New York University School of Law Keynote Lecture - Human Rights and Tax in an Unequal World, September 2016

Human Rights and Tax in an Unequal World: Keynote Address by Winnie Byanyima

Over 200 people gathered at NYU School of Law on September 22 and 23, 2016, to explore the intersections between tax law and human rights law at the Conference on Human Rights and Tax in an Unequal World organized by the Center for Human Rights and Global Justice (CHRGJ). The conference and edited volume of papers that will follow are part of a broader initiative by CHRGJ to promote scholarship and public debate on the relationship between inequality, the global economy, and human rights.

Winnie Byanyima was invited to provide the keynote address to the Conference, discussing the human rights implications of tax policy and tax abuse, and the human rights imperatives to challenge and change the tax system at both the domestic and international levels. Ms Byanyima was introduced by Professor Philip Alston (United Nations Special Rapporteur on extreme poverty and human rights and Faculty Director of the Center for Human Rights and Global Justice), who opened the Conference.

The event brought together leading practitioners and scholars from the fields of tax and human rights to discuss the ways in which tax policy can be viewed as a form of human rights policy, and how the international human rights framework might contribute to bringing greater equity and focus to the global tax regime.

Ms Byanyima's remarks can be found below. Further information about the event can be found here: http://chrgj.org/human-rights-and-tax-in-an-unequal-world/

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REMARKS

Professor Philip Alston,

Distinguished guests,

I am honoured to speak before you all on behalf of Oxfam. Professor Alston and Professor Reisch, I thank you for your invitation.

The Center for Human Rights and Global Justice at the New York University School of Law is a prestigious institution, and one that Oxfam knows well. Graduates from your School have served as some of our leading activists. Your academic leadership helps fuel the global struggle against poverty and injustice that Oxfam is a part of. 

And I was delighted to learn that your institution has dared to focus its scholarship on inequality, the global economy and human rights, and the connections between them. By doing this you have placed yourself at the centre of one of the most important political debates of our time – and I congratulate you for it.

We are gathered here today to talk about tax and human rights. 

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When people hear about tax avoidance and evasion they don’t necessarily think of it as human rights abuses.  People think of wrongful imprisonment, torture, freedom of speech being curtailed. I think it is time we changed that. The wealthy corporations and individuals that are sidestepping their obligations to pay tax are human rights abusers. Every school that is not built, every medicine that is not bought for lack of government funds due to tax dodging is an abuse of human rights- the rights of women, children and men across the world.

I believe that we need to make tax dodging a moral issue - an issue of human rights.  Many of the greatest campaigns in history were not won on policy but on moral principle - Slavery, Civil Rights, Anti-Apartheid.  Arms and tobacco are now things that no self respecting organisation would be seen to invest in.  Soon too it will be fossil fuels, we hope. 

We make the policy arguments and campaign on specifics, but it is when the moral compass of society shifts that you secure lasting victory.  We need to see tax dodging and those who facilitate it as morally wrong, and the language and laws of human rights can help us achieve this. 

There is a growing movement of people, all over the world, who want to end tax dodging, fight inequality and support human rights for all. .

This movement includes community leaders, activists, academics, writers, lawyers, students, artists, poets and economists. It has a rich history, and it exists in every country, from the richest to the poorest. 

I think it’s fair to assume that all of you are gathered here today because you are part of that movement, and I am proud to stand amongst you in that. 

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For me this has never been an academic endeavour. 

Last month I had something of a journey back in time. I visited Uganda, and I had the chance to visit places like the one I grew up in. I grew up in a little Ugandan village called Ruti. And I have very fond memories of my childhood there.

But I also remember the challenges vividly. My village had no running water, and with the other girls in my village, we went down to the river every day to collect water. I also collected firewood for my mother to cook our food.

I was fortunate, like a few other girls that made it as far as secondary school, and an even smaller number who completed it. But many of my friends had to drop out to look after their families or tend to their farms. Some were forced into early marriage. When education has a price and is not free – and when the going gets tough – it is the rights of a girl that are removed first, whilst the culture of son preference keeps boys in school.

I am pained to think where many of my childhood friends are now.

We were the product of a time that had recently seen decolonization struggles and the fight for independence. African nations like my own inherited fiscal institutions that had been established by colonial powers that did not prioritize investment in African people.

That was then. In so many respects, the present Uganda is very different to the one I grew up in. The last half century has seen us defeat authoritarianism and military rule. Our situation today is far from ideal, but you could argue we have a stable country. Many people have freedoms. The struggles for decolonization are discussed in history lessons. Uganda’s GDP reached an all-time high in 2014 and following in the footsteps of other African nations, my country aims to claim middle-income country status by the year 2020. 

This should spell hope for the African girls whose mothers once had to fetch water and collect firewood. And yet fifty years on, it is clear that little has changed for many ordinary Ugandans. 

Everywhere I visited last month, I met young girls, not carrying textbooks to classes but carrying babies across fields. I met one bright little boy, full of potential in Karamojong and asked him why he wasn’t in class – he told me his mother could not afford it. I met a secondary school teacher in Mbarara – able to teach other people’s children, but unable to afford to send her own to school.

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This is why I am here. The struggle for human rights, particularly women’s rights, and the struggle for more equal, human economies is one. Oxfam has always had human rights at its heart, and because of that, tax justice has become an ever bigger focus in recent years. 

We know that without tax justice it is impossible to achieve our vision of a just world without poverty. Yes – human rights exist above and beyond economic considerations, but the fact is that we cannot talk about achieving human rights for all without thinking about political and economic realities. 

The Sustainable Development Goals, agreed by governments here in New York one year ago, set out an ambitious agenda for ending extreme poverty and hunger, ensuring equal rights for women and for marginalised communities, tackling climate change and much more. This will costs trillions. UN Women have analysed country action plans on gender equality and found that some are facing a shortfall of up to 90% in the funds needed to achieve them. We know that aid will remain important for many countries for a long time to come – especially for fragile and conflict affected states. The private sector has a key role to play too. 

But we will only achieve these goals if governments in poorer countries are able to mobilize their own resources, and then be held to account by their own citizens to spend those resources in a way that benefits everyone. 

The SDGs are achievable. The world has enough resources. The problem is that these resources are shared so unevenly.

1% of people own the same as the other 99% combined. And just 62 billionaires control the same wealth as the poorest half of humanity – that’s 3.6 billion people, as our report in January this year titled “An Economy for the 1%” showed. 

Faced with such extreme inequality, we must strive for tax justice both for the revenues that can be generated and because of the urgent need to redistribute wealth – and also power – from the haves to the have-nots. 

National tax systems must therefore be judged not just on how effectively they generate revenue but how fairly they redistribute wealth, tackle inequalities and how they enable people to claim their human rights. 

And the global tax system must be judged on whether or not it makes this possible. 

I have always liked this quote from Clement Attlee, the British Prime Minister who introduced the modern welfare state and the national health service there. He said ‘‘Charity is a cold grey loveless thing. If a rich man wants to help the poor, he should pay his taxes gladly, not dole out money at a whim”.

Tax is the most dignified, reliable and accountable way of ensuring we can fund the fulfilment of human rights for all. It is tax that should pay for the things we all need and that we can only deliver as a society together – be it education, health services, energy infrastructure or roads. These are not matters of charity. They are rights, and the provision of them is a duty of government and society. 

We should all also be familiar with the rallying call that helped spark the US War of Independence: ‘No taxation without representation’. 

But we now have a situation in which many of the world’s wealthiest people and biggest corporations have somehow reversed this – paying little or no tax, whilst using their wealth to exert huge influence over political decision making, creating rules and systems that work in their favour at the expense of everybody else. 
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This capture and distortion of our tax system by wealthy elites is a direct attack on the principle of accountable, democratic government. The most fundamental duty of government is to ensure the protection and fulfilment of their citizens’ human rights. Through doing so, governments earn the legitimacy to raise taxes. 

This is the social contract upon which strong societies that respect human rights must be built. But this social contract is in danger of falling apart, unless we boldly reform how tax works at a global level and, for most countries, at a national level too.

When governments bow to pressure from powerful corporate interests, and create regressive fiscal systems that work for the few at the expense of the many, they are fuelling political, social and economic inequalities, and they are failing in their moral and legal responsibility to protect their citizens’ human rights.  

Even more worryingly, we’re seeing governments across the world not just favour the interests of corporations and wealthy elites, but actively suppress civil society voices who want to hold their governments and the private sector to account. Recently CIVICUS identified serious threats to civil society in over 100 countries — that’s on the up every year – and something we witness first-hand in our work with civil society organizations around the world. 

All human rights actors should be concerned by this. How can we expect to see fair and effective fiscal policies if governments are making decisions about how to raise and spend taxes with the shadows of powerful corporate interests looming over them, while the voices of ordinary citizens are being brutally silenced.  

The global tax system does not need minor tweaks. It needs a complete overhaul. The forces that have been allowed to shape it until now must be challenged as we seek to create a better, fairer tax system. 

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We are under no illusions – the problem is massive, complex and deep-rooted. We must be courageous in proposing and developing solutions that are commensurate with this. 

Firstly, we must remind ourselves that the global tax system does not exist in isolation.

It is a symptom and a cause of a global economy that is working for a wealthy, powerful elite at the expense of the many.

In the past few decades, we have seen income and wealth inequality spiral out of control as corporate executives take home ever more obscene pay packets, whilst millions of others continue to be paid poverty wages. We’ve seen companies successfully lobby governments to reduce regulatory controls on labour rights, wages and environmental standards. 

And we’ve seen a corporate culture develop which prioritises shareholder returns over all else, extracting value from the economy rather than creating it. 

In the UK, for example, the average large company was paying out 10% of their profits as shareholder dividends in 1970. Now, that has risen to 70%. That’s money that could otherwise be being used to increase innovation or productivity, or to improve wages for ordinary workers, supporting the real economy and helping ordinary people. Instead, it’s going into the pockets of mostly rich investors. 

At the same time, we’ve seen the use of tax havens sky rocket, to the extent that the Cayman Islands now receives 24,000 times more investment per capita than Brazil does. The architecture of tax havens has a pervasive role in causing regressive tax and spending systems in poor countries.  The international tax system encourages harmful tax competition at every level – and it drives the race to the bottom in corporate taxation. 
 
We’ve seen many countries slashing their corporate and high marginal tax rates. And we’ve seen governments, especially in poorer countries, being blackmailed into giving companies ludicrously generous tax breaks and incentives. 

Dr Donald Kaberuka, then President of the African Development Bank, was reflecting with us at Oxfam on his time as finance minister of Rwanda, and what it felt like to be on the receiving end of tax negotiations:  He recounted how ‘The multinational comes to you and says we want to invest in your country, but we need a 5 year tax holiday and this long list of requirements. And by the way, we only have 6 hours, and then our plane is taking us to your neighbour, who will probably agree to all of our demands.’

When companies don’t pay, governments are left with two basic choices:

Either they cut back on services – something that necessarily erodes the rights of the poorest most, hitting women and girls particularly hard. 

Or they shift the burden onto more regressive taxes such as VAT which fall disproportionately on poor people – again, women are worst impacted. Such indirect taxes make up on average 67 percent of tax revenues in sub-Saharan Africa.

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There are two primary, interconnected causes of these alarming trends.

Firstly, there is the rise of an economic consensus that took hold in the US and the UK in the early 1980s and then rapidly spread across the world.

Neo-liberalism has long presented itself as the only credible economic orthodoxy in town. 

It is an ideology that promotes the individual above society, that argues for lower taxes and fewer regulations, that downplays any real sense of corporate social responsibility, and that makes greed not just permissible, but praiseworthy. 

Now there is a growing recognition that it has been a false prophet. You may recall a recent report entitled ‘Neo-liberalism – Oversold?’. This report showed how and why the ideology has failed. It showed that deregulating capital movement and slashing public spending has increased inequality, and harmed the level and sustainability of growth that countries could otherwise have achieved. This wasn’t an Oxfam report. No, this came from those famously radical leftists at the IMF – a strange turn of events for those of us who campaigned against their structural adjustment programmes in the 1980s and 90s.  

Second, there is the capture of political and economic systems by wealthy elites.

The fact that those with money can use it to exert influence over decision makers creates a vicious circle. More wealth leads to more power, which in turn allows the wealthy to rig the rules so they can accrue even more wealth, leaving everyone else far behind.

Tax rules are certainly a powerful example of this. An army of accountants and lawyers are employed to help the world’s most powerful companies and individuals avoid paying their fair share. Imagine if we were employing thousands of people in Wall Street to travel around the US and developing countries and actually physically destroy public buildings; schools, hospitals; or sack teachers and nurses. There would be an outcry - and people would say they are violating the human rights of those affected.  

Yet that is what is going on day in day out in these tall glass towers full of diligent accountants, lawyers and bankers. It is shameful. 

According to the Centre for Responsive Politics, the two issues that US policy makers are lobbied on most are the federal budget and appropriations, and taxes. 

And Oxfam published its own research in April this year. Our report, “Broken at the Top” showed how the 50 biggest US companies – including global brands such Pfizer, Goldman Sachs, Walmart and Procter & Gamble – have stashed more than a trillion dollars offshore.

And for every $1 spent on lobbying, these 50 companies collectively received $130 in tax breaks and more than $4,000 in federal loans, loan guarantees and bailouts. That’s a scandalous rate of return.

Meanwhile, at the other end of the scale, the power of ordinary workers to look after their interests has been steadily diminishing for a long time now, with the gap between top-end and average pay spiralling out of control as a result.

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I say all this because it’s important for us to understand that, if the causes of our broken tax system aren’t unique to tax, then our solutions won’t be either. 

We must redress the massive imbalances of power that can be found throughout the global economy. We must challenge the ability of corporations and wealthy individuals to act as though they have no responsibilities to the communities within which they exist. We must pressure governments to meet their human rights obligations, acting in the interests of all their citizens, and particularly those who have historically been most marginalised. 

We must strive for something – globally and nationally – that is based around accountability, transparency, effectiveness and fairness. 

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Firstly, let’s look at power and accountability – issues that must be central to both our concept of tax justice and to the human rights framework. Who is currently making the rules?

The global tax system has evolved over many decades. Some of the underlying principles remain stuck in the past, with rules that might have worked in the 1920s but which bear little relevance in the globalised economy that we have today. The global tax system has been tweaked and added to over the years, but the governments and institutions who should be acting as its guardians have failed miserably at keeping up with the rate of change in the way businesses are structured and function. 

This complex and tangled global system offers rich pickings for those who wish to exploit it. It is a chaotic mess - ideal if you want to find loopholes to help you dodge paying your fair share, but a disaster for tax justice – and it will take coordinated, ambitious action from the world’s governments to regain control of it now. 

We can take some encouragement from the fact that there have at least been more attempts in recent years to start to get to grips with this. 

The G20 and the OECD did recognise that something had to be done about corporate tax avoidance in particular. The so-called BEPS process that they initiated has taken some welcome steps in the right direction, improving the sharing of information between tax authorities for example. However, these steps do not go nearly far enough, particularly in addressing the needs of developing countries. That is hardly surprising as a majority of developing countries – representing two thirds of the world’s governments - had no formal role in the negotiating process. 

Prominent tax havens such as Luxembourg and Switzerland, on the other hand, had a seat at the table throughout. In the implementation phase, developing countries have now been invited to participate on a more equal footing, but the fact remains that they are being asked to implement something they were not able to shape in the first place. 

Many issues that are priorities for developing countries are still not addressed, for example knowing whether the price of a good or service ‘traded’ between different parts of the same global company is fair, and how to analyse and tackle harmful tax incentives. Developing countries would also like to see a greater focus on preventing tax avoidance through more systemic actions whether broader agreement on anti-abuse rules, or on new ways to tax multinationals in the twenty-first century. 

More recently, the UN, the IMF, the World Bank and the OECD announced a new ‘Platform for Collaboration on Tax’. We have yet to see how well this will work in practice, and we are concerned that it currently seems to have a very narrow remit, but it does look like a positive step towards the kind of inclusive, accountable multilateral tax body that Oxfam and others have long been calling for. 

Based upon the existing legal responsibilities that all states have to achieve full human rights, such a body should also be empowered to sanction governments whose policies are harming the ability of other countries to raise the revenue that they need to fulfil the rights of their own populations. It should require all states to undertake assessments of the human rights implications of their tax policies, within their own borders and for other countries. We have always believed that the UN must have a central role to play in this process, facilitating inclusive inter-governmental negotiations, ensuring that the voices of rich countries aren’t allowed to dominate, and bringing in the private sector, civil society and other multilateral institutions. 

Of course, even if progressive tax systems are agreed upon, there is then a significant further challenge in ensuring that they’re actually working in practice.  

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This brings me to the second issue: transparency.

Citizens – and governments – must be able to know how money is flowing within and across borders, and where tax should be being levied but is being avoided and evaded. There are a number of measures that could be implemented that would be both powerful and pragmatic; technical but transformative.

For example, multinational companies must be required to report publicly on their turnover, profits and taxes in every country where they operate. 

This idea is gaining traction, would be relatively easy to implement and would have a dramatic impact on corporate tax avoidance.  Following successful campaigning in the US, the US Congress included a requirement in the 2010 Dodd-Frank Act strengthening financial regulation that requires all extractive industries publicly listed in the US to report how much tax and other payments they make in each country down to the project level.  This standard has now been enshrined into law in the EU, Canada and Norway. As result, major companies such as Shell and BP are disclosing taxes and other payments in every country of operation for the first time.  

It was actually after a lawsuit from Oxfam America that the US Securities and Exchange Commission finally issued regulations this summer to implement the landmark US law.

Similarly, we know that many rich individuals are using tax havens to hide their wealth or as bases from which to make investments, often through opaque layers of companies. We should be able to know who really is behind these shell companies. This is why there is growing pressure for every country to establish public registries of beneficial ownership for all companies, trusts and partnerships held there. It has been encouraging to see a wide range of countries commit to this within the last year, including the UK, France, Kenya, Nigeria and Afghanistan. 

Automatic exchange of information between revenue authorities will also help, though we must avoid insisting on full reciprocity if one country simply doesn’t have the resource or capacity to provide as much information as another. Otherwise, we again risk disadvantaging poorer countries. 

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Let’s just pause for a moment on this point about capacity. It’s really critical. 

Governments and their revenue authorities, especially in poorer countries, have the odds stacked against them when they’re up against the armies of tax lawyers and accountants employed by major tax dodgers. It has been estimated Sub-Saharan African countries would need to employ more than 650,000 additional tax officials for the region to have the same ratio of tax officials to population as the OECD average. So governments in poorer countries must invest in building up effective tax revenue authorities to collect the taxes that are due and to clamp down on abuses of the system, and they must be supported in this endeavour, with sufficient resources and with the ability to impose meaningful sanctions on those who commit or facilitate tax dodging. It is important that these bodies are not only well resourced though – it is just as important that they are transparent and accountable in everything they do.

I believe that tax justice can only be achieved when citizens are able to make their voices heard at all stages of the process, and can hold their governments to account on both policy making and implementation. 

It has been in the interests of tax dodgers, and those who facilitate tax dodging, to make sure that tax laws are as complex and opaque as possible. It is essential that we find ways to demystify tax – to get people to see that it is their rights which are at stake, and to show them that there is something they can do about it. This is why Oxfam and our partners are working in many countries now to engage the public with these issues, and to train people up so that they can question, challenge and influence decision makers to make sure tax policies are being set and implemented fairly and effectively. 

Human rights frameworks give us further opportunities to hold governments and corporations to account. For example, governments who are not doing all they can to generate resources for essential public services, and who are thus failing to meet the economic and social rights of their citizens, could be challenged in national courts or through international fora such as the Human Rights Council. 

The same can apply to corporations too. Tax behaviour should be assessed alongside companies’ other commitments to sustainable development under, for example, the United Nations Global Compact initiative and it should be seen as relevant to a company’s “corporate responsibility to respect human rights” outlined in the UN Guiding Principles for Business and Human Rights.  

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Finally, let’s talk about effectiveness and fairness. 

We know that well-designed tax systems that redistribute wealth and drive spending on public goods are one of the best weapons we have in the fight against inequality and poverty. 

Badly designed tax systems, on the other hand, exacerbate both. 

When judging efforts at a national level therefore, we must ask whether or not tax reforms will serve to reduce inequalities whilst raising enough money to fulfil the rights and needs of their citizens. We must look at whether countries are setting progressive marginal tax rates, at whether they are relying more on direct or indirect taxes, at whether they are implementing wealth and inheritance taxes, at their corporate tax rate and the effective incidence of this.  

And when we’re assessing efforts to reform tax at a global level, we must ask ourselves whether or not the reforms are making it easier for national governments to implement these kinds of progressive, effective tax systems within their own countries, or will they still find themselves at the mercy of the big multinationals and the global super-rich? 

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A lack of political will can no longer be an excuse. Now is the time for us to create a better, fairer tax system. 

The human rights of billions of ordinary people – people such as the little girls and boys in the Ugandan village that I mentioned before - are dependent upon it. 

This is an uphill struggle, as we all know. But there are reasons for optimism. We saw with the Panama Papers this year that this is an issue the world cares about. Governments are feeling pressure to do something about it, and they have made some steps in the right direction. 

As I said, we need to make tax dodging and those who facilitate it morally unacceptable. Showing how it is a systematic and enormous abuse of the human rights of people all over the world will go a long way to achieving that shift in the public mind.  It is already shifting, with more and more whistle blowers coming forward.  The more we can do to encourage this, using the human rights framework, the better. 

We are all part of a growing movement of people who are creating a compelling vision of what a fair tax system should look like, and who are determined to work together to achieve it. 

This Conference will help us to how tax justice can help us achieve human rights for all, and how human rights frameworks can help us achieve tax justice. This has the potential to be a very important step in the journey that we are travelling together.

I thank you again for inviting me to join you for it.

ENDS