The Falepili Union: A Precedent for the Pacific?

Written by Donald R Rothwell FAAL and Sarah Krause

 

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At the 2023 Pacific Islands Forum, Australia and Tuvalu announced the formation of the ‘Falepili Union’, representing a significant shift in the relations between the two states.* Reception to the Union has been somewhat divided, particularly within Tuvalu, and the fate of the agreement was uncertain following the January 2024 election where Prime Minister, Kausea Natano, lost his seat. However, recent reports indicate that Tuvalu’s incumbent Prime Minister, Feleti Teo, has communicated his support for the Union to his Australian counterpart Anthony Albanese. With ratification of the treaty now imminent, it is worth exploring how the Union could alter not only the relationship between Australia and Tuvalu, but also set a precedent for other Pacific states to follow.

The Union was negotiated at the request of Tuvalu and was drafted to meet the specific needs of Tuvaluans, particularly with respect to climate change resiliency, and to achieve Australia’s strategic goals in the region.

While coverage of the treaty has focused on climate cooperation and ‘human mobility with dignity’, including the potential for 280 Tuvaluans to relocate to Australia per year, the treaty extends across a multitude of issues that have both bilateral and regional implications. The creation of the Union could also have potential implications for Tuvalu’s ongoing statehood and personality under international law.

For many low-lying island states at risk of complete inundation due to sea level rise, the challenge has become one of not only physical survival, but legal survival as an independent, sovereign entity. It is untested in international law whether the complete loss of a pre-existing territorial base of sovereignty could also threaten the ongoing statehood of the entity in question. In light of this, and other, uncertainties, the decision by Tuvalu to forge closer legal ties with a larger, well-resourced neighbour in Australia is a timely one. It is also an arrangement with considerable historical precedent.

Australia has a lengthy colonial history in the Pacific. Nauru was first placed in a multilateral arrangement involving Australia under the League of Nations mandate system, before moving to a trusteeship with Australia during the United Nations era, ceasing with Nauru’s independence in 1968. Papua, New Guinea, and Papua New Guinea were each in similar governance arrangements with Australia, until the latter’s independence in 1975. During this period of decolonisation and subsequent independence for Pacific Island states, strategic relationships were forged between smaller states and their larger regional neighbours. One model that developed during this period that continues to persist is ‘Free Association’, with both Cook Islands (1965) and Niue (1974) currently in association with New Zealand. While both nations are independent, per the terms of their agreements, they rely upon New Zealand for their defence and elements of their foreign affairs policy. Similarly, the US has association arrangements with the Federated States of Micronesia (FSM), Palau, and the Republic of the Marshall Islands.

Although these models appear similar, their legal implications differ meaningfully. While using the US dollar as their states’ official currencies and relying on the US for some matters of defence and security, both the FSM and the Marshall Islands are full member states of the UN and possess their own distinct citizenship. Comparatively, the Cook Islands and Niue are not UN member states, utilise the NZ dollar as their official currency, and all individuals born there are automatically NZ citizens, with no separate citizenship of their own.

Consequently, while the FSM and the Marshall Islands are largely accepted as states in possession of full international legal personality, Niue and the Cook Islands fall short of reaching this same status. While they are still international persons – both nations are members of international organisations, maintain diplomatic relations, and have entered into international treaties in their own right – they do not enjoy widespread recognition as fully-fledged sovereign states. The US, for example, only officially recognised the Cook Islands as a state in 2023.

While none of these historical and enduring examples between Pacific states and New Zealand and the US bear the title of a ‘Union’, they still provide meaningful insights into the potential implications for how these types of arrangements can impact an entity’s legal status. Australia and Tuvalu’s distinct ‘Union’ arrangement builds on existing Free Association models and is founded on three primary tenets. First, the Union is grounded on ‘values of good neighbourliness, care and mutual respect’ (article 1). Second, the Union recognises the risks posed to Tuvalu’s territory and statehood by climate change and sea level rise (article 2). Finally, the Union implements protocols for Australia to provide Tuvalu with assistance in instances of ‘major natural disaster, ‘public health emergency’, and ‘military aggression’ (article 4).

When reviewing the particulars of the Falepili Union, it is notable that there has – as yet – been no mention of the arrangement entailing Australian citizenship for Tuvaluans. Additionally, while the Australian dollar is already accepted currency in Tuvalu, Tuvalu to date has largely conducted its own foreign policy and is a full UN member state. The sum of these factors suggests the proposed Union arrangement has more in common with the status of the FSM and the Marshall Islands. However, the Union also permits Australia to access Tuvaluan territory in some instances without prior approval, as well as providing Australia with potential veto powers in relation to particular security and defence matters. These provisions represent a significant reach into the domestic affairs of Tuvalu and, over time, could lead to an erosion of Tuvalu’s independence and territorial sovereignty.

Interestingly, close reading of the treaty text does suggest Australian support for the continuation of Tuvalu’s statehood, even in the worst-case eventuality of a complete loss of liveable landmass. In article 2(2)(c), the parties recognise that ‘the statehood and sovereignty of Tuvalu will continue…notwithstanding the impact of climate-change related sea level rise.’ While further expansion of this point is needed, at the very least this article appears to leave the door open for an extended interpretation of statehood and sovereignty, and their conceptual connection to territory. For those island nations under threat from climate change, this could be a positive development in the quest to ensure their legal longevity.

On balance, it is likely that Tuvalu’s statehood and status as a full international legal person will not be impacted by the Union’s formation. However, if the erosion of Tuvalu’s sovereignty were to increase and the Union were to more closely mirror a Free Association arrangement, then a re-evaluation could be necessary. That being said, irrespective of the legal case, it is likely that political considerations will ultimately influence the outcome here. Tuvalu is an accepted member of the global community of states, as a UN member state with established diplomatic connections. To overturn this historical status due to the impacts of climate change – for which Tuvalu is not responsible – would be unjust, unpopular and difficult to defend.


* For an analysis on 14 November 2023 by one of the authors on the Falepili Union; see “A Pacific union: Australia- Tuvalu deal goes well beyond climate” https://www.lowyinstitute.org/the-interpreter/pacific-union-australia-tuvalu-deal-goes-well-beyond-climate

Donald R Rothwell FAAL
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Donald R Rothwell FAAL is Professor of International Law at the ANU College of Law, Australian National University where he has taught since July 2006. His research has a specific focus on law of the sea, law of the polar regions, and implementation of international law within Australia as reflected in over 200 articles, book chapters and notes in international and Australian publications. Rothwell has authored, co-authored or edited 28 books including most recently Islands and International Law (Hart, 2022). Major works include The International Law of the Sea 3rd (Hart, 2023) with Tim Stephens; and The Oxford Handbook of the Law of the Sea (Oxford, 2015) co-edted with Oude Elferink, Scott and Stephens. He has acted as a consultant or been a member of expert groups for UNEP, UNDP, IUCN, the Australian Government, and acted as advisor to the International Fund for Animal Welfare (IFAW). In 2012 Rothwell was also appointed an inaugural ANU Public Policy Fellow by the ANU Vice-Chancellor, Professor Ian Young. He is a regular media commentator on international law issues.

Sarah Krause
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Sarah Krause is a PhD candidate with the College of Law at the Australian National University and a sessional academic with the Queensland University of Technology. She completed her undergraduate degree in Laws (Honours) and Media and Communications at QUT, before studying for a Master of International Political Theory at the University of Edinburgh. Her research interests are in international law, with a particular focus on international legal personality and non-state actors.

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