A/HRC/40/48 11. Some delegations and observer organizations referred to regional and international standards and initiatives relevant to business and human rights, stressing the importance of building upon the work that had already been undertaken. Reference was made to International Labour Organization conventions, the Guidelines for Multinational Enterprises of the Organization for Economic Cooperation and Development (OECD), European Union regulations and directives, and the work of OHCHR (its Accountability and Remedy Project in particular) and the Working Group on the issue of human rights and transnational corporations and other business enterprises. Some delegations and organizations affirmed the importance of the Guiding Principles and emphasized that the draft instrument must build on and borrow from them. Although several delegations recognized the influence of the Guiding Principles on the draft instrument, others pointed out the lack of any explicit reference to them in the draft. Two business organizations explained that they did not support the draft instrument or the draft protocol for many reasons; in their view, the drafts undermined and diverged from the accepted approach taken in the Guiding Principles. 12. The majority of the discussion centred on the draft instrument itself. Many delegations considered the draft to be a good starting point for negotiations and a major improvement on the elements document that had been the basis for discussions at the working group’s third session. The recognition in the draft that the primary responsibility to promote, respect, protect and fulfil human rights and fundamental freedoms lay with States was especially welcome. While many delegations noted approvingly that the draft imposed obligations on States only, some delegations asked whether that was actually the case. One delegation pointed out, for instance, that, throughout the draft, there were references to human rights “violations” committed in the context of business activities and insisted that the word “violations” referred to breaches of obligations. In its view, it would be more accurate to refer to human rights “abuses” if the direct obligations of companies were not being discussed in the draft. Another delegation and several NGOs considered it unproblematic to impose direct obligations on companies under international law and expressed the hope that the future instrument would establish such obligations. 13. There were some calls by delegations and observer organizations for more clarity and precision in the language of the draft, given its legal nature. The articles covering the scope, definitions, jurisdiction, applicable law, rights of victims, legal liability and international cooperation were specifically mentioned in that regard. A regional organization reserved its position on the draft. It stated that the added value of any possible legally binding instrument should be to enhance the protection of and respect for human rights and ensure a level playing field for companies globally. The organization noted that it was reflecting on what type of legally binding instrument would stand the best chance of achieving that level playing field. Some delegations also reserved their position on the draft as a whole, arguing that it risked jeopardizing the ongoing efforts to ensure that the Guiding Principles were followed. One delegation noted that many provisions in the draft merely restated general obligations and principles of international law. It suggested that those provisions could be removed to avoid unnecessary duplication. 14. Specific provisions of the draft were also addressed during the general discussion. Many delegations and organizations commented on the scope of the instrument, that is, the companies to be covered under it. They argued that the scope was too narrow, because only companies with transnational activities were to be regulated. It was noted that the structure or nature of a company was irrelevant to victims, who should be entitled to access to remedy regardless of the kind of company committing the abuse. In addition, many transnational corporations owned or had relationships with strictly domestic companies, making it difficult to differentiate between transnational and national companies in practice. It was thus suggested that all companies be covered by the future instrument (although some argued that resolution 26/9 restricted the scope to transnational corporations alone). Some delegations and observers also expressed concern about the limitation of the draft’s scope to companies involved in for-profit economic activity, as that limitation, they argued, would exclude from the scope many companies responsible for documented abuses, such as State-owned enterprises. Two delegations suggested that developing countries be given special consideration, and that State-owned enterprises, as well as micro-businesses and small businesses in those countries, be subject to more lenient treatment. 5