Most of the countries of the Commonwealth still criminalize sexual acts between consenting adults of the same sex and other forms of sexual orientation, gender identity and expression. These laws, introduced in most Commonwealth countries in the 18^th century, are heritage of the colonial period, as recently highlighted by the High Court of Delhi, India, in the judgment that struck down section 377 of the Indian penal code punishing sexual activities ‘against the order of nature.’

In 1994 the Human Rights Committee in Toonen v. Australia established that such kind of criminal provisions violate the principle of non discrimination and the right to privacy as enshrined in the International Covenant on Civil and Political Rights, therefore constituting a violation of basic human rights as recognized by international law.

Similarly, other criminal provisions introduced in the same period by the colonial power punish non-normative expression of gender, such as provisions criminalizing cross-dressing, as exists in Guyana, for example, where there was a series of crackdowns against male-to-female transgender persons for cross-dressing in February of this year. In some countries, despite national and international campaigns on non-discrimination on the basis of sexual orientation, gender identity and expression by human rights activists, further legislatures and laws are being introduced to criminalize non-normative behaviors and identities.

As human rights activists have witnessed in the recent years, these provisions have constituted the pretext for any form of human rights violation based on individuals real or perceived sexual orientation and gender identity or expression, such as arbitrary arrests, police abuses, infringement of the right to fair trial, limitation to the right to freedom of association and assembly, inhuman and degrading treatment, among others. Such laws have been proven to negatively impact HIV/AIDS education and prevention.

Crackdowns against individuals, human rights activists or civil society organizations in several Commonwealth countries further raise concerns in terms of respect of individuals’ human rights and freedom of association, regardless of sexual orientation, gender identity and expression.

What do you think the role of the Commonwealth should be in ensuring that fundamental human rights of every individual are protected and to redress a sensitive issue that, for historical reasons, mostly affects Commonwealth countries?

Sir Malcolm Rifkind MP, former UK Foreign Minister, discusses the strengths of the Commonwealth and the challenges facing it as part of the Commonwealth Conversation.

What do you think are the Commonwealth’s core strengths?

I think there are remarkable strengths because of the uniqueness of the Commonwealth. There are organisations which cover the whole world, like the United Nations obviously, there are those which cover only specific regions, like the European Union or ASEAN or the African Union. But the Commonwealth, uniquely, has countries from every part of the world, every ethnic group, every geographical location, with certain common values, common historical ties, and that provides an unprecedented opportunity for a dialogue the fact that doesn’t exist elsewhere.

What key issues do you think the Commonwealth should be focusing on?

I don’t think the Commonwealth should try to become a power block, I don’t think it should try to resolve the world’s problems. But I think it has two great strengths. First of all it’s a forum for dialogue, informal dialogue amongst people who are basically friends but who share certain values. And I think when individual countries in the Commonwealth have very serious problems, Zimbabwe is the obvious case in point, then the Commonwealth can use its good offices to try to achieve a peaceful but proper solution to these problems because it’s able to do so from a disinterested background and that gives it an authority and an importance that is very valuable.

How would you like to see the Commonwealth evolve over the next 60 years?

I think the fact that the Commonwealth has survived for 60 years is itself remarkable because after all it’s the product of the British Empire and parts of the British Empire were glad that it ceased to be an Empire. So the fact that all these countries have chosen, on a completely voluntary basis, to remain linked together, suggests that they each must find that their own national interests and their own national values are served, are assisted, are advanced by membership of the Commonwealth. Now if that’s true and has been true over the last 60 years, which should have been the most difficult period because it was the period of decolonisation, then it should be much easier now with all the countries concerned equal members, equal independent nations within the Commonwealth to survive for many years to come. When we see countries like India, which is clearly going to become one of the great powers of the world over the 60 years that we’ve mentioned, then the Commonwealth is very fortunate to have that as part of its own structure.

What do you see the key challenges being that face the Commonwealth in the 21^st century?

I?m not going to try and predict what’s going to happen in the 21^st century, imagine a hundred years ago trying to predict what would have happened in the 20th we wouldn’t of got it right, we’ll have to wait and see. We already know some of the problems obviously are going to be climate change, population issues, demographic problems, issues of that kind, possibly nuclear proliferation; these are issues already emerging. But as for now, what the problems will be in fifty years time we be left for future generations to address.