Commentary on Article 331 of the Criminal Code of the Republic of Kazakhstan. Violation of the Legislation on the Continental Shelf of the Republic of Kazakhstan and the Exclusive Economic Zone of the Republic of Kazakhstan

1. Illegal construction of structures on the continental shelf of the Republic of Kazakhstan, establishment of safety zones around them or within the exclusive economic zone of the Republic of Kazakhstan, as well as violation of the rules governing the construction, operation, protection and decommissioning of erected structures and means of ensuring the safety of maritime navigation —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to one year or without such deprivation.

2. Research, exploration or development of the natural resources of the continental shelf of the Republic of Kazakhstan or the exclusive economic zone of the Republic of Kazakhstan, carried out without the appropriate permit —

shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.

The public danger of the criminal offence (Part 1 — a crime, Part 2 — a criminal misdemeanour) lies in undermining environmental safety and the established procedure for the use of the continental shelf of the Republic of Kazakhstan and the exclusive economic zone of the Republic of Kazakhstan (subparagraph 6) of Article 2 of the Law of the Republic of Kazakhstan “On the State Border of the Republic of Kazakhstan”).

The continental shelf of the Republic of Kazakhstan is a section of the seabed and its subsoil, measured from the State Border (the outer limit of the territorial waters (sea)) to the limits established by international treaties ratified by the Republic of Kazakhstan.

The continental shelf includes the seabed and subsoil of underwater areas located beyond the territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin.

The continental shelf is a coastal marine and oceanic shallow-water area having a geological structure similar to that of the adjacent land, constituting the most productive and economically exploitable part of the aquatic area inhabited by living organisms, with defined internal and external boundaries. According to Article 1 of the 1958 Geneva Convention on the Continental Shelf, the term “continental shelf” is used in relation to: (a) the seabed and subsoil of submarine areas adjacent to the coast but situated outside the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of those areas; (b) the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

The inner boundary of the continental shelf is the outer boundary of the territorial sea, while its outer boundary is located at a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, provided that the outer edge of the continental margin does not extend beyond a distance of 200 nautical miles. If the continental margin extends beyond a distance of 200 nautical miles from the said baselines, the outer boundary coincides with the outer boundary of the continental margin, determined in accordance with the norms of international law.

The natural resources of the continental shelf are its mineral and living resources.

The mineral resources of the continental shelf are mineral and other non-living resources of the seabed and its subsoil.

The living resources of the continental shelf are living organisms belonging to “sedentary species” which, during the period when they may be harvested, are either immobile on or under the seabed or are unable to move except while remaining in constant physical contact with the seabed or its subsoil, i.e. molluscs, crabs, crustaceans, sponges, etc.

The exclusive economic zone is a maritime area located beyond and adjacent to the territorial sea of the Republic of Kazakhstan, extending up to 200 nautical miles measured from the baselines from which the breadth of the territorial sea is measured (unless otherwise provided for by an international treaty of the Republic of Kazakhstan), and having a special legal regime.

The inner boundary of the exclusive economic zone of the Republic of Kazakhstan is the outer boundary of the territorial sea (United Nations Convention on the Law of the Sea).

The object of the criminal offence under consideration is environmental safety, the environment and the natural resource potential of the continental shelf of the Republic of Kazakhstan and the exclusive economic zone of the Republic of Kazakhstan.

From the objective aspect, the criminal offence consists of the illegal construction of structures on the continental shelf of the Republic of Kazakhstan, the establishment of safety zones around them or within the exclusive economic zone of the Republic of Kazakhstan, as well as the violation of the rules governing the construction, operation, protection and decommissioning of erected structures and means of ensuring the safety of maritime navigation.

Violation of the legislation on the continental shelf of the Republic of Kazakhstan may take the form of both active actions, for example, illegal construction of structures; establishment of safety zones around them or within the exclusive economic zone of the Republic of Kazakhstan, as well as violation of the rules governing the construction, operation and decommissioning of erected structures and means of ensuring the safety of maritime navigation, and omission, for example, failure to ensure the protection of structures and other installations.

Illegal construction of structures may consist of the construction or installation, on the continental shelf, without the appropriate permit, of structures, installations, constructions, artificial islands and other facilities.

A safety zone is a protected area surrounding an erected structure, installation or artificial island, within which human activities and the entry of water transport are specifically restricted or prohibited. The restrictions are associated with the conduct of research, exploration or development of the natural resources of the continental shelf and the exclusive economic zone, as well as with ensuring the safety of navigation and the artificial islands, structures and installations themselves.

Safety zones are established around artificial islands, installations and structures and extend no more than 500 metres from each point of the outer edge of the artificial islands, installations and structures.

Violation of the rules governing the construction, operation, protection and decommissioning of erected structures and means of ensuring maritime navigation may be committed through either action or omission and may consist, for example, in choosing a procedure for operating a lawfully erected structure that is contrary to the applicable rules, or in failing to perform actions prescribed by the rules or the conditions of the permit.

The environmental criminal offence under consideration, by its legal structure, is a formal offence and is deemed completed from the moment the illegal construction of structures on the continental shelf of the Republic of Kazakhstan begins, from the moment safety zones are established around them or within the exclusive economic zone of the Republic of Kazakhstan, or when violations of the rules governing the construction, operation, protection and decommissioning of erected structures and means of ensuring the safety of maritime navigation are detected.

From the subjective aspect, violation of the legislation on the continental shelf of the Republic of Kazakhstan and the exclusive economic zone of the Republic of Kazakhstan is committed with direct intent. The person is aware of the public danger of their actions or omissions and commits them voluntarily. The law contains no references to the possibility or inevitability of socially dangerous consequences resulting from the commission of this criminal offence.

The subject of the criminal offence may be physically sane individuals who have reached the age of 16, including citizens of the Republic of Kazakhstan, stateless persons and foreign citizens.

Part 2 of Article 331 of the Criminal Code provides for liability for research, exploration and development of the natural resources of the continental shelf of the Republic of Kazakhstan or the exclusive economic zone of the Republic of Kazakhstan without the appropriate permit.

Research on the continental shelf or in the exclusive economic zone refers to fundamental or applied scientific research and experimental work aimed at obtaining knowledge about all aspects of natural processes occurring on the seabed and in its subsoil, the exploration and development of mineral resources, and the harvesting of living resources.

Exploration of the natural resources of the continental shelf or the exclusive economic zone consists of extracting samples and specimens of mineral and living resources from the seabed or its subsoil.

Development of the natural resources of the continental shelf or the exclusive economic zone means the industrial extraction of mineral and living resources of the seabed and its subsoil.

Amateur collection (catching) of natural resources on the continental shelf of the Republic of Kazakhstan or within the exclusive economic zone of the Republic of Kazakhstan does not constitute the elements of the criminal offence provided for in Part 2 of Article 331 of the Criminal Code.

Research, exploration and development of the natural resources of the continental shelf of the Republic of Kazakhstan or the exclusive economic zone of the Republic of Kazakhstan entail criminal liability under Part 2 of Article 331 of the Criminal Code if they are carried out: independently, without obtaining a licence; after submitting an application for licensing but before receiving a response to it; after receiving a refusal to grant a licence or after the expiry of the licence validity period, etc.

Since the occurrence of socially dangerous consequences is not предусмотрено in Part 2 of Article 331 of the Criminal Code, this criminal offence is deemed completed from the moment research, exploration or development of the natural resources of the continental shelf of the Republic of Kazakhstan or the exclusive economic zone of the Republic of Kazakhstan, conducted without the appropriate permit, begins.

The act provided for in Part 1 of Article 331 of the Criminal Code belongs to crimes of medium gravity.

The act provided for in Part 2 of Article 331 of the Criminal Code belongs to criminal misdemeanours.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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