Climate change and Tuvalu's sovereignty

Taukiei Kitara

Maintaining culture and tradition on small island states like Tuvalu is being challenged by the impacts of climate change. This article focuses on two major concerns: 1) loss of land, resulting in loss of culture and identity, and 2) the challenge to sovereignty and statehood that may occur as a result of loss of land.

In 2012 Tuvalu held a nation-wide consultation on climate change, which included participants from all the nine island's leaders, kings, paramount chiefs, church leaders, and various community leaders from different community organisations.

This consultation resulted in a unanimously agreed climate change policy called Te Kaniva. It is a significant document outlining a comprehensive strategy for responding to the challenges of climate change in Tuvalu, and recognising that sea-level rise is the most pressing concern to the low-lying, small island state of Tuvalu, facing the threat of total physical disappearance.

Te Kaniva positioned climate change as not only an environmental issue or a development issue but as a diplomacy and sovereignty issue for serious consideration and debate, needing urgent attention by the international community of nation states and international institutions like the United Nations (Allen, 2018).

It poses a number of complex questions: What will happen to the sovereignty of Tuvalu when the island state is under water? Will Tuvalu maintain its sovereignty and its Exclusive Economic Zone? Will the people of Tuvalu still be Tuvaluan citizens even if they are no longer living in Tuvalu? Will Tuvalu still have a form of self-government if its citizens live in another sovereign state?

Potential solutions will involve a review of international laws surrounding sovereignty, including the 1982 United Nations Convention on the Law of the Sea, and the development of new international policies and frameworks to deal with the complex sovereignty challenges that climate change brings.

Maintaining culture and tradition on sovereign land

For Tuvaluan people, nature, culture and tradition, are closely inter-related. Impacts of climate change are undermining nature's capacity to protect itself and recover from damages. Cultural and traditional practices are important for nurturing and sustaining ecological systems. The concept of fenua in Tuvalu reflects the traditional and cultural belief that land and sea signify identity, belonging and statehood. Pacific islanders have used the ocean as a highway. Our ancestors travelled the vast ocean on long voyages in search of land. It is not an empty space, but rather respected by Tuvaluans as a space full of life just as much as life on land.

In other words, sovereignty is perceived and understood differently by Pacific islanders than perhaps others in the international system. If definitions of sovereignty can be fluid enough to acknowledge and respect Pacific tradition and culture with regards to connections to both land and sea, this would support and encourage long-term solutions for climate change adaptation within the Pacific states. From this perspective, the people of Tuvalu and others in similar circumstances have a strong political position from which to argue that current conceptualisations of sovereignty that focus on the state are somewhat limited, particularly when complex, transboundary issues such as climate change are being faced (Mawyer, & Jacka, 2018).

However, there may also be opportunities for state-based understandings of sovereignty to help Tuvaluans continue to enjoy their rights to their culture and territory. Tuvalu has lobbied hard to get highly emitting states to commit to serious reductions under the UN Framework Convention on Climate Change.

However, there are other international instruments it can potentially use to address the climate change threat to its sovereignty. Allen (2018) explores some critical but not very well investigated options as "codified by the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), which considers whether at least some emitting third states may be obliged to provide a portion of their territory as reparation for the commission of an internationally wrongful act".

This is a potential avenue for pursuing remedial territory from responsible states to injured states as redress for climate change induced deterritorialisation. The problem with this option is that land in itself is not enough for Tuvaluans to be able to self-govern. Would countries like Tuvalu maintain their sovereignty if provided with land in another sovereign state to settle? What political rights, economic benefits and social benefits would Tuvalu receive from the responsible state?

Harrington (n.d.) from the Climate Law and Governance Initiative, a coalition of members of the climate law community including think tanks, universities, international organisations, NGOs and law firms, wrote in her article 'Climate Change and Statehood Vulnerability', that "the issues of statehood and the viability of sovereignty when the territory of a state is rendered uninhabitable, have not been answered as a matter of international law".

This is because the issue of a state's territory being physically lost is new in international law. This problem could be addressed through a new international governance mechanism that anticipates these issues and provides a clear path for states and the international community to provide legal, financial and governance assistance.

The potential for revisiting international law in light of the challenges of sea level rise for small island states, and recreating a new category of international law in light of the impacts of climate change is elaborated by Burkett (2011) in her article 'The Nation Ex-Situ: On Climate Change, Deterritorialised nationhood and the post-climate era'.

Burkett expresses the need for international law to engage in developing mechanisms to ensure that states facing lost territory are protected under a new category of Nation Ex-Situ, an alternative form of statehood: "Ex-Situ nationhood is a status that allows for the continued existence of a sovereign state, afforded all of the rights and benefits of sovereignty amongst the family of states, in perpetuity. In practice this would require the creation of a government framework that could exercise authority over a diffuse people."

Tuvalu's actions

The Tuvalu government's priority is to keep Tuvalu inhabitable as long as possible. The best outcome is that Tuvaluans will continue to live on their land in "a resilient Tuvalu that continues to be inhabitable to current and future generations of its people".

Land reclamation is seen as an important adaptation measure to address the issue of erosion of landmass. Building of seawalls is also another measure to protect the coastal areas from severe storms and cyclones. In these ways it is anticipating and attempting to prevent a possible future scenario where the physical territory is no longer habitable and disappears; in other words, strengthening its existing sovereignty against future damage.

However, there is also a need to establish an "international legal framework for the resettlement and recognition of Tuvalu within another country as a sovereign state if Tuvalu islands disappear because of sea level rise" (Tuvalu Government, 2012).

The government's position on recognition as a sovereign state within another country is aligned with the above discussion of developing international law which has been advanced by international relations scholars. Burkett's idea of ex-situ sovereignty would support Tuvalu establishing a state elsewhere if the islands became uninhabitable. The issue remains of finding appropriate land as well.

Tuvaluans would thus still have the option to be Tuvaluan citizens, but the question of what would happen to the ocean territory would not be addressed by the ex-situ sovereignty idea. The Pacific regional states have been discussing this problem and came to an agreement on ensuring that rights established by the international Law of the Sea are not threatened by climate change and sea level rise.

In the Kainaki II Declaration for Urgent Climate Change Action Now, 'Securing the Future of Our Blue Pacific', the leaders of the Pacific Islands Forum in Tuvalu in 2019 declared: "We are committed to a collective effort, including to develop international law, with the aim to ensure that once a Forum Member's maritime zones are delineated in accordance with the 1982 United Nations Convention on the Law of the Sea (UNCLOS), that the Member's maritime zones could not be challenged or reduced as a result of sea level rise and climate change."

There needs to be future efforts in this area as well. The Pacific states are working collectively to try to influence change to the UNCLOS and other relevant international law, advocating that they consider environmental impacts such as climate change.

Summary of recommendations

Maintaining culture and tradition on existing sovereign land: While this is paramount to the people of Tuvalu and a priority for the government, with the threat of sea level rise and the increase in frequency and severity of cyclones, land reclamation and building of sea-walls will be challenging and difficult to maintain. Proper Environmental Impact Assessments and recommendations might contradict project objectives and can be a barrier in securing funding. Land reclamation is also very expensive.

Land in Tuvalu is inherited and owned by families and passed down through generations. This poses challenges and issues around who is going to own land that is reclaimed. Land reclamation can have environmental challenges as a result of dredging, destroying coral reefs and disrupting marine ecosystems and the natural flow of currents. This can cause erosion in other areas because natural sea current routes are disrupted and altered by seawalls and reclaimed land.

Nation Ex-Situ: Nation ex-situ is a solution for Tuvalu if the worst-case scenario happens with sea level rise completely inundating all the islands. It will greatly benefit if international laws and recognition of nation ex-situ are agreed by the international community, able to maintain its identity, culture and tradition while on foreign land. Tuvaluans might also have the same benefits as the citizens of the receiving state without discrimination.

However, if there is strong push-back from the international community towards recognising nation ex-situ, receiving states may not recognise Tuvaluans as members of a sovereign state and may treat such immigrants as marginalised. The nation ex-situ concept does not take into account ocean territory, but strong commitments to having this properly recognised are shown in both the 2012 Tuvalu Climate Change Policy and the 2019 Kainaki II Declaration by Forum Leaders.

Both nation ex-situ and ocean territory require urgent considerations by UNCLOS and other relevant instruments of international law, not as separate issues but considered and recognised as uniquely one.

With roots in Tuvalu, Taukiei Kitara was the founder of the Tuvalu Climate Action Network. He is currently the Coordinator of the Climate Change Network of the Pacific Islands Council of Queensland (PICQ) and is studying for a Masters in Global Development at Griffith University.

References:

Allen, E. (2018). Climate Change and Disappearing Island States: Pursuing Remedial Territory. Brill Open Law, 1-23, https://doi.org/10.1163/23527072-00101008

Burkett, M., 2011. The Nation Ex-Situ: On climate change, deterritorialized nationhood and the post-climate era. Climate law, 2(3), pp.345-374.

Harrington, A. (N.D) http://www.climatelawgovernance.org/knowledgecenter/climate-change-statehood-vulnerability/

Mawyer, A. & Jacka, J.K. 2018, "Sovereignty, conservation and island ecological futures", Environmental Conservation, vol.45, no.3, pp.238-251.

Published in Chain Reaction #137, December 2019. National magazine of Friends of the Earth Australia. www.foe.org.au/chain_reaction


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