Re-righting the international tax rules: operationalising human rights in the struggle to tax multinational companies

ABSTRACT

Who finances government, and how, is foundational to realising human rights for all, without discrimination. This is especially pertinent during the COVID-19 pandemic, which is only exacerbating health and economic disparities. This article reviews what a national human rights-aligned tax policy would look like, and then dissects how the international tax rules currently impede individual States, and particularly low- and middle- income countries, to bring their national tax policies in line with human rights. The authors then discuss how international human rights law, including the UN Guiding Principles on Human Rights Impact Assessments of Economic Reforms, can provide a stronger normative foundation to curb harmful tax competition and help resolve disputes over the right to tax multinational companies. Given the paucity of practical tools to embed human rights norms into the process and substance of reforming international tax policies, the authors then develop a set of assessment questions to help operationalise human rights norms into current efforts to re-write the international tax rules.

KEYWORDS:

• Human rights
• tax
• inequality

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes on contributors

Olivier De Schutter is Professor at UCLouvain and SciencesPo and the UN Special Rapporteur on Extreme Poverty and Human Rights.

Nicholas J. Lusiani is Senior Advisor at Oxfam, formerly Director of the Economic Policy program at the Center for Economic and Social Rights.

Sergio Chaparro is Program Officer at the Center for Economic and Social Rights.

Notes

1 In the past few years, the Committee on Economic, Social and Cultural Rights (CESCR) has consistently recommended State Parties to take the measures needed to ensure that its tax policy is socially just. See CESCR, Concluding observations: Paraguay, 20 March 2015, E/C.12/PRY/CO/4, para. 10; CESCR, Concluding observations: Spain, 25 April 2018, E/C.12/ESP/CO/6, para. 16.b; CESCR, Concluding observations: Burundi, 15 Oct 2015, E/C.12/BDI/CO/1, para. 1(4).

2 Juan Pablo Bohoslavsky, Guiding Principles on Human Rights Impact Assessments of Economic Reforms: Report of the Independent Expert on the Effects of Foreign Debt and Other Related International Financial Obligations on the Full Enjoyment of Human Rights, Particularly Economic, Social and Cultural Rights, Report to the Human Rights Council. UN. Doc. A/HRC/40/57 (19 December 2018).

3 General Comment No. 3 (1990): The nature of States parties’ obligations (E/1991/3), Annex III, UN ESCOR, Supp. (No. 3) (1991), at 83, para. 9.

4 Id. See also General Comment No. 19 (2007): The right to social security (art. 9) (E/C.12/GC/19), para. 42; and the Letter dated 16 May 2012 addressed by the Chairperson of the Committee on Economic, Social and Cultural Rights to States parties to the International Covenant on Economic, Social and Cultural Rights (noting that, in order to comply with the Covenant, austerity measures or adjustment programmes, as have been adopted by a number of States to face the financial and economic crisis after 2009, must be ‘necessary and proportionate, in the sense that the adoption of any other policy, or a failure to act, would be more detrimental to economic, social and cultural rights’).

5 See Report of the Special Rapporteur on extreme poverty and human rights, Magdalena Sepulveda Carmona, presented at the sixty-eighth session of the General Assembly, A/68/293 (9 August 2013).

6 General Comment No. 3 (1990): The nature of States parties' obligations (E/1991/3), para. 10.

7 See art. 2(2) of the International Covenant on Economic, Social and Cultural Rights and Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2) (E/C.12/GC/20) (2009).

8 General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2), cited above note 7, para. 8. In his Letter of 16 May 2012 to the States parties to the Covenant on austerity measures, the Chairperson of the Committee emphasized that fiscal consolidation policies ‘must not be discriminatory and must comprise all possible measures, including tax measures, to support social transfers to mitigate inequalities that can grow in times of crisis and to ensure that the rights of the disadvantaged and marginalized individuals and groups are not disproportionately affected’.

9 General Comment No. 19 (2007): The right to social security (E/C.12/GC/19), para. 42.

10 Id., para. 59.

11 This results from the significant growth that almost all developing countries, including low-income countries, have witnessed during the past decade. Comp. Martin Ravallion, ‘Do Poorer Countries have less Capacity for Redistribution?’, Policy Research Working Paper 5046 (Washington DC: World Bank, 2009) with Chris Hoy and Andy Sumner, ‘Gasoline, Guns and Giveaways: Is there New Capacity for Redistribution to End Three Quarters of Global Poverty?’, CGD Working Paper 433 (Washington, DC: Center for Global Development, 2016).

12 Report of the Special Rapporteur on extreme poverty and human rights, Magdalena Sepulveda Carmona, presented at the 26th session of the Human Rights Council (A/HRC/26/28) (22 May 2014), para. 56 (citing ActionAid, Accounting for Poverty: How international tax rules keep people poor, 2009), 5).

13 See for instance Report of the Special Rapporteur on the right to food to the thirteenth session of the Human Rights Council, Addendum: Mission to Guatemala (3-5 September 2009), A/13/33/Add.4, para. 87. In Latin American countries for instance, the personal income tax generates only 1.4 percent of GDP, in comparison to 8.4 percent of GDP in developed countries (Ana Corbacho, Vicente Frebes Cibils and Eduardo Lora, eds, More than Revenue: Taxation as a Development Tool (Inter-American Development Bank and Palgrave Macmillan, 2013), at 115. This discrepancy, as a measure of the degree of progressivity of the tax system (i.e., of its ability to reduce inequalities) is hardly attenuated by taking into account the proportion the personal income tax represented in the total tax burden: in OECD countries, the total tax burden represents 34.8 per cent of the GDP, and it is 23.4 per cent in Latin America. Therefore, the personal income tax represents about one quarter of the tax burden in OECD countries, but only 5.98 per cent of the tax burden in Latin American countries.

14 For a more systematic treatment, see Olivier De Schutter, Johan F. Swinnen and Jan Wouters, ‘Introduction: Foreign Direct Investment and Human Development’, in Foreign Direct Investment and Human Development. The Law and Economics of International Investment Agreements, ed. O. De Schutter et al. (Routledge: London and New York, 2012), 1–24. See also Ana Teresa Tavares-Lehmann et al., eds., Rethinking Investment Incentives: Trends and Policy Options (New York: CUP, 2016); Maria R. Andersen, Benjamin R. Kett and Erik von Uexkull, ‘Corporate tax incentives and FDI in developing countries’ in World Bank, Global Investment Competitiveness Report 2017/2018: Foreign Investor Perspectives and Policy Implications (Washington DC: World Bank, 2018); Hania Kronfol and Victor Steenbergen, ‘Evaluating the costs and benefits of corporate tax incentives: Methodological approaches and policy considerations’, FCI In Focus, World Bank, 2020; World Bank, Results of Investor Motivation Survey Conducted in the EAC (East African Community), presentation made to the Tax Compact in Lusaka, Zambia (Global Tax Simplification Team, 2013), cited in OECD, Development Co-Operation Report 2014. Mobilising Resources for Sustainable Development (Paris: OECD Publishing, 2014), at 151 (according to which ‘A large majority of investors covered by investor motivation surveys of the World Bank’s Investment Climate Advisory claim that in the majority of cases (for instance over 90% in Rwanda, Tanzania and Uganda) they would have invested even if incentives were not provided’).

15 Report of the Special Rapporteur on extreme poverty and human rights, Magdalena Sepulveda Carmona, presented at the 26th session of the Human Rights Council (A/HRC/26/28) (22 May 2014), para. 16; Report of the Special Rapporteur on extreme poverty and human rights, Philip Alston, to the 29th session of the Human Rights Council (A/HRC/29/31) (26 May 2015), para. 53.

16 For this and other unfavorable presumptions on States’ actions regarding the MAR clause that are part of the ‘emerging doctrine’ of the CESCR, see Rodrigo Uprimny, Sergio Chaparro Hernández, and Andrés Castro Araújo, ‘Bridging the Gap: The Evolving Doctrine on ESCR and “Maximum Available Resources”’, in The Future of Economic and Social Rights, ed. K. Young (Cambridge Univ. Press, 2019), 624–53.

17 Organisation for Economic Co-operation and Development, Divided we Stand: Why Inequality Keeps Rising (Paris: OECD, 2011).

18 See, e.g., Committee on Economic, Social and Cultural Rights, Concluding Observations: The United Kingdom of Great Britain and Northern Ireland, E/C.12/GBR/CO/6 (14 July 2016), para. 16.

19 Jack Kelly, ‘Loans Intended For Small Businesses To Retain Workers Were Hijacked By Large Corporations And The Rich’, Forbes (July 7, 2020), https://www.forbes.com/sites/jackkelly/2020/07/07/loans-intended-for-small-businesses-to-retain-workers-were-hijacked-by-large-corporations-and-the-rich/#3f15d9dc316d

20 See, e.g., Committee on the Rights of the Child, General comment No. 19 (2016) on public budgeting for the realization of children’s rights, CRC/C/GC/19, 20 July 2016; Olivier De Schutter, The Rights-Based Welfare State: Public Budgets and Economic and Social Rights (Geneva: Friedrich-Ebert-Stiftung Geneva Office, November 2018).

21 See, e.g., Report of the Special Rapporteur on the right to food, Olivier De Schutter, to the thirteenth session of the Human Rights Council, Addendum: Mission to Brazil (12-18 October 2009) (A/HRC/13/33/Add.6), para. 36: ‘The tax structure in Brazil remains highly regressive. Tax rates are high for goods and services and low for income and property, bringing about very inequitable outcomes. […] [W]hile the social programmes developed under the ‘Zero Hunger’ strategy are impressive in scope, they are essentially funded by the very persons whom they seek to benefit, as the regressive system of taxation seriously limits the redistributive impact of the programmes. Only by introducing a tax reform that would reverse the current situation could Brazil claim to be seeking to realize the right to adequate food by taking steps to the maximum of its available resources’.

22 The Kakwani and the Reynolds-Smolensky indexes appeared simultaneously in the economic literature : see Nanak C. Kakwani, ‘Measurement of Tax Progressivity: An International Comparison’, The Economic Journal 87, no. 345 (1977): 71–80; and Morgan O. Reynolds and Eugene Smolensky, Public Expenditures, Taxes and the Distribution of Income: The United States, 1950, 1961, 1970 (New York: Academic Press, 1977). For a general presentation, see Jonathan Haughton and Shahidur Khandker, Handbook on Inequality and Poverty (Washington, DC: World Bank, 2009) (chap. 15: ‘The Effects of Taxation and Spending on Inequality and Poverty’). The reliance on these measures has been criticized on the ground that they fail to take into account the changes in revenue that may result from the introduction of tax reforms: see Santiago Díaz de Sarralde, Carlos Garcimartín and Jesús Ruiz-Huerta, ‘The paradox of progressivity in low-tax countries: income tax in Guatemala’, CEPAL Review no. 102 (Dec. 2010): 85–99.

23 See Simon Kuznets, ‘Economic Growth and Income Inequality’, American Economic Review 45 (March 1955): 1–28.

24 See IMF Staff Discussion Note, Causes and Consequences of Income Inequality: A Global Perspective (Era Dabla-Norris, Kalpana Kochhar, Nujin Suphaphiphat, Frantisek Ricka, Evridiki Tsounta), June 2015, 7; and see also Jonathan D. Ostry, Andrew Berg and Charalambos G. Tsangarides, ‘Redistribution, Inequality and Growth’, IMF Staff Discussion Note, February 2014 (Washington, DC: International Monetary Fund, 2014).

25 Christoph Lakner, et al., ‘How Much Does Reducing Inequality Matter for Global Poverty’, World Bank Working Paper 8869 (2019), 14.

26 Nora Lustig, Chiara Mariotti, Carolina Sánchez-Páramo, ‘The redistributive impact of fiscal policy indicator: A new global standard for assessing government effectiveness in tackling inequality within the SDG framework’, World Bank Blogs (June 11, 2020), https://blogs.worldbank.org/opendata/redistributive-impact-fiscal-policy-indicator-new-global-standard-assessing-government

27 In today’s economic debate, the value of economic growth in and of itself is being challenged by several approaches, including de-growth, steady-state and circular economy theories. However, it is worth noting that champions of this approach as Jason Hickel talk about de-growth as a planned downscaling of excess energy and resource use in high-income nations to bring the economy back into balance with the living world, in a way that delivers justice, equality, democracy and human flourishing (Jason Hickel, Less is More: How Degrowth Will Save the World (London: Penguin Random House, August 2020)). See also, on how poverty reduction and the fight against inequalities can gain from the transformation towards a low-carbon economy that sees redistribution rather than economic growth as its priority, ‘The “just transition” in the economic recovery’, Report of the Special Rapporteur on extreme poverty and human rights, Olivier De Schutter, to the seventy-fifth session of the General Assembly (A/75/181) (20 July 2020).

28 On the normative, conceptual and empirical links between economic inequality and human rights, see Rodrigo Uprimny Yepes and Sergio Chaparro Hernández, ‘Inequality, Human Rights, and Social Rights: Tensions and Complementarities’, Humanity: An International Journal of Human Rights, Humanitarianism, and Development 10, no. 3 (2019): 376–94.

29 Center for Economic and Social Rights (CESR),. ‘Progressive Tax Measures to Realize Rights’, Recovering Rights Series, No, 2 (2020), https://www.cesr.org/sites/default/files/Brief%203%20Progressive%20Tax_.pdf

30 Diane Elson, Radhika Balakrishnan and James Heintz, ‘Public Finance, Maximum Available Resources and Human Rights’, in Human Rights and Public Finance: Budgets and the Promotion of Economic and Social Rights, ed. Aoife Nolan, R. O’Connell and Colin Harvey (Oxford: Hart Publishing, 2013), 13–39, at 28; and in the same volume, Ignacio Saiz, ‘Resourcing Rights: Combating Tax Injustice from a Human Rights Perspective’, 77–104, at 84. It is important to note, however, that although VAT taxes are regressive when calculations are made on income (the poorest households contribute more as a proportion of their income), this regressivity either disappears or is significantly attenuated when calculated on the basis of consumption (that is, the higher levels of consumption of the rich and the high VAT rates on luxury items that are only affordable to the rich, leads to a situation in which the rich contribute more to the revenues collected through VAT than the poor). See Corbacho et al., More than Revenue: Taxation as a development tool, cited above (note 13), at 167–168.

31 International Monetary Fund Policy Paper, Fiscal Policy and Income Inequality, Jan. 2014, 37 (estimating that top personal income taxes were lowered by about 30% on average since 1980).

32 This is a non-weighted average: small economies count as much as large ones in the calculation of the average. The total tax rate, for the purpose of this calculation, is the ‘amount of taxes and mandatory contributions payable by businesses after accounting for allowable deductions and exemptions as a share of commercial profits’. For more details, see http://data.worldbank.org/indicator/IC.TAX.TOTL.CP.ZS?end=2015&start=2005&view=chart (last consulted on September 9th, 2016). Some countries have lowered corporate taxes faster than others: during this ten-year period, Albania lowered corporate taxes from 58.2% to 36.5%, Belarus from 137.3% to 51.8%, and Uzbekistan from 96.7% to 41.1%; Canada went from 47.5% to 21.1%, and Paraguay from 54.5% to 35.0%. Turkey moved from 52.8% to 40.9%.

33 On this notion, see Joachim Hirsch, Der nationale Wettbewerbsstaat: Staat, Demokratie und Politik im globalen Kapitalismus (The Competitive National State: State, Democracy and Politics in Global Capitalism) (Berlin and Amsterdam: Edition ID-Archiv, 1995).

34 On how failures in international tax cooperation exacerbate the challenges of Latin American States to build sufficient and more progressive tax systems to meet their needs, see Juan Pablo Jiménez, Jose Antonio Ocampo, Andrea Podestá y Maria Fernanda Valdés ‘Explorando sinergias entre la cooperación tributaria internacional y los desafíos tributarios latinoamericanos’, Friedrich Ebert Stiftung (February 2020), Bogotá, Colombia, http://library.fes.de/pdf-files/bueros/kolumbien/16021.pdf

35 See, for instance, Ryan Suda, ‘The Effect of Bilateral Investment Treaties on Human Rights Enforcement and Realization’, in Transnational Corporations and Human Rights, ed. O. De Schutter (Oxford and Portland, Oregon: Hart Publ., 2006), 73–160. For an empirical review collecting evidence from 113 developing countries from 1981 to 2009, concluding that investors' rights routinely may impede measures related to the realization of human rights in the host country, see Cristina Bodea and Fangjin Ye, ‘Investor Rights versus Human Rights: Do Bilateral Investment Treaties Tilt the Scale?’, British Journal of Political Science 50, no. 3 (2020): 955–77.

36 See for example, Corporate Europe Observatory, ‘Cashing in on the pandemic: how lawyers are preparing to sue states over COVID-19 response measures’, May 2020, https://corporateeurope.org/en/2020/05/cashing-pandemic-how-lawyers-are-preparing-sue-states-over-covid-19-response-measures

37 HRC Res. 17/4 (16 June 2011). For an assessment of the influence of the Guiding Principles on Business and Human Rights, see Michael K. Addo, ‘The Reality of the United Nations Guiding Principles on Business and Human Rights’, Human Rights Law Review 14, no. 1 (March 2014): 133–47.

38 A/HRC/17/31, Principle 9.

39 See Committee on Economic, Social and Cultural Rights, General Comment No. 24 (2017) on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities (E/C.12/GC/24), para. 13 (encouraging States parties to ‘insert a provision explicitly referring to their human rights obligations in future [trade or investment agreements], and to ensure that mechanisms for the settlement of investor-State disputes take human rights into account in the interpretation of investment treaties or of investment chapters in trade agreements’).

40 Para. 14(4).

41 Ana Corbacho, et al., eds., More than Revenue: Taxation as a development tool, cited above (note 13), at 121 (fig. 7.4.). These estimates are based on data from the period 2003-2010, with different years for the different countries (for Guatemala for instance, the reference year in 2006). They should therefore be treated with caution as a source of cross-country comparisons. They do provide, however, an idea of the magnitude of the problem.

42 For a useful assessment, see OECD, Development Co-Operation Report 2014. Mobilising Resources for Sustainable Development, cited above (note 14), chapter II.13.

43 Dev Kar and Devon Cartwright-Smith, Illicit Financial Flows from Africa: Hidden Resource for Development (Washington DC: Global Financial Integrity, 2010).

44 This was also the conclusion reached by Ndikumana, Léonce and James K. Boyce, New Estimates of Capital Flight from Sub-Saharan African Countries: Linkages with External Borrowing and Policy Options (University of Massachusetts, Amherst, April 2008).

45 See e.g. Alex Cobham, ‘The significance and subversion of SDG 16.4Multinational tax avoidance as IFF’, Tax Justice Network, 2017, https://www.un.org/esa/ffd/ffdforum/wp-content/uploads/sites/3/2017/05/ED1-Cobham.pdf

46 Outcome document adopted at the Third International Conference on Financing for Development (Addis Ababa, Ethiopia, 13–16 July 2015) and endorsed by the General Assembly in its resolution 69/313 of 27 July 2015, para. 22.

47 Id.

48 Id., para. 103. For more detail on these tax spillover assessments, see N. Lusiani and M. Cosgrove, ‘A Strange Alchemy: Embedding human rights into tax policy spillover assessments’, in Tax, Inequality and Human Rights, ed. P. Alston and N. Reisch (Oxford University Press, 2019).

49 A/HRC/17/4 (and, for the text of the Guiding Principles on Business and Human Rights, A/HRC/17/31). On the due diligence component of the responsibility to respect human rights, see Olivier De Schutter, Anita Ramasastry, Mark Taylor and Robert Thompson, Human Rights Due Diligence: The Role of States (International Corporate Accountability Roundtable, European Coalition for Corporate Justice and Canadian Network on Corporate Accountability, 2012). See also, Office of the High Commisioner for Human Rights, ‘Corporate human rights due diligence – identifying and leveraging emerging practice’, https://www.ohchr.org/EN/Issues/Business/Pages/CorporateHRDueDiligence.aspx

50 See, for a more detailed description of what this entails, Principle 17 of the Guiding Principles on Business and Human Rights.

51 See, for a more detailed description, Principle 13 of the Guiding Principles on Business and Human Rights. See also Inter-American Commission on Human Rights (IACHR), ‘Business and Human Rights: Inter-American Standards’ (Spanish version only). OEA/Ser.L/V/II. CIDH/REDESCA/INF.1/19, para. 254-267.

52 The Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights seek to bring together the rather disparate contributions from judicial and non-judicial bodies to this fast-developing area of human rights law, http://www.icj.org/wp-content/uploads/2012/12/HRQMaastricht-Maastricht-Principles-on-ETO.pdf. They were endorsed on 28 September 2011 by a range of non-governmental organisations and human rights experts, including mandate-holders within the Special Procedures established by the Human Rights Council. See Olivier De Schutter, et al., ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights’, Human Rights Quarterly 34 (2012): 1084–171.

53 See in this regard OECD, Tax and Development: Aid Modalities for Strengthening Tax Systems (Paris: OECD Publishing, 2013).

54 CESCR, General Comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities (E/C.12/GC/24, 10 August 2017), para. 37.

55 Universal Declaration of Human Rights (1948), G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), arts, 22 and 28; Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, entered into force Oct. 24, 1945; International Covenant on Civil and Political Rights, UN Doc. A/6316 (1966) (999 UNTS 171), article 2(1); International Covenant on Economic, Social and Cultural Rights, UN Doc. A/6316 (1966) (993 UNTS 3), article 2(1).

56 Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, cited above (note 51).

57 See CESR., ‘Governments’ Obligation to Cooperate Internationally to Realize Human Rights’. Recovering Rights Series, No, 3 (2020), https://www.cesr.org/sites/default/files/Issue%20Brief%202__.pdf

58 Committee on Economic, Social and Cultural Rights, Concluding Observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland (E/C.12/GBR/CO/6, 14 July 2016), paras 16-17.

59 Committee on the Elimination of Discrimination against Women, Concluding Observations on the combined fourth and fifth reports of Switzerland (CEDAW/C/CHE/CO/4-5) (18 November 2016), para. 41. See also recommendations in Juan Pablo Bohoslavsky, ‘Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, on his visit to Switzerland, UN Doc. A/HRC/37/54/Add.3, para. 92 (March, 2018), https://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/37/54/Add.3

60 Outcome document, cited above (note 45), para. 27.

61 Final study on illicit financial flows, human rights and the 2030 Agenda for Sustainable Development of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, Juan Pablo Bohoslavsky (A/HRC/31/61) (15 January 2016), para. 18.

62 United Nations Practical Manual on Transfer Pricing for Developing Countries, UN Department of Economic and Social Affairs (ST/ESA/347) (New York: United Nations, 2013), para. 1.1.3. Estimates of the volume of intra-group trade (trade between different enterprises related to a same multinational group) are however notoriously difficult to arrive at: see Rainer Lanz and Sébastien Miroudot, ‘Intra-Firm Trade: Patterns, Determinants and Policy Implications’, OECD Trade Policy Papers No. 114 (Paris: OECD Publishing, 2011).

63 The United Nations Model Double Taxation Convention between Developed and Developing Countries was initially adopted in 1980, and revised subsequently in 1999 and in 2011.

64 See http://www.oecd.org/ctp/model-tax-convention-on-income-and-on-capital-full-version-9a5b369e-en.htm (last consuleted on 20 July 2020).

65 Id., article 7 (‘Business profits’).

66 Initially the result of a joint effort of the OECD and the Council of Europe in 1988, the convention was amended in order to allow for the participation of developing countries. The new text was opened for signature on 1 June 2011 and now covers 109 jurisdictions (including 15 jurisdictions covered by extension).

67 OECD, Development Co-Operation Report 2014. Mobilising Resources for Sustainable Development, cited above (note 14), at 167-176.

68 Section V is partially based, and further developed, in an article pending publication by the Center for Economic and Social Rights.

69 International Court of Justice, Fisheries Jurisdiction Case, 1974 I.C.J., p. 31 (negotiations are required between Iceland and Great Britain who both have legitimate fishing rights in certain maritime areas); International Court of Justice, Case concerning the Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), judgment of 1 October 2018, paras 86-87. See also M.A. Rogoff, ‘The Obligation to Negotiate in International Law: Rules and Realities’, Michigan Journal of International Law 16 (1994): 141–85; and Olivier De Schutter, ‘A Duty to Negotiate in Good Faith as Part of the Duty to Cooperate to Establish “An International Legal Order in which Human Rights can be Fully Realized”: the New Frontier of the Right to Development’, Cridho Working papers series 2018/5.

70 CESCR, General Comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities (E/C.12/GC/24, 10 August 2017), para. 29.

71 Independent Commission on the Reform of International Corporate Taxation (ICRICT), ‘BEPS 2.0. What the OECD BEPS has achieved and what real reform should look like’, 14–15 (Jan. 2019), https://www.icrict.com/press-release/2019/1/17/icrict-is-launching-a-new-paper-the-fight-against-tax-avoidance-beps-20-what-the-oecd-beps-has-achieved-and-what-real-reform-should-look-like

72 Allison Christians. ‘Human rights at the borders of tax sovereignty.’ Available at SSRN 2924925 (2017).

73 Allison Christians. ‘Human rights at the borders of tax sovereignty.’, p. 3-11.

74 Ibid., 3–11.

75 Ibid., 11–16.

76 See Gijsbert W. J. Bruins, Luigi Einaudi, Edwin R. A. Seligman, and Sir Josiah Stamp, ‘Report on double taxation’ (5 April 1923).

77 Id., at 22-26.

78 Allison Christians. ‘Human rights at the borders of tax sovereignty.’, pp.16-19.

79 Allison Christians. ‘Human rights at the borders of tax sovereignty.’, p. 16-19; See also P. Dietsch and T. Rixen, ‘Tax competition and global background justice’, Journal of Political Philosophy 22, no. 2 (2014): 150–77.

80 See R.S. Avi-Yonah, International Tax as International Law: An Analysis of the International Tax Regime (Cambridge Univ. Press, 2009).

81 See ICRICT, ‘Submission to OECD's ‘Unified Approach’ under Pillar 1 proposal’, (Nov. 2019), https://www.icrict.com/icrict-documents-submission-to-oecds-unified-approach-under-pillar-1-proposal; ICRICT, ‘ICRICT response to the OECD Consultation on Global Anti-Base Erosion Proposal (‘GloBE’) - Pillar Two’, (December 2019), https://www.icrict.com/icrict-documents-icrict-response-to-the-oecd-consultation-on-global-anti-base-erosion-proposal; Oxfam, ‘Policy Note: In support of a comprehensive tax reform to stop corporate tax dodging and limit tax competition’, https://www.oxfamnovib.nl/Redactie/Downloads/Rapporten/Oxfam%20Policy%20Note%20BEPS%202.0.pdf

82 See the full list of submissions to the first round of public consultations, at https://www.oecd.org/tax/beps/public-comments-received-on-the-possible-solutions-to-the-tax-challenges-of-digitalisation.htm

83 As just one example, the basic ability to merely identify those companies subject to tax in any given jurisdiction is very unevenly distributed between States given the practical obstacles many poorer governments face when seeking to understand the taxable presence of companies in their jurisdiction, leading many advocates to call for a public registry of country-by-country tax and financial information of large multinationals. For various other examples, see A. Christians, Human Rights at the Borders of Tax Sovereignty

84 Kimberly Clausing, Emmanuel Saez and Gabriel Zucman., ‘Ending Corporate Tax Avoidance and Tax Competition: A Plan to Collect the Tax Deficit of Multinationals’ (2020), http://gabriel-zucman.eu/files/CSZ2020.pdf.

85 See e.g. Rasmus Christensen, (2020) Elite Professionals in Transnational Tax Governance, Global Networks. DOI: 10.1111/glob.12269; (2019) The New Politics of Global Tax Governance: Taking Stock a Decade After the Financial Crisis (with Martin Hearson), Review of International Political Economy 26, no. (5). DOI: 10.1080/09692290.2019.1625802

86 Salvador Barrios, Huizinga Harry, Laeven Luc, and Nicodeme Gaetan, International taxation and multinational firm location decisions (European Commission: Directorate-General for Economic and Financial Affairs, 2008).

87 See, for example, the summary made by the UN High Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda (FACTI Panel). ‘Overview of existing frameworks and understanding priorities’ (2020), https://assets.website-files.com/5e0bd9edab846816e263d633/5e8df72aec8ff1144d3773f3_FACTI%20BP%201%20Overview%20of%20frameworks.pdf

88 Andres Knobel, ‘ABCs of tax transparency’, Tax Justice Network (Dec. 2018), https://www.taxjustice.net/tag/abc-of-tax-transparency/

89 Tax Inspectors Without Borders (TIWB) is a joint initiative of the Organisation for Economic Co-operation and Development (OECD) and the United Nations Development Programme (UNDP) supporting countries in building tax audit capacity. For more, see http://www.tiwb.org/

90 ICRICT, ‘BEPS 2.0. What the OECD BEPS has achieved and what real reform should look like’, 14–15 (Jan. 2019), https://www.icrict.com/press-release/2019/1/17/icrict-is-launching-a-new-paper-the-fight-against-tax-avoidance-beps-20-what-the-oecd-beps-has-achieved-and-what-real-reform-should-look-like

91 Christians, ‘Taxing According to Value Creation’, 90 Tax Notes International 1379–1383 (June 18, 2018), 6

92 Tommaso Fitzgerald & Valpy Faccio, ‘Sharing the Corporate Tax Base: Equitable Taxing of Multinationals and the Choice of Formulary Apportionment’, Transnat. Corporations 25, no. 2 (2018): 67–90.

93 P. Dietsch and T. Rixen, ‘Tax competition and global background justice’, Journal of Political Philosophy 22, no. 2 (2014): 150–77.

94 Id., 36.

95 Id.

96 CESR, ACIJ, Dejusticia, CELS, Fundar, INESC, RJFALC. ‘Commentaries to the OECD call for public input on the tax challenges of digitalisation, and possible solutions’, March 6, 2019, https://www.cesr.org/sites/default/files/OECD%20March%202019%20-%20EN.pdf, see also Int’l Bar Ass’n, Tax Abuses, Poverty and Human Rights (Oct. 2013), http://www.ibanet.org/Tax_Abuses_Poverty_and_Human_Rights_Report.aspx

97 Juan Pablo Bohoslavsky, Guiding Principles.

98 Juan Pablo Bohoslavsky, Guiding Principles, Principle 3.

99 For more on how human rights norms can be leveraged to carry out impact assessments of the international spillovers of domestic corporate tax reforms, see Lusiani, Nicholas and Cosgrove, Mary, ‘A Strange Alchemy: Embedding Human Rights in Tax Policy Spillover Assessments’ (July 23, 2017), https://doi.org/10.2139/ssrn.3218597

100 See Arnold Wolfers, Discord and Collaboration: Essays on International Politics (1962), 19-2, as discussed in Anne-Marie Slaughter, ‘International Law in a World of Liberal States’, European Journal of International Law 6 no. 3 (1995): 503–38, https://doi.org/10.1093/oxfordjournals.ejil.a035934

101 Damrosch, Henkin, Pugh, Schachter, Smit, eds., International Law: Cases and Materials, 4th edition, Chapt. 8.

102 Cosmopolitan human rights theories have explored the prospects of this idea. See for example, W. Moka-Mubelo, ‘A Cosmopolitan Human Rights Regime’, in: Reconciling Law and Morality in Human Rights Discourse. Philosophy and Politics. Critical Explorations, vol 3. Springer (2017). For an understanding of indigenous peoples’ right to self-determination as opposed to State-centered visions of sovereignty, see José Martinez Cobo, Study of the Problem against Indigenous Populations, vol. v, Conclusions, Proposals and Recommendations, UN Doc E/CN 4/ Sub 2 1986/7, Add 4, para. 379–381.

103 The conception of human rights as one of the overarching aims around which other States’ actions should be aligned with is stated in article 103 the UN Charter ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement [including human rights obligations], their obligations under the present Charter shall prevail’. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, https://www.refworld.org/docid/3ae6b3930.html (accessed July 23, 2020)

104 See GPs, Principles 13 and 14; see also Guiding Principles on Extreme Poverty and Human Rights, Human Rights Council resolution 21/11 (2012) para. 92.

105 See GPs, Principle 9; see also Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, cited above (note 51), Principle 29.

106 The IMF, OECD, UN and World Bank have already recommended that ‘spillover analyses’ of tax policies should be conducted by developed countries. See IMF, OECD, UN and World Bank, ‘Supporting the development of more effective tax systems, Report to the G20 Development Working Group’, 2011, http://www.imf.org/external/np/g20/pdf/110311.pdf. An IMF paper is forthcoming on the subject, but is limited to economic spillovers, not human rights impacts.

107 Concluding Observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland (E/C.12/GBR/CO/6, 14 July 2016), paras 16-17; CEDAW Concluding Observations on the combined fourth and fifth reports of Switzerland (CEDAW/C/CHE/CO/4-5) (18 November 2016), para. 41.

108 See Committee on Economic, Social and Cultural Rights, General Comment No. 24 (2017), cited above (note 69), para. 37.

109 Ibid.

110 Ibid.

111 See Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, cited above (note 51), Principle 29.

112 See Special Rapporteur on Extreme Poverty and Human Rights, Report of the Special Rapporteur on extreme poverty and human rights, U.N. Doc. A/HRC/26/28, ¶¶ 29–32 (May 22, 2014) (by Magdalena Sepúlveda Carmona) (discussing why ‘providing an avenue for high-net-worth individuals and transnational corporations to evade tax liabilities (such as through the establishment of tax havens) could be contrary to obligations of international assistance and cooperation’ under the ICESCR and other international human rights treaties); see also Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, Advance Edited Version: Final Study on Illicit Financial Flows, Human Rights and the 2030 Agenda for Sustainable Development, ¶ 43, U.N. Doc. No. A/HRC/31/61 (2016) (by Juan Pablo Bohoslavsky).

113 The principle of common but differentiated responsibilities first enshrined in the 1992 Rio Declaration helps to underscore both the universality of the tax cooperation agenda for achieving the SDGs, as well as the need for differentiation of responsibilities for its realization. Universality is not legitimate or effective without clear differentiation of responsibilities based on varying and diverse degrees of national capacity, resources, levels of development and effective influence. Based on this differentiation, developed countries have far greater responsibility on tax cooperation matters. Human rights legal obligations of an extraterritorial nature help to delineate common but differentiated obligations across sustainable development in all of its dimensions, including tax cooperation. See CESR and Third World Network. ‘Universal Rights, differentiated responsibilities. Safeguarding human rights beyond borders to achieve the Sustainable Development Goals’. Human Rights Policy Briefing, 2015. For the importation of the principle of common but differentiated responsibilities and respective capabilities to international human rights law, see O. De Schutter, The international dimensions of the right to development: a fresh start towards improving accountability. Report prepared at the request of the United Nations Working Group on the Right to Development (UN doc. A/HRC/WG.2/19/CRP.1) (2018), paras 47–52.

114 Juan Pablo Bohoslavsky, Guiding Principles, para. 9(4).

115 Juan Pablo Bohoslavsky, Guiding Principles, para. 9(5).

116 Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, cited above (note 51), Principle 32.

117 Juan Pablo Bohoslavsky, Guiding Principles, para. 19.

118 See Initiative for Human Rights Principles and Guidelines in Fiscal Policy, ‘A Comprehensive Response to COVID-19 Demands Redistributive Fiscal Policies’, April 23th, 2020, https://derechosypoliticafiscal.org/en/news/13-a-comprehensive-response-to-covid-19-demands-redistributive-fiscal-policies

119 OECD ‘Tax and Fiscal Policy in Response to the Coronavirus Crisis: Strengthening Confidence and Resilience’, May 2020, https://read.oecd-ilibrary.org/view/?ref=128_128575-o6raktc0aa&title=Tax-and-Fiscal-Policy-in-Response-to-the-Coronavirus-Crisis. See also, IMF, ‘Tax Issues: An Overview’, Fiscal Affairs Department. Special Series on Fiscal Policies to Respond to COVID-19, May 2020, https://drive.google.com/file/d/1b2z_HSJXCX7bqsFQz8Av6e7ufYUaoTp5/view

120 International Centre for Tax and Development, ‘What should a “new deal” on international tax look like for developing countries?’, May 2020, https://www.ictd.ac/blog/what-should-new-deal-international-tax-look-like-developing-countries/

121 G-24 Working Group on tax policy and international tax cooperation, ‘Proposal for Addressing Tax Challenges Arising from Digitalisation’, January 17, 2019, https://www.g24.org/wp-content/uploads/2019/03/G-24_proposal_for_Taxation_of_Digital_Economy_Jan17_Special_Session_2.pdf

122 Brian J. Arnold, ‘Protecting the tax base of developing countries: the taxation of income from services’, UNDESA. Papers on Selected Topics in Protecting the Tax Base of Developing Countries. Draft Paper No. 2, 2013, https://www.un.org/esa/ffd/wp-content/uploads/2014/10/20140604_Paper2_Arnold.pdf

123 Michael C. Durst, ‘Improving the Performance of Natural Resource Taxation in Developing Countries’, ICTD Working Paper 60, November, 2016, https://opendocs.ids.ac.uk/opendocs/bitstream/handle/20.500.12413/12797/ICTD_WP60.pdf

124 Allison Christians, ‘Aligning Taxation and Development Goals’, presentation at the XVII International CIFA forum (New York, 6–7 May 2019) (available at: https://www.youtube.com/watch?v=1e4EYVF1xiU).

125 For an agenda of reform from lower income countries’ interests standpoint see ICRICT. ‘International Corporate Tax Reform. Towards a fair and comprehensive solution’, 2019, https://static1.squarespace.com/static/5a0c602bf43b5594845abb81/t/5d979e6dc5f7cb7b66842c49/1570217588721/ICRICT-INTERNATIONAL+CORPORATE+TAX+REFORM.pdf

126 See Nicholas Lusiani, ‘Pandemic Profits Exposed: A COVID-19 Pandemic Profits Tax as one essential tool to reverse inequalities and rebuild better post-pandemic’, Oxfam America (July 22, 2020), https://assets.oxfamamerica.org/media/documents/Pandemic_Profits_Exposed.pdf; Reuven Avi-Yonah, ‘It’s Time to Revive the Excess Profits Tax’, American Prospect, March 27, 2020, https://prospect.org/coronavirus/its-time-to-revive-the-excess-profits-tax/; Allison Christians and Tarcisio Diniz Magalhes, ‘It’s Time for Pillar 3: A Global Excess Profits Tax for COVID-19 and Beyond’, Tax Notes, May 1, 2020, https://www.taxnotes.com/featured-analysis/its-time-pillar-3-global-excess-profits-tax-covid-19-and-beyond/2020/05/01/2cg34

127 Richard J. Joseph, The Origins of American Income Tax (Syracuse University Press, 2004), 6.

128 Christensen, Rasmus Corlin. ‘Elite professionals in transnational tax governance.’ Global Networks (2020).