and Peoples’ Rights has called upon States parties to the African Charter on Human and Peoples’ Rights
“to examine their national tax laws and policies towards preventing illicit capital flight in Africa”.42
b) The role of extraterritorial human rights obligations
Strengthening domestic institutions tasked with combating tax evasion will not suffice, however. This
is one area in which such efforts shall only be fully effective if supported by international cooperation,
requiring that all countries comply with their extraterritorial human rights obligations.43 Though classic
forms of international cooperation have a role to play in this regard, "aid for tax" strategies -- by
supporting local institutions in charge of tax collection44 -- will remain insufficient unless complemented
by reforms in the countries which receive illicit financial flows from tax evasion or other forms of
economic crime such as corruption. This concerns in particular the countries under whose jurisdiction
tax havens are currently left unaddressed, or whose bank secrecy laws facilitate tax evasion. As noted
by the Special Rapporteur on Extreme Poverty and Human Rights : "Individual countries, in particular
low-income countries, are severely constrained in the measures that they alone can take against tax
abuse. Illicit financial flows are international in nature and therefore beyond the capacity of one State
alone to tackle. The availability of offshore financial centres (tax havens) that offer low or no taxes and
secrecy is a major factor."45
There are signs that governments are finally taking these issues more seriously. In 2010, the Convention
on Mutual Administrative Assistance in Tax Matters, intially the result of a joint effort of the OECD
and the Council of Europe in 1988, was amended in order to allow for the participation of developing
countries. The new text was opened for signature on 1 June 2011. It now covers 109 jurisdictions,
including 15 jurisdictions covered by extension.46 It provides for various forms of administrative
cooperation between States in the assessment and collection of taxes, facilitating the exchange of
information and the recovery of foreign tax claims with a view to supporting States' efforts to combat
tax avoidance and evasion. At the same time, the G20 has identified base erosion and profit shifting
(BEPS) as a major concern for tax justice worlwide: the ability for States to raise public revenue is
undermined as multinational companies are taking advantage of differences between tax rates by
artificially shifting profits across borders, rather than declaring such profits (and paying the
corresponding taxes) where their productive activities take place. The OECD adopted a 15-point action
plan in 2013 in order to address this, to be progressively implemented in the next few years.47
That these efforts are essential for the fulfilment of human rights is made increasingly explicit by United
Nations human rights treaty bodies. The Committee on Economic, Social and Cultural Rights noted in
Concluding Observations related to the United Kingdom that "financial secrecy legislation [allowing its
Overseas Territories and Crown Dependencies to prosper as tax havens] and permissive rules on
corporate tax are affecting the ability of the State party, as well other States, to meet their obligation to
42
Resolution adopted by the Commission at its 53rd ordinary session, 23 April 2013.
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. 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, vol. 34 (2012), pp. 1084-1171.
44 See in this regard OECD, Tax and Development: Aid Modalities for Strengthening Tax Systems (OECD Publishing, Paris,
2013).
45 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. 61.
46 Thus, Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, Gibraltar, Guernsey, the Isle of Man, Jersey,
Montserrat and the Turk and Caicos Islands are covered by extension from the United Kingdom; Aruba, Curaçao and Sint
Maarten, the latter two formerly part of the Netherlands Antilles, are covered by extension from the Netherlands; the Faroe
Islands are covered by extension of Denmark.
47 OECD, Development Co-Operation Report 2014. Mobilising Resources for Sustainable Development, cited above (note 11),
at 167-176.
43
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