Blog by Ahhee Cho *
From Recognition to Legal Duty
The term “environmental refugee” first appeared as early as 1976 (Brown, 1977). It gained more concrete recognition with a 1985 UNEP report by Essam El-Hinnawi. Nevertheless, nearly fifty years after that initial recognition, there is no legal protection available to those who are displaced due to climate change under the umbrella of international refugee law. Since the late 2000s, the international community—through the UNHCR, the UN Human Rights Council, and many NGOs—has repeatedly called for action to fill this legal protection gap. However, so far, no country has formally defined the term “climate refugee,” and international talks regarding this issue continue to be politically stalled.
This gap between rhetoric and reality illustrates a core characteristic of international law: transformative change rarely begins with declarations but develops through precedent.
As former ICJ Judge Rosalyn Higgins observed, “international law is what states do, not what they say” (Higgins, 1994). Her observation captures the essence of legal evolution: international law develops through concrete state action rather than abstract declarations. Each treaty recognizing climate displacement thus constitutes a step toward the gradual formation of customary international law, defined in Article 38(1)(b) of the Statute of the International Court of Justice as “a general practice accepted as law.”
In this context, the Falepili Union Treaty, concluded in 2023 between Tuvalu and Australia, establishes a legally binding migration pathway for Tuvaluan citizens displaced by rising sea levels, thereby converting a moral responsibility into a legal one. This article argues that the Falepili Treaty is the first major treaty-based instrument to protect climate-displaced individuals and that the growing number of similar agreements could contribute to the gradual evolution of international law.
The Falepili Treaty: From Humanitarianism to Legal Responsibility
The Falepili Union Treaty was signed in November 2023 and entered into force on July 1, 2024. The Falepili Union Treaty defines the relationship between Australia and Tuvalu by recognizing climate change as an “existential threat.” The Treaty establishes a pathway for up to 280 Tuvaluans per year to migrate to Australia with the right to permanent residency, education, health care, and employment.
This pathway is based on a legally binding obligation established through the Treaty itself, based on the evolving norms of international law related to climate mobility and protection. This distinction matters because previous humanitarian pathways for displaced individuals (such as temporary relocation visas and development-based migration schemes) have existed for decades, but have typically been voluntary and subject to withdrawal at the discretion of the receiving state.
The Falepili Treaty establishes a distinctively legal obligation between the two countries, demonstrating that environmental degradation can generate enforceable obligations between states. This transforms the idea of climate displacement from a form of voluntary humanitarian assistance to a legal obligation and shows how the normative aspects of international law evolve in practice, through repeated social and institutional practices that gradually convert moral duties into binding legal obligations.
Through their actions, Tuvalu and Australia have taken a significant step in the developing area of climate refugee law.
Precedent and the Development of International Law
The importance of the Falepili Treaty lies in the process through which it developed. International law has always been based on precedent and continued state practice, which have ultimately produced customary norms over time. Refugee law is perhaps the best illustration of how customary obligations are produced through state practice.
After World War II, European states applied the non-refoulement principle consistently, granting asylum to individuals fleeing persecution in order to avoid sending them back to danger. Through this consistent application of the non-refoulement principle, a shared legal conviction (opinio juris) developed to apply the practice. With each repetition of the practice, and with the increasing belief that the practice should be followed, the practice solidified into a binding obligation, eventually extending to non-signatory states.
By the time the principle of non-refoulement was included in Article 33 of the 1951 Refugee Convention, it had become a customary part of international law. The status of the principle of non-refoulement as a principle of jus cogens is now widely accepted by both scholars and courts as creating an obligation for all states to follow the principle. The history of the development of refugee protection illustrates how consistent humanitarian practice can develop into a binding legal obligation.
Unlike the typical refugee law model (which focuses on individual persecution on specific grounds), the Falepili Treaty establishes a new logical basis for legal obligation—one grounded in a collective, existential threat to a nation, as opposed to a threat to an individual. The Falepili Treaty therefore establishes a new basis for legal protection, shifting from protecting individuals from threats by state actors to protecting a collective community from a global shared threat.
Legal and Policy Implications
The Falepili Treaty is significant not only for the current relationship between Tuvalu and Australia but also for how it shapes states’ future responsibilities toward climate-induced displacement.
One of the most interesting aspects of the Treaty is the sovereignty clause (Falepili Union Treaty, Art.2(2)(b)). This innovative provision provides for the maintenance of Tuvalu’s sovereignty, regardless of whether Tuvalu physically disappears as a result of rising sea levels. This is an unprecedented example of how a nation’s identity and sovereignty can be preserved in the face of a nation’s physical disappearance.
Although there is a great deal of international support for the sovereignty clause and the related security arrangements, including Australia’s commitment to assist Tuvalu in the event of external aggression or a major disaster, there is still local criticism of the clause and related security provisions. Specifically, there is criticism of the fact that Tuvalu is required to seek Australian approval prior to signing any security agreements with third-party nations (Falepili Union Treaty, Art. 4(4)). Some critics view the requirement as a de facto grant of veto power to Australia and a limitation on the voluntary sovereignty of Tuvalu. The political compromises involved in establishing such a novel precedent are evident.
There is substantial evidence that the need for the legal framework outlined in the Treaty is urgent and pressing. As a direct consequence of the Treaty, nearly 4,052 people (approximately 38 percent of Tuvalu’s population) applied for permanent residency status (NBC News, 2024), which is capped at 280 people per year. As a result, the applications were managed by a lottery drawing. This overwhelming demand for the program illustrates the immediate and existential nature of the need for the program and transformed the legal concept into a living reality.
However, establishing this legal pathway is not without its own set of challenges. For example, analysts have raised concerns about the possibility of “brain-drain” as a result of providing permanent resident status in a developed country to individuals who currently reside in Tuvalu. Such a brain-drain could weaken Tuvalu’s institutional capacity in the long term.
Furthermore, providing permanent resident status raises a tension between the immediate right to safe mobility and the long-term goal of preserving a nation. In response to these challenges, Tuvalu has concurrently advanced a strategy to preserve its culture and sovereignty in the event that its physical territory is lost, referred to as a “digital nation” (Government of Tuvalu, 2024; BBC Future, 2024).
This dual approach illustrates the multifaceted nature of a nation’s survival strategy. By establishing both a legal pathway for relocating its citizens in the event of physical loss of its territory and a digital pathway to preserve its culture and sovereignty, Tuvalu has created a unique and comprehensive approach to addressing the challenges presented by climate change.
While the Falepili Treaty creates a binding bilateral duty for Australia to provide a permanent residence pathway for Tuvaluan citizens, it marks a fundamental shift in how international law approaches mobility. Climate-related relocation is no longer treated as a discretionary gesture by states but as a legally enforceable entitlement arising from obligations between them.
As a result, the Falepili Treaty creates a precedent that shifts the normative framework regarding climate-related mobility into the same paradigm as the normative framework that exists for the protection of refugees. Historically, the paradigm for refugee protection has included increasingly robust and enforceable moral obligations on the part of nations to protect refugees, derived from consistent state practice.
In addition to creating a new precedent for the enforcement of obligations in international law, the Falepili Treaty also presents a challenge to the existing global governance system. Specifically, the Treaty will test how small island states and developed countries can implement shared responsibility in practice, in the context of climate change. Regional responsibility-sharing models are particularly critical for small island developing states facing existential climate risks. Therefore, if the Falepili framework is implemented successfully and used as a model in other regions, it could establish a precedent for the eventual creation of a customary international law obligation to provide climate-resilient mobility to those displaced by climate change.
In this sense, the Falepili Treaty represents both a practical solution to immediate needs and an experimental precedent for international law. Specifically, the Treaty demonstrates how international law can evolve through cooperative efforts among states to address common problems, including the problem of climate change.
Toward a Customary Norm of Climate Mobility
Precedent plays a central role in the development of international law. First, precedent helps to generate shared expectations of lawful conduct among nations. Once a particular type of behavior becomes accepted as lawful by enough nations, other nations will be expected to conform their behavior to that standard. Second, precedent can serve as a basis for establishing specific and enforceable obligations among nations.
This process of establishing precedent was illustrated recently in Teitiota v. New Zealand (2020). In this decision, the United Nations Human Rights Committee held that involuntarily returning an individual to a location that is not capable of sustaining human life as a result of climate change may constitute a violation of the individual’s right to life and right to personal safety pursuant to Article 6(1) of the International Covenant on Civil and Political Rights. However, the Committee went on to note that the risk of such a violation could be mitigated by the adoption of adaptive measures or by the actions of the relevant nation.
More recently, in KlimaSeniorinnen v. Switzerland (2024), the European Court of Human Rights advanced the reasoning in Teitiota v. New Zealand a step further. In KlimaSeniorinnen, the Court found that inadequate action by a nation to address the impacts of climate change may violate an individual’s right to private and family life, as protected by Article 8 of the European Convention on Human Rights.
These decisions reflect the growing trend toward treating climate-related migration as a legitimate subject of international law, rather than a purely humanitarian concern. Collectively, these decisions demonstrate the progression from the realm of moral argumentation to the realm of enforceable physical demands.
Together, they demonstrate that the term “climate refugees,” although not formally defined, is indicative of a growing body of legal precedent that supports the idea that those displaced by climate-related conditions are entitled to protection under the law.
The Law Advances Through Action
International law is not changed solely by virtue of the continued reading of its foundational texts. Rather, international law evolves incrementally, as states progressively modify their conduct to align with the norms and principles of their respective legal orders and as the scope of rights and obligations contained in those documents are clarified.
The Falepili Treaty is not simply a bilateral agreement concerning immigration. Rather, it is an experiment in shared responsibility and cooperation among nations in response to the global threat posed by climate change.
Ultimately, the successful implementation of the Falepili Treaty, as well as other similar treaties, will represent a first step toward the eventual establishment of a customary obligation to protect individuals displaced by climate change. The Falepili Treaty does not itself create a customary obligation but provides a model for how such an obligation might emerge through continued state engagement.
Climate displacement is not a theoretical issue—it is a matter of human necessity. Every treaty, precedent, and concrete action that advances the protection of climate refugees matters. States, courts, and communities that embed these protections in law move the world closer to developing a genuine legal consciousness regarding climate refugees.
Similarly, to develop an international legal consciousness regarding climate refugees, meaningful progress will not occur through declarations or statements. Rather, meaningful progress will occur as a result of a systemic effort to create a series of precedents that translate protection into a social and legal fact.
International law develops through action, not words. It is insufficient to simply make declarations—meaningful changes in international law require concrete actions. Moreover, given the urgency of the climate crisis, these actions cannot await the passage of additional time. The Falepili Treaty represents the initial steps in a process to transform international law through treaty-based cooperation.
References
Lester R Brown, Redefining National Security (Worldwatch Paper 14, 1977).
Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford University Press, 1994).
Falepili Union Treaty between Tuvalu and Australia (signed 9 November 2023, entered into force 1 July 2024), Australian Department of Foreign Affairs and Trade. Available at: https://www.dfat.gov.au/sites/default/files/australia-tuvalu-falepili-union-treaty.pdf.
“A third of people in sinking Tuvalu seek Australia’s climate visas,” NBC News, July 3, 2024, https://www.nbcnews.com/world/australia/third-people-sinking-tuvalu-seek-australias-climate-visas-rcna215787.
Government of Tuvalu, “Tuvalu Digital Nation Project,” official website, https://www.tuvalu.tv/.
BBC Future, “Tuvalu: The Pacific Island Creating a Digital Nation in the Metaverse,” November 21, 2024, https://www.bbc.com/future/article/20241121-tuvalu-the-pacific-islands-creating-a-digital-nation-in-the-metaverse-due-to-climate-change.
* Ahhee Cho is a graduate student pursuing a dual MA in International Studies at American University and Korea University. Her work examines human rights, climate mobility, and the evolving governance frameworks that shape protection for vulnerable communities.
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