I. Introduction
On November 9, 2023, Prime Minister Albanese of Australia and then Prime Minister Natano of Tuvalu signed the Australia-Tuvalu Falepili Union Treaty in Rarotonga (Falepili Union Treaty or the Treaty).Footnote 1 The preamble explains that “the concept of Falepili . . . connotes the traditional values of good neighbourliness, duty of care and mutual respect.” It sets a groundbreaking precedent for Small Island States threatened by rising sea-levels, addressing both State continuity and climate resettlement. Nonetheless, and despite its subsequent entry into force on August 28, 2024,Footnote 2 it has not been without controversy in Tuvalu and, to a lesser extent, Australia due to provisions seen by some as substantially infringing Tuvalu's independence in foreign relations or even its sovereignty.
In this Essay, we consider the context, text, and implications of the Treaty, paying special attention to its impact upon the sovereignty and independence of Tuvalu. In particular, we analyze the consequences of Article 2(2)(b) for the existential continuity of that State notwithstanding anthropogenic sea-level rise and critique the view that the security clause in Article 4(4) threatens in some manner to downgrade Tuvalu's international legal status as an independent or sovereign State. This security clause, under which Tuvalu “shall mutually agree with Australia any partnership, arrangement or engagement with any other State or entity on security and defence-related matters,” appears designed to accommodate Australian concern at the increasing security presence of the People's Republic of China in the Pacific.Footnote 3 Otherwise, the most important operative provisions of the short Treaty text concern a “mobility with dignity” pathway enabling the citizens of Tuvalu to “live, study and work in Australia.”Footnote 4 For its part, Tuvalu is one of only twelve States that diplomatically recognize the Republic of China (Taiwan),Footnote 5 and has received overtures from Beijing about changing its position.
The Falepili Union Treaty has been controversial in Tuvalu. The Tuvaluan foreign minister at the time criticized the Treaty for providing extensive “access to . . . immigration, passport, citizenship, and border control data” and as “compromising Tuvalu's sovereignty.”Footnote 6 A cause of widespread skepticism has been the perceived lack of “sufficient public consultation” with “Tuvaluan communities” during the Treaty's development.Footnote 7 Further concerns have included: whether the “special mobility pathway” provides for residence in Australia or a pathway to citizenshipFootnote 8 (and its implications for Tuvaluan citizenship);Footnote 9 the extent to which Tuvaluans could access Australian healthcare, education, and other public services;Footnote 10 the extent to which “Article 4(3) requires Tuvalu to grant Australia access to its territory . . . without prior approval”;Footnote 11 that adding 280 visa places for Tuvaluans to Australia, in addition to the 150 places available in New Zealand, could lead to an unsustainable loss of 3.8 percent of the population annually;Footnote 12 and that it risks signaling that the Tuvaluan government has “given up” on climate change.Footnote 13
Two major issues in the January 2024 Tuvaluan general election were thus the Treaty and whether Tuvalu should cease to recognize Taiwan to strengthen ties with China. Opposition leader Enele Sopoaga, when speaking of the Treaty, promised to “scrap the deal if elected,”Footnote 14 and the controversy may have cost Prime Minister Kausea Natano his seat as a legislator. Indeed, one Australian parliamentarian characterized the results of the 2024 Tuvaluan election as a referendum on the Treaty, one in which the verdict was: “Bugger that. We don't want to be colonialised by Australia.”Footnote 15
It has nonetheless been the consistent position of both Australian and Tuvaluan officials that the Treaty was initiated by Tuvalu. A joint statement by both prime ministers in November 2023 stated that, in light of climate challenges, a group of “eminent Tuvaluans” was commissioned:
to undertake a comprehensive examination of partnership options to protect and promote its interests and ensure its continued sovereignty. Following this examination, the Tuvalu Government formally requested Australia consider elevating our bilateral partnership, through transformational and durable arrangements, to safeguard the future of Tuvalu's people, identity and culture.Footnote 16
While much of the Treaty clearly reflects the interests and priorities of Tuvalu, it is admittedly hard not to see the extensive powers Australia gains under Article 4(4) as reflecting Australia's desired quid pro quo. Nonetheless, this may represent a further example that “far from lacking savvy, Australia's [smaller] neighbours can take Australia's strategic anxiety about China's regional influence and . . . leverage it to their advantage.”Footnote 17
This Essay begins by establishing the legal and political context to the Falepili Union Treaty (Part II) before examining the full text and several key substantive issues arising therefrom (Part III). It concludes with an analysis of the implications for Tuvaluan independence (Part IV).
II. Politics and Context
A. Tuvalu
Independent from the United Kingdom since 1978, Tuvalu is a constitutional monarchy with a Westminster-style parliamentary democracy. As a low-lying Pacific Island State with 11,733 citizens and a land area of just twenty-six square kilometers it is among both the world's smallest States and those most threatened by anthropogenic climate change.Footnote 18 With a mean elevation of two meters above sea levelFootnote 19 it faces significant threats from sea-level rise. The United Nations Development Program estimates that by 2050, “half the capital, Fogafale, will be flooded” with 95 percent of Tuvalu's land projected to be regularly submerged by 2100.Footnote 20
Tuvalu has engaged in a vigorous campaign of diplomacy and legal statecraft to secure its future.Footnote 21 It has taken an active role in climate diplomacy, particularly through the Pacific Islands Forum, the Alliance of Small Island States, and the International Conference on Small Island Developing States.Footnote 22 It co-founded with Antigua and Barbuda the Commission of Small Island States on Climate Change and International Law (COSIS), which sought an advisory opinion from the International Tribunal on the Law of the Sea (ITLOS)Footnote 23 regarding the duties of parties to the United Nations Convention on the Law of the Sea (UNCLOS)Footnote 24 in relation to climate change. In a significant victory for COSIS, that advisory opinion held that UNCLOS parties: “have the specific obligations to take all necessary measures to prevent, reduce and control marine pollution from anthropogenic [greenhouse gas] emissions” and that “[s]uch measures should be determined objectively, taking into account, inter alia, the best available science and relevant international rules and standards.”Footnote 25 In 2023 Tuvalu revised its constitution to provide that Tuvalu's statehood continues “notwithstanding the impacts of climate change or other causes resulting in loss to the physical territory of Tuvalu,” and to permanently fix its maritime zone boundaries.Footnote 26
Tuvalu is a Member of the United Nations and many of its specialized agencies but has had relatively few bilateral treaty relationships. Prior to the Falepili Union Treaty, its major bilateral treaty was the 1979 Treaty of Friendship Between the United States of America and Tuvalu.Footnote 27 This renounced U.S. claims to sovereignty over four Tuvaluan islands and established cooperation on matters such as fishing.Footnote 28 Formal bilateral treaties with Australia and New Zealand (Aotearoa) have been limited,Footnote 29 although Tuvalu has long participated in Australia's Pacific labor mobility scheme.
Tuvalu is governed by a unicameral legislature with sixteen seats.Footnote 30 Following elections, a new Tuvaluan government was formed in February 2024.Footnote 31 The new prime minister, a close friend of Taiwan,Footnote 32 reiterated his support for the “principles and objectives” of the Treaty but acknowledged the lack of “transparency and [public] consultation[]” regarding “such an important and groundbreaking initiative.”Footnote 33 The new government pledged to “address those process issues,” and work with Australia to ensure “a workable arrangement . . . safeguarding the integrity of the sovereignty of Tuvalu.”Footnote 34
It was reported in March 2024 that “Tuvalu's new government has formally agreed to begin ratifying” the Treaty without seeking “changes to the existing text.”Footnote 35 Ratification was confirmed by media release on August 28, 2024.Footnote 36 The circumstances leading to that outcome are discussed below. Ratification in Tuvalu required parliamentary approval.Footnote 37
B. Australia
Australia, with a population of 26.7 million and a land area of 7,741,220 sq. km, dwarfs Tuvalu in size and capabilities. Australia is also a parliamentary democracy and constitutional monarchy. Its federal government holds treaty-making competence, and the federal parliament exclusive power to enact international treaty commitments.Footnote 38
In Australia, signed treaties are “tabled in both Houses of Parliament for consideration by the Joint Standing Committee on Treaties” (JSCOT) for fifteen or twenty sitting days.Footnote 39 JSCOT is to “review and report on all [proposed] treaty actions” before Australia becomes bound.Footnote 40 JSCOT calls for public submissions and may hold oral hearings, before issuing a report to parliament. While there is no formal role for parliament in treaty ratification or accession, Australia will not usually bring treaty commitments into force until “any legislative changes required to implement the treaty domestically must have passed both Houses of Parliament.”Footnote 41
Australian elites have long seen themselves as “masters of the Pacific,” and believed in the early twentieth century in Australia's “Pacific Ocean destiny” as a sub-imperial power within the British Empire.Footnote 42 This was partially fulfilled through Australian “acquisition of extensive territory in Papua and later New Guinea, in the destructive exploitation of resources and labor in Nauru” (discussed below), and in claims to Antarctica and Southern Ocean islands.Footnote 43
After World War II, Australia's strategic outlook centered on having “dominant political influence” in the western Pacific and maintaining “Australian security behind a peripheral screen of islands.”Footnote 44 While these territorial gains were largely unwound by decolonization,Footnote 45 Australia has retained its longstanding antipathy to any potentially “hostile power” gaining “access to military bases” (or potential dual use facilities) in the nearer islands of the Indian and South Pacific Oceans.Footnote 46
While the Treaty's preamble emphasizes “Falepili” or “good neighbourliness . . . and mutual respect,” Australia has been an inconsistent friend to its Pacific neighbors. Historically, Australia has prioritized its “extractive tendencies” and “its own material and commercial interests” over smaller States’ “legitimate rights to self-determination” and control of their natural resources.Footnote 47 Australia administered the island territories of Nauru and Papua New Guinea as “C Mandates” under the League of Nations and United Nations trusteeship system, principally for its own economic advantage, and resisted granting them independence until 1968 and 1975 respectively.Footnote 48 Australia—with the UK and New Zealand—mined pre-independence Nauru for phosphate, leaving much of its territory barren.Footnote 49 Australia later used Nauru as the site of a detention facility for maritime asylum seekers.Footnote 50 In pre-independence Papua New Guinea, Australia authorized “the massive Panguna gold and copper mine . . . in which Australian company Rio Tinto was a major shareholder.”Footnote 51 The mine had substantial environmental impacts, and fueled a decade-long conflict (1988–1998) that killed 20,000 people.Footnote 52
Australia's relationship with Timor Leste has been similarly complex. Following Indonesia's illegal annexation of Timor Leste in 1975, Australia concluded a maritime boundary with Indonesia to secure access to oil and gas in the Timor Sea.Footnote 53 In 1999, independent Timor-Leste denounced this treaty as illegal,Footnote 54 and a series of complex (and criticized)Footnote 55 provisional maritime arrangements between Australia and Timor Leste followed across 2002–2006.Footnote 56 These were further tainted by allegations Australia's foreign intelligence service had spied upon the Timorese government during negotiations.Footnote 57 A final maritime boundary was only concluded in 2018, following a compulsory UNCLOS conciliation.Footnote 58 At its best, however, Australia has supported its Pacific and nearer neighbors in times of State fragility, such as leading the multinational International Force East Timor (INTERFET) (1999–2000)Footnote 59 and the Regional Assistance Mission to the Solomon Islands (2003–2017).Footnote 60
Nonetheless, Australia's history of treating poorer, smaller neighbors as security concerns or sites for resource extraction continues to color its regional relations, and reinforce the view that it remains a “sub-imperial power.”Footnote 61 The current Australian government has thus prioritized the restoration of good regional ties, with the foreign minister visiting all twelve Pacific Island Forum States in a year.Footnote 62 Tensions over climate change, however, have also strained regional relations.Footnote 63
Australia itself faces climate change impacts including drought, bushfires, and significant coastal erosion. The climate-related bushfires of 2019–2020 were exceptionally severe.Footnote 64 Despite these threats, Australian climate policy has been inconsistent at best. This partly results from dependence on fossil fuel exports,Footnote 65 and the mining industry's influence on major political parties.Footnote 66 Australia's refusal to ratify the Kyoto Protocol between 1997 and 2007 delayed the creation of a national emissions trading scheme until 2011 and a carbon price until 2012.Footnote 67 A conservative government reversed these policies across 2013–2022. During this period of political “climate wars,”Footnote 68 Australia was widely regarded as a “climate pariah.”Footnote 69 A new government was able to announce “Australia is back” at the 2022 COP27 negotiations, but set only modest new national targets, and made no “new commitments on climate finance” or to a loss and damage fund.Footnote 70
The Treaty's advantages for Australia are thus straightforward. The Treaty allows 280 Tuvaluans annually to reside, work, and be educated in Australia; a trivial addition to its annual immigration program of 190,000 new permanent migrants.Footnote 71 More pertinently, the Treaty hedges against Tuvalu entering any security agreement with China, as Solomon Islands did in 2022Footnote 72 to considerable Australian alarm.Footnote 73 The Treaty thus reflects Australia's ongoing efforts to remain the development assistance partner of choice in the Pacific, as also seen in its 2018–2019 construction of the Coral Sea Cable System linking Papua New Guinea and Solomon Islands to Australia before China could provide such critical cyber-infrastructure.Footnote 74 Revelations in February 2024 of Chinese involvement in community policing and police database development in Kiribati (under unclear legal arrangements) have heightened concerns about a regional contest for influence.Footnote 75
C. Achieving Ratification
Several steps were taken to allay Tuvaluan concerns and move toward ratifying the Treaty without amendments. This was despite concern in Tuvalu, particularly regarding the Article 4 security guarantees, which, as we establish in the following section, effectively grant Australia a veto power in relation to broad swaths of Tuvaluan foreign policy. Notably, May 2024 saw a significant increase in Australia's aid to Tuvalu, a ministerial joint statement, and a Treaty explanatory memorandum (discussed in Part III) announced. On May 9, Tuvalu's prime minister and Australia's foreign minister reaffirmed the Treaty's underlying commitments and expressed an intention for it to enter into force in 2024.Footnote 76 The joint statement also recognizes that the Tuvaluan people “deserve the choice to live, study and work elsewhere, as climate change impacts intensify at home.”Footnote 77 Notably, the prime minister and foreign minister “concur that the treaty would not limit Tuvalu's liberty to enter into diplomatic relations with other States.”Footnote 78 Australia also committed to a substantial increase in development assistance: “$86.7 million in 2024–25” compared to “$17.1 million in 2023–24.”Footnote 79 The Australian foreign minister itemized this as going toward: direct budget support; coastal adaptation measures; Tuvalu's “first under-sea telecommunications cable”; and a new disaster response coordination center.Footnote 80
This significant increase in aid, along with other undertakings, likely reflected Australian concessions to avoid reopening negotiations. The JSCOT inquiry received only six public submissions and issued a final report recommending ratification without amendment in August 2024.Footnote 81 Many of the substantive concerns raised in those submissions have, in substance, been answered by the joint statement (discussed above) and the explanatory memorandum (below). Australia's ratification process was subsequently completed and the Treaty entered force on August 28, 2024.Footnote 82 Tuvalu's ratification followed only after further public consultation.Footnote 83
III. Substantive issues
Before turning to substantive issues arising under the Treaty, it is worth emphasizing that the Falepili Union Treaty is not, formally speaking, a “treaty of union” in the sense of existential union: it is limited to matters of climate change, human mobility, and security. Moreover, part of the parties’ process of reaffirming their intention to ratify the Treaty involved releasing, on May 8, 2024, an explanatory memorandum regarding the Treaty (the memorandum).Footnote 84 While the memorandum states it is “not legally binding,”Footnote 85 both governments nonetheless “commit to implement the Falepili Union in line with this document, including where relevant in interpretation of the Treaty.”Footnote 86 In this sense, it forms part of the interpretative context for the Treaty being an instrument made in connection with its conclusion, in the sense of Article 31(2)(b) of the Vienna Convention on the Law of Treaties.Footnote 87 The words of the Treaty, therefore, should be interpreted in light of the memorandum and the intentions it expresses. The memorandum addresses three matters, implicitly signaling core areas of textual concern: sovereignty (including the fundamental question of climate change and State continuity); the “mobility with dignity” resettlement pathway; and the Article 4 security guarantees. In what follows, we address these three issues in that order. First, however, we outline the formal structure and content of the Treaty.
The Treaty text itself consists of a preamble and just eight articles. The preamble: reaffirms “the Parties’ sovereignty, territorial integrity, and political independence”; and refers to their “shared interest in each other's prosperity, stability and security, including by responding to . . . climate change.”Footnote 88 Article 1 sets out the Treaty's purposes as being to provide “mobility with dignity” for the citizens of Tuvalu to Australia, and to “protect and promote . . . collective security.”Footnote 89 Article 2 expresses a commitment to “work together in the face of the existential threat posed by climate change,” including through adaptation measures. Its provisions on the continuity of statehood are returned to below. Article 3 requires Australia to “establish a special human mobility pathway for citizens of Tuvalu” enabling them to “live, study and work in Australia” and access Australian public education and healthcare. To support this, Tuvalu is required to “ensure that its immigration, passport, citizenship and border controls . . . meet international [security] standards,” and make these systems “accessible to Australia.”Footnote 90
Article 4 provides reciprocal security guarantees. Australia undertakes, following a request from Tuvalu, to assist in response to “a major natural disaster,” “a public health emergency of international concern,” or military aggression. As noted, under Article 4(4) Tuvalu “shall mutually agree with Australia” any agreement “on security and defence-related matters” with other partners. This is discussed further below.
Article 5 establishes a “Joint Committee” consultation mechanism on implementing the Treaty. Article 6 deals with settlement of disputes through “consultation or negotiation.” It provides that “disputes relating to the interpretation, application or implementation of this agreement” shall be resolved by the Joint Committee, though on written notice a party may “suspend compliance . . . pending resolution of a dispute.”Footnote 91 The composition of the Committee is not, however, specified.Footnote 92 Notably, any dispute arising under the Treaty “shall not be referred to any national or international tribunal or court or any other third party for resolution.” (Australia had previously inserted such a clause in treaty dealings with Timor-Leste, though this failed to prevent a compulsory conciliation process under UNCLOS.Footnote 93) Article 7 provides that the treaty may be amended in writing by mutual consent. Article 8 provides that the treaty will come into force through an exchange of diplomatic notes. It also provides that that parties may terminate the treaty by mutual consent at any time, or it may be terminated unilaterally on twelve months’ notice.
A. Climate Change, State Continuity, and Sovereignty
As a matter of regional practice on climate change, the Treaty consolidates and develops the extant position. Articles 2(1) and 4 address the shared risk that climate change poses to “stability, security, prosperity and resilience,” confirming earlier framings within the Security Council.Footnote 94 Article 2(2)(a) emphasizes “the desire of Tuvalu's people to continue to live in their territory where possible and Tuvalu's deep, ancestral connections to land and sea,” which continues Tuvalu's long-established policy.Footnote 95 This is further concretized in Article 2(3), which commits both parties to “help the citizens of Tuvalu to stay in their homes with safety and dignity, including by promoting Tuvalu's adaptation interests to other countries, including through regional and international forums.”Footnote 96
Perhaps more radically, Article 2(2)(b) acknowledges that “the statehood and sovereignty of Tuvalu will continue, and the rights and duties inherent thereto will be maintained, notwithstanding the impact of climate change-related sea-level rise.”Footnote 97 This open-ended commitment to Tuvalu's existential resilience represents the first publicly binding rejection by any State of the traditional view that inhabitable land is necessary for State continuity.Footnote 98 The implication of Article 2(2)(b) is that, were Tuvalu to become entirely uninhabitable, its statehood would nonetheless be secured relative to Australia, forming what Rowan Nicholson has called a “state-in-context.”Footnote 99 This is an entity that either: counts as a State only vis-à-vis the political communities extending formal recognition to it; or must be treated as a State even by non-recognizing entities, but only for specific purposes, such as participation within the United Nations General Assembly.Footnote 100 Naturally, one should not assume statehood is only a relative status. It is certainly arguable that statehood can be created without recognition and maintained with universal opposability, notwithstanding the total loss of inhabitable land due to sea-level rise.Footnote 101 Nonetheless, the relative opposability of statehood has geopolitical significance. As Nicholson argues, “[i]f a lawyer is called on to establish that two entities are States relative to each other—say, before an international court—then it may be much easier [in practice] to show that the entities recognize each other than . . . to conduct a detailed analysis of the effectiveness criteria.”Footnote 102 Since Article 2(2)(b) not only establishes the ongoing recognition of Tuvalu by Australia but also an obligation to continue to extend recognition of this kind, its implications for international and diplomatic relations between these two States are significant. Moreover, beyond binding Australia bilaterally, the Treaty confirms the ongoing lack of appetite on the part of States affected by sea-level rise for “solutions” that envision merger with larger political communities.Footnote 103 Whether this will be taken as a model for further bilateral climate agreements, or may otherwise catalyze a trend in State practice supporting the idea that State continuity can be secured by such recognition, remains to be seen. Nonetheless, it sets a significant precedent.
In respect of the connected question of sovereignty, the memorandum underscores: the increased Australian support for “development cooperation to support Tuvalu's priorities and the long-term prosperity of its people”; that the preamble to the Treaty reaffirms Tuvalu's “sovereignty, territorial integrity and political independence”; that the main purposes of the agreement include protecting “the parties’ collective security and sovereignty”; and that Article 2(2)(b) recognizes “for the first time in a legally binding treaty Tuvalu's continuing statehood in the face of climate change.”Footnote 104 The memorandum also stresses that “[u]ltimately, if either party is concerned [that] expectations [under the Treaty] are unreasonable, they can suspend obligations (Article 6(3)) and even terminate the treaty (Article 8) by mutual agreement or unilaterally.”Footnote 105 This means that, in textual terms at least, the sovereignty of Tuvalu is buttressed at both the formal and procedural levels. We return to the implications of this textual position when considering Tuvalu's formal independence in comparative terms.
B. Human Mobility
The Treaty provides for a “human mobility” pathway “which shall enable citizens of Tuvalu to: (a) live, study and work in Australia; (b) access Australian education, health, and key income and family support on arrival” (Article 3). According to statements made at the 2023 joint press conference first announcing the Treaty, while every Tuvaluan citizen would be eligible for resettlement, no more than 280 annually will be allowed to migrate to avoid a “brain drain.”Footnote 106 As regards these “mobility with dignity” provisions, the memorandum clarifies the range of benefits “[g]enuine Tuvaluan citizens” would enjoy under the pathway including access to education, educational loans, government-funded healthcare, family and disability welfare schemes, and the right to apply for Australian citizenship without renouncing Tuvaluan nationality.Footnote 107 Australia's concerns about “genuine citizens” are given context by statements that the “pathway cannot open until appropriate integrity and security standards are met” regarding immigration, passport, citizenship, and border controls, and that Tuvalu has obligations under Article 3(2) of the Treaty to ensure that in this regard its systems “meet international standards” and are “compatible with Australia's [own] controls.”Footnote 108
C. The Australian Veto on Security and Defense Partnerships
However, as noted above, “[this] Australian neighbourliness does not occur in a vacuum.”Footnote 109 The significant quid pro quo lies in Article 4(4):
Tuvalu shall mutually agree with Australia 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 [hereinafter the covered subject matters].Footnote 110
On its face, this provides Australia with a veto over a wide range of issues in Tuvalu's foreign relations.Footnote 111 Indeed, the covered subject matters clearly reflect current Australian security priorities. The memorandum goes at least some way to address such concerns, emphasizing that the Treaty arrangements are designed to provide “Australia with insight into Tuvalu's defence and security related engagement with third parties” on the covered subject matters [emphasis added].Footnote 112 Significantly, although this is said to reflect “the depth of the security guarantee,”Footnote 113 the memorandum spells out unequivocally that:
Tuvalu does not need permission from Australia before it starts to talk with other partners. Unlike some integrated partnership models, Australia does not have unqualified rights of access to Tuvalu's territory or airspace, nor the right to establish military areas in Tuvalu. Article 4(4) does not diminish Tuvalu's standing in global fora. It will not preclude other partners supporting Tuvalu's economic and development interests such as education, health, waste, climate adaptation, gender, disability, trade or granting fishing licences.Footnote 114
The memorandum also stipulates that “cooperation with Pacific Islands Forum members would not be of concern.”Footnote 115 It notes, moreover, that under “Article 4(1), Australia shall provide assistance at Tuvalu's request in response to a major natural disaster, a public health emergency . . . or military aggression,” although operationalizing this requires the parties to agree a separate “instrument to establish the conditions for Australian personnel operating in Tuvalu's territory.”Footnote 116
The memorandum, however, does not completely dispense with concerns regarding the extent to which Australia will be able to intrude into a wide range of Tuvaluan decisions regarding foreign relations. Not only is the open-ended list of “security and defence-related matters” very broad, but the potential of Australia using Article 4(4) as a veto remains. Nonetheless, the memorandum provides at least an assurance that this framework does not preclude Tuvalu opening discussions on such matters with third States and clarifies that there is no automatic right of Australian military presence in Tuvalu. There is also a clear statement purporting to leave untouched Tuvalu's freedom to pursue international agreements related to its “economic and development interests.”Footnote 117 This must be taken with a grain of salt, however, since agreements regarding “critical infrastructure, including ports, telecommunications and energy infrastructure” would still be subject to the Article 4(4) veto.Footnote 118
IV. Treaties of Protection and Free Association
This Part compares the Falepili Union Treaty with analogous instruments to ascertain more precisely its impact upon Tuvalu's independence. Prima facie, there remains a tension between Articles 1(c) and 2(2)(b) on the one hand, which guarantee Tuvalu's sovereignty, and Article 4(4) on the other. However, this is perhaps less unusual than one might think, particularly in the Pacific, where several smaller States have historically relied upon voluntary associations with more powerful partners regarding defense and security. Tuvalu's own Treaty of Friendship with the United States already requires it to consult with that State before permitting its territory to be used for military purposes by third parties.Footnote 119 At a textual level, the position is clear: both the Treaty and the memorandum guarantee Tuvalu's ongoing and complete sovereignty notwithstanding Article 4(4). We believe that this textual gloss reflects legal reality; however, it pays to illustrate precisely why.
The concern we ultimately seek to allay—that an Australian veto over Tuvaluan foreign policy would precipitate a fundamental shift in the international legal status of Tuvalu—has a relatively simple basis. To emerge as a State, political communities require a sufficient degree of governmental independence.Footnote 120 Similarly, to maintain statehood, a sufficient (albeit lesser) degree of independence must persist in at least some form:Footnote 121 whether via a recognized government in exile,Footnote 122 or simply because any formal or de facto dependence lacks a legal basis, for example because it results from unlawful occupation.Footnote 123 In the case of the Falepili Union Treaty, the apparent source of concern is that Article 4(4) grants Australia such broad powers over Tuvaluan foreign policy that, following ratification, it is now impossible to conclude that Tuvalu remains truly independent, and therefore either fully sovereign or a State. There might be something to be said for the view that Article 4(4) is “neo-colonial” in political terms;Footnote 124 however, any doubts of this sort at the formal level of doctrinal international law seem to us utterly unfounded, as we explain below.
Three points should be noted at the outset. First, labels used to describe dependent territorial entities—whether the now outmoded “protectorates”Footnote 125 or the more contemporary “associated States”Footnote 126—are far less important than the precise terms of the agreements determining the extent of their dependency.Footnote 127 The degree to which treaties of protection or free association affect independence turns on the extent to which they establish “inter-governmental domination”: the exercise of legal authority from abroad to the exclusion of local rule.Footnote 128 Ultimately, if they amount to “[t]ruly endemic assertions of foreign authority . . . [they] must be taken to suggest a relationship of dominance at the formal level,” which is antithetical to sovereign statehood.Footnote 129
Second, and for this reason, there is a bottom-line distinction between entities lacking statehood by virtue of their dependence and States that nonetheless exist within dependent relationships.Footnote 130 This matters because although non-State entities can possess some degree of international legal personality, where statehood is either established or retained, sovereignty must also be assumed. While the term “State” admits some flexibility,Footnote 131 statehood as an international legal status denotes a discrete normative positionality within the international legal order from which no derogation should be presumed.Footnote 132
Third, when applying these first two considerations, it is useful to separate out entities created within dependent arrangements from established States entering such arrangements. This is apposite when comparing Tuvalu, which declared independence in 1978, to entities such as Cook Islands or Niue, which have existed in free association with New Zealand since their separation from that State.Footnote 133 (Indeed, no entity currently in free association with another State possessed full independence prior to gaining associated status.) In short, a strong presumption exists that already established States will retain that status notwithstanding any delegation of their rights not amounting to formal merger or incorporation.Footnote 134 This goes with the grain of international law in general and the law of statehood in particular. As to the former, it maintains the distinction between the conditions for the creation of rights and those for their continued existence.Footnote 135 As to the latter, it mirrors the more demanding criteria for State creation when compared to the more permissive principles of State continuity.Footnote 136
The starting point for comparative analysis should thus be that as an independent State—and one which enjoys both United Nations membershipFootnote 137 and substantial international recognitionFootnote 138—Tuvalu's basic status must be presumed unaltered notwithstanding Article 4(4). When viewed alongside treaties of protection, the obligation to agree any partnerships, arrangements, and engagements related to security and defense places Tuvalu somewhere between historical protectorates such as the Kingdom of Bhutan, which under a now defunct Treaty of Friendship agreed merely to be “guided by the advice of the Government of India . . . [in] its external relations,”Footnote 139 and those such as the Kingdom of Tonga, which by a similarly defunct Treaty of Amity, delegated conduct of its foreign affairs entirely to Great Britain.Footnote 140 The statehood of neither was called into question by these arrangements;Footnote 141 something readily explicable by the fact that “the powers connected with sovereignty need not necessarily be united in one hand.”Footnote 142
As such, the existence of an Australian veto, though no doubt restrictive of Tuvaluan foreign affairs, need have no impact upon the fundamental status of that State. This position, as well of those of historical Bhutan and Tonga, can be usefully contrasted with cases such as pre-1948 Kelantan, “where an Agreement of 1910 required the Sultan” to cede control of international relations entirely to the “British government and, with the exception of issues relating to Islam and Malay custom, to comply wholly with the advice of their British adviser.”Footnote 143 The extent of such formal restrictions, particularly as regards internal affairs, made it “difficult to see that the Government of Kelantan had any real power at all,”Footnote 144 rendering it “akin to a colony.”Footnote 145 Even though the substantive constraints created by Article 4(4) are described by some as “[neo-]colonial” in spirit,Footnote 146 there can be no serious suggestion that the Falepili Union Treaty amounts to colonization at the level of fundamental status.
Associated States are formally distinct from protected States, existing within a tradition of United Nations practice expressed within Resolution 1541(XV).Footnote 147 Nonetheless, some authors have treated the former as the contemporary equivalent of the latter.Footnote 148 James Crawford's characterization of free association provides a useful gloss:
First, the association arrangement is freely accepted by the inhabitants of the territory. Secondly, the terms of association are clearly set down in a form binding on the parties. Thirdly, the associated territory has substantial powers of internal self-government. Fourthly, the reserved powers of the “metropolitan” State do not involve substantial discretions to intervene in the reserved or internal affairs of the Associated State. Fifthly, there is a procedure for termination of the association . . . [capable of being] regarded as a continued expression of the right to self-determination of the people of the Associated State.Footnote 149
The Falepili Union Treaty is not formally a treaty of association in this sense, although it may be characterized as such in functional terms. It is thus instructive to consider two comparators by way of confirming Tuvalu's status notwithstanding Article 4(4).
The first is Cook Islands, which has been in free association with New Zealand since 1965. Although executive power is formally vested in the king in right of New Zealand,Footnote 150 such power is employed only on the advice of the Cook Islands Executive Council.Footnote 151 Moreover, although New Zealand retains responsibility for external relations and defense, these responsibilities can only be discharged after consultation with the premier of Cook Islands.Footnote 152 Crucially, the Islands possess full internal governmental competence,Footnote 153 with their Legislative Assembly enjoying the power to amend their Constitution, including those provisions maintaining association with New Zealand.Footnote 154 Considerations such as these lead Crawford to conclude that “for most purposes the Cook Islands can be considered as independent.”Footnote 155 Indeed, notwithstanding its associated status, it is eminently plausible that Cook Islands possesses full statehood. In a Joint Centenary Declaration, New Zealand explicitly recognized that in “the conduct of its foreign affairs, the Cook Islands interacts with the international community as a sovereign and independent State”Footnote 156 and that the relationship established in the 1964 Constitution is “not a qualification of Cook Islands’ Statehood.”Footnote 157 Moreover, New Zealand accepts that Cook Islands is responsible at the international level for “the exercise of its international rights and fulfilment of its international obligations”Footnote 158 and that organs of the Cook Islands are entitled to foreign State immunity.Footnote 159
The second is Puerto Rico, which since ceasing to be a territory of the United States in 1952 has been held by the former to be entitled to full independence, should it so wish.Footnote 160 For instance, the 1966 report of the United States–Puerto Rican Commission on the Status of Puerto Rico held that the “relationship between the United States and Puerto Rico is . . . based on the principles of mutual consent and self-determination.”Footnote 161 Nonetheless, Puerto Rico has only “vestigial” international competence and restricted internal autonomy,Footnote 162 with acts of the U.S. Congress applying automatically within its territory unless specifying otherwise.Footnote 163 In June 2024, the United Nations Committee of Twenty-Four adopted without vote a draft resolution calling upon the United States to “enable the Puerto Rican people to fully exercise their inalienable right to self-determination and independence,”Footnote 164 having noted with concern that “Puerto Rico and the United States have failed to set in motion a decolonization process that begins in Puerto Rico.”Footnote 165 Indeed, such are the circumstances that some have doubted whether the “Commonwealth status” it possesses can truly be characterized as free association.Footnote 166 In our view, Puerto Rico almost certainly lacks legal statehood.
If formal independence within free association were conceived as spectrum, with Cook Islands at one end and Puerto Rico at the other, then any comparison with Tuvalu must place it closer to the former, notwithstanding Article 4(4). Crucially, as regards internal matters, both States have complete self-government. Indeed, Tuvalu arguably remains more independent than Cook Islands in several respects, even if one were to discount the fact that the Falepili Union Treaty makes specific provision for Tuvaluan statehood and sovereignty. Unlike Cook Islands, its constitutional monarchy operates unmediated by its new partner, with the governor-general acting on the exclusive advice of the national government.Footnote 167 Moreover, whereas New Zealand must consult with Cook Islands before discharging its responsibilities for the external relations and defense of the latter, its competence in that regard is plenary, while the Australian veto over Tuvaluan foreign policy is restricted to matters of defense and security. Ultimately, the conclusion must be that although Article 4(4) may remain a contentious provision, this must be for reasons of political substance rather than due to any subversion of Tuvalu's international legal status.
V. Conclusion
The Australia-Tuvalu Falepili Union Treaty represents a significant precedent for Small Island States facing the existential threat of rising sea-levels. It expressly addresses critical issues of State continuity and climate resettlement through a “mobility with dignity” pathway, albeit within a security framework that shows substantial deference to Australia's priorities in a wider contest for influence in the Pacific. Thus, while the Treaty buttresses Tuvalu's statehood, it simultaneously grants Australia considerable influence over matters of security and defense in Tuvalu's foreign relations. Unsurprisingly, this has sparked political debate and disagreement, particularly within Tuvalu. Nonetheless, this may be less a case of Australia imposing its preferences than a situation in which a smaller State has been able to leverage broader regional dynamics in navigating its partnership with a more powerful neighbor. Indeed, the controversy within Tuvalu appears to have enabled the new government there to extract a significant increase in aid and funding for climate adaptation programs from Australia. Further, at least at a doctrinal level, the “security veto” vested in Australia under Article 4(4) of the Treaty does not compromise Tuvalu's sovereignty. In terms of the substantive inroads it may make into Tuvalu's ability to conduct independent foreign relations, to the extent the Treaty is compared to treaties of protection or free association, it is more akin to the latter. And even within the range of treaties of free association, it appears among the least intrusive. It is also notable that the Treaty is not on its face a plan for the eventual physical abandonment of Tuvalu or the assimilation of its population into Australia. Even while contemplating the possibility of de-territorialization, it envisages the free movement and circular migration of Tuvaluans between the two States, and a continued commitment to climate adaptation and mitigation measures.
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