A Strange Alchemy: Embedding Human Rights in Tax Policy Spillover Assessments

Abstract

In the face of growing concern over the fiscal, distributive and governance consequences of cross-border tax abuse, an unintentional and uneasy collection of international financial institutions, United Nations experts, development practitioners, tax justice advocates, and human rights activists have called on governments to analyze the impact of their tax systems overseas. In no time, this seemingly simple idea of conducting tax ‘spillover’ assessments has risen up on the international tax agenda – advocated by civil society, supported by the G-20, the IMF, the OECD, the UN and the WB, implemented in the Netherlands and Ireland, and finding implicit consensus amongst governments worldwide in the recent Addis Ababa Action Agenda on financing for development. In parallel, the idea of a tax spillover tool has drawn interest from international human rights lawyers and scholars interested in better delineating the respective state responsibilities of financial secrecy jurisdictions largely based in the global North for cross-border tax avoidance largely in the global South. Yet, what effect has this tool for uncovering adverse impacts of tax policy had in practice? And how might embedding human rights guiding principles into its purposes, processes and methods better recognize responsibilities, engender responsiveness and instill a measure of accountability over the unequally distributed power of states to tax the global economy? The article explores how the current tax spillover methodologies may unintentionally cover up, rather than un-cover, wrongs, re-affirming rather than unsettling the distribution of taxing rights between countries. Drawing on lessons from recent practice conducting policy-oriented social, environmental and human rights impact assessments, the article explores the limitations—both technical and political—of those spillover studies carried out to date. The article concludes with a series of ongoing methodological and political challenges to ensuring the right balance between empirical and normative objectives of tax spillover assessments, and identifies various gaps for future research.