Dr Vicky Kapogianni, University of Reading

Trapped mobility and surging seas within the Pacific Neighbourliness: if international legal frameworks are fragmented and non-specific to sea-level rise (SLR), then what dictates the (im)mobility pathways? This post examines how climate change plays a role both in displacement and entrapment considering the absence of applicable legal frameworks in facilitating mobility and showcases the instrumentalism embedded within the new mobility agreements under the guise of the “Pacific family”. The gradual effects of anthropogenic climate change influence human migration patterns. Individual migration decisions are shaped by the rate of environmental change, existing migration trends, cultural ties to ecosystems, financial resources, and other considerations. Climate change is often associated with “trapped” populations, acting not only as a catalyst for forcing people to move, but also as a barrier, notwithstanding the urgency or criticality of such moves. 

While most Pacific Island Countries and Territories have established arrangements with former colonisers, or remain territories themselves, allowing for, in some cases, unlimited migration, several former colonies lack such agreements. Consequently, individuals in these countries who may need to migrate are often faced with limited options, being either forcibly immobile or restricted to intra-country mobility. The 2023 Falepili Union Treaty constitutes  a pivotal agreement on climate mobility framed against the legacies of colonial boundaries and historical imbalances in Australia-Pacific relationships; nonetheless, this “good neighbourliness, care and mutual respect” Treaty is not devoid of further implications. Past-colonial ties have now evolved into new arrangements, creating new scalable dependency forms. Entrapment, therefore, has taken its toll, be it due to reduced access to resources, or self-entrapment stemming from (im)material bonds and kinship decision-making. Emerging literature on trapped and (im)mobile populations focuses on these complexities in the context of environmental and State-induced barriers. 

Obligatory Fragments: Finding Order in a Far-Reaching Legal Regime

At the International Law Commission’s 75th session, it was agreed that current international legal frameworks potentially applicable to the protection of persons affected by SLR are fragmented and mostly non-specific to this cause. These frameworks do not effectively protect those who remain in situ, are forcibly displaced or have to move to other States because of SLR impacts. Rather, extant frameworks are generally applicable in the context of disasters and climate change, often of a soft-law character. Those who are parties of the UN Framework Convention on Climate Change (UNFCCC), have placed a cardinal import on the need for action on the nexus between climate change and human mobility. The UNFCCC regime, beyond addressing climate change loss and damage, remains fundamentally grounded in the principle of “common but differentiated responsibilities and respective capabilities”. Yet, beyond the scope of UNFCCC, emerging legal frameworks persist in placing the burden on island nations. This is based on the misguided presumption that these nations should address the root causes of migration and provide avenues for migrants to ultimately return home. These assumptions, however, are misplaced as islanders are unable to address the migration cause on their own and there is a high probability – considering the increase of natural disasters in tandem with the disappearing or uninhabitable islands – that the return to their country of origin might not be a viable option.

In the same vein, the 2019 Global Compact on Safe, Orderly and Regular Migration through its paragraph 21(h) marks progress by acknowledging climate change as a migration driver and recognising adaptation limitations. It moves beyond solely assigning responsibility to origin countries, albeit weakly, yet remains non-binding. While acknowledging situations of non-return, most frameworks still burden origin countries. This fails to address all climate-induced displacement instances, missing an opportunity for effective guidelines.

The Return of Imperialism: Climate Cooperation or Sovereignty Compromise?

What influence do post-colonial dynamics exert on climate change cooperation and patterns of human (im)mobility in the “sea of islands” context? During the 52nd Pacific Islands Forum Australia and Tuvalu announced the abovementioned Falepili Treaty, a new bilateral partnership which, despite being heralded as a potentially trailblazing agreement on climate change cooperation, comes with a catch: a quid pro quo which is outlined in its article 4(4). On its face, this provision grants Australia a potential veto power over a broad spectrum of Tuvalu’s foreign affairs, mirroring Australia’s current prevailing security agenda. It is noteworthy that this is not a “treaty of union” in the conventional political union; rather, its text predominantly addresses matters of climate change, human mobility, and security. Yet, beyond its intended purpose, this clause is widely perceived as a strategic move to counter China’s increasing influence in the South Pacific, particularly evident in the Solomon Islands – where Beijing secured diplomatic recognition in 2019 and struck a security agreement in 2022 – prompting apprehension among Western States. Hence, the Falepili Treaty seems like an attempt aimed at averting a replication of the situation in the Solomon Islands, where both Chinese and Australian law enforcement agencies are currently operative. Australia’s veto power has engendered discontent among Tuvaluans, who believe that their vulnerable nation has been bullied into ceding sovereignty in exchange for a safe harbour.

While the Falepili Treaty counts as State practice regarding the relative continuity of statehood, it remains ambiguous how, or to what extent, it contributes to international law protecting persons affected by climate-induced (im)mobilities. The existing protection regimes evidently fall short of providing individuals a right of migration (both reactive and proactive) and the Treaty does not purport to address this inadequacy either. It is neither couched in terms of protection and rights, nor risks and effects of climate change, but rather in a commitment to ensure “human mobility with dignity”. Therefore, this so-called trailblazing agreement invites scepticism as to whether the respective governments considered the migration challenges faced by Tuvaluans.

In conclusion, the interplay of climate change, legal frameworks, and post-colonial dynamics complicates displacement and entrapment of vulnerable populations. The shortcomings of current agreements highlight the urgent need for binding international frameworks that genuinely support at-risk communities. As sea levels rise, sincere cooperation, characterised by political will free from geopolitical motives, is essential for achieving equitable and effective solutions.