Due diligence and ABS compliance under EUR 511/2014: a LSE INMARE recommendation

Due diligence has a stable if malleable, presence in international law often starting as soft law guidance that over time hardens into legal rules and principles. While it is possible to refer to elements of due diligence broadly, the exact scope of the concept depends on the regulatory or international law context in which it is used – such as environmental law, human rights related to responsible business conduct, the elimination of violence against women, or rules around the supply of conflict minerals. The EU has chosen due diligence as the vehicle to support and balance the effective implementation of benefit-sharing commitments set out in EUR 511/2014. While one of the stated aims of the EUR is related to ‘improving conditions for legal certainty in connection with the utillisation of GR and ATK’ the evolving nature of access and benefit-sharing (ABS) related behavior necessitates principles that can guide individuals and institutions when faced with unprecedented circumstances. There are three critical and interconnected reasons that drive the need for this Recommendation. First due diligence lends itself well to constructive ambiguity that can be harnessed to build consensus around best practices. Secondly due diligence as a positive obligation is separate from the underlying responsibility to follow ABS rules in provider countries. Thirdly, if due diligence is not tethered to the foundational responsibility to respect ABS rules, it may encourage ‘tickbox’ compliance that will frustrate the purpose of the Nagoya Protocol and the international consensus achieved under the Convention of Biological Diversity. This document is presented as a first guide to developing principles of due diligence that are specific to the access and benefit-sharing context in international law and as a guide to scientists, universities, technology managers and businesses navigating the line between legally required and ethically aspirational behavior. It is hoped that the community will return to this document to update and consolidate practices over time. The Recommendation is the product of a Symposium on the Use and Circulation of Genetic Resources, conducted on the 11 and 12th of September at the London School of Economics. All participants are co-producers of this document. The Principles were informed by the results of a survey on 98 EU users of genetic resources and associated traditional knowledge. The project is led by Dr Siva Thambisetty Associate Professor of Law, LSE and was developed as part of the INMARE project funded by EU Horizon 2020