Limited Success

On November 11 Australia and Tuvalu concluded a treaty on establishing the ‘Falepili Union,’ which deals with three pressing matters (art.1): climate change adaptation, collective security, and a new human mobility pathway. Hailed as ‘groundbreaking’, and ‘the most significant Pacific agreement in history,’ the Treaty certainly constitutes a profound step forward in building climate-resilient international relations, especially with its contributions to international migration law and international law on statehood. However, it also falls short in several instances, especially in fully respecting Tuvaluan equality in relation to Australia, and leaves a number of questions unanswered.

An Overview

Article 1(a) of this treaty, as well as its preamble, call the newly established Union between Tuvalu and Australia by the name Falepili. Tuvalu has previously invoked this term in its temporary refuge scheme for foreigners stranded on its soil during the time of the COVID-19 pandemic, as well as in various climate resilience projects undertaken in international co-operation. Its original meaning derives from the Indigenous Knowledge of Tuvaluans, and could be summarized as duty of care for safety of neighbours in need, understood in an inclusive manner [p.2]. Similar principles might be found in other Indigenous culture of Pacific nations [p. 861]. The Treaty between Tuvalu and Australia seems to invoke it in a similar manner, as describing the Falepili Union as one ‘(…) based on values of good neighbourliness, care and mutual respect (…).’

Contrary to the emphasis of international media on a human mobility scheme for climate-vulnerable Tuvaluans to be established by the Australian state, provisions on that subject are included only in the third article of the Falepili Treaty. Before focusing on solutions based on outmigration, the Parties stressed the importance of in situ adaptation and maintenance of Tuvaluan statehood in article 2. Subsequently, security and defence obligations of the Parties are laid down in the fourth article. Australia pledges to aid Tuvalu in times of major natural disaster, public health emergencies of international concern, military aggressions against Tuvalu. Tuvalu in return offers Australia rights of access, presence within, and overflight of its territory (if necessary to execute the aforementioned duty, and upon an advance notice). Moreover, Tuvalu obliged itself to mutually agree with Australia any arrangement, partnership, or engagement with third parties in matters of ‘defence, policing, border protection, cyber security and critical infrastructure, including ports, telecommunications and energy infrastructure.’ In order to discuss issues arising from this agreement, to interpret its provisions, and to settle disputes related to it, the Parties decided to establish Joint Committee with those prerogatives (articles 5 and 6).

Implications for International Migration Law

Contrary to media reporting, the treaty does not offer special visas for ‘climate refugees.’ Climate migrants or people moving because impacts of global warming had (or is about to) rendered their territory uninhabitable [p. 165], do not generally meet the criteria for refugee status, as set by the Refugee Convention of 1951 [pp. 157-158]. This is mostly due to difficulties in establishing any persecutory intention [p. 48], – save for extreme cases of environmental persecution. It is equally difficult to challenge the removal of climate migrants to their climate-vulnerable state on the grounds of the prohibition of non-refoulement, due to the problems with individualization of future human rights violation, and the probabilistic nature of those [paras. 9.7-9.10, 9.12]. The multicausal and heterogenous nature of climate migrations, presented exhaustively here, thus poses a unique challenge for addressing it within the international legal order. The absence of any clear, non-discretional pathway for the lawful resettlement of people experiencing heavy impacts of global warming in their home states has been described as a ‘legal lacuna’ concerning climate migrants [p. 132]. However, this might be changing. African and American  regional refugee regimes use more open refugee definitions, which protect, among others, people displaced by ‘events seriously disturbing public order’. Moreover, the Global Compact for Migration (objective 2), and Refugees (paragraph 8) invoked the climate change-migration nexus in non-binding provisions. Some European courts have begun to refer to global warming-related environmental degradation in their rulings on subsidiary protection, and non-refoulement.

The Falepili treaty does not provide a lot of information about the details of its mobility scheme: it only states that Australia shall ‘arrange for a special human mobility pathway,’ for Tuvaluans to live, work, and study in this Continent, while also being able to access Australian healthcare welfare systems (art. 2). Tuvalu on its end is obliged to strengthen its immigration control, probably in order not to open this mobility pathway for citizens of other Pacific Nations. Because the Treaty does not speak of ‘refuge’ or ‘refugees,’ it seemingly creates a new category of migrants eligible for residence permits.

It nonetheless amounts to an important step to fill said legal lacuna concerning climate migrants in the Pacific context. In particular, although it draws inspiration from Aotearoan Pacific Access Category, which allows a quota of Pacific nationals from Kiribati, Tuvalu, Tonga, and Fiji, to be granted a residence permit in New Zealand, the Treaty’s mobility scheme is by itself an innovative concept. At the same time, because its starting position is not the one of the necessity of migration, the Treaty reflects the preference established in international soft law for in situ adaptation [para. 14(f)] while respecting the wishes of a majority of Pacific Indigenous Communities to remain and persevere in their state of origin.

Moreover, the Falepili Treaty emphasizes a cooperation between Tuvalu and Australia in determining persons most in need of resettlement to the latter state (articles 2(3) and 3(2) respectively). This further strengthens the solidarist nature of relocations of said individuals to Australia – in contrast to refugee protection, which, once granted, implies that the state of origin was either the persecutor or failed protector of the migrant, leading to potential tensions. And while the number of migrants which Australia (outside of the Treaty) pledged to accommodate on a yearly basis might seem low, it still constitutes a considerable figure of 2.5% of Tuvaluan population.

Implications for International Law on Statehood

The possibility of small atoll nations being completely swallowed by rising sea levels, induced by global warming, has also posed a challenge for international legal doctrine. Since the Montevideo Convention, which also reflects customary law on statehood, enumerates territory as one of conditions for state’s existence (art. 1b), will nations like Tuvalu or Kiribati eventually cease to exist?

Legal scholars have proposed several ways through which atoll nations could survive, including cession of territory, protectorate status, confederacy etc. [pp. 119-160]. Newer research has also shown that sea-level rise is not necessarily a capital sentence for those states, as they have so far successfully maintained their territorial integrity [pp. 850-855]. It also seems that the international legal community clearly prefers to keep the statehood of climate-vulnerable atoll nations, as illustrated by Biden’s recent statement. Nonetheless, a threat of ‘state disappearance’ remains.

The Falepili Treaty makes it abundantly clear (art. 2(2b)) that ‘the statehood and sovereignty of Tuvalu will continue (…) notwithstanding the impact of climate change-related sea-level rise.’ Moreover, there are no provisions that obligate Tuvalu to concede their territorial rights, such as those concerning their marine areas and Exclusive Economic Zone, as had been previously suggested by the Australian government in exchange for their further support. The Treaty’s adoption might therefore amount to state practice that deviates from the Montevideo principles by decoupling statehood from the requirement of territory where this is lost due to climate change. This could possibly lead to the formulation of a new customary rule.

Latent Inequality

The Falepili Treaty offers a potential way forward for Tuvaluans vulnerable to the impacts of global warming, cements Tuvalu’s statehood and continued presence on world maps, and  includes Indigenous Knowledge as a moral basis for an international legal treaty.

Nonetheless, this agreement falls short of being a model for the international community to follow. To begin with, substantive parts of the treaty remain silent on exact Australian contributions to Tuvalu, both in terms of financial assistance for adaptation, and in the number of Tuvaluans being eligible for residence in Australia. While its provisions might therefore sound promising today, Australia could in the future severely minimize its participation in those schemes. Moreover, in Article 6 the Parties surrendered their right to bring disputes arising from the Falepili Treaty before international bodies. This further enhances Australia’s capacity for diminishing its efforts to fulfil its treaty commitments. This problem is further exacerbated by the fact that the parties to this agreement, despite words of mutual respect, are not equals, with their relationship reflecting the postcolonial global order. While the Treaty confirms Tuvaluan autonomy and does not include far-reaching obligations concerning security and defence partnerships, it nonetheless positions islanders as somewhat dependant on Australia. This casts doubt on the Treaty’s egalitarian wording.

Lingering Questions

At the same time, the Treaty remains silent on several crucial issues. Is the Falepili Union a confederation? Or shall Tuvalu now be an Australian protectorate, with limited autonomy in foreign policy? The strong proclamation of Tuvaluan sovereignty, and a creation of a common body are arguments for the former. Australian security guarantees, combined with Tuvaluan surrender of its full freedom in external relations make the case for the latter. The question matters as it determines how other states should interact with Australia and Tuvalu regarding the issues covered by the treaty.

Another question pertains to the position of the Joint Committee in the context of the implementation of the Treaty. Wider competences for this body, or at least a high level of respect towards its opinions, would definitely improve the Tuvaluan position in this unequal relationship.

Moreover, it remains to be seen whether the new human mobility scheme will limit the possibility of Tuvaluans to apply for international protection, in Australia and in other states. For instance, protection granted by the UNRWA to Palestinian displaced persons is treated as a reason to exclude them from the scope of the Refugee Convention [art. 1D, see also Akram’s summary of issue, notably pp. 230-231], while in the European context people receiving temporary protection are still allowed to obtain refugee status [art 3(1)]. Since under this scheme Tuvaluans will be given residence permits, it seems justifiable to argue that the subsequent application for refugee status in Australia would be superfluous, since they already would receive a higher level of protection from this state. However, being exempt from this new pathway should not prevent individuals from obtaining international protection elsewhere, in case they meet necessary criteria.

Lastly, is the Falepili principle equal in substance to the principle of good neighbourliness, or is it an addition to the international legal language? If treated as synonymous, it could boost the Tuvaluan position even further, since, as Basheka puts it, the existence of good neighbourliness implies a symmetric, equal relationship between the states [p. 32-33]. One could therefore argue that Australia cannot simply forbid Tuvalu from concluding an international partnership with a third party, but should justify its position, try to negotiate a compromise with its partner, and generally not abuse its right. If the Falepili principle is a separate principle, there is definitely a need to specify its legal meaning, in order to properly deduce normative obligations arising from it.

In conclusion, researchers and policymakers concerned with the implications of global warming on human migrations should carefully consider the Treaty’s content and include it in their future works.