| For a summary of Palau’s review at the first cycle please click here. |
24th UPR session
Date of review: 21 January 2016
Date of report adoption: 13 April 2016
Document number: A/HRC/32/11
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SUMMARY SOGIESC issues during Palau’s 2nd UPR review |
I. SOGIESC issues/recommendations identified by NGOs
Scope of international obligations
3. KHRF asserted that Palau had signalled its support for the protection and maintenance of the human rights of LGBTI persons by becoming a signatory to the joint statement on “Ending Acts of Violence and Related Human Rights Violations Based on Sexual Orientation and Gender Identity”, delivered during the general debate of the Human Rights Council in September 2011. KHRF stated that by signing the Joint Statement on Sexual Orientation and Gender Identity Palau acknowledged its responsibility to end human rights violations against all those who were vilified and to prevent discrimination in all forms.
Institutional and human rights infrastructure and policy measures
4. ARC International (ARCI) recommended that the Human Rights Council, in its upcoming UPR review, urge Palau to bring its legislation into conformity with its international human rights obligations.
Equality and non-discrimination
7. KHRF stated that there was no reliable data on patterns of discrimination of LGBTI persons within the Palauan society but that the fact that 83.55% of Palauan voters had specifically voted to define marriage as being only between a man and a woman in a 2008 constitutional referendum suggested that attitudes towards LGBTI equality were not particularly favourable.
8. KHRF stated that Palau did not provide any legal rights to same-sex couples, even though the constitutional definition of marriage in Section 13 of Article IV did not hinder the ability of the National Congress to legislate for other forms of relationship recognition. Palau recognised marriage only between two people of the opposite sex, and in February 2014, a bill was introduced in the Senate stipulating that marriage could only be between a man and a woman in order to give statutory effect to the new constitutional definition of marriage. The bill had passed its first reading in May 2014. KHRF considered that if enacted, this bill would further entrench discrimination against same-sex couples in Palauan law.
9. ARCI stated that recommendations were made to the government of Palau concerning discrimination on the basis of sexual orientation and gender identity in 2011 during the country’s first UPR, some of which were accepted. Among these recommendations, ARCI highlighted the recommendation to repeal all provisions in domestic legislation criminalizing consensual sexual activity between same sex adults and to combat discrimination against LGBT persons through political, legislative and administrative measures.
10. KHRF reported that in 2014, Palau had acted on this recommendation by repealing its legislative provisions which criminalised consensual sexual activity between persons of the same sex. Palau had done this through the introduction of a new Penal Code that did not contain any prohibitions on consensual same-sex sexual activity. ARCI stated that this new legislation represented both a monumental affirmation that Palau was committed to upholding its obligations under international human rights law, and that it was committed to implementing “accepted” recommendations coming from international mechanisms, such as the UPR process. ARCI commended Palau for this achievement.
11. KHRF stated that since its previous Universal Periodic Review in 2011, Palau had considered legislation punishing hate crimes on the basis of sexual orientation and gender identity, and supported the efforts of the international community to address discrimination against LGBTI persons.
12. KHRF stated that nevertheless, in addition to lacking any constitutional protections for LGBTI persons, Palau did not have any explicit laws or policies that prohibited discrimination of a person based on sexual orientation, gender identity or gender expression. In this sense, KHRF considered Palau had not implemented measures to give effect to the UPR recommendation that it combat discrimination against LGBTI people through political, legislative and administrative measures, despite having accepted it.21
13. ARCI observed very limited development in the last four years, regarding the same recommendation. It recommended that the Human Rights Council urge Palau to bring its legislation into conformity with its commitment to equality and non‐discrimination, and its international human rights obligations, by developing anti-discrimination laws that prohibit discrimination on the basis of sexual orientation, gender identity and inter sex status. KHRF recommended that Palau take steps to amend Section 5 of Article IV of the Constitution to include sexual orientation and gender identity as non-discrimination grounds.
14. KHRF also recommended that Palau ensure that proposed legislation punishing hate crimes on the basis of sexual orientation and gender identity were enacted as soon as possible. While this bill was going through the legislative process, broader measures were needed to prohibit discrimination against LGBTI persons in all areas of public life, including employment, provision of goods and services, education and health care. KHRF recommended that Palau implement a framework of legislative reform that actively prevented and prohibited discrimination of LGBTI persons in all facets of life and society, including but not limited to employment, the provision of goods and services, education and health care.
15. KHRF considered that the gender-specific reference to “husband and wife” on section 402 of Title 21 (Domestic Relations) of the Palau National Code (Code) represented a barrier against same-sex couples adopting children jointly. KHRF stated that this law was not in compliance with Palau’s obligations under international law, including under the CRC (which Palau had ratified), as it distinguished a person’s eligibility to adopt a child based on their sexual orientation or gender identity and a State Party could not discriminate against a child on the basis of their parent’s or legal guardian’s sexual orientation or gender identity.
16. KHRF recommended that Palau extend the same legal rights to same-sex couples as to opposite-sex married couples.
Right to life, liberty and security of the person
30. ARCI stated that the LGBTI community in Palau faced security threats. ARC required the government to ensure that initiatives such as the Bill proposed in 2014 regarding “hate crimes” be supported, as part of its commitments to combat discrimination and ensure the safety of all its citizens.
Right to social security and to an adequate standard of living
35. ARCI reported that issues such as job security, access to services, housing, etc. had been highlighted as a key concern for LGBT persons in Palau, and required immediate attention by the State. KHRF affirmed that in the absence of any legal recognition, samesex couples were unable to access a number of rights, including hospital visitation, inheritance and social security benefits (e.g. survivor pensions).
II. Excerpts on SOGIESC issues from the national report
Recommendations 62.39-40: Decriminalization of sexual conduct between consenting adults
102. The Penal Code has been amended to decriminalize sexual relations between consenting adults of the same sex.
III. Excerpts on SOGIESC issues by UN agencies
Equality and non-discrimination
16. The country team stated that, following recommendations received in 2011, 28 Palau had revised its Penal Code and decriminalized consensual same sex sexual activity in April 2014. Prior to this, “sodomy” was a crime under section 2803, chapter 28 of title 17 of the Palau National Code.
IV. References to SOGIESC issues during the Working Group review
32. The Netherlands commended Palau for decriminalizing homosexuality through a revision of the Penal Code in 2014. It noted that work remained to be done to bring Palau’s national legislation into conformity with its international human rights obligations.
40. Spain […] congratulated Palau for decriminalizing consensual homosexual activity.
52. Uruguay […] welcomed the progress made in ensuring gender equality, but noted that Palau did not have a law explicitly prohibiting discrimination based on sexual orientation or gender identity.
55. Argentina welcomed the efforts made since the last review and congratulated Palau on the decriminalization of consensual same-sex relations in the Penal Code. It considered that Palau still needed to overcome some challenges and noted that particular attention should be given to vulnerable groups, particularly persons with disabilities.
57. Australia […] commended the steps taken to decriminalize homosexuality with the introduction in 2014 of legislation to remove offences relating to consensual same-sex relations.
59. Brazil […] noted with appreciation the amendments to the Penal Code in 2014, which decriminalizes sexual relations between consenting adults of the same sex, a positive step towards the realization of the rights of lesbian, gay, bisexual, transgender and intersex persons in the country.
90. Mexico […] noted with satisfaction the amendments to the Penal Code to decriminalize consensual sexual relations between same-sex adults.
V. Conclusions and/or recommendations
Palau noted the following recommendations:
104.80 Introduce comprehensive anti-discrimination legislation, including discrimination based on sexual orientation or gender identity (Netherlands);
104.81 Legislate in order to permit marriage between persons of the same sex (Spain);
104.82 Extend existing legislation to protect the rights of the lesbian, gay, bisexual, transgender and intersex community, including the recognition of same sex couples and anti-discrimination employment laws (United Kingdom of Great Britain and Northern Ireland);
104.83 Adopt measures to ensure that lesbian, gay, bisexual, transgender and intersex persons are no longer victims of discriminatory provisions (France);
104.84 Consider establishing explicit legislation or policies that prohibit discrimination based on sexual orientation or gender identity (Israel);
104.85 Take all the necessary measures to eliminate discrimination based on sexual orientation and gender identity (Mexico).
VI. Further information
You will find all documents relating to Palau’s second review at UPR-Info and OHCHR’s websites.