Falepili Union Treaty, statehood and protection of persons in light of sea-level rise: state practice of preserving the status quo?
By Rashmi Raman and Daniel Pakpahan
Published on 8 January 2024
The Falepili Union Treaty of 9 November 2023 is making waves across reports that comment on the intriguing and possibly trailblazing agreement on climate change cooperation (among others) between Australia and Tuvalu. Article 2(2)(b) of the treaty, in particular, is an important development in respect of state practice on recognising the continued existence of geographically threatened states from climate induced sea level rise (SLR). The provision cemented the mutual recognition that ‘the statehood and sovereignty of Tuvalu will continue, and the rights and duties inherent thereto will be maintained’ irrespective of climate-change-related SLR. In addition, Article 3 calls for the creation of a ‘special human mobility pathway’ to enable Tuvaluan citizens to live, study and work in Australia and enjoy its government support schemes. These two aspects of the treaty chart a pragmatic and creative response from Tuvalu and Australia to the effects of SLR and are particularly relevant in light of the two subtopics of statehood and protection of persons that the International Law Commission (ILC) Study Group on SLR in relation to international law will focus on in its 75th session in 2024. In this post, we will look firstly, at the Falepili Treaty’s contribution to the issue of statehood for small island developing states (SIDS) when their physical territory and maritime entitlements are under imminent threat of disappearing and, secondly, the protection of persons undergoing forced displacement and SLR-induced migration.
Emerging state practice on the continuation of statehood for physically submerged states
The existence of a state is a question of fact (Badinter Commission Report, Opinion 1, 1991, para 1(a)). When faced with the factual challenges of rising sea levels and the imminence of wholly or substantially submerged territories of a state, international law must reimagine the future of statehood in a more creative way. But the norms of international law have always constructed their own facts. The idea that territory (and effective control thereof) need no longer be a strict requirement to establish statehood under international law is hardly new (see here, here and here). In at least one notable and prolonged chapter in the history of international law, the legend of legal sovereignty was spun in incontiguous and geographically unrelated lands across oceans – saltwater colonialism and many other questionable tools deployed by the colonial administrations in history constructed a narrative of sovereignty that kept some tough questions on land and maritime territory in abeyance for close to 200 years. In a completely different challenge to the creative imagination of international law, and a few decades more of state practice later, we find ourselves interrogating once again the sanctity of land territory, however, this time in the face of rising sea levels and the imminent threat to maritime baselines that climate change poses. The de lege ferenda emerging from such construction has usually been the causal consequence of such norm creation. In examining norms that underlie statehood, across the declaratory and recognition models, the central characteristic that Crawford identifies for us is independence. It is only actuated by this characteristic that the other attributes of effectiveness in the form of territory, government, population can be constructed. What happens then if such independence exists only in relation to another sovereign state? This is the question that the Falepili Treaty urges us to consider.
The criteria for statehood under the declaratory theory has almost never been imagined without the element of physical, tangible, territory. Importantly, the formation of customary international law specifically on maritime zones, from the legal maxim that the land dominates the sea (North Sea Continental Shelf Cases, para 96) has developed in areas that have causal relationships with statehood such as permanent sovereignty over natural resources, uti possidetis juris, self-determination, and as focused on by all the studies on rising sea levels, United Nations Convention on the Law of the Sea, determination of maritime entitlements and subsequent state practice on the law of the sea. The indices in the Falepili Treaty appears to be more in line with the ILC SLR Study Group’s preliminary work on baselines and maritime entitlements (see here and here) and supports the emerging consensus that the law need not take into account the physical changes to the baseline. This also stands on the shoulders of the position taken by most states that SLR does not constitute a fundamental change of circumstances (see here and here) since maritime boundaries and territorial boundaries fall within the exception to Article 62(2) of the Vienna Convention on the Law of Treaties 1969. In sum: notwithstanding factual changes to their territory in light of SLR, affected states have the option of preserving the status quo without prejudice to their statehood and sovereignty, as well as sovereign rights.
Taken together, acknowledging that the legal construction of statehood may survive the physical submergence of territory and adding to it the factual cessation of the state as it originally existed, lend a layer of credibility to the extant theory of the ‘state in context’ that examines the relationship between the constitutive and declaratory models of statehood and permits for the fantastic possibility that states can exist in relation to other states even if they do not meet the higher threshold of norms for recognition. The result (while certainly pragmatic, and preferable to the alternatives of SIDS’ populations grappling with the realities of migration) would be a diminished identity for Tuvalu – from a fully sovereign state as it now stands, to a possible state in context within the sense suggested in the Falepili Treaty.
Hesitant step towards a right to migration based on ‘vulnerability’ to the impact of sea-level rise?
While the Falepili Treaty undeniably counts as state practice regarding the relative continuity of statehood as a consequence of SLR, it is unclear whether and how this treaty contributes to international law on the protection of persons displaced by the effects of climate change, i.e., people who are forced to move due to sudden-onset disasters, to pre-empt slow-onset events such as SLR, or a combination of both. There is consensus that people fleeing their home country due to the effects of climate change are not refugees per the 1951 Refugee Convention, a status reserved to people who are targets of persecution and are fleeing from their own government (even Tuvalu and other Pacific islands states strongly resist the label of ‘climate refugees’ which invoked a sense of helplessness and government inaction). Those who cross borders to escape SLR may be protected by the non-refoulement principle only if they can demonstrate a specific risk to their life and enjoyment of humane living conditions due to environmental degradations, and that their home government is unwilling or unable to take affirmative measures to avert the risk (cf. Teitiota, para 9.12). Nevertheless, this principle does not entitle them to enter and remain in another country, but merely to a temporary stay.
As seen above, the existing protection regimes evidently fall short of providing individuals a right of migration (both reactive and proactive) in response to the adverse effects of SLR. Yet, the Falepili Treaty does not purport to fill this gap. Article 3 on the human mobility pathway is disjointed from Article 2 on climate cooperation. This provision 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’. With migration for Tuvalu’s 11,200 citizens being subject to an annual quota of mere 280 people, it is doubtful that the respective governments had in mind the migration of Tuvaluans most affected by the effects of SLR (who are mainly among the poorest and most vulnerable, living in marginalised areas). Migration and mobility schemes are usually reserved to people of a high economic status, who ‘may not necessarily be the ones most acutely or directly affected by climate change impacts’ (McAdams, p. 210), and nothing in the Falepili Treaty seeks to change this status quo. It would be interesting in this context to draw a contrast between the Tuvalu-Australia model as blueprinted in the Falepili Treaty and existing treaty models based on ‘self-governing free association’ such as the relationships between the Cook Islands or Niue with New Zealand / Marshall Islands with the US, for example.
One may argue that a priority right to migration based on people’s vulnerability to SLR should be interpreted into Article 3 of the Falepili Treaty, taking into account the widespread recognition of a nexus between human mobility, disaster risk reduction, climate change adaptation, and human rights (see here, here and here). In intergovernmental discourse, planned migration has been integrated as part of adaptation action aimed at reducing vulnerability, such as in the Cancún Adaptation Framework (para. 14(f)), Sendai Framework for Disaster Risk Reduction (para. 30(l)), and the Global Compact for Migration (para. 18(i)–(k)). The Migration Compact is particularly notable for enshrining the commitment to enhancing regular migration pathways for ‘migrants in a situation of vulnerability’ such as people ‘compelled to leave their countries of origin due to slow-onset natural disasters’, with actions including planned relocation or visa options for permanent stay abroad provided that ‘adaptation in or return to their country of origin is not possible’ (para. 21(h)).
It is too early to claim that Falepili Treaty’s ‘human mobility pathway’ is a state practice supporting an obligation to facilitate migration of individuals forcibly displaced by the effects of climate change, especially in absence of complementary protection for people who initially moved abroad voluntarily but cannot be expected to return (see Kälin’s three-pronged test of permissibility, feasibility (factual possibility) and reasonableness of return), and for those who have no option for internal relocation and are forced to permanently move abroad. Taking examples from treaties on internal displacement (e.g., Great Lakes IDP Protocol), the parties must strive for further cooperation, such as by establishing a legal framework and designating governmental organs responsible for assessing the needs of displaced persons, developing the criteria for non-return based on an analysis of substantive inequality and intersectionality (drawing analogy to refugee law), and finding durable alternative solutions that would make return safe, in line with the Tuvaluans’ desire and human rights based claims to stay in their homes (Article 2(3)). It is time that Australia accepted a legal obligation to cooperate for the protection of people displaced by the effects of SLR, as an ethical implication of its disproportionate contribution to global emissions vis-à-vis the Pacific Islands States.
Rashmi Raman is currently Visiting Research Fellow at the Centre for International Law, National University of Singapore. She is on a Long Leave of Absence from the O. P. Jindal Global University where she is Professor of Law and Assistant Director at Centre for International Legal Studies, Jindal Global Law School.
Daniel Pakpahan is Research Associate (Investment Law and Policy) at Centre for International Law, National University of Singapore.