|Criminal liability and vessel-source pollution in European Union and United States: inspiration for the prevention of vessel-source pollution in China|
Liu, N.; Maes, F. (2010). Criminal liability and vessel-source pollution in European Union and United States: inspiration for the prevention of vessel-source pollution in China, in: Faure, M.G. et al. (Ed.) Maritime pollution liability and policy. China, Europe and the U.S. pp. 193-214
In: Faure, M.G. et al. (Ed.) (2010). Maritime pollution liability and policy. China, Europe and the U.S. Kluwer Law International: Alphen aan den Rijn. ISBN 978-90-411-2869-0. 456 pp., more
Imposing criminal liability to prevent vessel-source pollution is comparatively explored in this paper in a four-part analysis. Firstly, the international legal sources for imposing criminal liability on vessel-source pollution are briefly mentioned in the introduction. Secondly, the paper analyzes the background, causes and impact of the Directive 2005/35/EC, which seeks to criminalize both operational and accidental pollution and applies within European Union (EU) Member States’ territorial seas as well as exclusive economic zones and on the high seas. It specifically focuses on the far-reaching case recently concluded in the European Court of Justice concerning the validity of the Directive 2005/35/EC (C-308/06). Clearly, the priority of the EU’s decision making now is pro-coastal. However, the practice may be difficult to be accepted by the rest of the world because it is potentially in conflict with international law. Thirdly, the unfavorable position of the United States (US) in international treaty law is raised since, e.g. the US still has not ratified the 1982 United Nations Convention on the Law of the Sea (LOSC). However, the US considers major parts of the LOSC 82 as customary international law and is a contracting party to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (MARPOL). Domestic statutes like Act to Prevent Pollution from Ships and the Clean Water Act are described. Relevant cases, such as “Exxon Valdez” and United States of America vs Kun Yun JHO Overseas Shipholding Group Inc, are also discussed. Finally, the paper turns to China, a country with huge, expanding shipping interests as well as long coast lines, presenting some ideas on how China can impose criminal liabilities to create incentives to prevent vessel-source pollution.