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Heard Island and McDonald Islands [AU]

Heard Island and McDonald Islands (HIMI) is a subantarctic island group located in the Southern Ocean, about 4,000 kilometers south west of mainland Australia. The islands and surrounding waters teem with wildlife and other natural wonders that make HIMI a special place.

The islands are approximately 4000 kilometres southwest of Western Australia, 4700 kilometers southeast of Africa and 1000 kilometers north of Antarctica. The nearest land is the French territory of Îles Kerguelen, an archipelago of islands approximately 450 kilometers to the northwest.

Due to the extreme isolation of Heard Island and McDonald Islands (HIMI), together with the persistently severe weather and sea conditions, human activities in the region have been, and remain, limited. Since the first landing on Heard Island in 1855, there have been only approximately 240 shore-based visits to the island, and only two landings on McDonald Island (in 1971 and 1980).

Visits to Heard Island were initially associated with wildlife resource exploitation and then for research and management, private expeditions and for surveillance purposes. Activities in the waters surrounding the islands include fishing in the Australian commercial fishery adjacent to the HIMI Marine Reserve, and infrequent shipping.

The United Nations Convention on the Law of the Sea (UNCLOS), says that any country can claim a 200-nautical mile Exclusive Economic Zone (EEZ) around every island that it controls, usually splitting the differences with the EEZs of other countries that have territories within those limits.

But what is an island? How large does it have to be? UNCLOS is rather vague - it defines an island clearly enough in Article 121 as “a naturally formed area of land, surrounded by water, which is above water at high tide,” but this does not specify a minimum size. Two sections later, certain “naturally formed areas of land, surrounded by water, which remain above water at high tide,” are removed from the category: they are “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone.”

There are practical difficulties - a pinnacle of stone barely extending above the high-tide line obviously does not qualify as an island, but what of a larger rock that could conceivably “sustain human habitation?” And what of an island too small, too arid, or too cold to sustain human habitation under normal conditions? What if those conditions were modified by human engineering?

The International Tribunal for the Law of the Sea (The Volga Case (Russian Federation v. Australia), Case No. 11, Prompt Release, Judgment, Declaration of Judge Vukas, ITLOS Reports 2002; 42 International Legal Materials 178-181 (2003) agreed with the Australian view on the rock issue. The judgment of the Tribunal and the other three separate opinions each accept that Heard Island and the McDonald Islands generated an EEZ. The United States has established an EEZ around Maro Reef in the Northwest Hawaiian Islands, Palmyra Atoll, Kingman Reef and around Howland and Baker.

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Page last modified: 31-07-2017 18:35:09 ZULU