relations, technology transfer, security cooperation—creating cross-issue bargaining opportunities. Epistemic community engagement mobilizes scientific experts and environmental professionals generating technical consensus insulating cooperation from political volatility. Non-state actor participation incorporates business groups and environmental NGOs as constituency supporters building domestic political coalitions favoring cooperation.

The proposed framework employs all three strategies. Issue linkage opportunities emerge from China-Japan-Korea trilateral cooperation summits addressing economic integration, disaster management, and cultural exchange; environmental judicial cooperation could be packaged within broader cooperation frameworks enhancing overall political attractiveness. Epistemic communities already exist through marine science research networks, oceanographic data exchange, and joint pollution monitoring programs; formalizing these technical relationships within judicial cooperation architecture leverages existing trust. Non-state actors—fishing industry associations suffering pollution damages, environmental NGOs advocating accountability, insurance companies managing liability risks—constitute natural constituencies whose organized advocacy can overcome bureaucratic inertia and industry opposition.

Lessons from analogous regional environmental regimes suggest that political feasibility often hinges on how such stakeholder coalitions are mobilized. In the Baltic Sea, for example, HELCOM’s pollution reduction schemes gained traction only after coastal industries, municipalities and civil society groups began to frame eutrophication control as a shared economic and reputational interest rather than a purely regulatory burden. Similarly, the UNECE Long-range Transboundary Air Pollution regime built support by linking emission reduction commitments to technology transfer and co-benefits for public health. Although Northeast Asia’s geopolitical context is more contentious, these experiences indicate that where affected coastal communities, fisheries sectors and local governments perceive judicial cooperation as enhancing, rather than constraining, their long-term interests, domestic political resistance can be mitigated. The framework developed here explicitly anticipates such coalition-building dynamics by pairing judicial mechanisms with transparency, capacity-building and restoration funding that generate visible benefits for domestic constituencies.

3.6 Tier one: evidence collection and scientific attribution protocols

The evidentiary foundation for transboundary pollution litigation requires systematic protocols for collecting, analyzing, and legally validating scientific data attributing pollution sources. The first tier of the cooperation mechanism establishes standardized procedures transforming marine science capabilities into admissible legal evidence.

Joint Investigation Committee (JIC): The treaty establishes a Standing Joint Investigation Committee comprising marine scientists, environmental enforcement officials, and legal experts from each state party. The JIC’s mandate encompasses: (a) developing standardized protocols for pollution incident investigation; (b) coordinating emergency response to major pollution events; (c) conducting joint field investigations upon request by any party; and (d) producing authoritative technical reports on pollution source attribution. This institutional structure transforms ad hoc bilateral consultations into permanent trilateral capacity.

The JIC’s investigative authority includes: access to suspected pollution sites within member states (subject to reasonable notice and national security exceptions); authority to collect environmental samples for chemical fingerprinting analysis; power to requisition relevant documentation from government agencies and private entities; and capacity to interview witnesses and inspect facilities. These investigative powers, while potentially intrusive upon national sovereignty, operate through consensual treaty authorization rather than unilateral assertion, preserving formal sovereignty principles while enabling effective transboundary investigation (Churchill and Ulfstein, 2000).

To address inevitable disagreements over data access and investigative scope, the treaty would establish a clear escalation procedure within the JIC. When a State Party declines to provide requested information or contests a proposed sampling plan, it must issue a written objection specifying the legal or practical grounds (e.g., data protection, trade secrecy, national security). The JIC then convenes a review panel of technical and legal experts—drawn from all three states but operating under jointly agreed rules of procedure—to evaluate the objection within a fixed timeframe. Where consensus cannot be reached, the panel may adopt decisions by qualified majority, while recording dissenting views in an annex to the investigation report. Domestic courts would receive both the majority findings and any written dissents, allowing them to weigh the evidentiary significance of contested data while preventing a single state’s refusal from paralyzing the entire investigative process.

Chemical Fingerprinting Database: A critical technical innovation involves establishing a unified regional database cataloging chemical signatures of plastic materials produced or imported within Northeast Asian jurisdictions. Recent advances in polymer science enable identifying plastic origin through spectroscopic analysis of chemical additives, isotopic ratios, and molecular markers (Cai et al., 2024). However, source attribution requires comprehensive reference databases against which field samples can be compared. The treaty mandates that manufacturers and importers of plastic materials register chemical profiles with the trilateral database, creating forensic infrastructure enabling pollution source identification.

Requiring a shared database understandably raises trade-secret concerns: chemical recipes are proprietary assets that firms are reluctant to expose. The architecture therefore hardwires confidentiality on several fronts: access is limited to accredited investigators bound by strict confidentiality undertakings (and, where appropriate, in-camera court supervision); companies may submit only discriminating identifiers—polymer/additive “fingerprints” or other source markers—in lieu of full formulations; storage employs encryption in transit and at rest with audited access logs and chain-of-custody controls; and unauthorized access or disclosure triggers criminal penalties in addition to civil remedies. Framed around a data-minimization principle, these safeguards preserve the forensic value needed for source attribution while protecting intellectual property.

Oceanographic Drift Modeling: Complementing chemical fingerprinting, oceanographic transport modeling enables tracing debris pathways from source to damage locations. Recent computational advances permit high-resolution simulation of particle transport incorporating ocean currents, wind forcing, and material buoyancy characteristics (van Sebille et al., 2015). However, model reliability depends upon accurate oceanographic data—current measurements, temperature profiles, wind observations—requiring systematic monitoring and data sharing.

The treaty establishes protocols for real-time oceanographic data exchange utilizing existing monitoring infrastructure while filling critical gaps. Satellite remote sensing data (already internationally accessible) provides baseline information; in-situ measurements from research vessels and monitoring buoys supplement satellite observations; and numerical ocean models integrate observational data producing transport predictions. The cooperative framework creates no new monitoring obligations but systematizes existing capabilities toward forensic applications.

Evidentiary standards and the courtroom use of science. The point of the technical work is not curiosity but producing proof that clears the admissibility gate. Accordingly, the treaty sets concrete rules: reports of the Joint Investigation Commission (JIC) enjoy a rebuttable presumption of authenticity unless a party offers persuasive contrary proof; polymer/additive “fingerprinting” is receivable only where the analysis meets pre-set accuracy floors—e.g., confidence intervals of at least 95%—and has undergone independent peer review; oceanographic drift/dispersion models must rest on validated methods and disclose calibration data with quantified uncertainty bands. Framed this way, judges receive science that is both rigorous and justiciable, steering between two errors—uncritical deference to fallible methods and reflexive skepticism toward techniques that, properly validated, are reliable.

3.7 Tier two: jurisdictional coordination and procedural harmonization

Jurisdictional Allocation Rules: The treaty implements a structured approach to concurrent jurisdiction balancing plaintiff forum choice with defendants’ legitimate interests in predictable adjudication. Article 5 of the draft agreement specifies: “Courts of State Parties shall have jurisdiction over transboundary marine plastic pollution torts where: (a) the defendant is domiciled within the State Party; (b) the pollution source is located within the State Party’s territory or maritime zones; or (c) environmental damage occurs within the State Party’s territory or maritime zones.” This formulation authorizes concurrent jurisdiction—multiple states may possess legitimate authority over the same dispute—while establishing clear jurisdictional predicates.

To manage concurrent jurisdiction’s coordination challenges, the treaty adopts modified lis pendens rules incorporating temporal priority with substantive appropriateness assessment. Article 6 provides: “Where proceedings involving substantially identical parties and causes of action are brought in different State Party courts: (1) the court second seized shall stay proceedings and notify the court first seized; (2) the court first seized shall notify the court second seized upon establishing jurisdiction; (3) either court may propose coordination or consolidation; (4) the court first seized shall decline jurisdiction if the court second seized demonstrates substantially greater connection to the dispute.” This framework prevents racing to courthouse doors while preserving flexibility for clearly inappropriate forum selection.

• Forum Non Conveniens Limitation: To prevent defendants from strategically seeking dismissal through forum non conveniens arguments, the treaty restricts discretionary forum dismissal. Article 7 specifies that courts may dismiss on inconvenient forum grounds only when: (a) an alternative forum is clearly more appropriate considering all relevant factors; (b) the alternative forum will accept jurisdiction and provide adequate remedies; (c) dismissal will not result in significant procedural disadvantage to plaintiffs; and (d) public interest factors substantially favor the alternative forum. These restrictive conditions prevent defendants from exploiting forum non conveniens doctrine to evade liability while preserving genuine appropriateness dismissals.

• Unified Choice-of-Law: Perhaps the most sovereignty-sensitive dimension involves harmonizing applicable law for transboundary pollution torts. The treaty adopts a compromise approach: Article 8 establishes a general rule applying the law of the place where environmental damage occurred (lex loci damni), recognizing that damage-bearing jurisdictions possess strongest regulatory interests. However, Article 8(2) permits parties to stipulate alternative applicable law through express agreement, preserving party autonomy while establishing default rules enhancing predictability.

This choice-of-law scheme can appear to tilt toward plaintiffs, since harm is usually realized in the forum where they sue, making that forum’s (often plaintiff-protective) law the default. Three points, however, make the asymmetry normatively acceptable. First, the substantive alignment measures set out elsewhere narrow cross-border differences in liability, so the practical stakes of choice-of-law shrink. Second, reciprocity works over time: each state will at different moments host injured parties and house alleged polluters, producing a rough symmetry of interests across cases even if any single case looks one-sided. Third, anchoring the lex loci damni honors a settled strand of international environmental law that accords harm-bearing states a special claim to safeguard their own environments (Hey, 2017).

These procedural harmonization provisions represent careful balancing between uniformity and national legal diversity. Rather than imposing comprehensive procedural codes displacing national civil procedure laws, the treaty establishes minimum standards that national procedures must satisfy while permitting additional protections. This “floor not ceiling” approach accommodates legal diversity while preventing systematic procedural disadvantages for cross-border plaintiffs.

Automatic Recognition Principle: Article 10 of the draft treaty establishes automatic mutual recognition for environmental tort judgments rendered by State Party courts: “A final judgment rendered by a competent court of a State Party shall be recognized and enforced in other State Parties without review of the judgment’s merits.” This automatic recognition principle—drawn from Brussels I Recast Regulation precedents—dramatically reduces enforcement costs and temporal delays by eliminating duplicative litigation over judgment validity (Magnus and Mankowski, 2012).

However, automatic recognition operates subject to limited exceptions preserving essential sovereignty interests. Article 10(2) permits recognition refusal only when: (a) the judgment violates fundamental public policy of the recognizing state; (b) the defendant lacked adequate notice or opportunity to be heard in the original proceedings; (c) the judgment conflicts with an earlier final judgment in the recognizing state; or (d) the rendering court lacked jurisdiction under treaty standards. These exceptions receive narrow interpretation—particularly the public policy exception—preventing systematic evasion while preserving core procedural fairness protections.

To further mediate sovereignty concerns, the treaty couples automatic recognition with procedural safeguards and political oversight mechanisms. First, refusal to recognize a judgment on public policy grounds must be accompanied by a reasoned written decision specifying the concrete constitutional or fundamental-rights conflict at stake, which is then communicated to other State Parties through the TEMM secretariat. Second, a Joint Oversight Committee composed of senior judicial and executive representatives would periodically review patterns of recognition refusals and recommend interpretive guidelines or, where necessary, targeted treaty amendments. Third, States Parties may, upon ratification, enter narrowly tailored reservations limiting recognition for specific categories of remedies—such as punitive damages—while still accepting compensatory and restorative orders. These devices allow states to protect core constitutional identities and politically sensitive interests without undermining the overall predictability and enforceability of transboundary judgments.

This treaty architecture represents institutional innovation grounded in comparative precedent analysis and adapted to Northeast Asian political realities. The framework’s viability depends less on textual perfection than on political commitment: whether governments perceive sufficient environmental and strategic benefits to justify sovereignty costs determines implementation likelihood.

4 Conclusion: theoretical contributions, policy implications, and research horizons

4.1 Theoretical contributions to environmental law scholarship

This study advances international environmental law scholarship through three interconnected theoretical contributions addressing fundamental challenges in transboundary pollution governance.

Rather than importing a foreign rulebook wholesale, the cross-border borrowing here works by distilling first principles—alternative risk contribution, collective responsibility, and loss-spreading—and then rebuilding their institutional form for a transboundary setting. The approach adopts a two-step view of causation: at the general level, a class of actors is answerable for generating the type of harm; at the specific level, each defendant’s liability tracks a measured share of that harm. Framed this way, tort law can grapple with twenty-first-century environmental injuries without abandoning its core commitments to responsibility, deterrence, and corrective justice. The move also speaks to a larger jurisprudential dispute: is the law of torts sufficiently elastic to accommodate novel, system-level injuries through principled adaptation, or do such harms demand a deeper recasting of doctrine at the foundations? (Goldberg and Zipursky, 2007).

The institutional design principles—subsidiarity, gradualism, reciprocity—reflect sophisticated understanding of collective action problems and sovereignty constraints shaping interstate cooperation. Rather than proposing comprehensive supranational institutions (politically infeasible in Northeast Asia), the framework leverages existing cooperation platforms (TEMM, UNDP Yellow Sea Project) while adding targeted judicial cooperation functions. This pragmatic approach recognizes that institutional development proceeds through layering and conversion rather than wholesale replacement, accumulating incremental changes that cumulatively transform regime character (Mahoney and Thelen, 2010).

This study’s choice-of-law framework—establishing lex loci damni as general rule while permitting substantive harmonization reducing law selection significance—represents theoretical innovation balancing predictability with flexibility. The modified lis pendens approach incorporating substantive appropriateness assessment alongside temporal priority prevents both mechanical formalism and unlimited judicial discretion. These doctrinal refinements contribute to broader private international law debates regarding multilateralism’s role: whether bilateral conflicts rules suffice or transnational litigation requires treaty-based coordination (Symeonides, 2021).

4.2 Policy implications for marine plastic governance

The practical policy significance extends across multiple governance scales, offering actionable frameworks for regional cooperation and global treaty development.

Regional Level: The proposed trilateral judicial cooperation framework provides Northeast Asian states with institutional architecture addressing shared marine pollution challenges while demonstrating regional leadership. Implementation would position China, Japan, and Korea as norm entrepreneurs in environmental governance, potentially attracting interest from other regions confronting analogous challenges. The Mediterranean Basin, Southeast Asian seas, and Caribbean regions all experience intensive transboundary plastic pollution amenable to institutional adaptation of this framework’s core elements (Everaert et al., 2024).

Moreover, functional judicial cooperation may generate spillover effects strengthening broader regional relations. The European experience demonstrates how technical cooperation in specific domains—initially economic integration, subsequently environmental protection—builds institutional capacity and interpersonal relationships facilitating cooperation expansion into adjacent areas. While Northeast Asia lacks EU-style comprehensive integration, targeted environmental judicial cooperation might reduce tensions and build trust applicable to other contentious issues (Schimmelfennig, 2021).

Global Level: The framework directly informs ongoing International Plastics Treaty negotiations, particularly concerning Article 4 provisions on transboundary liability and remediation. Current INC drafts contain placeholder language on “appropriate measures to address transboundary impacts” without specifying liability standards, jurisdictional frameworks, or enforcement mechanisms. The regional precedent developed here provides concrete institutional model demonstrating feasibility, offering negotiators proven cooperation mechanisms rather than theoretical abstractions (Dauvergne, 2023).

Strategic sequencing offers a workable path for a global treaty: begin with low-sovereignty-cost technical measures—shared evidence standards, joint sampling protocols, and common metadata rules (Tier 1)—that can be written into the INC instrument immediately; follow with jurisdictional coordination (Tier 2) via bilateral or plurilateral side agreements among willing states; and, once those elements demonstrate value, add full enforcement cooperation (Tier 3) through later protocols on judgment recognition, cross-border asset measures, and restoration funds. Staging the regime this way respects divergent national preferences while maintaining steady momentum toward a comprehensive liability framework.

Domestic Level: Chinese environmental governance benefits from institutional pathways enabling extraterritorial application of innovative domestic mechanisms. The procuratorial public interest litigation system—demonstrably effective domestically—gains transboundary reach through judicial cooperation treaties authorizing foreign evidence collection, cross-border judgments, and reciprocal enforcement. This extraterritorial extension amplifies domestic institutional innovations’ impact while respecting sovereignty through consensual cooperation rather than unilateral assertion.

Furthermore, the framework creates domestic constituencies supporting enhanced environmental accountability. Fishing communities, coastal tourism operators, and environmental organizations suffering transboundary pollution damages gain tangible remedies, generating political support for treaty ratification and implementation. Industrial polluters facing potential liability acquire incentives for technological improvement and waste management enhancement, channeling economic resources toward pollution prevention (Chayes and Chayes, 1993).

4.3 Research limitations and future empirical agenda

Methodological candor requires acknowledging several research limitations suggesting directions for future empirical investigation.

• First limitation: This desk-based legal research cannot empirically validate the proposed framework’s actual effectiveness, which requires longitudinal observation of implementation outcomes. The institutional design reflects comparative precedent analysis and theoretical modeling rather than experimental or quasi-experimental evaluation. Future research should monitor implementation—if political negotiations produce treaty adoption—assessing compliance rates, litigation patterns, judgment enforcement, and environmental outcomes. Empirical assessment might reveal unanticipated implementation challenges requiring institutional adjustment or identify unexpectedly effective mechanisms meriting emphasis.

• Second limitation: The political feasibility assessment relies primarily on published diplomatic analyses, policy documents and secondary literature rather than systematic empirical data on stakeholder preferences in China, Japan and Korea. The article does not draw on interviews or surveys of government agencies, industry actors and civil society organizations, nor on confidential negotiation dynamics or elite deliberations. Yet actual treaty-making involves complex strategic interactions—domestic political calculations, bureaucratic turf battles, leadership personalities—that are poorly captured through public sources. Future research employing qualitative and quantitative methods, including elite interviews and stakeholder surveys, could illuminate how these actors perceive judicial cooperation, which forms of liability and evidence-sharing they regard as acceptable, and which domestic policy trade-offs they consider prohibitive. Comparative analysis of successful versus failed environmental treaty negotiations might further reveal critical success factors applicable to this context (Gutner and Thompson, 2024).

• Fourth limitation: The framework presumes certain institutional capacities—judicial expertise in environmental law, prosecutorial investigative capabilities, scientific witness availability—that may prove unevenly distributed across jurisdictions. Implementation effectiveness depends upon capacity-building investments developing necessary expertise and institutional infrastructure. Future research should assess capacity gaps through comparative institutional analysis, identifying priority areas for technical assistance and professional training programs.

Despite these limitations, the study’s contribution resides in demonstrating institutional feasibility through rigorous legal analysis and comparative examination of functional precedents. The theoretical framework establishes foundations upon which empirical studies may build, while the draft treaty provisions offer concrete negotiating texts translatable into diplomatic practice. Limitations suggest research trajectories rather than fundamental flaws invalidating core arguments.

4.4 Implementation roadmap: graduated cooperation strategy

Translating theoretical frameworks into political reality requires strategic sequencing balancing ambition with feasibility. The implementation roadmap proceeds through three phases corresponding to ascending sovereignty costs and deepening cooperation. Each phase also presupposes specific resource inputs and institutional capacities. At a minimum, effective implementation requires (i) a modest but permanent secretariat embedded in the TEMM structure to service the Joint Investigation Committee and coordinate technical cooperation; (ii) dedicated budget lines within environment ministries for joint monitoring projects, database development and capacity-building; and (iii) targeted training programs equipping judges, prosecutors and environmental regulators to engage with complex scientific evidence and cross-border procedures. The roadmap that follows should therefore be read not simply as a sequence of legal acts, but as a staged program of institutional investment and professional socialization.

Phase One (Years 1–2): Technical Cooperation Foundation

Initial efforts focus on low-sovereignty-cost technical mechanisms demonstrating cooperation benefits while building institutional trust. Specific actions include:

• Evidence-Sharing Memorandum of Understanding: Bilateral or trilateral MOU establishing protocols for environmental data exchange, joint pollution monitoring, and scientific collaboration. This non-binding agreement creates cooperation routines without legal obligations, testing bureaucratic coordination capacities.

• Chemical Fingerprinting Database Pilot: Voluntary manufacturer participation in pilot database project demonstrating technical feasibility and commercial confidentiality protections. Initial participation by leading producers establishes proof-of-concept encouraging broader industry adoption.

• Joint Training Programs: Collaborative workshops training judges, prosecutors, and environmental enforcement officials on transboundary pollution law, scientific evidence evaluation, and judicial cooperation protocols. These professional development programs build personal relationships and shared expertise facilitating future cooperation.

Phase One success metrics include: establishment of functional data-sharing mechanisms; accumulation of chemical fingerprint profiles covering significant market share; and trained professional cohorts numbering dozens of judges and prosecutors across jurisdictions. These accomplishments demonstrate tangible cooperation value while avoiding politically controversial binding commitments.

Resource and capacity requirements at this stage remain relatively modest but non-trivial. Establishing the chemical fingerprinting database and joint monitoring programs requires basic laboratory infrastructure, interoperable data formats and agreement on minimum quality standards, which may necessitate targeted technical assistance for under-resourced agencies. The main political risks are bureaucratic inertia and commercial confidentiality concerns from industry actors. To manage these risks, Phase One should prioritize pilot projects in a limited number of hotspots, accompanied by clear communication strategies highlighting co-benefits for domestic pollution control and reputational gains for participating firms.

Phase Two (Years 3–5): Procedural Coordination Framework

Building upon Phase One foundations, intermediate efforts introduce substantive coordination without full enforcement cooperation. Key initiatives include:

• Jurisdictional Coordination Protocol: Formal agreement establishing lis pendens rules, forum coordination procedures, and court-to-court communication channels. This protocol addresses procedural conflicts without mandating judgment recognition, representing meaningful sovereignty commitment while preserving ultimate national judicial authority.

• Joint Investigation Committee Formation: Operationalizing the JIC with permanent secretariat, regular meetings, and funded investigation capacity. The JIC conducts pilot investigations of major pollution incidents, producing technical reports demonstrating attribution methodologies and building institutional credibility.

• Harmonized Procedural Standards: Domestic legislative amendments implementing minimum procedural protections—public interest standing, burden-shifting, discovery rights—enabling effective transboundary litigation within national legal systems. These reforms benefit domestic environmental enforcement while facilitating international cooperation.

Phase Two success metrics include: resolution of jurisdictional conflicts through coordination protocol application; JIC production of authoritative pollution attribution reports adopted by national courts; and domestic legislative reforms implemented across all three jurisdictions. These achievements demonstrate cooperation’s practical value while testing political sustainability.

Phase Two also confronts more demanding institutional challenges. Implementing harmonized procedural standards and operating a permanent JIC secretariat will require specialized training for judges in environmental science and probabilistic evidence, as well as coordination with data-protection authorities to ensure that cross-border exchange of monitoring data and corporate information complies with domestic privacy and trade secrecy regulations. Where legal reforms or budget appropriations lag in one state, others may proceed through pilot bilateral arrangements or memoranda of understanding that approximate the treaty design, thereby maintaining momentum while allowing slower-moving partners to catch up.

Phase Three (Years 5–10): Comprehensive Enforcement Cooperation

Final phase implements full judicial cooperation including binding commitments and enforcement mechanisms. Major steps include:

• Framework Agreement Negotiation and Ratification: Formal treaty negotiations producing the draft agreement outlined in Chapter 5, followed by domestic ratification processes engaging legislatures and securing political commitment. Treaty negotiation leverages Phase One-Two successes demonstrating cooperation benefits while addressing sovereignty concerns through carefully crafted provisions.

• Marine Ecological Restoration Fund Capitalization: Initial State Party contributions capitalizing NAMERF, supplemented by private contributions and judgment proceeds. Fund governance structures operationalize Management Board and Advisory Committee, establishing transparent administration procedures.

• Judgment Recognition Implementation: First cases testing mutual recognition mechanisms, establishing precedents on exception interpretation and enforcement procedures. Successful case resolutions demonstrate framework effectiveness, building confidence encouraging expanded utilization.

Phase Three can be judged a success only when concrete milestones are met: the treaty has entered into force after ratification; NAMERF’s capitalization has reached a truly operational level (on the order of hundreds of millions of USD); and several cross-border cases have gone to judgment with recognition and enforcement across jurisdictions. Hitting those marks shows that judicial cooperation is no longer aspirational but functioning as designed.

The stepwise rollout rests on a realistic view of how regimes form: institutions grow by iteration, banking early wins and adjusting to new frictions as they appear. The architecture is deliberately modular so that progress need not be strictly linear. If geopolitical tensions or domestic political shifts delay ratification of the comprehensive framework agreement, States Parties can continue to deepen Phase One and Two cooperation—refining evidence protocols, expanding and improving the regional database, and consolidating procedural harmonization in domestic courts—without immediately committing to full mutual recognition of judgments. Conversely, if judicial cooperation proves politically sustainable but budgetary constraints slow the capitalization of the marine restoration fund, enforcement provisions can still be applied with interim arrangements for financing remediation. This adaptive capacity cushions political volatility—leadership turnover, geopolitical shocks, domestic resistance—by building in flexible timetables and alternate tracks: if a comprehensive treaty stalls, achievements from Phases One and Two still deliver meaningful governance gains; if a political window opens, the architecture allows an accelerated move to full cooperation.

4.5 Concluding reflections: justice, sovereignty, and environmental futures

The accountability vacuum in transboundary marine plastic pollution reflects deeper tensions in contemporary international law between territorial sovereignty and ecological interconnection. Traditional international law treats territorial boundaries as fundamental organizing principles: states exercise supreme authority within territories, non-intervention norms constrain external interference, and cross-border governance requires express consent through treaties. However, environmental systems—atmospheric circulation, ocean currents, migratory species, transboundary pollution—systematically transcend territorial boundaries, generating spillover effects rendering unilateral governance inadequate.

This study’s core argument holds that addressing this structural mismatch requires neither abandoning sovereignty (politically infeasible and normatively questionable) nor accepting governance paralysis (environmentally catastrophic and morally indefensible). Rather, sovereignty can be reconceptualized as encompassing not merely rights to exclude external interference but also responsibilities to prevent transboundary harm and cooperate in collective problem-solving. The proposed judicial cooperation framework operationalizes this reconceptualization: states voluntarily assume binding obligations protecting shared environmental resources while preserving ultimate political authority through consensual treaty participation and domestic institutional control.

What recommends this framework, above all, is its capacity to carry several legal values at once. It strengthens ecological protection by tightening accountability and sharpening deterrence; it vindicates corrective justice by repairing loss and locating polluter responsibility; it improves procedural fairness by demanding open reasons, reviewable decisions, and reciprocal obligations between affected states; and it invites cooperation by giving governments institutions through which rivalry can be converted into joint gains. In that sense, the design fits a broader ambition for a rule-governed international order in which legal institutions channel conflict into lawful settlement and, at the same time, enlarge the space for collective welfare.

Marine plastic that drifts across borders is only one facet of a larger governance problem. Climate disruption, biodiversity decline, toxic releases, and the depletion of shared resources all cross jurisdictions and cannot be managed by territorial tools alone. The devices developed here—dividing causation inquiries so that scientific tracing and legal attribution move on coordinated tracks; sequencing cooperation so states can enter at different intensities and escalate as trust grows; and tying enforcement to reciprocity rather than unilateral assertion—are not sector-bound. They amount to a method that can be adapted, with care, to other environmental domains that present the same transboundary structure.

Whether Northeast Asian governments turn that possibility into practice will depend on leadership, on capable bureaucracies willing to experiment, and on pressure and partnership from civil society and industry. The analysis shows that workable institutions are within reach; politics will decide whether they are used. The final contribution of the study does not turn on adoption: it demonstrates that today’s accountability gaps are the product of institutional choices, not of inevitabilities. Effective governance of cross-border environmental harm is attainable, but it requires commitment, institutional craft, and sustained diplomatic work. The paper offers the analytic tools and draft architectures; the step from blueprint to practice lies with actors whom this research can inform but never command.

The ocean ignores our maps, and environmental law must learn to do so as well.

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