This paper will assess the existing governance structure of the UNEP Regional Seas Programme, identify gaps and conclude with recommendations to promote a more robust system where there will be less of a governance gap between the different regional seas programmes.

China is now a great shipping power as well as the second largest seafarers supplier in the world. Meanwhile, vast sea areas under China’s jurisdiction are under threat of vessel-source pollution. This presentation addresses criminal liability over vessel-source pollution in China. Relevant international law is first described. Then the presentation focuses on Chinese legal regime. There is an article of environmental crime in the Criminal Law of China. The Marine Environmental Protection Law also provides a link to impose Criminal Law on marine pollution. However, until now, there is no report about criminal liability over vessel-source pollution in any Chinese court. The presentation intends to answer: why there is a gap between law in the book and law in practice? Should China follow other countries such as the EU to impose criminal liability over vessel-source pollution? If so, how to improve the regime?

As this paper demonstrates, while there have been some developments in the law as a result of changing circumstances, circumstances alone are not sufficient to effect change in the law. They must be accompanied by the operation of appropriate values in the decision making process. Where such values do not coincide with changing circumstances it is necessary to change the underlying principles within the system, but this is a somewhat slower process and it gives rise to questions of legitimacy in law making. The literature on legitimacy points to decision making resting upon particular processes, or principles and upon participation by authorised actors only.[1] Yet in marine governance it appears that decisions based on changing values are often shaped by those with no authority to act on the international stage. While the final decision may be made by authorised actors and in accordance with legitimate procedures, the real impetus for change often comes from advocacy coalitions[2] involving non-state actors. Where this becomes potentially problematic is where some of these coalitions are able to wield a disproportionately great influence. It may mean, for example, that it becomes impossible to adopt new laws for environmental protection or sustainable development, or to adopt laws that have sufficient strength to ensure their own effectiveness.

A mechanism must therefore be found to address the role of advocacy coalitions involving non-state actors within marine governance. The method proposed here is to embrace them openly, fully and transparently within the governance system. Doing so, however, requires an acknowledgement of the fact that the processes by which international law is created do not neatly distinguish between authorised and unauthorised actors and have not for decades.

[1] See for example, Franck, T.M. (1990). The Power of Legitimacy Among Nations. Oxford Uiversity Press, Oxford; Franck, T.M. (1988) “Legitimacy in the International System” 82 A.J.I.L. 705; Higgins R. (1994) Problems & Process: International Law and How We Use It Oxford University Press; Oxford Koskenniemi M. “What Is International Law For” Chapter 2 in M.D. Evans International Law 3rd edition 2010; Toope S.J. “Emerging Patterns of Governance and International Law” Chapter 5 in M. Byers (ed) The Role of Law In International Politics: Essays In International Relations and International Law (2001.

[2] Jenkins-Smith H. and P. Sabatier (1993) Policy Change and Learning: An Advocacy Coalition Approach West View Press, Boulder, Colorado; Sabatier, P.A. “Toward Better Theories of the Policy Process” (1991) 24 PS: Political Science and Politics 147.