Applications in tax policy Demonstrating the full use of tax policy as a tool to fulfill human rights “Fiscal policies are a tool that States can employ to comply with their international human rights obligations.” (para. 1) Although states have discretion to formulate the tax policies most appropriate to their circumstances, several human rights principles set limits to such discretion. (para. 4) While economic and social rights are, generally, subject to progressive realization, “States that claim resource constraints have the burden of proof to show that every effort has been made to move towards the full enjoyment of economic, social and cultural rights as a matter of priority, and that they are truly unable rather than unwilling to meet these obligations.” (para. 27) Thus, a state that omits use of a possible tax measure that could generate public revenue should demonstrate why that measure is the best suited to its circumstances. It should also show that in using its discretion to choose the most appropriate tax measure it is not violating principles such as progressive realization or maximum available resources. Raising revenue “In some States, despite significant efforts to increase revenue through taxation, the amount actually collected is demonstrably inadequate to realize human rights.” (para. 55) “Low levels of revenue collection have a disproportionate impact on the poorest segments of the population and constitute a major obstacle to the capacity of the State to finance public services and social programmes.” (para. 44) “The quality, accessibility and availability of goods and services needed for the realization of human rights, such as the rights to an adequate standard of living, health, education and social security, will hinge on the resources that the State is able to collect.” (para. 43) When a state claims not to have enough revenue to comply with its human rights obligations, an indicator of whether it is exhausting its room to raise revenue is the tax-to-Gross Domestic Product (GDP) ratio. In developed countries, average tax-to-GDP ratios rates exceed 30 per cent, whereas the average in South Asia is 12 per cent, and in Latin America less than 20 per cent.2 The International Monetary Fund concurs that in a lot of countries the ratio of actual to potential revenues remains well below what it could be.3 Of course, efforts to raise more revenue should also be compatible with human rights principles. Corporate tax incentives “Many least developed countries. . . offer extremely favourable tax deals to foreign investors in agriculture and mining owing to the perceived competition between countries for this investment. These incentives warrant a heightened level of scrutiny in human rights terms, because they restrict the State’s revenue and therefore the resources it is able to devote to rights realization.” (para. 64) Tax incentives or tax holidays for corporations represent foregone public revenue in amounts frequently large, especially when compared with the human rights needs that could have been met with such revenue. However, it is possible that tax incentives are offered for purposes that also would advance human rights, in which case the said purposes will need to be spelt out clearly: “As in any case where a State is allegedly failing to use its maximum available resources to fulfil obligations to progressively realize economic, social and cultural rights, incentives would have to be justified by a clear description of deliberate, concrete and targeted advances towards the fulfilment of human rights that can be expected from their implementation. States parties to the International Covenant on Economic, Social and Cultural Rights would also have the burden of proving periodically that the granting of corporate tax breaks was the least restrictive policy option from the perspective of economic, social and cultural rights.” (para. 67) For instance, states commonly justify granting incentives on the need to attract foreign investment. So, based on jurisprudence from the Committee on Economic, Social and Cultural Rights, in a case like that the state will have the burden of showing which human rights the investment meant to be attracted by the incentives will advance. It will also have to show that the incentive was the option least restrictive to economic, social and cultural rights.5 Given evidence that the success of fiscal incentives to attract foreign investment is limited, the link between offered incentives and incoming investment cannot be lightly presumed. So the state will need to show that the investment would not have come absent the incentive and that the benefits from the investment outweigh its cost. “Incentives sometimes take the form of a “tax stability” “or “advance pricing” agreement, signed with foreign investors to

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