rightingfinance www.rightingfinance.org Maximum Available Resources, Non-retrogression and Minimum Essential Levels in Tax Policy This is the second in a series of advocacy tools produced by RightingFinance to assist education and dissemination of standards on tax policy and human rights contained in a report produced by the UN Special Rapporteur on Extreme Poverty and Human Rights.1 (Unless otherwise noted, textual references in the text are from that report). To progressively realize economic, social and cultural rights entails a prohibition of deliberate retrogression. Normative basis Maximum available resources: States must devote the “maximum available resources” to ensure the progressive realization of all economic, social and cultural rights as expeditiously and effectively as possible, even during times of severe resource constraints, whether caused by a process of adjustment, economic recession or other factors. This principle should guide the State’s decisions and priorities in generating, mobilizing and allocating resources in order to permit the realization of human rights. The obligation of progressive realization independent of economic growth also exists; it requires the effective use of available resources, including potential resources that could be raised through reasonable efforts, such as taxation measures and international assistance and cooperation.” (para. 25) Non-retrogression: “The obligation to progressively realize economic, social and cultural rights entails a prohibition of deliberate retrogression, namely, of measures that directly or indirectly lead to backwards steps in the enjoyment of rights. There is a strong presumption that such measures are in violation of human rights standards. States may only adopt such retrogressive measures if they can demonstrate that they have carefully considered all alternatives, including revenue-raising ones, and that they are duly justified by reference to the totality of the rights in the International Covenant on Economic, Social and Cultural Rights, in the context of the full use of the maximum available resources.” (para. 28) Minimum essential levels: “States parties to the International Covenant on Economic, Social and Cultural Rights have an immediate core obligation to ensure the satisfaction of, at the very least, minimum essential levels of all economic, social and cultural rights.” (para. 27) BOX 1 Collecting taxes in the natural resources sector In a review in 2013, the Africa Progress Panel found significant “evidence of undertaxation.” In Liberia, extensive tax concessions to foreign investors involved in ore projects go far beyond the arrangements set out in the Liberia Revenue Code (LRC),to the point that the IMF recommended that if such concessions came up for renegotiation, the authorities should aim to harmonize the terms with the Revenue Code and avoid tax breaks. In Sierra Leone, foreign investors enjoy very generous concessions on mining exports (including royalty rates as low as 0.5 per cent) and only one of the five major mining companies operating in the country paid corporate tax. In Zambia an Extractive Industries Transparency Initiative report found that, between 2005 and 2009, half a million Zambians employed in the mining sector were carrying a higher tax burden than companies.8 In contrast, the IMF estimates governments should be able to collect 40 per cent to 60 per cent of resource rents for mining and 65 per cent to 85 per cent for petroleum.9

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