Abstract

Excerpted From: Barrett Ristroph, Balancing Human Rights with Custom in Pacific Island Community Adaptation and Relocation, Houston Journal of International Law 387 (Summer 2025) (223 Footnotes) (Full Document Requested).

In 2023, with funding from international donors, the Republic of Fiji was able to develop the first ever set of standard operating procedures (SOPs) to relocate communities located on customarily owned lands threatened by climate change. The SOPs are revolutionary in that they attempt to marry internationally recognized human rights standards with Pacific Island Custom and values in a distinct, step-by-step process. In recognition of contemporary concepts of human rights, the SOPs do not permit relocation without the consensus of 90% of the people in each of several groups, including women, youth, elderly, LGBTQ+ persons, and persons with a disability or special needs. The decision on where to relocate to requires the consensus of 60% of residents in each of these groups.

In a nod to custom, the SOPs empower the traditional village headman to be in charge of meetings and notice, and recognize that customary land cannot be bought, sold, or otherwise alienated. Negotiations for the right to live at the new site take place through the village headman, following traditional protocols.

But what happens if there is only one person in a village who identifies as LGBTQ+ (given the limited number of openly gay people in many traditional Pacific Island villages), and this person vetoes the relocation? Must the village stay in place, even if 90% of the other residents and the village leadership want to see the relocation go forward? Could the village leadership use their traditional authority to banish those not in favor of relocation? This is just one example of the kind of thorny questions that can come up when external concepts of human rights appear to contradict Pacific Island values and custom. These contradictions can add another layer of difficulty to the already unwieldy journey Pacific Island Countries face in funding and implementing measures that respond to climate change.

How these questions play out for Fiji are important, since Fiji was the first Pacific Island Country to develop SOPs for relocation, and it may be considered a model for other Pacific Island Countries grappling with community relocation. The Fiji SOPs are not the only document attempting to braid UN Human Rights with custom: the 2023 Pacific Regional Framework on Climate Mobility likewise recognizes the importance of human rights. At the same time, it states that the “principles of the Framework will be guided by our Pacific values,” including spirituality, Indigenous rights, cultural values, and traditional knowledge and practices. Vanuatu’s 2018 National Policy on Climate Change and Disaster-Induced Displacement recognizes the human rights of displaced persons and receiving communities, while also emphasizing the importance of protecting traditional knowledge.

The Solomon Islands’ 2022 Planned Relocation Guidelines indicate that the national government “bears primary responsibility under international law to respect, promote, and fulfil the human rights of Solomon Islanders” while also recognizing the historic injustice of colonial land dispossession and the importance of customarily owned land. In the same vein as Fiji’s SOPs, they require the “involvement of women, youth, persons with disabilities and all people who might otherwise be marginalised from national, provincial and community initiatives in all phases of Planned Relocations and at all levels” with “at least 30 percent representation of women in each committee or team established under these Guidelines.” At the same time, they suggest relocating people to sites with “common church, trade or marriage networks.”

This article explores the potential for conflicts between rights, practices, and values in the context of international donor assistance for climate change adaptation and relocation, focusing on planned community relocations. Part two provides background on human rights, Pacific Island Custom, and climate change. This section first outlines key concepts of human rights (as articulated by the United Nations). It then identifies some key values and customs of residents of the Pacific Islands, many of whom are part of Indigenous communities, and explains how some custom may conflict with human rights. Part three describes the intersection of climate change with human rights and custom. Part four considers the role of international human rights standards in funding for climate change adaptation and relocation, and the potential for conflicts. Part five looks at ways that these conflicts might be addressed, recognizing there are limits to reconciliation and clashes may continue for some time.

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UN Human Rights have evolved over time to better encompass non-Western values, but there are still gaps between the underlying values in these rights and those that now form the basis for custom in Pacific Island Countries. Climate change affects both UN Human Rights and custom, and both must be considered in responding to climate change through adaptation and relocation.

Western society and the Global North have contributed significantly to climate change and perpetrated mitigation measures that failed to consider UN Human Rights and custom. As such, asking Pacific Island Countries that contributed little to climate change but are disproportionately suffering from climate displacement to adhere to Western-oriented human rights can seem imperialistic and colonizing.

This article does not intend to undermine UN Human Rights, but rather to suggest a goal of harmonizing these rights with custom in a manner that will take time to implement. Donors can follow both UN Human Rights and custom when they recognize collective rights to customary land, adhere to FPIC regarding customary land and other issues related to community relocation, use culturally appropriate consultation through traditional leaders while also consulting underrepresented groups, and appropriately using traditional and Indigenous knowledges. Fiji, the Solomon Islands, and Vanuatu have already begun the difficult task of trying to balance UN Human Rights with custom and the reality on the ground. Moving forward, donors should assist Pacific Island Countries with adaptation and relocation without conditioning assistance on adherence to UN Human Rights.

J.D., Ph.D., Principal of Ristroph Law, Planning and Research.