Hundreds of billions of dollars in revenue are lost to governments – and particularly those of developing countries – annually as a result of deficiencies in the global taxation system, undermining their ability to realise a range of socio-economic rights. Yet Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) requires its States Parties “to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means.” How can this obligation be relied upon to promote much needed reform of the international taxation system? Dr Margot Salomon has written that “clarity as to the scope of obligations of international assistance and cooperation could compel states to act in order to give them effect.” The question, therefore, is how best to go about seeking clarity on the meaning of these obligations as they apply to global taxation.
Human Rights Treaty Monitoring Bodies
One option would be to invoke the complaint mechanisms that exist in relation to various international and regional human rights treaties which contain positive socio-economic rights whereby individuals or States can bring complaints against other States to a ‘treaty-monitoring body’ (TMB) associated with a particular treaty. A feature of this mechanism which might be particularly advantageous in the context of a complaint concerning an issue of tax justice is that a complaint can be taken against more than one State. It would therefore be possible to use the complaint mechanism to address the cumulative effect of the policies (or absence of policies) of two or more States on the enjoyment of certain rights.
There are a number of drawbacks to the complaint mechanism, however. Firstly, for both individual and inter-State complaints, it is only possible to complain against a State which has agreed to be subject to the complaint mechanism associated with a particular treaty; typically only a small proportion of the States party to human rights treaties containing socio-economic rights do so. Secondly, individual (as distinct from State) complainants typically must establish that they are “within the jurisdiction” of the State(s) against which they complain (although this does not equate to a requirement that an individual complainant be within the territory of the State in question). And thirdly, in relation to inter-State complaints, it is of note that complaints of this kind rarely, if ever, get taken. This is probably because States fear the diplomatic or other consequences of taking on another State or group of States in an adversarial process.
International Court of Justice Advisory Opinion
Another option would be for countries to collectively seek an Advisory Opinion from the International Court of Justice (ICJ) on the nature of States’ – and in particular developed States’ – human rights obligations in the area of international taxation. This option is clearly more ambitious than an individual or inter-State complaint as it would require majority support in the General Assembly, or in any one of the UN bodies authorised to seek an Advisory Opinion from the ICJ, for a resolution requesting such an opinion.
It has, however, the advantage of being free from the drawbacks associated with the TMB complaint mechanisms outlined above. For example, it would be possible for the ICJ to consider certain aspects of the tax policies of any State party to the ICESCR regardless of whether or not it has agreed to the complaints mechanism associated with that treaty. In acting collectively, developing countries would also be less vulnerable to pressure from those States which would undoubtedly oppose the request for an Advisory Opinion. Furthermore, insofar as developing countries command a majority in the UN, requesting an Advisory Opinion could enable them to exert significant pressure on developed countries to address the flaws in their tax systems without the need for their buy-in. Advisory opinions of the ICJ, while not binding, are, of course, highly persuasive as authority.
The Global Legal Action Network is currently exploring how an Advisory Opinion might best be used to bring clarity to the obligations of “international assistance and co-operation” under the ICESCR with a view to promoting tax justice globally by bringing together experts on both the ICESCR and the Advisory Opinion procedure.
These issues are explored further in my book “Tax Havens and International Human Rights” (Routledge, London and New York, October 2017) (and expanded in my latest book “Ownership, Financial Accountability and the Law: Transparency Strategies and Counter-Initiatives” (Routledge, London and New York, May 2019)).
This book sails in uncharted waters. It takes a human rights based approach to tax havens, and is a detailed analysis of structures and the laws which generate and support these. It makes plain the unscrupulous or merely indifferent ways in which, using tax havens, businesses and individuals systematically undermine and for all practical purposes eliminate access to remedies under international human rights law. It exposes as abusive of human rights a complex structural web of trusts, companies, partnerships, foundations, nominees and fiduciaries; secrecy, immunity and smoke screens. It also lays bare the cynical manipulation by tax havens of traditional legal forms and conventions, and the creation of entities so bizarre and chimeric that they defy classification. Yet from the perspective of the tax havens themselves these are entirely legitimate; the product of duly enacted domestic laws.
This book is not a work of investigative journalism in the style of the Pulitzer Prize-winning authors of the Panama Papers, exposing political or financial corruption, money laundering or the financing of terrorism. All those elements are present of course, but the focus is on international human rights and how tax havens not merely facilitate but actively connive at their breach. The tax havens are compromising the international human rights legal continuum.
The abusive effect of aggressive tax evasion and avoidance on human rights was for decades just the elephant in the room; and all attention was focused on the merely fiscal implications and a calculation of lost revenues. Now there is a vast literature of how aggressive tax planning has adverse consequences for the enforcement and application of international human rights. By comparison, the structural analysis and definition of tax havens from a human rights based perspective is in its infancy.
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