The Australia-Tuvalu Falepili Union Treaty: Security in the face of climate change … and China?

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On 9 November 2023, Australia and the Tuvalu signed the world’s first climate resettlement treaty. Tuvalu is a Pacific Island State of only 26 square kilometres in area, with over half its population living on the atoll of Funafuti. It has a mean elevation of less than 2 metres above sea level and is profoundly threatened by climate change. The Australia-Tuvalu Falepili Union Treaty provides for a ‘human mobility’ pathway ‘which shall enable citizens of Tuvalu to: (a) live, study and work in Australia; (b) access Australian education, health, and key income and family support on arrival’ (Article 3). Political reporting suggests that while all 11,200 citizens of Tuvalu would be eligible for resettlement, a quota of 280 a year will be allowed to migrate ‘to avoid a brain drain of skilled workers’. Nonetheless, half the landmass of Funafuti could be underwater at high tide by 2050. Also of potentially profound significance in terms of State practice, Article 2(b) acknowledges ‘the statehood and sovereignty of Tuvalu will continue, and the rights and duties inherent thereto will be maintained, notwithstanding the impact of climate change-related sea-level rise’. The remainder of this brief commentary will assess the backdrop against which this remarkable agreement has been reached and consider its implications for the international law and practice of adaptation to sea level rise and climate change.

How did we arrive at this point – and what’s in it for Australia? While the treaty states in its preamble that it is underpinned ‘by the concept of Falepili which connotes the traditional values of good neighbourliness, duty of care and mutual respect’, Australia’s good neighbourliness in the Pacific has been a variable quantity. Australia, along with the UK and New Zealand, turned the island nation of Nauru into a virtual moonscape, mining it for phosphate in the early twentieth century. Australia later used Nauru as the site of a detention facility and processing centre for asylum seekers interdicted on the high seas in order to evade its Refugee Convention obligations. At its best, Australia has assisted its Pacific neighbours in times of State fragility, such as in its leadership of the Regional Assistance Mission to the Solomon Islands (2003-2017). But on matters related to climate change the relationship between Australia – a major fossil fuel exporter – and the region has been tense at best. In a particularly unfortunate episode in 2015 a senior cabinet minister (now the leader of the opposition) was caught on a hot mike joking about visiting Pacific leaders running late for a meeting and soon having ‘water lapping at their door’. The current Australian government has made the restoration of good relations with Pacific neighbours a priority, with the Foreign Minister visiting all twelve Pacific Island Forum States in as many months.

However, the return of Australian neighbourliness does not occur in a vacuum. China’s conclusion of a security agreement with the Solomon Islands in 2022 became an issue in the Federal election of that year and reinforced a perception that the government of the day had taken its eye off the Pacific. That view was not entirely fair. The perception that it was not in Australia’s interests to be supplanted by China as the security and development assistance partner of choice in its own neighbourhood was hardly new. It had already led to, for example, the 2018-2019 construction of the Coral Sea Cable System linking Papua New Guinea and the Solomon Islands to Australia by fibre optic cable before China could provide such critical cyber-infrastructure. The significant quid pro quo in the Falepili Union Treaty is the requirement in Article 4(4) that:

Tuvalu shall mutually agree with Australia any partnership, arrangement or engagement with any other State or entity on security and defence-related matters. Such matters include but are not limited to defence, policing, border protection, cyber security and critical infrastructure, including ports, telecommunications and energy infrastructure.

On its face, this gives Australia a potential veto power over a wide range of issues in Tuvalu’s foreign relations. The list of covered issues is also strongly reflective of Australia’s current security priorities. It is also worth noting that this is not a ‘treaty of union’ in the sense of political union: its short text is limited largely to matters of climate change, human mobility, and security.

The treaty is also a significant development in international legal practice relating to climate change. First, Articles 2(1) and 4 aver and provide recourse for the shared risk that climate change poses to ‘stability, security, prosperity and resilience’, confirming earlier framings of this issue within the Security Council. Second, Article 2(2)(a) emphasises the importance of ‘the desire of Tuvalu’s people to continue to live in their territory where possible and Tuvalu’s deep, ancestral connections to land and sea’. This continuation of Tuvalu’s long-established policy is concretised by Article 2(3), which commits both Parties to ‘help the citizens of Tuvalu to stay in their homes with safety and dignity, including by promoting Tuvalu’s adaptation interests to other countries, including through regional and international forums’. Beyond binding Australia, this suggests a continued lack of appetite on the part of States affected by sea level rise for ‘solutions’ to sea-level rise that envision accession or merger with larger entities.

Third, and most radically in our view, the open-ended commitment to Tuvalu’s existential resilience in Article 2(b) represents the first binding rejection by any State of the view that inhabitable land is necessary for State continuity. At the very least, were Tuvalu to become entirely uninhabitable, its statehood would be secured relative to Australia, forming what Rowan Nicholson has called a ‘state-in-context’. Significantly, this casts doubt upon the arguments of sceptics, who claim that States in Australia’s position would likely refuse to accept climate refugees where State continuity is legally assured notwithstanding sea level rise.

When viewed in its global context, however, the implications of Article 2(b) Falepili Union Treaty are potentially greater still. Also on 9 November 2023, the Pacific Islands Forum (PIF) issued its 2023 Declaration on the Continuity of Statehood and the Protection of Persons in the Fact of Climate Change-related Sea-level Rise. Paragraph 12 of that Declaration affirms ‘the international law supports a presumption of continuity of statehood and does not contemplate its demise in the context of climate change-related sea-level rise’, while paragraph 13 declares ‘that the statehood and sovereignty of Members of the Pacific Islands Forum will continue, and the rights and duties inherent thereto will be maintained, notwithstanding the impact of climate change-related sea-level rise’. When placed alongside the announcement in September of this year ‘that the United States considers that sea-level rise driven by human-induced climate change should not cause any country to lose its statehood or its membership in the United Nations … or other international organizations’, an identifiable pattern has begun to emerge. Even those claiming that international law does not currently provide for the existential continuity of ‘sinking states’ (although there are good reasons to reject such ‘austere’ scepticism) must concede that the tide is changing. Should more States adopt the position of the 2023 PIF Declaration and the Falepili Union Treaty, it will become increasingly difficult to deny that, whatever may have once been the case, contemporary international law provides for the existential resilience of States like Tuvalu, notwithstanding human-caused climate change.

Image by INABA Tomoaki (Creative Commons Attribution-Share Alike 2.0 Generic).

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Rowan Nicholson says

November 30, 2023

Thanks for this great post. And of course for citing my book in it. Yes, I agree that even if Tuvalu loses its inhabitable territory it will still function as a state at a minimum relative to states that still recognise it, which it seems will include Australia and other members of the Pacific Islands Forum.

I also agree that this kind of opinio iuris might reshape the generally applicable law of statehood, and I'm really interested in how the law might evolve. It's not just a matter of dropping the territory criterion in these cases while keeping the other three criteria; the other three presume the existence of a territory within which government, population, and independence can exist. We will certainly need some new criterion, whether historical land or submerged land or something else. Similar with maritime zones.

Alex, I've also just read your very good piece framed around The City & The City (which I enjoyed too). Another scifi example you might have alluded to: the'Franchise-Organised Quasi-National Entities' in Neal Stephenson's Snow Crash.

Alex Green says

November 30, 2023

Thanks for that Rowan. There are so many science fiction examples that would work - and so many examples from Indigenous legal knowledge too, especially from peoples with deep connections to their oceans. It's a struggle to do any one case study justice to be honest. Totally agree re not dropping territory alone - in face, I've got a couple more pieces forthcoming on this, one dealing with effectiveness in particular, and briefly touch on continuity in my forthcoming monograph on state creation. Drop me an email, if you like, and we can discuss further!