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Chronique juridique

Australia-Tuvalu Falepili Union Treaty: Climate-Induced Migration and Security

Traité de l’Union Falepili entre l’Australie et Tuvalu : migration climatique et sécurité
Tratado de la Unión Falepili entre Australia y Tuvalu: migración climática y seguridad
Sanzhuan Guo et Jessica Genauer
p. 121-129

Résumés

Le traité de l’Union Falepili entre l’Australie et Tuvalu est le premier accord bilatéral au monde concernant la migration climatique. Il revêt une importance non seulement pour la région Australie-Nouvelle-Zélande-Pacifique, mais aussi pour la communauté internationale. À travers les perspectives du lien entre migration et sécurité, ainsi que de l’analyse doctrinale et juridique, cette chronique juridique examine de manière critique les articles 3 (mobilité humaine) et 4 (sécurité et défense) du traité, ainsi que les réglementations en matière d’immigration récemment adoptées par l’Australie. Il soutient que les principes directeurs qui sous-tendent le traité sont la sécurité humaine pour le peuple tuvaluan et la sécurité nationale pour l’Australie, deux notions qui ne sont pas toujours compatibles.

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1Climate change has never been as visible and threatening as it is today. Disaster-induced displacement in the Pacific region is likely to increase due to the presence of large cities in coastal and low-lying locations and persistent poverty in many areas. Migration is regarded as one crucial adaptation strategy in relation to climate change.

2International law has become an important tool for tackling climate-related issues including displacement and migration, particularly via rights-based approaches. The European Court of Human Rights, the Inter-American Court of Human Rights, the International Court of Justice and the International Tribunal for the Law of the Sea (ITLOS) have recently delivered judgements or opinions on State obligations regarding climate change.

3In 2023, Australia and Tuvalu entered into the world’s first bilateral agreement on climate migration, the Australia-Tuvalu Falepili Union Treaty, by which Australia will assist Tuvalu’s natural disaster response and allow Tuvaluans to enter Australia to live and work. To implement the Treaty, Australia passed the “Migration Amendment (Australia Tuvalu Falepili Union Treaty Visa) Regulations 2025”1 (the 2025 Regulations) in February 2025, creating a new pathway under Australia’s Subclass 192 visa — Treaty Stream. The new visa stream commenced on 1st May 2025.

4This paper critically reviews the Australia-Tuvalu Falepili Union Treaty and its implementation, interrogating the question: how does the Treaty impact the security of Australia and Tuvalu in the context of climate-induced migration? Whilst the Treaty engages with traditional defence and security in addition to human security; this paper’s focus is on human security.

5This paper contributes to the discussion of the newly adopted 2025 Regulations, implementing the Treaty, and the perspective of immigration and citizenship law and the nexus between migration and security.

6The second part of the paper introduces the Treaty including background and context. The third section provides a conceptual framework for the relationship between security and climate-induced migration, including human security versus national security concerns. The fourth section concludes.

Understanding Climate-induced Migration under the Australia-Tuvalu Falepili Union Treaty

Background and Context

7Tuvalu is a small island country in the Polynesia subregion of Oceania. It received independence from Britain on 1st October 1978. According to Tuvalu’s 2017 Mini-Census (Tuvalu Central Statistic Division, 2017: 8; 10), Tuvalu had 10,507 permanent residents and 138 non-residents, of which 6,320 live in the capital city Funafuti while 4,187 live in “Out Islands” (Nanumea, Nanumaga, Niutao, Nui, Vaitupu, Nukufetau, Nukulaelae, Niulakita). Tuvalu has a land area of twenty-six square kilometres (Cia.gov, 2025), and the highest point is five meters above sea level. Its exclusive economic zone (EEZ) covers almost 750,000 square kilometres, comparable in size to China’s EEZ (Lowy Institute, 2025). Tuvalu’s GDP in 2023 is estimated at USD62.28 million and it is categorised as an “upper middle-income Pacific Island economy” (Cia.gov, 2025).

8Australia and Tuvalu are both members of the British Commonwealth. Both countries have adopted a Westminster parliamentary democracy. Tuvalu has been active in diplomacy and “legal statecraft” to secure its future (Green and Guilfoyle, 2024: 686). The Treaty was signed in 2023 under former Prime Minister of Tuvalu Kausea Natano. Australia has had a Labor government (under Prime Minister Albanese) from negotiation of the Treaty to ratification and current implementation. Following several high-level visits between Australia and Tuvalu in 2024, the Treaty entered into force on 28 August 2024. Both Australia and Tuvalu can unilaterally terminate the Treaty under Article 8.4.

9Tuvalu is a Member State of the Pacific Islands Forum and a UN Member. Significantly, Tuvalu co-founded the Commission of Small Island States on Climate Change and International Law, which led to a request to ITLOS for an advisory opinion on climate change.

Article 3 : Climate-induced Migration

10The Treaty includes eight articles: purpose (Article 1), climate cooperation (Article 2), human mobility with dignity (Article 3), cooperation for security and stability (Article 4), consultation and response (Article 5), dispute settlement (Article 6) and other general provisions (amendment in Article 7 and entry into force in Article 8).

11This paper focuses on Article 3, “Human Mobility with Dignity”, which sets out Australia and Tuvalu’s obligations, stating:

1) Australia shall arrange for a special human mobility pathway for citizens of Tuvalu to access Australia 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.
2) To support the implementation of the pathway, Tuvalu shall ensure that its immigration, passport, citizenship and border controls are robust and meet international standards for integrity and security and are compatible with and accessible to Australia.
3) Australia shall provide assistance to Tuvalu to enable it to meet its obligations under paragraph 2 of this article.

Australian Immigration Law

12Under Article 3 of the Treaty, Australia has two obligations: 1) provide an immigration pathway for Tuvaluan citizens to get access to Australia, and 2) provide assistance to Tuvalu to enable Tuvalu to meet its obligations under Article 3(2).

13The Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) provide the legal framework of Australian immigration law. The 2025 Regulations implement Article 3 of the Treaty by creating a new pathway under the Subclass 192 visa. The amendments under the 2025 Regulations apply to the visa applications made on or after 1st May 2025.

14The Subclass 192 (Pacific Engagement) visa (PEV), a permanent residency visa, was introduced by Australia on 18 October 2023 and offers, through a ballot process, up to 3,000 visas annually to eligible nationals from Timor-Leste and participating Pacific Island states including Tuvalu. The 2024 quota for Tuvaluans under the PEV stream was 100 visas (Australian Government-DFAT, 2025). The 2025 Regulations create a new stream under Subclass 192 — Treaty Stream, open only to Tuvaluans, whereby up to 280 visas will be granted annually.

15The 2025 Regulations require visa applicants to meet the following requirements (summarised here):

1) Be selected through ballot process
2) Be at least 18 years old
3) Hold a valid passport issued by Tuvalu
4) Was born or has a parent or grandparent that was born in Tuvalu
5) Be a citizen of Tuvalu and that citizenship was not obtained due to an investment to that country
6) Not be a citizen of New Zealand
7) Have made the application for a Subclass 192 visa in the Treaty stream

16The 2025 Regulations try to avoid abuse of the scheme, such as obtaining a passport of Tuvalu through investment. Requiring a parent or grandparent be born in Tuvalu might exclude some Tuvaluans whose families have settled overseas but provides a way to ensure the integrity of the program as Tuvalu adopts the principle of jus soli for its nationality. Ultimately, the purpose of the Subclass 192 Treaty stream visa is to grant access for Tuvaluans to Australia to avoid the impact of climate change.

17The health requirement under the new Treaty stream of the Subclass 192 visa is far more lenient than the standard requirement of the PEV, requiring only “a restriction on granting of the visa where the applicant has a communicable disease or condition, rather than standard health criteria”.

18According to Tuvalu’s 2017 Mini-Census (Tuvalu Central Statistic Division, 2017: 28), 3% of the population above five years old (282 people) are disabled. The reduced health requirement will permit Tuvaluans with disabilities to apply for a Treaty Stream visa who may not meet the standard health requirement under the PEV visa.

  • 2 The 2025 Regulations, s 16; 192.511(1) of Schedule 2.

19Unlike other permanent residency visas, the Subclass 192 Treaty Stream does not have a five-year travel facility limitation2, which is advantageous as applying for a Subclass 155 resident return visa is costly and can be onerous (with a two-year residence requirement in the past five years). As argued by Barnett et al. (2025: 6), a de facto citizenship would be “a simple and effective step” under the Treaty. The Subclass 192 visa under the Treaty stream is significantly more advantageous than other permanent residency visas but it is debatable whether the current arrangement can be described as de facto citizenship. Another test of de facto citizenship is to see whether Tuvaluans will be subject to deportation or removal if they violate visa conditions or commit crimes in Australia.

20At the time the paper was accepted for publication in October 2025, up to 280 Tuvaluan people had been selected to apply for a Subclass 192 Treaty Scheme visa. The process is still ongoing and the scope of this paper does not permit an evaluation of the 2025 implementation. Recent fieldwork by Dr Sanzhuan Guo in Tuvalu suggests lessons can be learned from the first year of implementation, including risks of misinformation about the visa process (see also Edwards, 2025).

Tuvalu’s Obligations and Australia’s Obligations to Assist

21Tuvaluan citizenship will become “valuable” in that someone might take advantage of the scheme to migrate to Australia. Therefore, Article 3(2) obliges Tuvalu to ensure that its nationality/citizenship and immigration law is robust, meeting “international standards for integrity and security” and “compatibility” with Australia, but the criteria are unclear.

  • 3 This reading of s 46 of the Constitution of Tuvalu Act (2023) is different from the comments of UNH (...)
  • 4 Tuvalu Citizenship Act s 6(4).

22The Tuvalu Citizenship Act states that Tuvaluan citizenship can be obtained through registration (s 5) or naturalisation (s 6) and the Minister must maintain a Register of Citizenship (s 3). Under the Constitution of Tuvalu Act 2023 (s 46), the principle of jus soli is adopted with minor exceptions, which means whoever is born in Tuvalu will have Tuvaluan citizenship unless an exception applies.3 Citizenship by naturalisation requires seven years residence4. It appears that taking advantage of Tuvaluan citizenship to get access to the Subclass 192 — Treaty Stream visa may be possible, especially through citizenship by birth.

23Tuvalu has been a State Party to the 1951 Refugee Convention and its 1967 Protocol since 1986. Interestingly, as of 2012 (UNHCR, 2012), there had been no asylum-seekers, refugees, or stateless persons in Tuvalu. Whether Tuvalu will become a “popular” place for asylum or a point of transfer to Australia requires time to verify.

24In terms of ensuring that Tuvalu’s citizenship and immigration law will be robust, citizenship by birth and terms of refugee status are areas which have been considered.

Conceptualisation of Climate-induced Migration and Security under the Treaty

25The nexus between migration and security has many aspects, and migration has often been interpreted as a security threat to States (Wohfeld, 2014). On the other hand, the human security perspective with the focus on security of individual migrants has gradually been accepted in new security studies (Huysmans and Squire, 2017). Migration is regarded as part of a solution, or adaptation to the threat to human security due to climate change (Adger and Pulhin, 2014).

26Understanding the rationale behind the Falepili Union Treaty will assist its implementation. Although “Falepili” means “good neighbourliness” (preface of the Treaty), the Treaty has been based on careful calculation of national interests. Both Australia and Tuvalu consider the treaty is “a response to what each considers to be a great threat to their security: for Tuvalu this is climate change; for Australia it is the increasing influence of China in the Pacific” (Barnett et al., 2025: 1).

Tuvalu : Climate-induced Migration and Human Security

27The 1994 UNDP Human Development Report provides a starting point to understand “human security”, which is composed of “freedom from fear” and “freedom from want” (UNDP, 1994: 24). It is recognised that one distinctive characteristic of human security is its significant connection with human rights (Carne, 2006: 9) while going beyond strictly legal rights (Adger and Pulhin, 2014: 759).

28In 2009, the UN Secretary-General provided a report on climate change and its possible security implications, including threats to human well-being, economic development, population displacement and involuntary migration, loss of territory and statelessness (A/64/350). In the context of climate change, human security has been defined as “a condition that exists when the vital core of human lives is protected, and when people have the freedom and capacity to live with dignity” (Ibid.).

29In the case of the Pacific Island countries including Tuvalu, migration operates both as a threat to human security (forced migration) due to climate change and as a means of adaptation to climate change. “Human mobility with dignity” describes individual migrants’ need for human security in the context of climate-induced migration: on the one hand they need to gain access to another country when needed, but on the other hand, migration should not be forced and migrants should be respected.

30Although human security is different from the human rights approach to climate migration, the rights-based approach should be the first and minimum step. In 2018, the UN Human Rights Committee adopted its General Comment No 36 and highlighted climate change as one of “the most pressing and serious threats to the ability of present and future generations to enjoy the right to life” (para 62). In 2019, the Human Rights Committee decided in Ioane Teitiota v New Zealand that New Zealand did not breach its obligations under Article 6 of ICCPR on the right to life by removing the claimant back to his home country of Kiribati even though the relevant island might be uninhabitable in ten-fifteen years. In 2022, in the case Daniel Billy and Others v Australia, the Human Rights Committee held that Australia breached its obligations under Article 27 (the right of minorities to their culture) and Article 17 (the right to be free from arbitrary interference with privacy, family and home), but not the right to life under Article 6. This case is significant not only to Australia but to the world regarding human rights violations of a Member State’s climate change policies (McGaughey et al., 2023; Aumond, 2023). The “real and foreseeable” standard was adopted in both Teitiota ([9.7]) and Billy ([8.6]) regarding the right to life and no violation was found in both cases by the majority. In both cases, Duncan Laki Muhumuza and Vasilka Sancin made dissenting opinions, stating that the right to life was violated. Both dissenting experts emphasized the importance of the “access to safe drinking water” in the Teitiota case to decide on the violation of the right to life. These two critical cases of the Human Rights Committee demonstrate that the application of the same standard may lead to different conclusions among Committee members and the threshold of violating the right to life is relatively high and in Aumond’s (2023) words, a “much more physical approach to life” has been adopted.

31Furthermore, human security in climate-induced migration should go beyond the human rights approach. To ensure the success of human mobility with dignity under the Treaty, Australia’s obligations should be more than what Australia would be required to comply with under the ICCPR as a Member State.

32As demonstrated in Falefou’s PhD thesis (2017: 235-293), whether Tuvaluans migrate or relocate due to climate change is complicated. Many Tuvaluans prefer to stay due to culture, identity and costs, and some may return to Tuvalu (Barnett et al., 2025: 7). Barnett et al. (2025: 5-6) made an important argument on the risk of maladaptation as a consequence of the Falepili Union Treaty, including depletion of human capital necessary for adaption, low remittance, undermining the social capital, and disruptive effects in relation to those who return to Tuvalu. This demonstrates that climate-induced migration under the Treaty is not just to obtain a permanent residency in Australia, but requires more nuanced and careful social and community support and integration of migrants in Australia.

Australia : Climate-induced Migration and National Security

33Climate-induced migration impacts global security, including geopolitical stability, economic conditions and resource availability (Qosja, 2024).

34The elephant in the room is China. Under Article 4(4) of the Treaty, Tuvalu will “mutually agree with Australia any partnership, arrangement or engagement with any other State or entity on security and defence-related matters”. This means that if Tuvalu would like to make a security pact with China, Australia will need to give the green light unless Tuvalu decides to terminate the Falepili Union Treaty first. Article 4 of the Treaty attaches a significant price to human mobility of Tuvaluans under Article 3 in terms of defence and foreign relations independence of Tuvalu.

Concluding Remarks

35This paper was written before the commencement date of Australia’s amendments to its immigration law to implement the Treaty. It is recommended to review the practice based on empirical data once they become available.

36Considerations regarding security and migration suggest that human security or a human rights approach should be adopted to tackle climate change and climate-induced migration, rather than Australia’s “legitimate self-interested” national security approach. Climate-induced migration is important, and should be carried out with proper guiding principles to increase the probability of success. Securing Tuvaluan people’s human security interests may ultimately support the national security interests of Australia; whereas narrow-minded national security objectives may be less effective.

37While recognising the importance of bilateral agreements, the international framework of Global Compact for Safe, Orderly and Regular Migration (2018) and the Pacific Regional Framework on Climate Mobility endorsed at the 52nd Pacific Islands Forum in 2023 should be given more careful consideration as international and regional frameworks would provide less-fragmented solutions to global issues like climate-induced migration.

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Notes

1 https://www.legislation.gov.au/F2025L00183/latest/text

2 The 2025 Regulations, s 16; 192.511(1) of Schedule 2.

3 This reading of s 46 of the Constitution of Tuvalu Act (2023) is different from the comments of UNHRC, which states that “Tuvalu’s Constitution (Part III) provided that children born in Tuvalu could only acquire nationality if one of their parents was also Tuvaluan”. See UN Human Rights Council, A/HRC/WG.6/16/TUV/2, [26].

4 Tuvalu Citizenship Act s 6(4).

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Sanzhuan Guo et Jessica Genauer, « Australia-Tuvalu Falepili Union Treaty: Climate-Induced Migration and Security »Revue européenne des migrations internationales, vol. 41 - n°4 | 2025, 121-129.

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Sanzhuan Guo et Jessica Genauer, « Australia-Tuvalu Falepili Union Treaty: Climate-Induced Migration and Security »Revue européenne des migrations internationales [En ligne], vol. 41 - n°4 | 2025, mis en ligne le 31 décembre 2025, consulté le 11 mai 2026. URL : http://journals.openedition.org/remi/30460 ; DOI : https://doi.org/10.4000/162nz

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Auteurs

Sanzhuan Guo

Jurist (International law, citizenship and migration, human rights), Associate Professor, Flinders University, Adélaïde, Australia; https://orcid.org/0000-0001-8582-7274; sanzhuan.guo[at]flinders.edu.au

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Jessica Genauer

Jurist (International relations), Associate Professor, Flinders University, Adélaïde, Australia; https://orcid.org/0000-0003-1825-2807; jessica.genauer[at]flinders.edu.au

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