A/HRC/43/55 C. Article 5 59. The Chair-Rapporteur, introducing article 5, on prevention, said that the provisions on human rights due diligence now focused on conduct rather than results, drawing on the text and the spirit of the Guiding Principles on Business and Human Rights. He emphasized that such diligence would be met only through genuine efforts and ongoing impact assessments, as opposed to a one-off “check list” exercise. He also highlighted the inclusion in the article of an open-ended list of measures States might adopt, as minimum standards, to assist and encourage businesses to conduct human rights due diligence. He stressed that those measures should include an evaluation mechanism of such measures. 60. Several delegations and non-governmental organizations emphasized the importance of including an article on prevention, believing it to be one of the key components of the legally binding instrument. It was noted that preventing harm in the first place was preferable to attempting to remedy it after the fact. However, some delegations voiced concern about how article 5 was currently drafted. In their view, the article was too prescriptive, creating too many State obligations while restricting States’ flexibility with regard to the best means of implementing those obligations. At the same time, other delegations and organizations contended that the article was too vague and broad and would need to be made more precise, particularly if there was an intention to link criminal penalties to it. 61. Several delegations discussed the need for a clear link between article 5 and article 6, on legal liability. Some delegations and many non-governmental organizations stressed the need for there to be adequate sanctions for those companies that failed to conduct human rights due diligence in accordance with article 5. However, at least one delegation and one business organization argued that, in the revised draft, the current standard of establishing liability for the failure to prevent another entity’s harm could be unfair to companies, which could potentially be subject to liability despite doing everything in their power to comply with article 5. It was argued that the working group should fine-tune articles 5 and 6 to create the proper incentives to prevent harm. 62. Various suggestions were made for improving article 5. Several delegations and organizations called for the phrase “contractual relationships” to be replaced with “business relationships”. It was argued that such a change would increase the scope of protection and would bring the revised draft legally binding instrument into better alignment with the Guiding Principles on Business and Human Rights. Some delegations called for greater alignment of that article with the language of Council resolution 26/9. One delegation recommended removing all references to “violations” in the text and referring only to “human rights abuses”. Additionally, there were calls to include reference to gender-responsive assessments, unilateral sanctions, immitigability and procedural rights of plaintiffs, such as in relation to participation and injunctive relief. 63. One delegation questioned the added value of the first sentence of article 5 (1), noting that States already regulated the activities of companies within their territory and jurisdiction. Some other delegations argued for strengthening the provision to make it clear that States had an obligation to regulate companies both in home and host States. 64. On article 5 (2), it was noted that there was room for greater alignment with the Guiding Principles on Business and Human Rights. For instance, one business organization highlighted that the article should take into account consideration for the different sizes and capacities of different entities. However, one regional organization and one delegation warned that transferring concepts from a set of guiding principles directly into a legal document could risk changing the meaning of certain concepts. 65. With respect to article 5 (3) (a), some delegations suggested removing the reference to environmental impact assessments. However, other delegations and organizations argued that such assessments were important and should remain in the document. Additionally, one delegation recommended adding a reference to social and economic impact assessments. 66. While some delegations appreciated the reference to consultations with indigenous peoples in article 5 (3) (b), another delegation noted that the provision diverged from the accepted language found in the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 11