Do We Have a Human Rights-based Duty to Pay Tax

We owe statutory, and arguably moral, duties to pay tax but do we also have a taxpaying obligation grounded in the affirmation of human rights?

What is said in the Universal Declaration of Human Rights and others?

Australian diplomats, William Hodgson and Ralph Harry, contributed to the drafting committee for the Universal Declaration of Human Rights 1948, chaired by Eleanor Roosevelt. Numerous drafts of the Universal Declaration were negotiated before the final version, which includes a broadly-worded affirmation of duties, was adopted. Article 29(1) states: ‘Everyone has duties to the community in which alone the free and full development of his personality is possible.’ Hodgson suggested use of the critical word ‘alone’. His proposal was enthusiastically supported by Alexei Pavlov, the Soviet Union delegate, because it ensured that individual rights could not be claimed without recognition of the duties owed to the political community that guaranteed those rights.

Other human rights instruments, notably the Organization of American States’ American Declaration of the Rights and Duties of Man (the American Declaration), list specific duties, including a duty to pay tax, that roughly reciprocate the rights affirmed. The American Declaration, which was concluded eight months before the Universal Declaration, influenced the latter. Both are based on respect for human dignity, and their preambles are virtually the same. Why, then, doesn’t the Universal Declaration also include a specific duty to pay tax?

Bahgat Badawi Bey, the Egyptian delegate, argued that the Universal Declaration should include a list of duties in the way of the American Declaration. While delegates from the liberal democracies opposed a list of specific duties in principle, René Cassin, the influential French delegate, observed, if the drafting committee followed Bey’s proposal, ‘it would become necessary to draft a declaration of duties corresponding to the declaration of rights. It was obviously impossible to complete such a task during the current session.’

Since the American Declaration would have most likely provided a template for a discussion of duties, it would no doubt have been a deeply time-consuming task to craft a list of specific duties that would satisfy the numerous and heterogenous delegates at the Universal Declaration conferences. Johannes Morsink, who has analysed the development of the Universal Declaration in great detail, concludes there ‘was not enough time at the end to expand upon Article 29’.

Modern national constitutions invariably incorporate a charter of rights, typically derived from the Universal Declaration. Protecting and promoting any human right requires government expenditure but satisfying welfare claims are particularly expensive. That is why article 22 of the Universal Declaration limits states’ welfare provision obligations to the organisation and resources of the particular state. Nevertheless, the provision of welfare has become one of the most important functions of modern government, and the most significant item of tax-funded expenditure. Social security and welfare expenditure in 2020–21 represented almost 34% of the Australian Government’s total spending.

Duty to pay tax not explicit in Australian constitution

Roughly 90 national constitutions include an explicit duty to pay tax. Around a quarter of those states specify that tax should be based on ability to pay. Australians indirectly owe a constitutional duty to pay tax since section 5 of the Australian Constitution provides ‘all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth’. The Constitution does not, of course, specify the principles that should inform federal taxes but ability to pay is a normal and basic tenet of taxation in OECD countries.

Despite not having entrenched, superior human rights-based constitutions, because they have ratified the three fundamental human rights instruments – the Universal Declaration, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) – British-heritage common law jurisdictions, including Australia, are considered human rights states.

Human rights states must comply with their international promises on rights, including progressive welfare provision. Their citizens fund these obligations in accordance with their ability to pay, in terms of legislation crafted in accordance with the rule of law. However, while tax equity organisations, such as the Tax Justice Network, demonstrate the necessity of taxpaying for the realisation of human rights, they do not prove a duty to pay tax.

No rights without duties

Article 29 is, perhaps, the least-known provision of the Universal Declaration. It is, however, highly significant because it affirms that we cannot have rights without duties.

Delegates to the drafting conferences for the Universal Declaration were satisfied that a broad statement on duties performed essentially the same function as the detailed duties provisions of the American Declaration. It can be inferred that, having affirmed welfare rights, the delegates would have accepted that a duty to pay tax is implied by article 29. The prosaic story of the drafters running out of time goes some way to explaining why we may not immediately associate human rights claims with a duty to pay tax. Nevertheless, if we claim human rights, we must recognise that such a duty is essential.

 

This blog post is based on Jonathan M Barrett, ‘Is there a duty to pay tax inherent in universal human rights?’ (2023) 29(3) Washington and Lee Journal of Civil Rights and Social Justice 1.