Understanding the Beps and Other OECD Tax Initiatives Including the Inclusive Framework in the Context of Treaties and State Inequality

In this article the author seeks to establish a functioning non-context specific definition of an “Unequal Treaty” which takes into account underlying principles of state equality, the concept of treaties and non-coercion whilst sitting outside any single historical moment, by reference to international customary law, United Nations resolutions of the General Assembly and normative or moral concepts of coercion. Having established a definition, the author goes on to apply that definition to a number of developments and provisions put in place in the last decade, such as the Foreign Account Tax Compliance Act, the Common Reporting Standard and the outflows of the Organisation for Economic Cooperation and Development’s Base Erosion and Profit Shifting project, setting these provisions within their political and procedural contexts so as to place them within the historical tradition of treaties between large and small powers. . By applying the definition developed the author concludes that some but not all of the recent tax related provisions amount to Unequal Treaties.In establishing a methodology by which to assess the inequality of treaties and applying that to the current tax relevant provisions, the author hopes to allow an informed discussion based not only on the objectives of large powers but also an assessment of the characteristics of the methods by which the community of developed nations as represented by the OECD achieves its goals in the tax context