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.