Scrutinising the Maritime Zones Around Australia’s Sub-Antarctic Islands

Abstract

In 2016, the South China Sea Arbitral Tribunal was the first tribunal or court to interpret Article 121(3) of the United Nations Convention on the Law of the Sea. The Tribunal’s interpretation raises international law questions regarding the validity of claimed exclusive economic zones (eezs) and continental shelf maritime areas around many islands including Australia’s sub-Antarctic Islands. Owing to their geographical remoteness, harsh climates, lack of resources, as well as never been ‘home’ to any group of people in a settled way, questions have been raised as to the validity of Australia’s claimed maritime zones with respect to Article 121(3) in both pre- and post-South China Sea Arbitral Award commentary. The article assesses the validity of Australia’s claim by applying the Tribunal’s interpretation of Article 121(3) to the physical and historical facts of the Islands while raising alternate interpretations offered by prior and subsequent commentary. Three examples of possible State practice are reviewed for evidence of other interpretations that may have been agreed to by parties to the Convention. The findings are that Heard and Macquarie Islands are likely classified as islands entitled to an eez and continental shelf whereas McDonald Island is more likely to be an Article 121 ‘rock’.