Climate change is one of the most pervasive threats humanity faces. Although climate science has long warned against climate change impacts, and some efforts have been made to mitigate and adapt to climate change, ‘[t]he past eight years are on track to be the eight warmest on record, fuelled by ever-rising greenhouse gas concentrations and accumulated heat. Extreme heatwaves, drought and devastating flooding have affected millions and cost billions this year’. ² According to a new report from United Nations (UN) Climate Change published in October 2022, State measures are insufficient to meet the Paris Agreement’s temperature goal of well below 2°C by the end of the century. ³

As a consequence of the failure of governments to meet their obligations of ‘providing adequate finance and support to less wealthy countries to reduce their carbon emissions and to adapt to the impacts of climate change (…) [and] to provide support and remedy less wealthy countries for the loss and damage they are suffering’, the live, livelihoods, and cultures of millions of people around the world are threatened, augmenting to numerous human rights violations.⁴ Especially low lying Island States are affected by the shifts in sand and beach as their coasts succumb to rising seas, suffering from salinisation of previously fertile
ground or even facing a complete disappearance of their islands.⁵ Looking at the South Pacific region, the tremendous change in the climate poses a particular threat to the intangible cultural heritage (ICH) of South Pacific Islanders. For example, a Samoan Islander expressed their serious concerns regarding

Tufutafoe [a beach which] is a sacred place in the Samoan culture, [which] is the pathway to the Fafa o Sauali’i

– the gathering place of the Samoan spirits, the entry point to Pulotu, the spirit world. We know this place, it is taught to us by our grandparents, and our spirits will go there when we die (…) I wonder if my children, their grandchildren, will see the white expanse that leads to the Fafa o Sauali’i in the future. Will they experience the eeriness of the hardened sand under their feet as they walk the pathway to the ocean, will that pathway still be there? ⁶

As cultural heritage is a component of South Pacific Islanders’ identity, it is crucial
to safeguard it in the climate emergency. Moreover, as ICH is often place-based or
associated with a specific ecosystem, it is in danger of getting lost if climate change
impacts negatively affect the environment. Thus, this Report looks at eight South Pacific Island States and their ICH, namely Fiji, Kiribati, Papua New Guinea, Samoa, Solomon Islands, Tonga,Tuvalu, and Vanuatu. In particular, the Report examines whether the Pacific Islanders’ ICH is safeguarded in relevant laws and policies more broadly, by considering human rights law, cultural heritage law, intellectual property (IP) law, environmental law, and climate change law. The Report also considers whether safeguarding ICH can contribute towards a more resilient and inclusive climate change approach to foster stability and the rule of law and, if so, how.

Part 1 identifies the role of ICH in the climate emergency. Part 2 examines how, and
to what extent, ICH is safeguarded from climate change under human rights, cultural
heritage, and IP laws and policies. While Part 3 analyses the safeguarding of ICH in
environmental laws and policies at the international, regional, and domestic level, Part
4 looks at the safeguarding of ICH in climate change legislation and disaster risk
reduction (DRR) and disaster risk management (DRM) laws and policies at the
international, regional, and domestic level. Lastly, Part 5 sets out the key findings of
Parts 1 to 4 including gaps at the international, regional, and domestic level, while at the same time highlighting good practices identified in Parts 2 to 4 in the eight South Pacific Islands States, and setting out recommendations together with a way forward.

The Report has been drafted based on a mixed research method, including analytical and qualitative research methods:

1. analytical research, which consisted first in carrying out desk-based analysis of legal and policy frameworks at the international, regional, and domestic level. The considered instruments included various laws and policies in the field of human rights, cultural heritage, IP, environment, climate change, DRR, and DRM, which can be found in overview tables in the Annex to the Report. The mentioned frameworks present examples of relevant laws and policies among the many instruments applicable to each of these specific areas of human rights, cultural heritage, IP, environment, climate change, DRR, and DRM, to illustrate the extent to which ICH appears to have so far been integrated within them. The considered laws and policies were identified by inter alia using databases such as the PacLII Databases from the Pacific Islands Legal Information Institute, and Climate Change Laws of the World from the Grantham Research Institute on Climate Change and the Environment. The examination of the identified instruments enabled the Report to include not only key findings, but also analyse gaps at the international, regional, and domestic level. This desk-based research was then complemented by the qualitative research.
2. qualitative research, with the use of semi-structured interviews of stakeholders. A questionnaire was developed and sent to all interviewees in advance. Depending on the agreement with the respective stakeholder, the interview was conducted with a member of the Report’s research consortium in person, where possible, or online. Alternatively, the interviewee provided written answers to the questionnaire, which were received via e-mail. Interview questions included both general and country-specific questions relevant to the topic. Approached stakeholders included representatives in all eight South Pacific Island States from governmental departments such as ministries or disaster and climate change offices, from the cultural sector including museums, from academia such as legal scholars and experts in the field, as well as international experts in the field of ICH, climate change, DRR and DRM.⁷

Overall, the qualitative research informed the analytical research, to verify and complement the outcomes of the desk-based research phase, as well as for the development of recommendations and the way forward.
The key findings including identified gaps at the international, regional, and domestic level, as well as good practices in the eight South Pacific Island States, are discussed in more detail in Part 5 of the Report. The main key findings including identified gaps, good practices, recommendations, and the way forward may be summarised as follows.
The key findings of Part 1 are that ICH is part of the identity of South Pacific Islanders, crucial for the existence of communities, and the cultural diversity of the South Pacific region. Because of the adverse impacts of climate change, ICH faces particular high threats to such an extent that it might even be lost. While efforts have focussed on the
safeguarding of ICH in the climate emergency, it should also be recognised that the
protection of ICH can contribute to inclusive mitigation and adaptation measures,
and eventually to resilience. Climate change impacts have several implications for South Pacific Islanders, such as internal and cross-border climate displacement, as well as the restriction of the enjoyment of various human rights. Looking at climate change and ICH from a human rights lens ensures greater protection of South Pacific Islanders’ rights and the safeguard of ICH, while also fostering the rule of law, international peace, and stability. Lastly, ICH can contribute to achieve sustainable development. A major identified gap in the context of Part 1 is the lack of sufficient protection of South Pacific Islanders’ rights and ICH in cross-border displacement processes besides the human rights protection from the receiving State, as current legal and policy frameworks do not cover their protection in a comprehensive manner.

A key finding of Part 2 is that while ICH is safeguarded under international human rights and cultural heritage laws and policies, it is protected to a lesser degree under IP laws and policies. In addition, while the access to, and enjoyment of, cultural heritage, including ICH, has been recognised at the international level as an element of the human right to participate in cultural life, it is often not possible to allege a violation of the right to participate in cultural life before a treaty body, a supra-national human rights court, or a domestic court; this may be because the relevant State is not a party to the relevant treaty or has not accepted the jurisdiction of the treaty body (or of a supranational court in regions where it has been set up), or because it has not made this right justiciable at the domestic level. However, the Focus States have all ratified the UN Educational, Scientific and Cultural Organization (UNESCO) Convention for the Safeguarding of the Intangible Cultural Heritage (ICH Convention) and some have taken clear steps for its implementation at the domestic level, even if their domestic heritage laws do not generally apply to ICH. An exception is Vanuatu, which has implemented (and adapted) a regional model law on traditional knowledge and traditional cultural expressions. Cultural mapping processes in the region
have been instrumental in strengthening the safeguarding of ICH and, in some
cases, even revitalised endangered ICH. Those processes have also often led to the
adoption of national cultural policies and legislation. However, existing national
cultural policies could go much further in linking ICH and climate action, a gap possibly
due in part to the lack of such objectives or indicators in the current regional cultural
policy. Identified gaps in the context of Part 2 also include the low ratification rate by
the Focus States of international human rights frameworks, as well as their protocols.
Increased ratification is noted as a possible boost for the UN Treaty Bodies which have a role to play in advocating a human rights approach to climate change, including respect for cultural rights. The lack of domestic legislation that safeguards ICH is also noted, along with limited adoption of the regional model law concerned with traditional knowledge and cultural expressions.
The key findings of Part 3 are that ICH is (in) directly safeguarded in environmental laws and policies at the international, regional, and domestic level. However, identified gaps in the context of Part 3 are that policies tend to make more direct references to ICH than laws. In general, direct references to the safeguard of ICH are barely existing in environmental laws and policies; it is rather the indirect references to ICH which
bring culture into environmental frameworks. In general, adopting laws and policies at the international, regional, and domestic level with clear and direct references to the safeguard of ICH, including obligations to protect ICH, and the inclusion of affected communities as well as of the cultural sector in decisions that may affect ICH and culture more generally, would ensure an inclusive safeguard of ICH in environmental laws and policies.

Similar to Part 3 are the key findings of Part 4, namely that ICH is (in)directly safe- guarded in climate change legislation and DRR and DRM laws and policies at the international, regional, and domestic level. Identified gaps in the context of Part 4 are that as for environmental law and policies, it is the climate change and DRR and DRM policies which make more direct references to ICH than laws. In comparison to environmental laws and policies, climate change legislation and DRR and DRM laws and policies seem to include ICH to a greater extent, as the climate change threat to cultural heritage is widely recognised. Regarding the international climate change legal regime, future agreements at the global level should integrate the two facets of cultural heritage in a more direct way, i.e. including both its active and passive components in relation to climate change. At the domes- tic level, there exists room for improvement to generally include ICH in adaptation measures, to recognise ICH as a means to strengthen climate resilience especially when included in adaptation measures, to ensure the participation of communities in all decisions that may affect their ICH, and to mention the impact on ICH in post-disaster needs assessments. Moreover, with the exception of Fiji, the Solomon Islands and Vanuatu, there exist insufficient laws and policies in the Focus States, regarding potential climate displacement which ensure ICH is sufficiently safeguarded. Lastly, the laws and policies lack explicit or strong enough references regarding the involvement of relevant stakeholders from planning to responding processes, for example the respective ministry responsible for culture, culture representatives, heritage professionals such as museum staff, or community leaders with cultural knowledge.

Good practices in the Focus States identified throughout Part 2 to 4 include inter alia the highlighting of unique cultures within the respective Constitution, as well as the mention of cultural rights in policy documents; the implementation of a relevant regional model law in Vanuatu; the linkage between ICH and climate change in certain national cultural policies; cultural mapping processes; consultation and training at the community level; integrated means of intersectoral coordination, including within national cultural bodies; the inclusion of the integration of traditional ecological knowledge, innovations, and good practices into conservation and sustainable use of biodiversity as in the Fiji National Biodiversity Strategy and Action Plan (NBSAP) 2020- 2025; the impact of values constituting the fa’a Samoa (the ‘Samoan Way’) on the preparation of the Samoa National Adaptation Programme of Action (NAPA); and the inclusion of certain representatives from the cultural sector as well as local communities and NGOs, such as in the National Disaster Council in the Solomon Islands.

To ensure the safeguarding of ICH and the integration of ICH in relevant laws and policies in the climate emergency, the recommendations of this Report focus on raising awareness of the importance of ICH, on the increased role that ICH should have in laws and policies, and on the need for increased communication and cooperation between all relevant sectors. Thus, the way forward should focus on exchanges with the Focus States and the implementation of these recommendations by the means of field work, including the conduct of more interviews with stakeholders and the organisation of domestic as well as regional workshops. It is hoped that this Report will be used to inform practices in other regions and that lessons can be drawn from the South Pacific experience and expertise.

This Report was prepared by a research consortium, led by Professor Petra Butler (Victoria University of Wellington), which included the Institute of Small and Micro States (ISMS), the Konrad Adenauer Stiftung (KAS) Australia with support from Eva U Wagner, and the British Institute of Inter- national and Comparative Law (BIICL). The Report was drafted by the BIICL team, led by Kristin Hausler, and including Alina Holzhausen, as well as Dr Berenika Drazewska.

The research consortium would like to thank Wera Hack (German Embassy in Wellington) in helping to set up the research project. It also very much appreciates the collaboration from several experts and stakeholders who agreed to an interview, including (by alphabetical order): Eleala Avanitele, (Tuvalu Red Cross Society); Professor Lucas Lixinski (UNSW Sydney); Siosinamele Lui (South Pacific Regional Environmental Programme, (SPREP); Pro- fessor Jane McAdam (Kaldor Centre for In- ternational Refugee Law, UNSW Sydney); Adi Meretui Ratunabuabua (Blue Shield Pasifika); Melaia Tikoitoga; David M Tufi (Ministry of Environment, Climate Change, Disaster Management and Meteorology, Solomon Islands); Wonesai Sithole (IOM UN Migration); and three expert stakeholders from Fiji, Papua New Guinea, and Vanuatu, who prefer to remain anonymous. The re- search consortium is also grateful for the support of Elke Selter (BIICL) and Ellen Lekka (UNESCO) in the development of this project, and for the comments to an earlier draft made by Juliette Hopkins (UNESCO) and Naomi Hart (Essex Court Chambers).