Australia's Prime Minister Anthony Albanese shakes hands with Tuvalu's Prime Minister Kausea Natano after signing the “Falepili Union” on 10 November (AlboMP/X)

A Pacific union: Australia-Tuvalu deal goes well beyond climate

This tailored arrangement has implications for AUKUS, legal proceedings, as well as the potential resettlement of climate refugees.

Donald R Rothwell

14 November 20235 min read

The announcement on the sidelines of the 2023 Pacific Islands Forum by Australia and Tuvalu of the “Falepili Union” is the most significant development for Australia and a Pacific Island nation for decades. It comes at a pivotal time for Australia’s relations in the Pacific given the focus on climate change and its impact on small Pacific Island countries, Australia’s climate change track record, and China’s increased interest and engagement across the South Pacific.

The Union is a bespoke treaty negotiated at the request of Tuvalu, which meets the very specific interests of Tuvalu while also reflecting Australia’s strategic goals and objectives. The treaty reflects the culmination of Australia’s diligent attention to Pacific affairs by the Albanese government and especially Foreign Minister Penny Wong.

While the headline takeaway has been focused on climate cooperation and “human mobility with dignity”, potentially allowing for the annual resettlement of up to 280 Tuvaluans in Australia, the treaty extends across a range of bilateral, regional, and multilateral issues.

The context of Australia’s historical engagement in the Pacific, and how small Pacific Island countries have built distinctive relations with larger neighbours, is important. Australia has a Pacific colonial history that extends back a century. Nauru was under a League of Nations mandate involving Australia, and then a United Nations trusteeship arrangement with Australia until its independence in 1968. Likewise, Australia had similar arrangements over Papua, New Guinea, and eventually Papua New Guinea until its own independence in 1975.

With Tuvalu now firmly aligned with Australia and a potential recipient of AUKUS submarine security, the prospect of Rarotonga Treaty amendments to Australia’s disadvantage would now appear to have receded.

As the small Pacific Island states decolonised and became independent, some sought to develop distinctive relationships with larger neighbours, especially in relation to defence and foreign affairs. One model has been “Free Association”, which is the status enjoyed by the Cook Islands (1965) and Niue (1974) with New Zealand. While both island states are fully independent, New Zealand remains responsible for defence and aspects of their foreign affairs. The Federated States of Micronesia, the Republic of the Marshall Islands, and Palau also have associated status with the United States.

As a Pacific Islands Forum member, Australia has also been actively engaged in post-colonial Pacific Island affairs. Fisheries cooperation and engagement has been a particular focus, especially through the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement of which both Australia and Tuvalu are members. The result has been longstanding Australian cooperation and engagement with Pacific neighbours in Pacific fisheries law enforcement.

Australia and Tuvalu have built on the Free Association model in developing a distinctive “Union” arrangement founded on three pillars. First, the Union is based on “values of good neighbourliness, care and mutual respect”. While Australia and Tuvalu are Pacific neighbours, they do not share land or maritime boundaries and are some 3,500 kilometres distant. In this respect, the use of the term “good neighbourliness” is notable. It has a distinctive meaning in international environmental law where neighbouring states have responsibility for environmental harm, impact and damage that one may cause to the other. Given that context, the use of the term in this instance would have been intentional.

Second, the Union recognises Tuvalu’s particular challenges arising from climate change. Climate cooperation is provided for while recognising that Tuvalu’s statehood and sovereignty will continue, and the desire of Tuvaluans to continue to live in their territory. Direct reference is made to “more recent technological developments provid[ing] additional adaptation opportunities”. While no detail is given as to what this may entail, clearly there is the potential for Australia to assist Tuvalu in combatting sea-level rise including by way of land reclamation and artificial island building within its existing maritime zones.

Closely aligned with this initiative is the concept of “human mobility with dignity”, which envisages a special pathway for Tuvaluans to live, study and work in Australia, including access to education, health and social security. A special visa category will need to be developed to facilitate this. No mention has been made, for the time being, of a fast track to Australian citizenship.

Third, the Union provides for mechanisms for Australia to come to the aid and assistance of Tuvalu following military aggression, natural disaster, or a public health emergency. Tuvalu will also provide Australia with territorial rights of access, presence and overflight. A distinctive aspect of the enhanced security relationship is that Tuvalu will agree with Australia any form of proposed legal or political security or defence-related engagement with another state, effectively giving Australia a veto over certain aspects of Tuvalu’s foreign affairs. (Notably Tuvalu presently has diplomatic relations with Taiwan.)

The Union conclusively demonstrates Australia’s commitment to a South Pacific neighbour, and willingness to assist Tuvalu in response to the very particular challenges it faces from climate change. This comes at a time when in 2024 both the International Tribunal for the Law of the Sea and the International Court of Justice will assess parallel advisory opinion cases framed upon the international legal responsibility of developed states and the consequences of climate change. Tuvalu was at the forefront of promoting these proceedings. Australia’s development of the Union with Tuvalu could potentially address some of the legal consequences international courts may find Australia and other developed states bear.

Finally, the Pacific Islands Forum saw Australia having to address ongoing concerns over AUKUS and the acquisition of nuclear-powered submarines. The Forum Communique “welcomed the transparency of Australia’s efforts, and commitment to compliance with international law, in particular the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the Rarotonga Treaty, and IAEA safeguard agreements”. There were reports of a move to amend the Rarotonga Treaty to include AUKUS submarines. With Tuvalu now firmly aligned with Australia and a potential recipient of AUKUS submarine security, the prospect of Rarotonga Treaty amendments to Australia’s disadvantage would now appear to have receded.

About the author

Donald R Rothwell

Donald R Rothwell is Professor of International Law at the ANU College of Law, ANU and one of Australia’s leading experts in International Law with specific focus on the law of the sea, law of the polar regions, use of force and implementation of international law within Australia.

Topics

Australia Pacific Islands Tuvalu