International human rights law (‘IHRL’) provides minimum standards which states must observe in their treatment of individuals under their jurisdiction. In this respect, it differs from many other areas of international law which focus on regulating international relations between states. The human rights recognised in international instruments are considered to be fundamental rights which all human beings are entitled to enjoy, regardless of their personal circumstances or the state in which they reside.

The Hong Kong S.A.R. enjoys delegated treaty powers and relations and has in this sense ‘its own’ treaty regime; it retains on top of that certain colonial treaty features which were present before the handover, such as the continued application of the provisions of the International Covenant on Civil and Political Rights or ‘ICCPR’ notwithstanding that the PRC is not party to the ICCPR; finally, certain PRC treaties nonetheless apply to Hong Kong while Hong Kong is at the same time exempt or excluded from other PRC treaties. That at least was what the PRC and the UK agreed. Insofar as the application of PRC multilateral treaties to Hong Kong is concerned, these have been notified to third countries through a letter by the PRC to the United Nations Secretary–General as treaty depository.

This chapter provides a summary of the key arguments made in this book. Crucially, the regulatory theory of patent law, which adopts a socio-centric approach to patent law, permits the incorporation of a model of human rights into a country’s patent law system. The model of human rights demands that any regulatory instrument implemented by a state must not constitute a breach of its international human rights obligations. The incorporation of a model of human rights into the design, implementation, interpretation, and enforcement of their national patent laws will help developing countries to preserve their patent policy space and secure access to affordable medicines for poor patients in their countries.

This chapter begins by introducing the problem of access to affordable medicines in developing countries. It describes the patent policy space available to states prior to the adoption of the TRIPS Agreement and the attempts made by developing countries to reclaim their patent policy space after the adoption of the TRIPS Agreement via the Doha Declaration on the TRIPS Agreement and Public Health. It notes that the Doha Declaration only yielded marginal gains in the form of the confirmation of the flexibilities that are already contained in the TRIPS Agreement and the introduction of a waiver system that is more burdensome and less beneficial. Nevertheless, the chapter contends that paragraph 4 of the Doha Declaration provides a linchpin that developing countries can use to preserve their patent policy space as it sanctions the incorporation of a right to health perspective, and invariably the incorporation of a model of human rights, into the design, implementation, interpretation, and enforcement of their national patent laws. The chapter also presents a roadmap for the rest of the book.

This chapter answers two key questions, integral to the issues addressed in this book. First, are patent rights human rights under international human rights law? Second, is the incorporation of a model of human rights compatible with the TRIPS Agreement? The answers will determine whether developing countries can successfully incorporate a model of human rights into the design, implementation, interpretation, and enforcement of their national patent laws. Section 3.2 examines the human right to health under international law. Section 3.3 provides an analysis of the nature of the relationship between patent rights and the right to health under international human rights law and answers the first key question. Section 3.4 examines the extent to which the TRIPS Agreement permits developing countries to fulfil their right to health obligations and answers the second key question. The chapter concludes with the view that patent rights should not be considered as human rights under international human rights law and that the model of human rights is compatible with the TRIPS Agreement. Thus, there is nothing that prohibits a developing country from insisting on the primacy of human rights obligations when attempting to resolve the tension between patent rights and the right to health at the national level.

With its November 2002 adoption, General Comment (GC) No. 15 on the Right to Water of the ICESCR provided an authoritative base upon which states could better implement their obligations, and individuals and communities could more effectively advocate for the fulfillment of their right to water – and, in doing so, closed a significant gap in human rights law. This chapter forms the book’s empirical entry point into the TLC in practice by showing one such coalition as this story’s protagonist. More specifically, the chapter draws on novel data sources from interviews, background talks, and archival research to reconstruct GC No. 15’s drafting process – telling the story of how water became a human right – to ultimately unearth the TLC and the various aspects of its lawmaking agency in a specific case. Shown with an insular drafting core that both coalesces around a single CESCR member and comprises a select few non-UN technical and legal experts who become involved with great autonomy, the TLC detailed here contours the theoretical expectations advanced in the preceding chapter.

Chapter Five charts human dignity in its second constitutive stage, characterized by the rise of international human rights law. Its first expressions in the 1920s (which echoed developments in connection with slave trade and slavery in the nineteenth century) and later in 1944 (with the Philadelphia Declaration), must be considered in the light of the decisive adoption of the Universal Declaration on Human Rights, in 1948, and the adoption of the Convention against Genocide later that year. But it is difficult to consider these entry points, however important, as sufficient for the consolidation of human dignity in the form of human ‘rights’. In earnest, the consolidation process was not completed until the adoption of the two human rights Covenants in 1966, the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR).

It seems easy to assert that every human being is entitled to food security. Besides article 11 of the International Covenant on Social and Economic Rights (ICESCR), a plethora of international documents contain authoritative statements to this effect. Yet, the evolution of right to food (RTF) into a justiciable right at the national level has been met with several challenges. Even in cases where this right has been guaranteed in the constitution, one has to admit that there are neither efficient mechanisms to ensure its effective operationalisation nor clear steps to be followed by the state for its fulfilment. In the case of South Africa, the RTF is generally recognised as a fundamental right. Nevertheless, over the last two decades this right has not been translated into a well-defined entitlement with corresponding state responsibility. The chapter concludes by recommending that in light of the prevalent food insecurity at the household and individual levels, it is imperative that (quasi)judicial bodies adopt a creative interpretation of the Constitution and relevant international instruments to hold the state accountable for breaching section 27 of the Constitution and the ICESCR.

When Charles de Gaulle learned that France’s former colonies in Africa had chosen independence, the General shrugged dismissively: ‘[t]hey are the dust of empire’. This disdain toward the non-Euro others characterised as Eurocentrism is typical of, and almost defines approaches to, the post-Westphalian order. This disdain is naturalised in the early era of what I have elsewhere called ‘conquest colonisation’, where resources, territories, nations and even people are plundered and looted, and governance by predation and the politics of discrimination prevail. Paradigmatically, conquest globalisation engages in ruthless subjugation of peoples marked by the altogether resolute denial of their humanity and confiscation of their natural habitat, social relations and human resources. At times, it even entails the total physical destruction of peoples, or cultural destruction, as the histories of indigenous peoples everywhere testify. Conquest globalisation founds itself on, and takes pride in, reiterating and calibrating various forms of production of human rightlessness of the subjugated peoples.