Is the Commonweath ready for an Aids-free generation?

Last week the European Parliament agreed on a new law to provide specific assistance and protection to people who suffer crime because of their sexual orientation, gender identity or, in a first for EU law, gender expression.

Can we expect the Commonwealth to adopt such a progressive approach on HIV and human rights issues? The annual meeting of the Commonwealth Foreign Ministers, coming up soon in New York, normally attracts attention for its economic and political agenda. But among the HIV/Aids community, populations vulnerable to the infection and human rights activists, concern is centered on the fate of certain recommendations relating to the Commonwealth’s legal reform process.

According to the International HIV/Aids Alliance, for whom I act as a Trustee, the 54 Commonwealth countries account for 30 per cent of the world’s population and for 60 per cent of global HIV prevalence which shows the disproportionate nature of risk factors present in these societies. Evidence has proved that much of the HIV-related transmission occurs among sex workers and their clients, men who have sex with men (MSM), the transgender community and people who inject drugs.

Evidence has also shown that without engaging with these populations with prevention and treatment services, new HIV infections will not be brought down. This is true too of hyper epidemic countries in Africa as a substantial share of new infections occurs among these vulnerable groups. Vulnerable populations do not exist in isolation but are intrinsically linked socially and sexually with the general population creating an epidemiological link between different sections of society.

While some Commonwealth countries have seen a steady decline in new infections in the past few years, it is not fast enough to turn the Aids epidemic around and stop its spread. Many will fail to achieve the Millennium Development Goal (MDG) six of halting and reversing the epidemic by 2015.

A serious obstacle for reducing infection rates among vulnerable communities is the adverse legal environment they face which criminalises their behaviour and makes them a target for harassment and violence at the hands of law enforcers in most Commonwealth countries. All but six of these countries still classify same sex conduct as illegal. Since the first UN General Assembly Special Session on Aids the international community and UN member states have repeatedly called for amendment of laws that criminalise the behaviour of vulnerable populations to protect their human rights and fundamental freedoms, in particular access to health care and legal protection. But very little progress on reform has been reported from many Commonwealth countries in the last decade.

The Global Commission on HIV and the Law recently presented incontrovertible evidence that criminalization enhances HIV-related risks among men who have sex with men and transgender populations in Commonwealth countries. In Commonwealth countries in the Caribbean, one in four MSM are infected with HIV while in non-Commonwealth countries the ratio is one to fifteen.

Section 377 stands for criminalization of same sex relations in most of the penal laws of Commonwealth countries of Asia. Transgender people are denied acknowledgement as legal persons and their gender is unrecognized. Acts of sexist violence are committed against them while police stand by. Sex work is criminalized in most of the Commonwealth countries despite compelling evidence that sex workers are 14 times more vulnerable to HIV than other women.  When it comes to drug policy, laws do not differentiate between a drug user and drug trafficker and the war on drug campaigns too often end up as a war on drug users.

The Commission has called upon governments to take immediate action to repeal or amend outdated legislations criminalizing HIV transmission and the behaviours of vulnerable populations. Police and law enforcement machinery must be reined in and asked to protect human rights and guarantee access to HIV-related prevention, treatment and care

The report received strong endorsement from the UN Secretary-General, the heads of UNDP and UNAIDS and many civil society organisations around the world who called for a time bound implementation of the Commission recommendations.

In this context, the upcoming meeting of the Commonwealth Foreign Ministers assumes great significance. Following the Perth meeting of the Heads of Governments of Commonwealth (CHOGM) countries last year, a Ministerial Task Force was asked to develop 44 recommendations and present them for approval. Some have great social relevance like the repeal of discriminatory laws that impede an effective response to the HIV epidemic and the establishment of a Commonwealth Commissioner for Democracy, the Rule of Law and Human Rights.

Whether these recommendations actually make their way into the discussions is another matter.  Civil society organisations and vulnerable communities within the Commonwealth are concerned that the Aids agenda risks being put on the back burner at a time when determined action by these countries could lead us towards an Aids-free generation.

There is still time for the Commonwealth to lead by example and take decisive action to address the legal and structural barriers currently impeding the global HIV response, thereby changing the course of the epidemic once and for all.

Prasada Rao is the UN Secretary General’s Special Envoy on Aids in the Asia Pacific region. He is former Permanent Secretary for Health and Family Welfare in Government of India and former Regional Director of UNAIDS in Asia and the Pacific. He is also a Trustee of the International HIV/Aids Alliance which works to support community action on HIV and AIDS in developing countries.

Sex workers chat to outreach workers at an outdoor café during a street shift in Kuala Lumpur, Malaysia. Photograph: International HIV/AIDS Alliance
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After Article 50 is triggered, what happens next?

The UK must prepare for years, if not decades, of negotiating. 

Back in June, when Europe woke to the news of Brexit, the response was muted. “When I first emerged from my haze to go to the European Parliament there was a big sign saying ‘We will miss you’, which was sweet,” Labour MEP Seb Dance remembered at a European Parliament event in London. “The German car industry said we don’t want any disruption of trade.”

But according to Dance – best known for holding up a “He’s Lying” sign behind Nigel Farage’s head – the mood has hardened with the passing months.

The UK is seen as demanding. The Prime Minister’s repeated refusal to guarantee EU citizens’ rights is viewed as toxic. The German car manufacturers now say the EU is more important than British trade. “I am afraid that bonhomie has evaporated,” Dance said. 

On 31 March the UK will trigger Article 50. Doing so will end our period of national soul-searching and begin the formal process of divorce. So what next?

The European Parliament will have its say

In the EU, just as in the UK, the European Parliament will not be the lead negotiator. But it is nevertheless very powerful, because MEPs can vote on the final Brexit deal, and wield, in effect, a veto.

The Parliament’s chief negotiator is Guy Verhofstadt, a committed European who has previously given Remoaners hope with a plan to offer them EU passports. Expect them to tune in en masse to watch when this idea is revived in April (it’s unlikely to succeed, but MEPs want to discuss the principle). 

After Article 50 is triggered, Dance expects MEPs to draw up a resolution setting out its red lines in the Brexit negotiations, and present this to the European Commission.

The European Commission will spearhead negotiations

Although the Parliament may provide the most drama, it is the European Commission, which manages the day-to-day business of the EU, which will lead negotiations. The EU’s chief negotiator is Michel Barnier. 

Barnier is a member of the pan-EU European People’s Party, like Jean-Claude Juncker and German Chancellor Angela Merkel. He has said of the negotiations: “We are ready. Keep calm and negotiate.”

This will be a “deal” of two halves

The Brexit divorce is expected to take 16 to 18 months from March (although this is simply guesswork), which could mean Britain officially Brexits at the start of 2019.

But here’s the thing. The divorce is likely to focus on settling up bills and – hopefully – agreeing a transitional arrangement. This is because the real deal that will shape Britain’s future outside the EU is the trade deal. And there’s no deadline on that. 

As Dance put it: “The duration of that trade agreement will exceed the life of the current Parliament, and might exceed the life of the next as well.”

The trade agreement may look a bit like Ceta

The European Parliament has just approved the Comprehensive Economic and Trade Agreement (Ceta) with Canada, a mammoth trade deal which has taken eight years to negotiate. 

One of the main stumbling points in trade deals is agreeing on similar regulatory standards. The UK currently shares regulations with the rest of the UK, so this should speed up the process.

But another obstacle is that national or regional parliaments can vote against a trade deal. In October, the rebellious Belgian region of Wallonia nearly destroyed Ceta. An EU-UK deal would be far more politically sensitive. 

The only way is forward

Lawyers working for the campaign group The People’s Challenge have argued that it will legally be possible for the UK Parliament to revoke Article 50 if the choice is between a terrible deal and no deal at all. 

But other constitutional experts think this is highly unlikely to work – unless a penitent Britain can persuade the rest of the EU to agree to turn back the clock. 

Davor Jancic, who lectures on EU law at Queen Mary University of London, believes Article 50 is irrevocable. 

Jeff King, a professor of law at University College London, is also doubtful, but has this kernel of hope for all the Remainers out there:

“No EU law scholar has suggested that with the agreement of the other 27 member states you cannot allow a member state to withdraw its notice.”

Good luck chanting that at a march. 

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.