15 November 2023 – by Yumna Kamel
On 10 November 2023, Australia and Tuvalu signed the Falepili Union treaty, and made history.
To fully appreciate and evaluate the groundbreaking nature of this initiative, two key contextual points need to be considered at the outset. First, Pacific Island states (Tuvalu included) collectively contribute less than 1% of global emissions, and yet they have borne what is arguably the largest burden of the changing climate for decades. Most concerningly, the losses of land, culture, and existence itself present a real and tangible threat to these states. Second, though displacement due to climate factors is one of the largest and most sweeping crises to face a generation, no binding mechanisms (such as treaties, legal, or resettlement schemes) existed to recognise this issue or introduce mitigation or protective measures… Until now, that is.
The Falepili Union treaty recognises that ‘climate change is Tuvalu’s greatest national security concern’, and in turn, its core stated purpose is —
‘…to provide the citizens of Tuvalu with a special human mobility pathway to access Australia underpinned by a shared understanding and commitment to ensuring human mobility with dignity’
‘Falepili’ is a Tuvaluan word that connotes good neighbourliness, care, and mutual respect. So, how far does this treaty go to encapsulate these values?
The good news
A treaty is an agreement signed by two or more sovereign states and is governed by international law. It is legally binding, and this is makes the Falepili treaty pivotal to the advancement of rights at the intersection of climate and mobility.
The treaty sets a precedent by explicitly identifying climate change as a nuanced and existential threat to Tuvalu and her citizens. The approach is nuanced in that it recognises, in Article 2, the multifaceted threat presented by overarching climate change as opposed to isolated ‘natural’ disasters, and in its recognition of the impact of this threat upon Tuvaluans whether they choose to leave or remain on the island. This contrasts with previous international agreements and declarations, such as the 2015 Paris Agreement (binding) which briefly acknowledges that the rights of indigenous groups and migrants should be considered when addressing climate change, and the 2016 New York Declaration on Refugees and Migrants (non-binding) which recognises ‘environmental factors’ as a driver of migration.
On the topic of nuance, the treaty lays the foundation for choice; it does not label itself as a resettlement scheme. First, it purports to provide the citizens of Tuvalu with a ‘special human mobility pathway’ visa scheme to access Australia with dignity, should they wish to leave (Article 1). Crucially, this pathway does not mention that a specific, isolated disaster must occur to enable Tuvaluans to make the move. If they do make the move, they will be able to ‘live, study, and work in Australia, and obtain access to education, health, income and family support upon arrival’ (Article 3). The Australian Prime Minister has said that under the pathway, 280 Tuvaluans will be able to make the move annually.
Second, the parties make a commitment to actively uphold the ‘deep ancestral ties’ to and the desire of Tuvaluan people to remain on their land. The two nations ‘commit to work together to help the citizens of Tuvalu to stay in their homes with safety and dignity’. The treaty also gives the nod to the notion of adaptation through technological advancement as a solution, and to promoting support for this avenue to other nations (Article 2). At the outset, Australia has pledged $16.9 million to the existing Tuvalu Coastal adaptation project to expand the island’s land capacity by approximately 6%.
What time will tell
Importantly, the treaty does not outline whether there is a time limit upon the human mobility pathway for Tuvaluans to Australia, nor does it state whether citizenship is an eventual option. We can assume that further regulations or secondary legislation will iron out these details, as well as any expectations or obligations upon Tuvaluans who apply for the visa.
The treaty does centre national security as a tenet of the relationship between the parties. In terms of how this ties the nations together more broadly, under Article 4, Tuvalu will need to ‘mutually agree’ (interpreted to mean that it will need to seek consent) with Australia before proceeding with any of the following —
‘…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’.
In return, Australia has committed to provide assistance to Tuvalu (following a request) in response to a major natural disaster, a public health emergency of international concern, or military aggression against Tuvalu. A time limit will be placed upon the length of stay of any Australian personnel who go to Tuvalu to provide the specified assistance.
Final thoughts
In contrast to previous declarations or initiatives, the Falepili Treaty is novel for a number of reasons. It is explicitly dedicated to human mobility linked to climate change without deeming this the ultimate solution to such a nuanced challenge. The treaty recognises both introducing a safe and legal route to movement, and preservation of the right to stay in response to a changing climate. Most importantly, it is the first legally binding bi-lateral instrument at the intersection of climate and migration.
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If this note interested you, the following initiatives and cases may, too:
- The demand for an Advisory Opinion from the International Court of Justice, initiated by the Pacific Island Students Fighting Climate Change – read more about this here and here. This would be a landmark decision, albeit non-binding.
- On the Australian government’s liability to protect certain groups from the impacts of climate change, see —
- The victory of the Torres Strait Islanders minority group in the case of Daniel Billy et al. v Australia before the United Nations Human Rights Committee. Although the decision is non-binding, it set a global precedent and requires Australia to make full reparations to the affected groups.
- The introduction of the concept of a duty to protect young people from the impacts of climate change in the courts. Though it was dismissed at appeal, the case of Minister for the Environment v Sharma brought novel arguments into popular discourse.
- Another perspective from the Australian -Tuvalu Falepili Union:
