History of Environmental Law and IP Law, National and International

1. International environmental law: four phases

(a) Before 1972: neighbour disputes and conservation treaties. The Bering Sea Fur Seal arbitration (1893) refused the US a right to protect seals on the high seas. The Trail Smelter arbitration (United States v. Canada, awards of 1938 and 1941) held that no state may use or permit the use of its territory so as to cause serious injury by fumes in the territory of another: the first statement of the “no harm” principle. The ICJ’s Corfu Channel case (1949) stated a general duty not to allow one’s territory to be used against the rights of other states. Treaties were sectoral: birds, whaling, oil pollution at sea.

(b) Stockholm, 1972. The UN Conference on the Human Environment produced the Stockholm Declaration, an Action Plan and the UN Environment Programme (UNEP) at Nairobi. Principle 21 turned the Trail Smelter rule into a general principle. The 1970s brought the Ramsar Convention on wetlands (1971), the World Heritage Convention (1972), CITES (1973) and MARPOL (1973).

(c) Brundtland to Rio, 1987–1992. Our Common Future (1987) defined sustainable development. The ozone regime (Vienna Convention 1985, Montreal Protocol 1987) showed that a global problem could be solved by treaty, and its Multilateral Fund paid for developing countries to switch technology. The Basel Convention (1989) controlled hazardous waste. At Rio in 1992 the UNFCCC, the CBD, the Rio Declaration, Agenda 21 and the Forest Principles were adopted.

(d) After Rio: implementation. The Kyoto Protocol (1997), the Cartagena Protocol on Biosafety (2000), Johannesburg (2002), the Nagoya Protocol (2010), Rio+20 (2012), the SDGs and the Paris Agreement (2015), the Kunming-Montreal Global Biodiversity Framework (2022), and the 2023 Agreement on marine biodiversity of areas beyond national jurisdiction (BBNJ), which has its own benefit-sharing rules for marine genetic resources and digital sequence information. The last two bring environmental law straight into IP territory.

2. Indian environmental law

Ancient and medieval. The Arthashastra prescribed penalties for harming trees and animals; Ashoka’s fifth pillar edict listed protected species. These were ideas of duty and royal regulation.

Colonial. Colonial law treated forests as revenue: the Indian Forest Acts of 1865, 1878 and 1927 brought forests under state control and curtailed the customary rights of forest communities. Pollution was handled through nuisance: the Shore Nuisance (Bombay and Kolaba) Act 1853, the Oriental Gas Company Act 1857, the public nuisance and water-fouling offences of the IPC 1860 (now in the BNS) and the magistrate’s nuisance power in section 133 CrPC (carried into the BNSS). The Wild Birds and Animals Protection Act 1912 was the first wildlife law.

After independence and Stockholm.

1. Wild Life (Protection) Act, 1972.
2. Water (Prevention and Control of Pollution) Act, 1974, setting up the pollution control boards.
3. The Constitution (Forty-second Amendment) Act, 1976: Articles 48A and 51A(g); forests and wild animals moved to the Concurrent List.
4. Forest (Conservation) Act, 1980 and Air (Prevention and Control of Pollution) Act, 1981, whose preamble cites the Stockholm decisions.
5. The Bhopal gas leak (December 1984) led to the Environment (Protection) Act, 1986 and the Public Liability Insurance Act, 1991.
6. Judicial activism: Municipal Council, Ratlam v. Vardhichand, 1980 INSC 138, used the criminal nuisance power to make a municipality build drains; the 1980s and 1990s PIL cases read environmental protection into Article 21.
7. Biological Diversity Act, 2002, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and the National Green Tribunal Act, 2010.
8. Recent changes: the Forest (Conservation) Amendment Act 2023, the Biological Diversity (Amendment) Act 2023 and the Jan Vishwas Act 2023, which replaced several environmental offences with civil penalties.

3. IP law, international

Two features of the history matter for this paper. First, every early IP law gave a reason in the public interest (“encouragement of learning”, “progress of science”), so IP was always an instrument, not an end. Second, the rich countries industrialised under weak protection: the Swiss had no chemical patents until the twentieth century and the US ignored foreign copyright for much of the nineteenth. TRIPS removed that freedom for later developers.

4. IP law in India

1. Act VI of 1856, the first patent law; then Act XV of 1859, the Patents and Designs Protection Act 1872 and the Inventions and Designs Act 1888.
2. The Indian Patents and Designs Act, 1911, under which foreign firms held most patents and few were worked in India.
3. The Copyright Act, 1914 extended the UK Act of 1911; the Trade Marks Act, 1940.
4. The Tek Chand Committee (1948–50) and the Ayyangar Report (1959), which found that the 1911 Act had not helped Indian industry and recommended process-only patents for food, medicine and chemicals.
5. The Patents Act, 1970 (in force 1972): process patents only for those fields, a short term, and licences of right. Indian generic industry grew under it.
6. The Copyright Act 1957 and the Trade and Merchandise Marks Act 1958.
7. After TRIPS: amendments to the Patents Act in 1999, 2002 and 2005 (product patents with section 3(d)); and new statutes in 1999–2002 on trade marks, GIs, designs, semiconductor layouts, plant varieties and biodiversity.
8. The Tribunals Reforms Act, 2021 abolished the Intellectual Property Appellate Board; appeals now go to the High Courts.

5. Where the three histories meet

Until the 1980s the three bodies of law ran separately: human rights in Geneva and New York, IP at WIPO, environment at UNEP. Three things joined them.

• Biotechnology. Diamond v. Chakrabarty (US Supreme Court, 1980) allowed a patent on a genetically engineered bacterium. Living matter became patentable, so seeds, genes and medicinal plants became objects of IP, and the communities who had bred and used them asked for a share (the CBD of 1992 and the farmers’ rights debate at FAO from 1989).
• Trade linkage. The Uruguay Round (1986–1994) moved IP from WIPO to the trade system. TRIPS bound developing countries to patent medicines and protect plant varieties.
• Public health. The HIV/AIDS crisis of the late 1990s made the price of patented drugs a human rights issue. The UN Sub-Commission’s Resolution 2000/7 noted actual or potential conflicts between TRIPS and economic, social and cultural rights; the Doha Declaration followed in 2001.

How this is examined

Likely long questions: “Trace the history of environmental legislation in India,” “Discuss the evolution of international environmental law from Stockholm to Paris,” or “Examine the historical development of IP laws in India.” Short notes: Trail Smelter; the Ayyangar Committee; the Statute of Monopolies; the impact of the Bhopal disaster on environmental law. In a long answer, give phases rather than a list of statutes, and end with the convergence in section 5, which is what this paper is about.