In a new article published in Open Global Rights, Nicholas Lusiani, the Director of CESR's Human Rights in Economic Policy Program, argues that the human rights community cannot stay silent about tax abuse any longer. Both normative developments and practical experiences point to how human rights can shape tax policy. This article can also be read in Spanish, French, or Arabic.
Near the top of every politician???s playbook these days lies the resource scarcity card. ???Economic and social rights are a morally compelling aspiration, sure, but we just don???t have the funds,??? goes the commonly used but rarely-proven refrain from governments, rich and poor alike.
For a while, too many human rights advocates were left struggling for satisfactory responses to this apparent trump card, deferring to the economic powers-that-be to freely determine how public monies would be raised. There were critical voices within the human rights community that sought to question how governments raise resources. Yet they were brushed aside by many of their peers as too na??ve, too loose with the unimpeachable standards of human rights law, or simply too ???ideological???. Ministries of finance remained in effect human rights-free zones, left unchecked by human rights bodies within government and civil society alike. As a result, the realization of human rights of all types???from education to access to justice, health to freedom of expression, occupational safety to social protection???remain underfunded. What???s more, by avoiding debates on raising public revenue, human rights advocates inadvertently neglected a central plank of the state-citizen accountability relationship, and thus overlooked one of the most fundamental ways through which power is mediated.
The real naivety was to think human rights could be realized without considering the material means of doing so. That approach has come to a sharp end, as a perfect storm of climate change, fiscal austerity and economic inequality is exposing the shallow foundations of the old assumptions. Today, we can no longer afford to stay silent about tax abuse.
The good news is that economic and social rights advocates have been waging this fight for many years, gaining valuable gains and insights. For over a decade now, budget advocates have led the way by adopting human rights norms to frame and give legal weight to their critiques of budget allocation decisions, with tremendous successes. More recently, human rights practitioners and activists working alongside economists and tax experts have begun to employ human rights standards in practical ways to challenge the injustices embedded in tax policy.
A Brazilian coalition challenged regressive tax reforms by arguing that spending on social rights protections must be a fiscal priority. Constitutional human rights protections of economic and social rights were leveraged in Colombia to overturn an impoverishing value-added tax. In India, rights campaigners have questioned the government???s rationale for the need to decrease welfare spending for Dalits and Adivasis while it purports to drop the corporate tax rate five percent. In Argentina, gender discrimination in the tax code has been tracked and confronted. And Kenyan advocates recently posed a constitutional challenge to the country???s double-taxation agreement with Mauritius, which may undermine the capacity of the government???s revenue authority to tax. The Center for Economic and Social Rights, has sought accountability before international and regional human rights bodies for inequitable tax policies in countries at all income levels, from Egypt and Guatemala to Ireland and Spain.
Prompted by ESC rights advocates to engage more meaningfully with tax policy, international human rights treaty bodies, UN Special Rapporteurs, regional human rights bodies, and the International Bar Association???s Human Rights Initiative, have all detailed how human rights law must inform the tax policies and practices of countries and companies. The UN Special Rapporteur on Extreme Poverty and Human Rights produced the most advanced distillation of this normative guidance to date.
These bodies have clarified how key human rights principles -- such as the progressive realization of economic and social rights, non-discrimination guarantees, and the duty on states of international cooperation -- apply concretely in tax policy. These authoritative bodies have confirmed that existing human rights standards oblige governments to raise sufficient resources to realize human rights in an equitable manner through transparent and accountable public institutions. Further, governments who facilitate or actively promote tax abuse, be that domestic or cross-border, could be in violation of their international human rights obligations.
What will it take to transform these somewhat sporadic normative and advocacy breakthroughs into a more cohesive and proactive tax justice and human rights movement? Interdisciplinary research based on robust methods will remain essential to providing the evidence required to attribute human rights infringements to particular state or business conduct. Closer and more intentional synergies between tax justice and human rights advocates will likewise be critical.
That???s precisely the aim of the upcoming International Strategy Meeting, ???Advancing Tax Justice through Human Rights in Lima, Peru in late April. It will convene leading practitioners, scholars, jurists and others from both the tax justice and human rights fields to address several key questions. How can tax codes be designed to catalyze rather than constrain gender justice? What is the human rights case for progressive income and capital tax regimes? What are the tax-related human rights responsibilities of multi-national companies and the tax advisors, accountants, lawyers and lobbyists they employ? How can governments??? legal obligations of international cooperation be leveraged to hold accountable those responsible for cross-border tax abuses? Can strategic litigation become a useful complement to tax justice advocacy? The discussion will, build on the prior research efforts of academic institutions and development organizations.
Rather than people remaining passive subjects of unfair and unaccountable tax regimes, the aim is through the creative use of law, research and advocacy, to make the state ever-more subject to the demands of people???s inalienable human rights. When politicians seek to roll back on human rights through scarcity scare-mongering, advocates should have the tools to resist this ruse, interrogate the scarcity claim and promote just tax alternatives.
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