EDO’s expert assistance to Tuvalu Constitutional Reform Project: Interview with Dr Bal Kama

Give us a brief introduction to the work you’re doing assisting the Tuvalu Constitutional Reform Committee 

In 2021, the Tuvalu Constitutional Review Parliamentary Select Committee (CRC) established contact with the EDO Pacific Program for expert assistance on a proposed constitutional amendment in which they sought to preserve the Statehood of Tuvalu in the event that their physical territory becomes submerged due to climate change impact.  

The proposed amendment was a significant part of Tuvalu’s Future Now Project that was formulated in early 2021. The Project comprises of a set of innovative initiatives which, according to its architect and former Foreign Affairs Minister Simon Kofe, are proactive measures for ‘the potential worst-case scenario for Tuvalu under climate change – Tuvalu’s threatened disappearance as sea levels rise and lands are submerged.’ Other initiatives under the Project include becoming a digital nation and establishing bilateral relations only with countries that recognises Tuvalu’s statehood and maritime boundaries as permanent.  

The proposed amendment also became part of a larger constitutional reform project Tuvalu was undertaking, some of which I was involved in as a technical expert in a different capacity earlier in 2018. 

My then colleague, Fleur Ramsay, and I worked with the Tuvalu CRC to draft a provision (now formalised as Section 2 of the Constitution) that declares Tuvalu’s intent to maintain its Statehood and maritime rights in perpetuity. I further travelled to Tuvalu in August 2023 to join the CRC in its final community consultations at the Island of Nukulaelae, one of the main islands of Tuvalu, and assisted the CRC with the framing of some of the other aspects of the amendments.  

The CRC members on that consultation trip that I was part of comprised of both the Opposition and the Government MPs and Ministers, which demonstrated the important bipartisan approach that have underpinned the proposed reforms.  

Tuvalu is classified by the United Nations as an “extremely vulnerable” State, in terms of being impacted by climate change. It is clear through the success of this work that the resilient people of Tuvalu and their leaders are aware of their immense challenges and are taking various innovative and proactive approaches to preserve their country and society. 

What’s the goal the Constitutional review and why is it significant?   

Tuvalu began its constitutional review work as early as 2017 in response to other pressing political, governance and social issues it needed to address. The issues on the preservation of its statehood and maritime boundaries were included later as part of the Future Now Project after it became clear that there was a lack of legal and political framework internationally to protect the statehood of at-risk States like Tuvalu from climate change impacts.  

Under current international law, for a State to maintain its Statehood, it needs to have a permanent population, a defined physical territory, a government, and the capacity to enter into relations with the other states. The international law is silent or uncertain as to what that would look like for States like Tuvalu that are threatened by sea level rises and climate change that are at risk of permanently losing their defined physical territory. 

It was an issue that the CRC wanted to address to have a clear recognition in the Constitution that despite the uncertainties at the international level, the will of the people is that the Statehood of Tuvalu is maintained. For Tuvalu, addressing the statehood issue through the Constitution goes beyond confronting the likely disappearance of its physical territory. As the Chair of the Constitutional Reform Commission Simon Kofe MP puts it: “For us it means much more than just the physical territory, it’s our culture, history and the spirit of the people”. The resulting Section 2 of the Constitution of Tuvalu 2023 now declares that the ‘State of Tuvalu within its historical, cultural and legal framework shall remain in perpetuity in the future, notwithstanding the impacts of climate change…’  

I think the outcome has two important significances. First, Tuvalu is the first country in the world to constitutionally entrench the recognition and the perpetuity of its Statehood from climate change impact. While many climate-change-threatened States recognise the lack of protection of their Statehood in international law and some have undertaken bilateral and regional agreements to maintain recognition of Statehood, Tuvalu has gone a step further to entrench that intent into constitutional law. It went from the usual reliance on diplomatic assurances and international or regional agreements to giving clear legal and constitutional force to its intentions.  

Second, Tuvalu’s action demonstrates leadership as it is likely to influence other States with their own legal and constitutional ​​reforms which could ultimately impact on State practices leading to the development of a new customary international law in which States threatened by and responding to climate change impacts maintain their ​​Statehood.  

How will this work strengthen cultural and human rights, especially in the context of climate change? 

The impacts of climate change on the Tuvaluan society are serious. It permeates almost all aspects of their society including culture, way of life and the full enjoyment of their human rights and dignity. The Tuvaluans have demonstrated great resilience. Despite the significant challenges they face, they are strongly connected to their society and environment. The constitutional amendment declaring the perpetuity of their Statehood strengthens the people’s connection to their land by assuring them that their desire to maintain that connection is entrenched in their Constitution. It also speaks to the global community of that connection and what it represents in terms of culture and traditional connections and the rights and concerns of the people of Tuvalu. 

How do the proposed recommendations better connect local indigenous leaders to national law-making processes and institutions? 

Tuvalu has eight main islands that altogether comprises the State of Tuvalu. Each of the islands have their indigenous leaders and they exercise their authority through a formalised assembly recognised by the State called the Falekaupule. There were two significant ways in which the indigenous leaders and their Falekaupules were impacted in this reform exercise.  

First, was through consultations. The CRC ensured members of the Falekaupule were engaged at various stages of the consultations. The Islands are at great distance and can only be accessed by boat so there was a significant and deliberate commitment in getting the traditional leaders involved. For instance, the Island of Nukulaelae that I went to took nine hours to get to on a passenger ferry.  

Second, the proposed amendments elevated the significance of the traditional leaders, for instance, by declaring them as “the traditional authority in Tuvalu.” The amendments further obligated that the seat of Governor-General is rotated among the eight islands and that the Prime Minister consult the respective Falekaupule before making an appointment.  

What lessons can Australia learn about meaningful Constitutional recognition for First Nations Peoples from this process? 

The context underlying the current constitutional reform proposal in Australia is different to Tuvalu. However, a key lesson in the experience of Tuvalu that could inspire Australia is that Tuvalu provided a set of meaningful constitutional recognition of its indigenous peoples. They were mindful that contemporary societal shifts and demands do not replace or diminish the significance of its First Peoples.