This blogpost aims to provide some insights of the discussions at the organizational session of the negotiations for an UN International Framework Convention and to provide some remarks regarding the legitimacy of this process.
While watching the organizational session at the UN Live Web TV, it seems clear that there is a lot of work to be done by the recently elected Bureau of the Intergovernmental Negotiating Committee (Chair, 18 Vice-Chairs and Rapporteurs) as well as by countries in general to ensure that these negotiations will result in inclusive and effective participation for all countries. As we have argued elsewhere in order to enhance the legitimacy of the UN process is important to ensure that all countries feel represented, heard, and also that the outcome will benefit all countries.[1] This legitimacy is even more important now taking also into account the obstacles to this process[2], that have been reinforced by the withdraw from the United States from these negotiations. [3]
Background
The negotiations for this international framework convention have started with an organizational session consisting of 7Meetings from 3 to 6 February 2025 in New York . This session was organized based on the Terms of Reference approved by the UN Resolution of 24 December 2024. Subsequently to this organizational session, the negotiations for the Framework Convention and the 2 Protocols have been initiated with the first meeting scheduled for August 2025 in New York. [4]
The organizational session could be attended in person or could be followed via UN Live Web TV. The outcome of the session has been made available in a report (AC 298/3) (link here). However, this report does not address in detail the discussions that took place within the organizational session. The only reference is to the statements of Canada (also on behalf of Australia and New Zealand) and Poland (on behalf of the States members of the European Union), at the 7th Meeting regarding the lack of discussion and progress of organizational matters. Neither the report, nor any UN document available at the UN website for this Convention address these concerns in detail, nor reference is made in the documents to whether these concerns will be addressed in future meetings.
At the EU Platform of Tax Good Governance[5] meeting of 17 December 2024, this author as one of the representatives of the European Association of Tax Law Professors[6] in this Platform addressed the need to keep in mind at the UN Framework Convention negotiations, the input, output and throughput legitimacy of these negotiations. See link to outcome of the EU Platform here and slides here. The discussion of legitimacy has also been addressed by this author regarding the role of the EU, OECD and G20 vis-à-vis developing countries.[7]
This contribution will follow these elements based on the observation of the discussions at the UN organizational session. Due to the length of the sessions (7 meetings in 4 days) it is not possible to provide all insights. The focus will be on input legitimacy with some short references to output and throughput legitimacy. The latter two topics will be further discussed in a blogpost when addressing the first round of negotiation in August 2025.
Input legitimacy: Participation, representation, agenda setting and decision-making process
The organizational session of February 2025 shows several deficiencies in the input legitimacy. Some of these deficiencies are addressed below, and it shows that achieving inclusive and effective cooperation is not as easy as it seems either at UN, OECD or any other international forum. Therefore, the UN Secretariat, the recently elected Bureau will need to address the legitimacy deficiencies in order to ensure the success of these negotiations. This is an unique opportunity for the UN and countries to get international tax cooperation right, to ensure the legitimacy of the process, as well as to ensure effective and inclusive participation.
Participation
Effective participation at the UN negotiations requires knowledge of the topic, problems and possible solutions. In order to do so, countries’ representatives need to have knowledge of international taxation. However, one important observation that can be drawn is the lack of knowledge of international taxation of some countries representatives during the organizational session. Most of the countries’ representatives are UN diplomats with broader knowledge of law, international relations, but lacking the understanding of the complexity of the current international tax system. Some countries were represented by tax experts and in very few cases (e.g. the Netherlands, Jamaica, Argentina) by (current) members of the UN Tax Committee.
If one example can illustrate this problem is that some countries representatives mentioned several times during their interventions their lack of tax knowledge. This was also shown in the discussions of the Protocols. For some countries representatives it was not clear the difference between the 1st protocol (taxation of income derived from cross-border services) vs. 2nd protocol proposal for taxation of the digitalized economy?[8] In order to understand this, countries representatives will need to have knowledge of the developments on the taxation of the digital economy including also the OECD proposals, the unilateral measures and the negotiation of art. 12B of the UN Model. In order to seek more guidance on the topic of the second Protocol, Switzerland asked from countries to give an outline of the topics and solutions that the proposed second protocol will want to achieve. (01:56 min 3rd meeting).
Tax knowledge is also needed to understand the role of tax sovereignty and the differences in domestic and international tax policy. This knowledge may explain why the UN Convention against corruption can be addressed by simple majority, but perhaps tax cooperation needs more than that? In general, each country wants to tackle corruption, whereas in taxation, the discussion of aggressive tax planning and fair share (two important common objectives) need to take into account the distribution of the fair allocation of taxing rights between capital import vs. capital export countries. This fair allocation was also one of the reasons why countries wanted to discuss international tax cooperation at UN level, so that developing countries interests are considered at UN negotiations .
If we do not address this tax knowledge gap among countries, the risk exists that these discussions will not be effective enough to identify what is needed for effective international tax cooperation. One example to illustrate the usefulness of tax knowledge was some of the interventions made by the members of the UN Tax Committee. For instance the representative of Argentina explained clearly the difficulties to implement a wealth tax in its country, since it goes against their domestic tax policy of Argentina (3rd meeting 02:45 min).
The tax knowledge gap also needs to be taken into account in the discussion of capacity building for these negotiations. In the author’s view, capacity building requires the right person in the room, the one who can understand and make the decisions regarding the outcome of the negotiations. Therefore, capacity building in these international negotiations requires tax knowledge by the negotiators, as well as the negotiation being carried out by the countries’ representative that can make the right decisions based on their tax knowledge.
Representation
The participation of all countries in this organizational session is an opportunity for each country to present their views and proposals regarding international tax cooperation. In order to facilitate participation the UN has made possible the representation in regional groups.
In the past, we have argued that regional cooperation can help to strengthen the voices of developing countries in global tax negotiations (link here). However, in order to do so, it is important to have a coherent dialogue which hopefully can be achieved through effective regional representation.
The organizational session shows that even though countries were represented in a region, some countries decided to also present their unilateral positions or defend their own interests. One example that illustrates the difficulties to align countries’ interest within a region was observed in the intervention by some small island states of the Caribbean and Latin American group. These small island states in the Caribbean will address as one of the obstacles to achieve inclusive and effective tax cooperation the role of the EU list of non-cooperative jurisdictions which may affect these islands, but not all countries of the Caribbean and Latin American region. Since the list of non-cooperative jurisdictions is not included in the negotiation neither in the Framework Convention or Protocol 1 or Protocol 2, the question is whether the UN becomes a platform for countries to express their inconformity not only with OECD but also EU standards.
Another example was the difficulty to understand whether European countries were speaking with one voice or several voices, since in some cases, some European countries will also add more content to the European position. This was the case of the Netherlands which addressed in the 1st meeting its national position with some additional remarks regarding the Protocol while also adhering to the EU position. Also in some cases, the EU representative of Poland which has the EU presidency at the time of the organizational session presented its own views, in addition to the EU common position. This was also true throughout all 7 meetings where EU countries also intervene to state their national position.
The differences are also reflected in the grouping between Western Europe vs. Eastern Europe, which may limit the EU voice during this organizational session. At the time of the organizational session, the EU presidency lies in Poland, which is an Eastern European country, so even though Poland speaks for the EU, the division between Western and Eastern European countries may represent a missed opportunity of the EU to speak with one voice. In order to avoid fragmented views, the EU and EU countries should reinforce the role of the EU as a supranational organization which includes western vs. Eastern Europe interested are being clearly represented in these negotiations.
From the organizational session, it was clear the leadership of the African Group while representing the African countries for instance regarding the proposal from Ghana on behalf of the African Group to ask for a vote on the proposal of France to have decision making by consensus (see decision -making below). However, more leadership and participation in these negotiations should be encouraged from Latin American/Caribbean as well as the Asia Pacific region.
Agenda setting
The February 2025 organizational session shows that actually very little time was given to the preparation of this session, and sometimes the agenda of this session seemed a little ad hoc, or decided at the same time that countries’ positions were being made known.
One of the main obstacles to this preparation was perhaps that the choice for the Bureau (Chair, 18 Vice Chairs and Rapporteur) was also made at the organizational session, which left little time for the Bureau to communicate with the UN Secretariat on how to carry out this organizational session and clarity regarding the items proposed in the agenda. For instance, the agenda item regarding organizational matters already discussed in the 2nd meeting was open again for discussion in the 3rd meeting. As it was stated by the Chair there were oral requests from countries to seek clarification regarding the new Committee process, and therefore, countries wanted the opportunity to raise questions on this process.
This lack of a clear agenda setting also resulted in several requests from countries to address the availability of background documents, as well as to ask for clarification of the topics mentioned in the agenda. Throughout the sessions, we observed the active intervention by the Chair to introduce some statements and some observations on how to deal with the above mentioned issues (for instance in the 3rd meeting from 1:16 min to 1:22 min).
However, the discussions showed that more preparation and consultation was needed during the organizational session regarding the agenda and the drafts/background documents to be discussed by countries. For example in the 2nd meeting, some countries asked for circulation in writing of the proposal regarding stakeholder engagement (civil society, business, academy). The Chair accepted to circulate the proposal in the evening of day 1 and to postpone the discussion on the proposal to day 4. Another example, on the 3rd and 4th meeting several countries (Nigeria, Singapore, Norway, among others) expressed the need to discuss in more detail the decision making rules, the use of a roadmap and work program, the structure of the Committee and Committees and the role of the Secretariat in order to ensure full participation in the meetings. In the 3rhd meeting Singapore and in the 7th meeting, the United Kingdom amongst other countries also asked to exchange in advance more information on the meetings as well as on the drafts will be discussed.
Decision-making process
Decision making process was one the most controversial topics within the organizational session. The question was whether to have decision making by consensus, simple majority or qualified majority. There were several proposals by countries, and in some cases, the organizational session was adjourned to give room to bilateral meetings (not public available) to come with proposals on decision-making to the organizational session.
Three of these proposals were addressed in the Report of the organizational session for instance the proposal by the Chair (decisions on matters of substance relating to a protocol shall be taken by a two thirds majority of members present and voting), the proposal submitted by Mexico and Norway (decisions of the Committee on matters of substance shall be made by a two-thirds majority of members present and voting), the proposal of France (the Committee shall conduct its work and take decisions by consensus) and the proposal of the African Group (decisions on matters of substance relating to a protocol shall be taken by a three-fifths majority of members present and voting). The report also included the voting for proposals for instance regarding the oral amendment made by France for decision making by consensus (para. 24)[9]. This proposal received objections from Ghana on behalf of the African Group, and therefore, the proposal was put to a vote and rejected by majority.
However, this report does not show the high stakes of countries when discussing this topic. As it was mentioned by one country, the more controversial the topic is, the more difficult is to reach out consensus.
Only when listening to the countries statement it was clear the dissatisfaction of some countries regarding the way that the decision making for the framework convention and its two protocols was being addressed. Since some of these discussions were left to bilateral meetings that were not recorded, or broadcasted at UN Web Live TV it was not clear how the negotiations took place, which shows the limitations to achieve full transparency by the UN of these discussions (and therefore lacking throughput legitimacy).
At the end, the choice was made on simple majority and only for substantial issues relating to a protocol a qualified majority (two thirds majority). This qualified majority will only be enacted “when the Chair, upon the recommendation of the Bureau, informs the Committee that all efforts to reach consensus have been exhausted, decisions on matters of substance relating to a protocol shall be taken by a two thirds majority of members present and voting” (para. 25(b))[10] This was adopted by majority voting of the countries ‘representatives.
Output legitimacy
Principles and objectives
In the 1st meeting of the organizational session, the countries addressed some of the principles and objectives of the framework convention. Also these principles were addressing when discussing the decision making process. In the 7th meeting Germany stated that the principles of inclusiveness and fairness will not be achieved due to the choice of majority instead of consensus.
The author observed during these discussions that the interventions made by countries showed that countries were addressing principles of inclusiveness, fairness, effectiveness and equitable, but also for different purposes either representation, decision-making process, which may be more on the procedural aspects than on the outcome of the negotiations.
In the past, we have argued that principles such as fairness may be approached differently by countries, civil society, business, academia, and we classified these approaches taking into account different perspectives (legal, economic, philosophical, political). In the author’s view, the Bureau will need to clarify what these principles mean, if we want to have the same dialogue during the negotiations of the framework convention. The question that will need to be addressed in the forthcoming (August 2025) of the framework convention is whether these principles are defined, or just left without definition, and the reasons to choose one or another.
Alignment of the outcome with the Sustainable Development Goals (SDGs) and choice for the Second Protocol
Despite the reference by countries to the Sustainable Development Goals at the organizational session, very little was discussed on how the Framework Convention will align with the SDGs. This is also important to ensure accountability of the Framework Convention and its two Protocols regarding their contribution to the SDGs (2030 Sustainable Development Agenda and the 2063 African Agenda) .
The analysis below provides some insights on the obstacles to achieve effective and inclusive tax cooperation. For instance, countries’ interventions at the organizational session illustrates that the choice for the 2nd Protocol (either dispute resolution, exchange of information, illicit financial flows, tax evasion and tax avoidance by high net worth individuals) faced some challenges regarding capacity constraints, economic interest and/or tax policy of countries.
Interesting to observe in the 3rd meeting that even though countries for instance Kenya and Zambia highlighted their preference for illicit financial flows whereas Pakistan and Chile highlighted their preference for tax of high net worth individuals, these countries were also open to other topics. One of the reasons was the time needed to address for instance illicit financial flows which is more controversial, and which it will take more than three years which is the time allocated for these negotiations. Another reason was the time that will be needed to discuss and agree on the content of the 1st Protocol, which may result in choosing a less controversial topic for the 2nd Protocol. At the end it was decided to address the prevention and resolution of tax disputes in the 2nd Protocol.
Notwithstanding the UN work on this topic for instance on the 2021 UN handbook convention, countries should also be aware of the challenges to implement a dispute resolution mechanism If one example can illustrate this is the implementation of BEPS Action 14 which resulted in deferral of peer review for several countries see schedule In the past, we addressed in a case study of 7 countries the peer review of Action 14 and the constrains of developing countries to implement BEPS Action 14 (see link here). Another country also mention the limitations to dispute resolution mainly regarding the objections to arbitration by developing countries. We have argued elsewhere that there should a holistic approach towards dispute resolution from a tax, trade, investment and public international law perspective. In order to achieve a 2nd Protocol that can be effectively implemented cooperation between policy makers in all these areas of law will need to be enhanced. Some of the elements that can be linked to these areas have been discussed by this author elsewhere (see here).
Therefore, these concerns should be also addressed in the forthcoming meetings when deciding on the content of the Framework Convention and the 2 Protocols. Further analysis will need to take place once the first round of negotiations starts in August 2025.
[1] See Global Tax Governance: Legitimacy and Inclusiveness. Why it matters. Inaugural Lecture Blogpost available here and book available here. Recording available here
[2] The discussion of the terms of reference has also faced several obstacles including also the abstention of EU countries during the voting for these terms of reference see EU Explanation of Vote, UN General Assembly 2nd Committee: Tax Cooperation resolution | EEAS.
[3] Statement at the Session for the Intergovernmental Negotiating Committee on the UN Framework Convention on International Tax Cooperation – United States Mission to the United Nations
[4] These negotiations have been scheduled to take three years (with three substantive sessions per year in New York and Nairobi).See link to the planning in the UN website Intergovernmental Negotiations for UN Framework Convention on International Tax Cooperation | Financing for Sustainable Development Office
[5] According to the website of the EU, the Platform for Tax Good Governance is a group of experts that assists the Commission in: developing initiatives to promote good governance in tax matters in third countries, tackling aggressive tax planning, and identifying and addressing double taxation. On 6 June 2024, the Commission decided to continue the work of the Platform in the form of a new expert group, with revised tasks to reflect on the developments in tax transparency and fair taxation agenda (C(2024)3689).
[6] The European Association of Tax Law Professors (EATLP) is an established and well-respected academic organization, having around 350 members (professors). https://www.eatlp.org/
[7] See for a list of publications this blog https://globtaxgov.weblog.leidenuniv.nl/articles/
[8] At the end of the discussions, the topic of Protocol 2 was left behind, and to some extent to be discussed under the Protocol 1.