States’ duty to tackle tax evasion and mobilise resources for human rights outlined in IBAHRI report

The principal assertion of a new report by the International Bar Association’s Human Rights Institute (IBAHRI) is that states have a legal obligation to mobilise all resources at their disposal, including those that could be collected through taxation, to satisfy minimum essential levels of human rights. It further asserts that, with capital flight depriving nations of vast amounts of tax revenue, states facilitating, or actively promoting, tax abuse at the domestic or cross-border level may be in violation of international human rights law.

The report, The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals, and Economic and Fiscal Policies, is published against the backdrop of increased awareness of the relationship between economic policies and human rights; greater scrutiny of inequality within, and between, countries; austerity measures implemented following the 2007–2008 global financial crisis; and insufficiently regulated financial flows.

In addition, the 2030 Agenda for Sustainable Development (the ‘Agenda’), adopted by the United Nations General Assembly in September 2015 by the heads of state and governments of 193 countries at a special UN summit, provides renewed emphasis on the question of the mobilisation of resources. The Agenda is explicitly anchored in human rights norms and principles, and recognises in paragraphs 18–20 that a rights-based approach should underpin all poverty reduction efforts. As part of the Agenda, all 193 UN states have committed to ‘strengthen domestic resource mobilization, including through international support to developing countries, to improve domestic capacity for tax and other revenue collection’ (Sustainable Development Goal 17.1)and ‘significantly reduce illicit financial flows’ (Sustainable Development Goal 16.4).

IBAHRI Co-Chair Baroness Helena Kennedy QC stated: ‘When tax havens are allowed to continue to operate in a manner that starves developing countries of billions worth of potential income, this points to an unwillingness, rather than inability, by the international community to fulfil the particular UN Sustainable Development Goals to reduce inequality within and among countries. To maximise available resources in a non-discriminatory manner for the protection of human rights should be a moral goal for all.’

She added: ‘As the poorest and most vulnerable people around the world have felt the impacts of a global financial crisis, austerity policies, corruption and tax evasion, our new report demonstrates clearly that many states may have been side-stepping their obligation to maximise the resources available to protect the rights of all people.’

Based on a detailed examination of UN treaty bodies and the views of the UN Special Procedures, the purpose of the report is to ascertain the current interpretation of the scope and content of the obligation of states to mobilise resources for the realisation of human rights. To this end, the assessments of the Special Procedures – independent human rights experts who report to, and advise, the UN on human rights issues – are essential to the debate addressing resource diversion and foregone tax revenues in compliance with human rights.

Topics such as the legal basis and guiding principles around the obligation to mobilise resources, as well as the opportunities and challenges in relation to that obligation, are covered in the report, which includes a number of recommendations, such as:

  • When addressing issues of resource mobilisation, special procedures and treaty bodies should ensure greater coordination among themselves, as well as the consistency and complementarity of their analyses.
  • Human rights monitoring bodies should consistently apply the legal developments related to resource mobilisation when reviewing states’ reports or undertaking country missions.

Special procedures and treaty bodies should:

  • Regularly request information from states on how they have adopted specific policy decisions: whether or not they have weighed costs and benefits of all policy choices and if policy trade-offs were explicitly addressed.
  • Provide more concrete, practical and detailed guidance to states about all aspects of the obligation to mobilise resources, including drawing attention to the prerequisite of the rule of law.
  • Consolidate, strengthen and further develop legal standards and methodologies to assess whether or not states have utilised all alternatives at their disposal for resource mobilisation.
  • Define the role and responsibilities of multinational corporations and other business enterprises in resource mobilisation for the realisation of human rights.
  • Develop a legal framework with which to assess tax lawyers, accounting and consulting firms’ responsibility for creating the mechanisms that companies and wealthy individuals use to avoid paying taxes.
  • Further, it is suggested that, when implementing austerity measures, states should not use the financial crisis to justify actions that amount to violations of human rights obligations, such as curtailing access to healthcare, education and other essential services, particularly for the most vulnerable in society.

IBAHRI Co-Chair Ambassador (ret.) Hans Corell commented: ‘Broad in scope, the report demonstrates that states must garner and use resources in a non-discriminatory manner to ensure access to basic services for all, because the issue of resource mobilisation is at the core of the realisation of civil, political, social, cultural and economic human rights. To ensure the adequate functioning of crucial state institutions, including the judiciary, the police and legal aid services, without which there can be no efficient access to justice nor protection of human rights, states must ensure that all available resources are properly mobilised as a matter of priority.’

He added: ‘The report is relevant to all countries, particularly those criticised by the UN for austerity programmes seen as violating human rights. The international community needs to act swiftly to reduce economic, social and geographical disparities and provide wealth redistribution to redress systemic discrimination and spur progress towards substantive equality.’

To download the report The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals, and Economic and Fiscal Policies, visit: bit.ly/o2mresources

ENDS

 

Notes to the Editor

  1. A fact sheet is available for download at: bit.ly/o2mfacts.
     
  2. The International Bar Association(IBA), established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. Through its global membership of individual lawyers, law firms, bar associations and law societies it influences the development of international law reform and shapes the future of the legal profession throughout the world.

    The IBA’s administrative office is in London, United Kingdom. Regional offices are located in: São Paulo, Brazil; Seoul, South Korea; and Washington DC, United States, while the International Bar Association’s International Criminal Court and International Criminal Law Programme(ICC & ICL) is managed from an office in The Hague, the Netherlands.

    The International Bar Association’s Human Rights Institute(IBAHRI), an autonomous and financially independent entity, works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

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