A/HRC/40/48 something easier to prove in practice. There were also calls for clarification as to what crimes were being referred to in the provision. An NGO cautioned that the principle of legality could be violated if the crimes were not defined with sufficient clarity. 70. Many delegations voiced concern about the inclusion of universal jurisdiction in article 10 (11). There were several requests for clarity as to the scope of the crimes covered by the provision. It was pointed out that universal jurisdiction was a very controversial subject with no common agreement, and that it had been abused by some States in the past; thus, in their view, it was better to remove any reference to it. Other delegations acknowledged those concerns and suggested deferring to other processes or experts on the matter (such as the General Assembly’s Sixth Committee or the International Law Commission). One delegation asked why the provision appeared in article 10 rather than article 5, which was on jurisdiction. 71. In general, delegations seemed to approve of articles 11 and 12, considering them to have a foundation in existing international law and to be important for the future instrument. Some delegations, however, expressed concern about article 11, in particular its obligatory nature, its lack of sufficient regard for the difficulties developing countries might have in implementing it and the imbalance regarding procedural rights for defendants. One State suggested incorporating a dual-criminality component in some provisions to ensure that the article would not be abused. With respect to article 12, some delegations suggested including references to the Charter of the United Nations and the Guiding Principles, addressing crossborder issues more explicitly and allowing transnational corporations and other business enterprises to join international cooperation efforts. E. Articles 3 and 4 72. The Chair-Rapporteur said that the previous working group discussions had informed the wording of articles 3 and 4. In article 3, a broad approach, in which reference was made to all human rights recognized internationally and domestically, had been chosen, to account for disparities among legal systems. The draft had also retained, and strengthened, the approach adopted in the third session – namely, the focus on “activities of a transnational character”. That term, defined in article 4, includes, notably, activities undertaken by electronic means. In the same article, the term “victims” is defined in broad terms so as to include the immediate family or dependants of the direct victim. 73. Although delegations indicated that articles 3 and 4 were necessary, there were divergent views as to what they should consist of. With respect to article 3 (1), many States and organizations insisted that the instrument cover all business enterprises, regardless of whether they engaged in transnational activities, noting that such an approach would be consistent with the Guiding Principles. In their view, what was important was the seriousness of the human rights impact, not the type of activity or nature of the company. Some delegations called for the instrument to cover only transnational corporations. Several other delegations were of the view that the approach taken in the draft, in which the focus was on the transnational character of business activities, was a fair compromise that was consistent with the footnote to resolution 26/9 and should satisfy those who wanted the instrument to cover more than just transnational companies. Yet other delegations disagreed, arguing that such an approach was vague and potentially too broad. In addition to the issue of scope, some delegations and organizations reasserted their position that it was inappropriate to refer to “violations” when referencing business activity. It was suggested that the draft should refer instead to “abuses” or “adverse human rights impacts”. 74. Many delegations and some organizations sought clarity regarding the meaning of the words “all international human rights and those rights recognized under domestic law”, which appeared in article 3 (2). Some delegations were of the view that such a formulation could be understood to impose obligations on States that they had not consented to and that States could thus be averse to signing the future instrument. Those delegations suggested moving that language to the preamble or changing the text to read “all treaties adopted by States”. Other delegations considered the formulation in the draft to be too broad and open to differing interpretations, thus potentially causing implementation problems. It was 13