According to news reports, in early September 2023, the Parliament of Tuvalu enacted constitutional amendments that include a new definition of statehood. The Constitution of Tuvalu Bill 2022, available on the website of Tuvalu’s Department of Foreign Affairs, includes the following wording regarding statehood in article 2:
(1) The State of Tuvalu within its historical, cultural and legal framework shall remain in perpetuity in the future, notwithstanding the impacts of climate change or other causes resulting in loss to the physical territory of Tuvalu.
The article goes on to define the area of Tuvalu, stating that the baseline coordinates declared in a schedule to the Constitution “shall remain unchanged, notwithstanding any regression of the low water mark or changes in geographical features of coasts or islands, due to sea-level rise or other causes, until and unless otherwise prescribed by an Act of Parliament.” Furthermore,
(5) Tuvalu is committed to:
a. Protecting and conserving its land area, territorial waters and airspace as included in Subsection (2) and retaining its Statehood as included in Subsection (1); and
b. Responding to climate change, which threatens the security and survival of its people and its land.
(6) The commitment of Tuvalu to responding to the threat of climate change recognizes all relevant regional and international law relating to climate change mitigation and adaptation, as well as the common but differentiated responsibilities of all States, sectors, organizations and individuals and the need for international co-operation to address climate change and to protect those that are most affected.
Climate change is also referenced in the preamble to the draft constitution:
DEEPLY CONCERNED with the imminent existential threat of Climate Change and sea-level rise to the security and survival of Tuvalu, and the urgent need for meaningful work with the rest of the world to protect and save Tuvalu[.]
The references to climate change in article 2 of the draft constitution were agreed upon in a December 2022 report by the Constitutional Review Parliamentary Select Committee. The committee stated that
[i]t is necessary to acknowledge climate change in the Constitution given the already significant threats it poses to Tuvalu; it is also necessary to define Tuvalu’s stance on any potential future impacts of climate change in the supreme law of the country so as to strengthen Tuvalu’s legal standing on climate change. (p. 10.)
The amendments as passed by the Parliament were not located, so it is unclear if any of the above wording was changed during the parliamentary deliberations.
In discussing the proposed climate-change-related constitutional amendments in November 2022 during the 2022 United Nations Climate Change Conference (COP27), Tuvalu’s finance minister stated that
We have to be prepared. We have been coming to COP for 30 years now and it hasn’t stopped sea level rise. Whatever happens here at COP27 will not save Tuvalu. It’s already causing much damage in Tuvalu. The sea is rising and overwhelming parts of our land. So whatever adaptation options we implement, they may not be fast enough to protect our land from the rising seas.
Any amendments to the Constitution will require two-third parliamentary vote. The Constitutional amendment process had begun several years ago. Preserving our territorial and maritime boundary are among others on the table for an amendment. We are undergoing major constitutional reforms and next month in Parliament, we are taking this amendment bill that will encompass the territorial integrity and territory. …
In terms of discussions around relocation of people due to climate change, the minister said:
It is very clear that no Tuvaluan wants to leave. The people want to remain at home, keep their identity and cultural heritage. As I’ve said earlier the science is telling us that Tuvalu will become uninhabitable by 2050 and if we are unable to get climate finance through loss and damage from this COP27 that is sufficiently large enough to protect our land from disappearing, Tuvalu will be no more and that is why we have to plan for those worst-case scenarios. Obviously we will need to go back to community to explain to them that this is a worst-case scenario plan in the event the sea is rising faster than us trying to protect our land.
Other Recent Actions
Tuvalu is also engaging in other efforts to preserve its culture and heritage, including preparing to seek recognition of its natural and heritage sites on the World Heritage List (having ratified the World Heritage Convention on May 18, 2023), undertaking a heritage project to compile Tuvalu’s culture and traditions in multimedia format, and digitizing records and other information, with plans to connect Tuvaluans through an online platform should they be relocated. It is also working with international law experts, since what is being considered or proposed is not covered by a particular convention. The finance minister stated:
Tuvalu also joined with the Marshall Islands to launch the Rising Nations Initiative under the Global Centre for Climate Mobility, putting forward “a four-point plan to protect the nationhood of Pacific atoll island countries and preserve their sovereignty, rights, culture and heritage.”
In September 2023, the prime minister of Tuvalu, who serves as co-chair of the Commission of Small Island States on Climate Change and International Law (COSIS) (founded during COP26), together with the prime minister of Antigua and Barbuda, gave evidence at the International Tribunal for the Law of the Sea (ITLOS), which will provide an advisory opinion on “whether carbon emissions absorbed by the ocean should be considered marine pollution, and what obligations nations have to protect the marine environment.” The prime minister said, “We come here seeking urgent help, in the strong belief that international law is an essential mechanism for correcting the manifest injustice that our people are suffering as a result of climate change.”
The request for an advisory opinion was submitted in December 2022, and various documents associated with the proceedings are available on the ITLOS website.
Kelly Buchanan, Law Library of Congress
September 29, 2023
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