Africa Fights for a Fair Share of Global Tax

Tough negotiations for a UN tax agreement have not yet resolved fundamental differences.

African countries and other global south members are negotiating at the United Nations (UN) in New York to establish a UN Framework Convention on International Tax Cooperation for a fairer international tax system. This is to ensure multinational corporations pay appropriate tax where they do business, rather than in tax havens.

A global system that fairly rewards African countries for business conducted in their jurisdictions and curbs illicit financial flows through tax evasion and avoidance would help them raise revenue for their own development.

The talks are roughly halfway, with about a year until their formal deadline, and have recently generated some optimism.

The European Network on Debt and Development said the ‘process is … moving forward quickly. In line with the [UN General Assembly mandate], the co-leads of the process have now published formal negotiating drafts for no less than three legally binding agreements.’ These are the framework convention itself and protocols on cross-border services and on preventing and resolving tax disputes.

The draft text envisages a Conference of Parties (COP) to manage the convention and a secretariat to administer it.

But agreements have largely been on the process while hardcore substantive issues, like which jurisdictions should have the right to levy tax on multinationals, remain unresolved.

The UN Africa Group, leading negotiations for developing countries, wants international tax rule-setting removed from the Organisation for Economic Co-operation and Development (OECD) and transferred to the envisaged UN Framework Convention. OECD members want their body to at least co-govern international tax.

The OECD’s 38 advanced economies introduced the OECD/G20 Two-Pillar Solution in 2021, under an inclusive framework backed by over 140 countries, to ensure that large multinationals pay tax where they make their money, regardless of physical presence.

But African countries doubt OECD members’ real commitment to deep tax reform. These countries are home to most of the multinationals in question, and some are tax havens. The Africa Group wants the developing world to have an equal say in writing the rules.

United States President Donald Trump’s administration quit the negotiations last year, leaving European Union (EU) states and others to apply the brakes. Ireland and Italy, among others, say the convention’s objectives and principles belong in its preamble. The Africa Group and India insist these should sit in the body of the convention, where they would carry legal weight rather than rhetorical value.

The proposed convention’s core is Article 5 on ‘Fair Allocation of Taxing Rights’. The current draft text says, ‘A fair allocation of taxing rights among jurisdictions shall reflect the real economic contribution of each relevant jurisdiction, including jurisdictions where value is created, markets are located, revenues are generated and users or data are located … whether or not such activities involve physical presence [there].’

The Africa Group finds this wording vague, allowing multinationals ample loopholes. It wants explicit language stating that a single factor from that list – like where the market is located – is enough to sustain a claim to tax.

The Group also wants Article 6 hardened. Its tentative wording, committing states parties to ‘explore coordinated approaches to ensuring effective taxation of high-net worth individuals,’ should become an undertaking to ‘develop and implement coordinated approaches to ensure the effective taxation of high-net-worth individuals.’

Article 7 commits state parties to ‘cooperate to combat tax-related illicit financial flows, including tax avoidance and tax evasion.’ The Africa Group supports the text, but several OECD and EU member states object to it on the grounds that it outlaws legal tax avoidance.

Ireland, which offers attractive corporate tax rates, says this Article ‘includes references to both tax avoidance and tax evasion as tax-related illicit financial flows. In our view, there are important legal distinctions between them.’

Negotiations continue in Nairobi from 30 November.

Logan Wort, former executive secretary of the African Tax Administration Forum, and part of the African voice at the UN talks, expects them to succeed. In his private capacity, he said the adoption of a UN tax convention next year would be a success in itself, given OECD-led efforts by developed countries to prevent it.

A framework that uses strong political language while deferring operational rules to protocols and COP decisions would not necessarily be disappointing. The framework was not meant to rewrite bilateral treaties, but to settle who decides international tax rules and how.

The gain would be that Africa and others would have shifted rule-making ‘from a body where we had a seat and no vote’ (the OECD Inclusive Framework) ‘to one where every member state has both.’

That shift would count for little, however, without three further wins.

The first is majority voting at the COP. Without it, OECD countries could still block decisions by insisting on consensus.

The second is a mechanism automatically aligning conflicting bilateral treaty provisions with the convention and its protocols. Leaving that voluntary bilateral renegotiation would not help African countries, given their weak bargaining positions.

The third is the services protocol. If it delivers a taxing right for African countries over remote and automated services, without requiring their physical presence, with tax collected by gross withholding rather than net taxation. If so, Wort argues, ‘that single protocol is worth more to a revenue commissioner in Lagos or Nairobi than every equity paragraph in the framework combined.’

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