Client Alert: Australia and Tuvalu announce new bilateral treaty on climate change, human mobility and security cooperation

On 10 November 2023, the Governments of Australia and Tuvalu announced a new bilateral treaty to facilitate cooperation on matters of climate change, human mobility and security.

Framed around the Tuvaluan concept of “falepili” (traditional values of good neighbourliness, care and mutual respect), the new treaty seeks inter alia to assist Tuvalu in responding to escalating threats posed by climate change-induced sea-level rise.  Its stated purpose is threefold:  first, to establish a new Falepili Union, based on good neighbourliness, care and mutual respect, and to elevate the Parties’ relationship; second, to provide Tuvalu’s citizens with a special human mobility pathway to access Australia; and, third, to protect and promote each Party’s and the Parties’ collective security and sovereignty (Article 1).

Already, the United Nations’ International Organization for Migration estimates that over 50,000 Pacific Islanders are at risk of being displaced annually due to climate and disaster-related events.  As a low-lying small island State, Tuvalu is amongst the world’s most climate-vulnerable countries, with the International Monetary Fund predicting that sea-level rises may cause Tuvalu to become uninhabitable by the end of this century.

Through this agreement, Australia extends Tuvaluans a special pathway to cross-border mobility.  Subject to a publicly announced initial cap of 280 Tuvaluans annually (approximately 2.5% of Tuvalu’s population of 11,200), Australia has committed to enabling Tuvaluans to live, study and work in Australia, as well as to access Australian education, health, income and family support (Article 3).

At the same time, the treaty recognises explicitly the desire of Tuvalu’s people to continue to live in their territory and Tuvalu’s deep, ancestral connections to land and sea (Article 2(2)(a)).  It affirms that Tuvalu’s Statehood and sovereignty will continue notwithstanding climate change-related sea-level rise, as well as recognising the climate change adaptation opportunities offered by developments in technology (Articles 2(2)(b)-(c)).  To that end, the treaty commits Australia and Tuvalu to cooperate on climate change issues (Article 2(3)).  Announcing the conclusion of the treaty, the Prime Ministers of Australia and Tuvalu also confirmed extended partnership on coastal adaptation and land reclamation to enable Tuvaluans to remain living in Tuvalu in the face of sea-level rise.

Simultaneously, the agreement enshrines specific provisions on security and stability cooperation.  It commits Australia to provide assistance to Tuvalu in the event of military aggression, natural disaster or public health emergencies, if so requested by Tuvalu (Article 4(1)).  Tuvalu further commits to reach mutual agreement with Australia on any engagement with any other State or entity on security and defence-related matters, including matters of defence, cyber security and critical infrastructure (Article 4(4)).

Comment:

The treaty, negotiated at the request of the Government of Tuvalu, is amongst the first treaties explicitly to address the issue of a State’s continuing Statehood and sovereignty under international law.  This is an issue that has attracted a degree of attention in recent years, in the context of the implications under international law of a State’s loss of territory due to inundation by rising sea levels.  It is a fundamental requirement of Statehood, under foundational international law principles, that an entity claiming to be a State must have effective control over land territory.  Historically, a number of entities that have been States and controlled territory but then lost all territory have continued to have a certain recognised existence under international law but not as States (for example, the Sovereign Military Hospitaller Order of Saint John of Jerusalem, of Rhodes and of Malta, commonly known as the Order of Malta or Knights of Malta).

Hailed by Australia’s Foreign Minister as Australia’s most important step in the Pacific since Papua New Guinea’s independence, the recent agreement between Australia and Tuvalu can be evaluated within the context of wider global trends in climate change migration.

The Australia-Tuvalu treaty notably contrasts with the approach taken previously by New Zealand.  In 2018, New Zealand abandoned plans to create a new “climate refugee” category, citing feedback from Pacific Island States that it should prioritise climate change resilience over options for international resettlement.  In the face of urgent and increasing climate change effects, it remains to be seen whether the new Australia-Tuvalu treaty reflects a shift of thinking generally for the Pacific Island States to these issues.  A recent new Pacific Regional Framework on Climate Mobility – announced by the 18-member Pacific Islands Forum almost simultaneously with the new Australia-Tuvalu treaty – provides a valuable blueprint for future migration in the region.

At the same time, the new treaty may have a limited general precedence.  The reality behind the scenes driving the parties points to defence and security issues playing a significant role in motivating the agreement.  Thus, responding to media questioning over whether the treaty represented efforts by Australia to counter rising Chinese influence in the Pacific, Australia’s Foreign Minister acknowledged that the Pacific was “a more contested region” and that Australia “[had] to work harder to be a partner of choice” for its regional neighbours.  It may not be a coincidence that Tuvalu maintains full diplomatic relations with Taiwan (the “Republic of China”).

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