Australia-Tuvalu Falepili Union Treaty, 9 November 2023

Treaty – Climate Change – Human Mobility – Pathway – Uninhabitability – Climate Adaptation – Falepili – Australia – Tuvalu – Pacific – Small Island Developing States – Statehood – Security – Sovereignty.

The Australia-Tuvalu Falepili Union treaty established a “special human mobility pathway” between Australia and Tuvalu, the latter being a Pacific Island State whose territory is threatened by sea level rise. This bilateral agreement received broad international media coverage and has been qualified by many as a groundbreaking treaty. Nevertheless, many of its aspects remain unclear. Even if the annex documents to the treaty and the existing case law are tools to better understand these uncertainties, we should stay cautious about the scope of this bilateral agreement. In the end, it will take years of application and interpretation to fully understand the extent of the groundbreaking character of this agreement.

Zoé Briard

The Australia-Tuvalu Falepili Union treaty (hereafter, “the Falepili treaty”) established a “special human mobility pathway” (Articles 1 and 3). Relying on the annex documents of the agreement and the existing case law, this commentary focuses on the extent of the changes brought by this new legal approach to mobilities related to climate change.

A. Facts

On 9 November 2023, Anthony Albanese, Prime Minister of Australia, and Kausea Natano, Prime Minister of Tuvalu, concluded a first-of-a-kind agreement on climate mobility named the Australia-Tuvalu Falepili Union treaty.

As enshrined in the treaty’s preamble, in Tuvaluan, the term “Falepili” “connotes traditional values of good neighbourliness, duty of care and mutual respect.” This fundament is recalled before describing the purpose of the treaty (Article 1(a)), to “provide the citizens of Tuvalu with a special human mobility pathway to access Australia” (Article 1(b)) and “protect and promote each Party’s and the Parties’ collective security and sovereignty” (Article 1(c)).

The situation in Tuvalu is particularly serious vis-à-vis the consequences of climate change. As a Pacific Island State with a size of 26 square kilometers and a mean elevation of less than 2 meters above sea level,^[1] Tuvalu undergoes the effects of rising sea levels. NASA foresees that much of the Tuvaluan land area “will be below the average high tide by 2050.”^[2]

1. Climate Cooperation (Article 2)

Following the presentation of the treaty’s purpose (Article 1), climate cooperation is the first aspect to be developed in the agreement (Article 2). In this article, Parties generally “commit to work together in the face of the existential threat posed by climate change” (Article 2(1)). Facing this existential threat, Australia and Tuvalu recognize the desire of Tuvalu’s people to live in their territory where possible “and Tuvalu’s deep, ancestral connections to land and sea” (Article 2(2)(a)). They also confirm the statehood and sovereignty of Tuvalu “notwithstanding the impact of climate change-related sea-level rise” (Article 2(2)(b)).

2. Human Mobility with Dignity (Article 3)

One of the aims of the Falepili treaty is “to provide the citizens of Tuvalu with a special human mobility pathway to access Australia” (Article 1(b)). The concept of “a special mobility pathway” is more detailed in Article 3 of the treaty, entitled “human mobility with dignity” which establishes that the treaty “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(1)).

In return, with the assistance of Australia (Article 3(3)), Tuvalu “shall ensure that its immigration, passport, citizenship and border controls are robust and meet international standards for integrity and security and are compatible with and accessible to Australia” (Article 3(2)).

3. Cooperation for Security and Stability (Article 4)

This article contains an assistance component, from Australia to Tuvalu, in case of: (a) a major natural disaster; (b) a public health emergency of international concern; (c) military aggression against Tuvalu (Article 4(1)).

In exchange, “Tuvalu shall provide Australia rights to access, presence within, and overflight of Tuvalu’s territory, if the activities are necessary for the provision of assistance requested by Tuvalu under this agreement” (Article 4(3)).

In addition to that, “Tuvalu shall mutually agree with Australia any partnership, arrangement or engagement with any other State or entity on security and defence-related matters” (Article 4(4)).

4. Dispute resolution, amendment and duration (Articles 5, 6, 7 and 8)

Articles 5 and 6 establish the procedure to be followed for discussing “matters arising under this agreement” (Article 5(1)) or “an obligation contained in this agreement or its implementation” (Article 5(2)), or in case of “dispute arising under this agreement with respect to its interpretation, application or implementation” (Article 6). Australia and Tuvalu decided to refer these matters to a Joint Committee.

The remaining articles deal with questions related to the amendment (Article 7), entry into force, duration, and termination of the agreement (Article 8). 

B. Discussion

The Falepili treaty has benefitted from broad international media coverage and has prompted many reactions. Among them, the agreement has been labeled as a “Historic Climate Refuge and Security Pact” or as “the world’s first climate resettlement treaty.” Both appellations seem controversial.

To clarify the meaning of this special human mobility pathway, this section will analyze its scope in light of the Falepili treaty’s annex documents and the existing case law on climate migration.

1. Interpreting the Scope of the Special Human Mobility Pathway through the Falepili Treaty Annex Documents

On the Australian Government—Department of Foreign Affairs and Trade website, two documents—the recapitulative document “Australia-Tuvalu Falepili Union” and the “joint statement on the Falepili Union between Australia and Tuvalu” - clarify partly who is concerned by this special human mobility pathway, when and at what cost.

– A special human mobility pathway, for whom?

To the question “How will the Falepili Union work?” the recapitulative document states notably that, “Tuvalu and Australia have agreed to establish a small, capped annual mobility pathway for Tuvalu to access Australia to live, work, study and connect with family.” This excerpt interestingly differs from the Falepili agreement.

The treaty does not qualify its special human mobility pathway of “small” or “capped,” nor does it mention quotas. Yet, political reporting announces a quota of 280 Tuvaluans (out of a population of 11,300) being concerned by the visa arrangement each year.[3] This limitation would be motivated by a fear of “a brain drain of skilled workers.”[4] This seems coherent as, in general, people who benefit from migration and mobility schemes are not the ones with the lowest economic status and, therefore, not the ones most affected by the consequences of climate change.[5] Therefore, attention should be paid to the concrete access of the persons with the lowest economic status to this mobility scheme and to the consequences of this quota on the opportunity to benefit from this mobility pathway for Tuvaluans who do not qualify as skilled workers.

– When Is it Time to Mobilize this Special Human Mobility Pathway?

The sequence of the Falepili treaty’s articles does not seem to be left to chance. Before addressing the question of “human mobility with dignity” in its Article 3, the treaty raises the subject of “climate cooperation” that acknowledges the desire of Tuvalu’s people to live in their territory where possible (Article 2(2)(a)). Therefore, the agreement is in phase with the consensus considering climate mobility as a last resort option for adaptation.

In that sense, in their joint statement, the Parties describe the Tuvalu Coastal Adaptation Project which “will expand Funafuti’s land by around six per cent – creating vital space for new housing and essential services for Tuvaluans, and enabling people to remain living in Tuvalu in the face of sea-level rise.” Australia and Tuvalu also recognize that “at the same time, we believe the people of Tuvalu deserve the choice to live, study and work elsewhere, as climate change impacts worsen. Australia has committed to provide a special pathway for citizens of Tuvalu to come to Australia, with access to Australian services that will enable human mobility with dignity.” It appears from this last excerpt that mobility would be one adaptation option among others. In phase with recent studies that also insist on voluntary immobility and the right to refuse to move,[6] the agreement seems to be realistic as people affected by the same consequences of climate change do not have the same reactions. Some would want to leave while others would want to stay[7] and according to what is inscribed in this agreement, persons would have the choice between these two options, notwithstanding the quota of 280 people per year. 

It is also interesting to note that the challenges climate change represents for Tuvalu are acknowledged in Article 2 on climate cooperation, but they are not mentioned in Article 3 on “Human mobility with dignity.” This absence could be related to the reluctance to be considered as climate refugees characterizing Tuvaluans’ position. The secrecy surrounding the adoption of the Falepili treaty makes it difficult to draw any conclusion on this subject.^[8]

At the same time, the dispositions of the Falepili treaty “are deliberately framed in the context of climate change and—furthermore—are not tied purely to work.”[9] Indeed, Article 3 enables citizens of Tuvalu to live in Australia. By doing so, the special human mobility pathway implemented by the Falepili treaty presents novelty compared to labor migration agreements such as the Pacific Access Category Resident Visa. “This implies the visa may potentially provide a humanitarian pathway for people who want—or need—to move. This would include older people, who would not qualify for existing Pacific labour migration programs.”[10] This openness could also present a partial solution to the fear of brain drain issues as people who are not considered to be skilled workers might qualify for this mobility pathway. Only the treaty’s implementation in the years to come could infirm or confirm these possibilities.

– A Falepili Treaty, But at What Cost?

The cost of the Falepili treaty for Tuvalu’s sovereignty has been qualified as “significant”[11] but before addressing this question and to better visualize the whole picture, it is interesting to first summarize the inputs of the Falepili treaty for Tuvalu.

On the adaptation level, the Falepili treaty creates a new human mobility pathway and offers some funding for adaptation. On the contrary, breakthroughs are missing at the mitigation level. Even if it was considered as a priority for Tuvaluans before signing this agreement, it “achieves nothing material in the way of emissions reductions from Australia.”[12]

This agreement also represents an advancement regarding Tuvalu’s statehood. Territory is commonly recognized as one of the constitutive elements of a State but the current phenomenon of rising sea levels caused by climate change is threatening the existence of certain territories and thus generates concerns about the future of certain States’ existence. With the Falepili treaty, Tuvalu is reassured about the permanence of its statehood and sovereignty “notwithstanding the impact of climate change-related sea-level rise” (Article 2(2)(b)), at least regarding Australia.[13]

However, these commitments cannot only be seen as a good gesture from Australia. Contrary to what its name could imply, the Falepili treaty came with a cost which impacts particularly Tuvalu’s sovereignty as the Article 4 of the agreement confers a veto power to Australia over Tuvalu’s security interest.[14] Indeed, Tuvalu committed itself to “mutually agree with Australia any partnership, arrangement or engagement with any other State or entity on security and defence-related matters” (Article 4(4)). In addition to that, “Tuvalu shall provide Australia rights to access, presence within, and overflight of Tuvalu’s territory, if the activities are necessary for the provision of assistance requested by Tuvalu under this agreement” (Article 4(3)).

This cost has generated mixed reactions among Tuvaluans and became an important subject for the January 2024 elections. Among them, Elene Sopoaga, a former Prime Minister of Tuvalu, has announced that “he will scrap this treaty” if he was elected. As Kausea Natano has not been reelected, the future of the Falepili treaty is now uncertain, “for some Tuvaluans who have spoken about the treaty, there is a perception that Australia has not engaged with the true spirit of Falepili. Demanding the handover of sovereign decision-making capability in exchange for migration rights reads more like an ultimatum, not a friend helping those in need.”[15]

Therefore, what was at first an agreement on climate mobility has straightforward implications on security and statehood for Tuvalu. Despite its original purpose, dispositions regarding climate mobility are more timid than the ones regarding security and statehood.

2. Clarifying the Nature of the Falepili Treaty with the Existing Case Law on Climate Migration

Is the Falepili treaty a climate refugee pact? Or a climate resettlement treaty? None of these labels seems to fit the form of this agreement. 

Neither the treaty, nor its annex documents mention the term “refugee” and Jane McAdam is clear on this point: “This is not a refugee visa.”[16] In general, people fleeing their state’s territory for reasons related to climate change are not considered as refugees as they do not fall within the legal definition of the Geneva Convention. Indeed, their recognition as refugees raises questions notably regarding the indiscriminate character of climate change when the refugee definition required persecution linked to five delimited grounds (race, religion, nationality, membership of a particular social group or political opinion) (Article 2(A)(2)).

This question was presented to New Zealand jurisdictions in a scenario that could have applied to someone from Tuvalu. Ioane Teitiota is a Kiribati national who fled his country due to the consequences of climate change and, among them, the consequences of sea level rise. His request to be recognized as a refugee or as a protected person under the International Covenant on Civil and Political Rights (hereafter, the “Covenant”) or the Convention against Torture was refused by New Zealand jurisdictions (Immigration and Protection Tribunal; High Court; Court of Appeal; Supreme Court). Afterward, the expulsion of Ioane Teitiota to Kiribati by New Zealand authorities was the subject of a Communication from the United Nations Human Rights Committee (No. 2828/2016, Ioane Teitiota v. New Zealand). Even if adjudicating on the Geneva Convention is not part of its prerogatives, the Committee was asked to determine if the return of Ioane Teitiota to Kiribati was violating his right to life (Article 6 of the Covenant). The Committee did not find a violation but it established that sending people back to a country where the effects of climate change could threaten their lives or expose them to cruel or inhuman treatments was forbidden.[17] Therefore, the Committee recognized the possibility for people escaping the effects of climate change to be protected by the non-refoulement principle.

As for the term resettlement, there is no consensus on its meaning. Resettlement is sometimes used as a synonym for (planned) relocation which is commonly recognized as one of the four types of mobility in the context of climate change.^[18] Since the 16^th Conference of the Parties to the United Nations Framework Convention on Climate Change, planned relocations are also recognized as an adaptation strategy to climate change. In this context, Erica Bower and Sanjula Weerasinghe defined them as: “the planned, permanent movement of a group of people from identifiable origin(s) to identifiable destination(s), predominantly in association with one or more hydrometeorological, geophysical/geological, or environmental hazard(s)”.[19] The special human mobility pathway inscribed in the Falepili treaty does not fit this definition for at least two reasons. First, it does not state the length of the mobility scheme, how long will Tuvaluans be able to stay on the Australian territory? Even if, given the aim of the treaty, it is possible to presume that the mobility scheme aims to apply on a permanent basis,[20] this is not clearly enshrined in the treaty. Second, it is not couched in collective terms. This therefore asks the questions of the repartition of Tuvaluans on the Australian territory based on this agreement. Will they be able to stay in Australia on a permanent basis? Will they be together and dispersed all over the country? Once again, only time and implementation would allow to answer these questions. 

Nevertheless, the case law on relocation stays pertinent on some levels to analyze this special human mobility pathway. In its communication regarding the Daniel Billy and Others v. Australia (Torres Strait Islanders Petition) case, the United Nations Human Rights Committee addressed the question of relocation (§ 8.7). According to the Committee, relocation could be a possibility to protect the right to life of the persons involved (Article 6 of the Covenant). On the contrary, the Committee seems to imply that relocation could threaten the right to privacy, family and home (Article 17 of the Covenant) and the right to culture, religion and language of minorities (Article 27 of the Covenant) as it concluded to their violation due to Australia’s failure to take adequate adaptation measures in time.[21] The Falepili treaty seems to be in adequation with the UN Committee on this point. The treaty even seems to find, theoretically at least, a compromise between these different rights as it recognizes the desire of Tuvalu’s people to live in their territory where possible “and Tuvalu’s deep, ancestral connections to land and sea” (Article 2(2)(a)) before establishing its special human mobility pathway (Article 3). In addition, Australia commits itself to help Tuvalu to stay on its territory (Article 2).

As highlighted by Rashmi Raman and Daniel Pakpahan, the special human mobility pathway is not couched in terms of protection, rights, nor risks and effects of climate change, but merely a commitment to ensure “human mobility with dignity.”[22] Therefore, the Falepili treaty is more a bilateral agreement on climate mobility of its own kind.

In conclusion, as it establishes a special mobility pathway to face the consequences of climate change, the Falepili treaty can be considered as groundbreaking. Nonetheless, this discussion demonstrated that numerous facets of the Falepili treaty stay unclear. In the end, it will take years of application and interpretation to fully understand the extent of the groundbreaking character of this agreement.

C. Suggested Reading

To read the treaty: Australia-Tuvalu Falepili Union, 9 November 2023.

Case law:

• UN Human Rights Committee, 21 July 2022, Daniel Billy and Others v. Australia (Torres Strait Islanders Petition), Communication No. 3624/2019;
• UN Human Rights Committee, 24 October 2019, Ioane Teitiota v. New Zealand, Communication No. 2728/2016;
• NZSC, Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment, 20 July 2015, No. 107;
• NZCA, Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment, 8 May 2014, No. 173;
• NZHC, Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment, 26 November 2013, No. 3125;
• NZIPT, AF (Kiribati), 25 June 2013, No. 800413.

Documents:

• “Australia-Tuvalu Falepili Union”, Australian Government Department of Foreign Affairs and Trade website;
• “Joint statement on the Falepili Union between Australia and Tuvalu”, Australian Government Department of Foreign Affairs and Trade website.

Doctrine:  

• Brennan, P., “NASA-UN Partnership Gauges Sea Level Threat to Tuvalu”, Sea Level Change. Observations from space, 15 August 2023;
• Bower, E. and Weerasinghe, S., Leaving place, Restoring Home, Enhancing the Evidence Base on Planned Relocation Cases in the Context of Hazards, Disasters, and Climate Change, Geneva, Platform on Disaster Displacement, 2021;
• Courtoy, M., “Une décision historique pour les ‘réfugiés climatiques’? Mise en perspective”, Cahiers de l’EDEM, February 2020 ;
• Courtoy, M., “Between discomfort on how to address the future uninhabitability of certain territories and new avenues for climate justice”, Cahiers de l’EDEM, November 2022 ;
• Guilfoyle, D. and Green, A., “The Australia-Tuvalu Falepili Union Treaty: Security in the Face of Climate Change … and China?”, EJIL: Talk!, 28 November 2023;
• McAdam, J., “Australia’s Offer of Climate Migration to Tuvalu Residents Is Groundbreaking – and Could Be a Lifeline across the Pacific”, The Conversation, 11 November 2023;
• McAdam, J., Climate Change, Forced Migration, and International Law, Oxford, OUP, 2012;
• Raman, R. and Pakpahan, D., “Falepili Union Treaty, statehood and protection of persons in light of sea-level rise: state practice of preserving the status quo?”, CIL Dialogues, 8 January 2024;
• Taukiei, K. and Farbotko, C., “Tuvalu, Australia, and the Falepili Union”, Australian Institute of International Affairs, 24 November 2023;
• Van Der Geest, K., De Sherbinin, A., Gemenne, F., Warner, K., “Editorial: Climate Migration Research and Policy Connections: Progress since the Foresight Report”, Frontiers in Climate, 23 June 2023.

 

To cite this contribution: Z. Briard, “Is the Australia-Tuvalu Falepili Union treaty a groundbreaking agreement on climate mobility? Let’s stay cautious”, Cahiers de l’EDEM, February 2024.