| Click here for a summary of Tuvalu’s review at the first cycle and/or the second cycle. |
30th UPR session
Date of review: 9 May 2018
Date of report adoption: 20 September 2018
Document number: A/HRC/39/8
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SUMMARY SOGIESC issues during Tuvalu’s 3rd UPR review |
I. SOGIESC issues/recommendations identified by NGOs and other stakeholders
No references
II. Excerpts on SOGIESC issues from the national report
National laws and legislation
7. Tuvalu is currently undergoing a constitutional review and significant to the proposed Constitutional changes is the inclusion of gender and disability as a nondiscrimination ground. The Government of Tuvalu notes that adding gender and disability to the non-discrimination clause of section 27 is consistent with Tuvalu’s international obligations under the Convention on the Elimination of all forms of Discrimination against Women and the Convention on the Rights of Persons with Disabilities. Additionally, the Gender Affairs Department have provided a strategy paper for the Constitutional Review Committee on changes to be made in order to be in compliance with CEDAW. The Government of Tuvalu recognises that while sex is already a basis for non-discrimination under section 11, there is growing international recognition that gender is distinct from sex, and the protections of section 27 are arguably broader.
12. The Tuvalu National Youth Policy illustrates the commitment and recognition of the Government and the society as a whole to empower its youth, regardless of race, religion, gender and disabilities. The commitment is to: (a) provide every opportunity to develop the personal, physical, social, economic, mental and spiritual potential of youth; (b) to encourage them to positively participate in the nation building and to shape their future. It details information on the various issues affecting youth and outlines broad strategies to address such issues.
Awareness raising
41. The Office of the Attorney General continues to conduct awareness programs on human rights in Tuvalu. Radio programs continues to be facilitated for the benefit of the outer island communities. Important to note is that outer island consultation on human rights, children’s rights, gender, women’s rights, rights of persons with disabilities, legislation and policies relating to thematic issues continues to be facilitated by relevant government departments.
Protection of vulnerable groups
54. Part 5 of the Labour and Employment Relations Act 201746 provides for equal employment opportunities. Section 50 (Prohibition of discrimination) provides for nondiscriminatory section in the area of employment. Section 50 of the Act states that “an employer shall not discriminate, directly or indirectly, against any employee or prospective employee in respect of recruitment, training, promotion, against any employee or prospective employee to recruitment, training, promotion, terms and conditions of employment, termination of employment, or other matters arising out of employment relationship, for a prohibited reason. In addition, sub section 2 states that, a prohibited. In addition, sub section 2 states that, reasons is a reason that is affected by any of the following attributes of the employee or prospective employee, whether actual or perceived: ethnic origin, race, colour, national extraction, social origin, social class or economic status; or gender, sex, pregnancy, marital status, sexual orientation or family responsibilities; or age, state of health, HIV/AIDS status, or disability; or religion or political opinion; or trade union membership or activity; or involvement in any dispute, an investigation or legal proceedings.
55. As of July 2017 women represent 45% of the entire government workforce with 47.5% (46) of level 1–4 47 officers. The Government of Tuvalu ensures that gender equity is applied across all process and procedures internally and gender inclusiveness in meetings, committees and forums. The GoT recognises the cross cutting nature of gender issues and therefore takes into account the integration of gender perspective in all government activities.
Access to education and gender in education
68. Education in Tuvalu is free for all under the free education initiative that was approved by Cabinet in 2016. As such all students regardless of gender, attend school. The Department of Education, through the head teachers and school committees of all school retain attendance of children on a particular day, it is the responsibility of the school committee to follow it up with parents of whose children do not attend class. This initiative and practice has deterred students from missing class. Records of students attendance to classes are communicated to the department monthly where they are stored under TEMIS.
III. Excerpts on SOGIESC issues by UN agencies
National human rights framework
9. Prior to the constitutional review process, the Committee on the Elimination of Discrimination against Women had noted with concern that the Constitution failed to incorporate the principle of equality of women and men and to define and prohibit all forms of discrimination on the grounds of sex or gender, including direct and indirect discrimination, and cover acts by both public and private actors. The Committee on the Rights of the Child had raised similar concern, adding that some discriminatory acts were permitted under the Constitution by the application of laws enacted prior to independence or undertaken during a state of emergency.The Committee was deeply concerned that section 29 of the Constitution stipulated that the exercise of human rights might be restricted if it was deemed divisive, unsettling or offensive to the people or threatened the values and culture of Tuvalu. UNESCO noted with concern that the right to education was not enshrined in the Constitution.
Equality and non-discrimination
13. The United Nations country team stated that sex-related discrimination still existed in the Penal Code of 1978, the Marriage Act (Cap. 29), the Falekaupule Act of 1997 and the Labour and Employment Act of 2017. For example, consensual same-sex relations between men were criminalized under the Penal Code with penalties of up to 5 years’ imprisonment for “gross indecency”, up to 7 years for “unnatural offences and indecent assault” and up to 14 years for “buggery”. The United Nations country team encouraged Tuvalu to conduct a comprehensive review of its legislation and policies, with a clear time frame and targets, and to amend or repeal all discriminatory legislation in order to ensure compatibility with the principles of equality and non-discrimination, as enshrined in international human rights law.
IV. References to SOGIESC issues during the Working Group review
36. The United States of America noted that protections for children, including young girls, were inadequately addressed in the penal code and that consensual adult same-sex sexual conduct remained criminalized. It also noted existing laws, customs and practices that discriminated against persons with disabilities.
52. Germany recognized the growing participation of women in the health and education sectors, in politics and in civil society, and acknowledged steps taken, such as the adoption of legislation on domestic violence in 2014. However, it remained concerned about continued discrimination and violence, in particular based on gender. In addition, the failure to ratify core human rights instruments, such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, caused further apprehension regarding the safety of marginalized groups.
56. Honduras welcomed the important achievements in the implementation of the recommendations accepted by Tuvalu during the previous cycle. It welcomed the process of constitutional review initiated by Tuvalu with the technical support of the United Nations Development Programme (UNDP) and the willingness to address human rights issues relating to freedom of religion, gender equality, inclusion of marginalized groups and protection of the environment. It commended the commitment and cooperation of Tuvalu with the Human Rights Council in extending an open invitation to the special procedure mandate holders, as well as with the Regional Office of the United Nations High Commissioner for Human Rights.
58. Indonesia noted with appreciation the decision to accept two recommendations made by Indonesia during the second review cycle, regarding the implementation of the Police Powers and Duties Act and efforts to strengthen measures to ensure respect and protection for vulnerable groups, including women and persons with disabilities. Indonesia commended the positive developments in Tuvalu, in particular the adoption of the human rights national action plan for 2016 to 2020 and the Act of 2017 on the national human rights institution. Indonesia also welcomed the initiative to conduct a constitutional review, with UNDP-led technical support, in order to address a number of issues pertaining to freedom of religion, gender equality, the inclusion of marginalized populations and protection of the environment.
62. The Government was working hard with communities to legislate against and repress discrimination based on sex or race, and violence. The Prime Minister was unaware of any provisions in the laws of Tuvalu that explicitly enabled discrimination, and would need to be advised on that matter.
63. With regard to sexual orientation, there were cultural practices that needed to be brought into line with international standards. While that approach differed from traditional Tuvaluan culture, the Government was committed to addressing such issues in a manner that was acceptable and that followed international norms.
72. Jamaica commended Tuvalu for its commitment to improving the quality of life of its citizens, as outlined in the National Strategy for Sustainable Development for 2016 to 2020, including with respect to the right to housing, employment and voting. It also commended Tuvalu on its human rights national action plan for 2016 to 2020, noting that it was the first plan of its kind in the Pacific. Jamaica further commended Tuvalu for taking full advantage of technical assistance provided by UNDP to address issues related to freedom of religion, gender equality, the inclusion of marginalized populations and protection of the environment. It commended Tuvalu for achieving near universal primary enrolment through its initiative on compulsory free education.
78. The Netherlands welcomed the adoption of the Act on the national human rights institution, and the related action plan, and the Family Protection and Domestic Violence Act. However, it noted that discrimination related to gender and sexual orientation existed.
V. Conclusions and/or recommendations
Tuvalu accepted the following recommendations:
101.32 Finalize constitutional changes with an aim to strengthen the nondiscrimination clause on a gender and disability basis and take further steps towards empowering them (Georgia);
101.49 Adopt policy and legal measures to combat discrimination based on sexual orientation and gender identity (Chile);
101.51 Review legislation and amend or repeal any law that discriminates on the grounds of sexual orientation and gender identity, or any other ground, in accordance with the principles of equality and non-discrimination (Uruguay);
101.52 Prohibit by law all forms of discrimination, particularly those based on sex or disability (Algeria);
101.62 Accelerate efforts to incorporate into its legislation at all levels, including at the constitutional level, provisions that prohibit discrimination based on sex, gender and disability (Mexico);
101.106 Review and subsequently amend or repeal legislation entailing gender-based discrimination, including provisions in the Penal Code 1978 and the Marriage Act (Netherlands);
Tuvalu noted the following recommendations:
101.31 Introduce in the Constitution the prohibition against discrimination based on gender and on sexual orientation, at the same level as racial and religious discrimination (France);
101.50 Repeal provisions of the penal code that criminalize adult consensual same-sex sexual conduct (United States of America);
101.53 Amend or repeal all sex-related discriminatory legislation and legislation criminalizing consensual same-sex relations to ensure consistency with the principles of equality and non-discrimination (Australia);
101.54 Decriminalize consensual sexual relations between adults of the same sex (Honduras);
101.55 Repeal all provisions that criminalize consensual same-sex conduct and ensure that anti-discrimination laws cover sexual orientation (Iceland);
101.56 Repeal provisions of the Criminal Code that criminalize consensual sexual relation between adults of the same sex (Spain);
101.57 Modify or repeal all laws that discriminate on the ground of sexual orientation or gender identity pursuant to the principle of equality and nondiscrimination enshrined in international human rights law (Spain);
101.58 Consider repealing provisions that outlaw sexual relations between consenting male adults (Italy);
101.59 Repeal all provisions that criminalize consensual same-sex conduct and ensure that anti-discrimination laws cover sexual orientation (United Kingdom of Great Britain and Northern Ireland);
101.60 Take measures as necessary to remove from the criminal code the offence of consensual sexual relations between persons of the same sex (Argentina);
101.61 Amend sections 153–155 of the Penal Code to decriminalize same-sex conduct between consenting adults, as well as prohibit discrimination based on sexual orientation and gender identity (Canada);
101.63 Continue to take steps to actively promote the equal rights of all individuals regardless of gender, religious belief, sexual orientation, age, disability or other status, including by ratifying the International Covenant on Economic, Social and Cultural Rights (New Zealand);
VI. Further information
You will find all documents relating to Tuvalu’s third review at UPR-Info and OHCHR’s websites.