TRINITY LAW REVIEW
RELIGIOUS FREEDOM AS A FOUNDATIONAL RIGHT AND ITS IMPLICATIONS FOR INTERNATIONAL RELATIONS AND GLOBAL JUSTICE Sosamma Samuel-Burnett THE MYTH OF “SEPARATE ENTERPRISES” IN INTERNATIONAL TAXATION: APPROACHES TO ATTRIBUTION OF PROFITS TO PERMANENT ESTABLISHMENTS Charles Lincoln IS NEWSCASTING REINVENTING SEXUAL HARASSMENT? Natalie L. Coburn
TRINITY LAW REVIEW
ARTICLES RELIGIOUS FREEDOM AS A FOUNDATIONAL RIGHT AND ITS IMPLICATIONS FOR INTERNATIONAL RELATIONS AND GLOBAL JUSTICE Sosamma Samuel-Burnett ................................................................... 1 THE MYTH OF “SEPARATE ENTERPRISES” IN INTERNATIONAL TAXATION: APPROACHES TO ATTRIBUTION OF PROFITS TO PERMANENT ESTABLISHMENTS Charles Lincoln ..........................................................................................30 IS NEWSCASTING REINVENTING SEXUAL HARASSMENT? Natalie L. Coburn ......................................................................................45
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RELIGIOUS FREEDOM AS A FOUNDATIONAL RIGHT AND ITS IMPLICATIONS FOR INTERNATIONAL RELATIONS AND GLOBAL JUSTICE Sosamma Samuel-Burnett*
I. OVERVIEW Religious freedom is not only a human and constitutional right, but also a significant aspect of the human condition. It is particularly relevant for policy considerations and international relations. Religion and religious freedom are concepts that are highly regarded and contested on many fronts and are undergoing a major global resurgence with implications for world affairs and global justice. The world is becoming more rather than less religious. Polls from around the world show a growth in religious affiliation and even for religious leaders to be more involved in politics. 1 Global trends of religious adherence find that most faiths are growing at a faster rate than that of the world’s population. 2 Islam in particular is expected to reach parity with Christianity by 2050. 3 By contrast, non-religious and atheists are growing at the slowest rates and well below population growth rates. 4 Two leading demographers of religion, Todd Johnson and David Barrett, have concluded that “[d]emographic trends coupled with conservative * Sosamma Samuel-Burnett is the Founder & President of G.L.O.B.A.L Justice, a nonprofit advocacy, education and policy organization based in Loveland, CO. She also serves as a Fellow in Geopolitics & Global Justice at the Centennial Institute at Colorado Christian University. Sosamma holds a Juris Doctorate with an emphasis in International Human Rights from the University of Minnesota Law School and a Bachelor of Science in Foreign Service with a concentration in International Politics from Georgetown University’s School of Foreign Service. 1 Thomas F. Farr, Diplomacy in an age of Faith Religious Freedom and National Security, FOREIGN AFFAIRS, (March/April 2008) https://www.foreignaffairs.com/articles/2008-03-02/diplomacy-age-faith. 2 The Future of World Religions: Population Growth Projections, 2010-2050, PEW RESEARCH CTR., Apr. 2, 2015, at 7. 3 Id. 4 Id. at 8.
estimates of conversions and defections indicate over 80 percent of the world’s population will continue be affiliated to religions 200 years in the future.” 5 Further, much of the world considers religion at the heart of human dignity. History has shown that protecting religious liberties and using them to benefit society has been a crucial element for democracy to endure. 6 Social science studies have shown that religious freedom has a close nexus with social, economic, and political goods. 7 Social scientists, Brian Grim and Roger Finke, suggest that religious freedom is linked to the well-being of societies. 8 Religion has increasingly been a central factor in relations within, and especially among, nation-states, but scholars have been slow to recognize religion as an important factor in world politics. 9 “Religion has become one of the most influential factors in world affairs in the last generation but remains one of the least examined factors in the professional study and practice of world affairs.” 10 The disconnect between global trends and international scholarship and practice is partly explained by the concept of secularization which has been considered a hallmark of modernity. The secularization thesis maintains that there is an increasing distinction between the religious and secular realms, that religious belief is most appropriate for the private sphere, and that this separation is central to liberal democracy. 11 However, neither history nor current trends support these distinctions. Under the secular thesis, we would see a decrease of religious believers in the world and thus the world would become more peaceful. 12 But as noted, the number of believers has increased and the world has not been peaceful and not necessarily because of that increase. Secularization 5
Supra note 1. Id. at 1. 7 Id. 8 BRIAN J. GRIM & ROGER FINKE, THE PRICE OF FREEDOM DENIED 205–6 (2011). 9 Michael C. Desch et al., Religion and International Relations: A Primer for Research 14 (Univ. Notre Dame, Working Paper No. 2, 2011), http://rmellon.nd.edu/assets/101872 /religion_and_international_relations_report.pdf. 10 RETHINKING RELIGION AND WORLD AFFAIRS, 3 (Oxford U. Press et al. eds., 2012). 11 Supra note 9, at 15. 12 Id. at 21. 6
would result in fewer wars, as they would no longer have various religions against each other. 13 Yet we have conflicts throughout the world for both religious and other reasons. Finally, secularization would mean a decline of the number of wars fought for religious reasons. 14 But we have currently the most wars in human history on both religious and other grounds. As such, the secularization thesis has been inconsistent with both the present and likely future realities of our world. Daniel Philpott indicates, “The dominant theories in the field assume that the states, nations, international organizations, parties, classes, businesses, interest groups, nongovernmental organizations, and lobbies that carry on politics pursue ends that include power, conquests, freedom, wealth, a redistribution of wealth, welfare provisions, human rights, justice, environmental cleanliness, and other goals, but they do not pursue religious ends and are not influenced by religious actors.” 15 On the contrary, “Religious ideas … are at the root of modern international relations.” 16 Religion in an international context is a topic that has been undertheorized, yet is perhaps the most important complexity to try to make sense of.” 17 It is important to recognize that an examination of religion and religious freedom can help us understand the link between religion and modernization, religion and democracy, and religion and the state. 18 But religion and religious freedom open many questions for international relations, policy, and society. What is religion? How has it shaped the international system? What is its role for policy and policymakers? What are the implications for international relations today and in the future? Widespread confusion exists over the proper role of religion in public policy. 19 Thomas Farr notes, “The persistent belief that religion is inherently emotive and irrational, and thus opposed to modernity, 13
Id. Id. 15 Id. at 18.“” 16 Id. at 27. 17 Id. at 38. 18 Id. 19 Supra note 1. 14
precludes clear thinking about the relationship between religion and democracy.” 20 “Some disagree with the central role and significance of religion in international relations. They continue to “believe that international relations should generally avoid religion because it is essentially a secular social science.” 21 But religion, law, and policy have always intermingled. 22 Elizabeth Shakman Hurd, while promoting an alternate perspective on religious freedom, states “[r]eligion is better understood, as are other intersected categories such as gender, race, and class: It is deeply enmeshed with the legal forms of collective governance in complex and context—specific formations. The religious-secular opposition is itself unstable, shaped by social forces, institutions and practices that cannot be reduced to either of the two sides of the binary.” 23 Religion also occupies different spaces than government, and in that some are usually considered secular areas. 24 As such, religion has an intrinsic role in international relations and religious freedom is essential for global justice. The following provides a review of both the development and concept of religious freedom as a foundational right and considers its implications for international relations, particularly in specific areas of global justice including security/terrorism, poverty, and the status of women/children. II. DEVELOPMENT OF RELIGIOUS FREEDOM AS A CONCEPT IN INTERNATIONAL RELATIONS While religion is among the most ancient of human experiences, the concept of religious freedom has developed over time and has gained more significance in the modern era. An initial marker for religious 20
Id. Michael C. Desch et al., Religion and International Relations: A Primer for Research 56, 57 (Univ. Notre Dame, Working Paper No. 3, 2011), http://rmellon.nd.edu/assets /101872/religion_and_international_relations_report.pdf. 22 Elizabeth Shakman Hurd, How International Relations got Religion, and got it Wrong, WASH. POST, (July 9, 2015), https://www.washingtonpost.com/news/monkeycage/wp/2015/07/09/how-international-relations-got-religion-and-got-itwrong/?utm_term=.0e1eabca6b6a. 23 Id. 24 Id. 21
freedom, as we understand it today, begins with Jesus. In Mark 12:17, when asked to whom the people should give their allegiance and their taxes Jesus said, “Give back to Caesar what is Caesar’s and to God what is God’s.” The implications of this statement are far deeper and wider for governance than the context in which it was presented. First, Jesus’ statement confirms and affirms two realms—the worldly and the heavenly. It also acknowledges two forms of authority: governance by the world authorities and governance by God. By acknowledging that we have responsibilities to both, His statement also implies that we have higher responsibilities to God as God. This framework then sets a context for our modern understanding of religious freedom. We have rights and responsibilities to our government, and also have higher rights and responsibilities to our faith or religious belief. Tertullian, the early Christian writer and thinker, first coined the term “religious freedom.” But the concept was further informed by the later writings of Augustine, John Locke, and John Stuart Mill among other theorists. John Stuart Mill in his classic work On Liberty summarizes the freedom of religion and other individual rights. He notes that freedom of thought and belief including religious belief is essential because it is the best avenue to truth. The pursuit of truth is often considered the highest pursuit for humanity and the purpose of religion. Religion is also an indispensable part of the development of norms and of nation-states. Religion has historically contributed to the definition and construction of the official and quasi-official moral and legal norms that help to define the international system. 25 The Protestant Reformation and the Enlightenment also played significant roles in the shaping of the concept of religious freedom and the nation-state system. The Reformation opened religious freedom to the people in a broader and more personal way and recognized a distinction between the state and the individual. The Enlightenment provided the philosophical underpinnings but also a broader understanding of individual religious liberty. But the Reformation, the Enlightenment, and the development of the modern era also created distinctions between what is secular and 25
Supra note 10, at 90.
religious. The distinctions resulted from early European Christian struggles between ecclesiastical and civil authority. Most notably the Peace of Westphalia marked a clear departure from religion in nation-state authority. But, as William Cavanaugh notes, “It is not simply that religion and politics used to be mixed, and then modernity sorted them out; the religious/politics distinction was invented and did not exist before.” 26 Indeed, “had the Reformation not occurred, a system of sovereign states would not have developed, at least not in the same form or in the same era as it did.” 27 The Reformation did three things to facilitate the transfer of power and authority over to the state: 1) developed a theology that delegitimized the prerogatives of the Catholic Church and legitimized those of kings and princes, 2) by withdrawing allegiance from the Catholic Church, the Reformation weakened the Catholic Church’s prerogatives, and 3) the reformers, having to seek protection under the forces allied with the kings/princes, bolstered the power and authority of the kings/princes. 28 These three aspects initiated the shift to a secular system. The development of the international system from about 15001700 was marked by this secularization of the nation states system by: 1) transferring the authority of power of religious actions to the sovereign state, 2) involving the sovereign state’s submission of religious actions within the state, 3) support of this secularization by leading intellections— notably Hobbes, Machiavelli, Rousseau, and Kant. 29 Their realist and liberal theories continue to dominate the nation-state system and international relations today. But as noted, the secular division between theology and politics may be rejected, since the distinction itself is arbitrary with specific
Supra note 21. Supra note 16. 28 Michael C. Desch et al., Religion and International Relations: A Primer for Research 76, 78 (Univ. Notre Dame, Working Paper No. 5, 2011), http://rmellon.nd.edu/assets /101872/religion_and_international_relations_report.pdf. 29 Id. at 76. 27
historical roots. 30 “The modern nation-state created religion and then set it aside, thereby attaining a monopoly on political authority.” 31 Regardless of the shift to secular sovereignty, religion and religious freedom continued to have an impact on many aspects of society and governance. The Christian concept of Just War shaped modern norms and government interests at conflict in numerous and particular ways. 32 Religion contributed in numerous instances to the emergence of global humanitarian norms and human rights movements, including the global movement against slavery. Timothy Shah notes, “It is not plausible that these global norms of humanitarian arose ‘naturally’ or simply as a matter of course, independently of religious ideas.” 33 In contemporary society, religion and religious freedom shifted the globe toward, and specifically including “enforcement,” 34 worldwide humanitarianism through the creation of formal human rights standards and enforcement such as the United Nations system. Many of these developments were direct responses to address religious persecution, namely the results of WWII and the aggressive nationalism that condoned the murder of 6 million Jews. 35 The post-WWII standards set by the United Nations and the international treaty system raised both the profile and significance of religious freedom as a global concern. In more recent years, the rise of theocracies in Iran and Saudi Arabia, as well as religious oppression in North Korea, China, Pakistan, and others have signaled international concern for religious freedom as well as global attention to related human rights issues.
Michael C. Desch et al., Religion and International Relations: A Primer for Research 103, 107 (Univ. Notre Dame, Working Paper No. 7, 2011), http://rmellon.nd.edu/assets/101872/religion_and_international_relations_report.pdf. 31 Id. 32 Michael C. Desch et al., Religion and International Relations: A Primer for Research 87, 92 (Univ. Notre Dame, Working Paper No. 6, 2011), http://rmellon.nd.edu/assets/101872/religion_and_international relations_report.pdf. 33 Id. at 96. 34 Id. at 99. 35 Id.
III.RELIGIOUS FREEDOM AS A FOUNDATIONAL RIGHT IN AMERICAN SOCIETY In addition to Biblical principles, religious freedom as a foundational right in the U.S. stems from the theoretical framework of the European thinkers that guided the work of the U.S. Founders and Constitutional Framers. The Founders applied their understanding of classical liberal theory and religious rights in drafting of both the Declaration of Independence and U.S. Constitution—documents highly influenced by Locke and other theorists. Although the U.S. Constitution was adopted in 1787, the Bill of Rights followed in 1791. The First Amendment in the Bill of Rights referenced religious freedom. The First Amendment highlights the significance of religious liberty both to the Framers and to the development of America, which was initiated by colonists fleeing religious persecution from England and who maintained a strong stance against theocracy. The First Amendment contains two components for religious liberty—the Free Exercise Clause and the Establishment Clause. The Free Exercise Clause relates to the right of individuals to freely exercise their religious beliefs, whether in thought or expression. The Establishment Clause prevents the government from nationalizing any particular religion. This two-prong approach was intended as a dual protection for citizens from both infringement on their personal rights and tyranny by the government. The First Amendment includes not only Free Exercise and Establishment Clauses, but also asserts other fundamental rights including the freedom of speech, press, and petition. Without religious freedom, these other concepts cannot be fully realized. Religious freedom stems from freedom of thought and conscience but extends to a number of other fundamental rights. The freedom of speech extends from thought and belief, and then extends to press and association. Without the foundational right of religious freedom, the other rights cannot fully develop or be realized since the concepts behind religious freedom provide the basis for these other rights to be exercised. Interpretation of the First Amendment over time, particularly after recent Supreme Court cases, developed our current understanding of “separation of church and state.” Unfortunately, that understanding is a 8
departure from both the letter of the Constitution and the intent and purposes of the Framers. The term “separation of church and state” itself is not referenced in the U.S. Constitution but came from an advisory letter written by Thomas Jefferson to the Danbury Baptist church to assist them in exercising religious liberty. He refers to a “wall of separation” between the church and government that avoids government overreach into the affairs of the church. Supreme Court jurisprudence referenced that statement in court opinion dicta in cases such as Reynolds v. U.S., 36 Everson v. Board of Education, 37 and Engel v. Vitale. 38 This reference has developed over time into a belief that religion should be prevented from intruding in government, when it was originally intended to prevent government from intruding on religion. The understanding of religious freedom among many today has morphed into many related concepts including “tolerance.” However, the concept of tolerance does not fully embody the concept of religious freedom. The purpose of religious freedom is just that—freedom to believe and practice your chosen faith. Tolerance on the other hand is simply allowing that there are other faith perspectives. Tolerance as such does little to either promote religious freedom or fully support both belief and exercise of religion. And tolerance lacks the foundational aspects of religious freedom. Other rights do not extend from tolerance. Opponents of religious freedom argue that it is too divisive and that our focus should be on shared values of fairness, tolerance, and equal protection under the law. 39 Such opponents are concerned about cases such as Burwell v. Hobby Lobby. 40 The result of Burwell allowed closely held corporations to be exempt from certain laws or provisions, specifically the Affordable Care Act, based on religious objection or belief as interpreted through the Religious Freedom Restoration Act. But if these opponents consider the foundational aspects of religious freedom, they would recognize that the freedom to oppose (thought) and to present that opposition (speech) stems from beliefs, whether theirs or others, that are 36
Reynolds v. United States, 98 U.S. 145, 164 (1878). Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947). 38 Engel v. Vitale, 370 U.S. 421, 445-6 (1962). 39 Joshua Dorner, Religious Liberty for Some or Religious Liberty for All?, CTR. FOR AM. PROGRESS (December 12, 2012), https://cdn.americanprogress.org/wpcontent/uploads/2013/12/ReligiousLiberty.pdf. 40 See generally Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). 37
protected by the foundational principles of religious freedom. Relying on fairness or tolerance does not and cannot provide that same grounding. And equal protection under the law would not be possible for anyone if we do not have those freedoms. Although the religious freedom paths and perspectives have varied, America still has embraced a system of religious liberty that remains unsurpassed in history. This system was not the result of the Enlightenment alone or the separation of religion from society or politics. It was the result of theology and politics developing in tandem. 41 And, one of Americaâ&#x20AC;&#x2122;s strongest attributes is that religion is a source of its ideas of the world, and itself, creating religiously charged visions, dreams, and aspirations. 42 IV. RELIGIOUS FREEDOM AS AN INTERNATIONAL HUMAN RIGHTS STANDARD Religious freedom is broadly recognized as an international human right standard, despite the standard not being met in many parts of the world. Religious freedom is codified in a number of international instruments and offices, including, but not limited to: Universal Declaration of Human Rights (UDHR): Though not an international treaty, the UDHR is the mostly widely accepted and recognized compilation of human rights standards worldwide â&#x20AC;&#x201C; adopted in 1948 and included within the U.N. Charter to be binding on all 192 members. Articles 2 and 18 of the UDHR specifically recognize religious freedom, and those articles have been the foundation for many other related provisions in treaties, other instruments, and national/local legislation. Although the principles and provisions of the UDHR are widely regarded, the challenge has been to incorporate those principles within the laws and practices of each nation-state to make them effective. The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981): This is the principle international instrument specifically addressing the human rights standards for the right to religious belief and practice, and is supported by 41 42
Supra note 32, at 102. Id.
two related U.N. resolutions. It also relates to operative legislation in specific states. In addition, a range of other international instruments also has an impact on religious rights including: •
Convention Relating to the Status of Refugees (1951)
UNESCO Convention Against Discrimination in Education (1960)
International Convention on the Elimination of All Forms of Racial Discrimination (1965)
International Covenant on Civil and Political Rights (1966)
Declaration on the Human Rights of Individuals who are not Nationals of the Country in Which They Live (1985)
Convention on the Rights of the Child (1989)
International Convention on the Protection of the Rights of All Migrant Worker and Members of their Families (1989)
International Religious Freedom Act (1998): The IRFA is nearly twenty years old but not as recognized or utilized as the broader international instruments. But a new policy on religious freedom can begin by tapping into the potential of this law. 43 “An effective IRF policy must also address the balance between the overlapping authorities of religion and state, in particular the critical questions of how religiously grounded norms might legitimately influence public policy.” 44 And state specific legislation, such as the Religious Freedom Restoration Act in the US provides added supports. Special Rapporteur on Freedom of Religion or Belief: In addition to the above international instruments, the United Nations Human Rights Council has designated a Special Rapporteur specifically on the topic of religious freedom and belief. Special Rapporteurs are independent 43 44
Supra note 1. Id.
experts who research, particularly through country visits, and report on related concerns. Annual or periodic reports for the status of religious freedom are on record with the UN Human Rights Council. U.S. Ambassador at Large for International Religious Freedom: The United States has played an important role in the development and support of religious freedom through various international instruments and offices. Presently the U.S. Ambassador at Large for International Religious Freedom provides annual International Religious Freedom Report that summarizes the most egregious violations worldwide. Especially under the leadership of Eleanor Roosevelt and various religious leaders of the post-WWII era, the U.S. played a pivotal role in the development of the United Nations and of the broader international standards on religious freedom we recognize today. The American and Western European ideologies and philosophical frameworks were significant guides in the development of religious freedom and other human rights summarized in the UDHR and other instruments and offices. As a result and to a large extent, the global reference for religious freedom and human rights in general comes from a U.S., rather, Western perspective. While that brings with it the theological and philosophical understanding we have discussed, it can also create some challenges in the adoption of the concept by non-Western countries. Eastern cultures and religions are distinctive not only from Western cultures and religions but also from the related philosophical and conceptual frameworks for liberalism and democracy. The historical and cultural developments in these other regions makes a significant difference in the lens that related states use to review, understand, and apply, or not apply, these Western influenced standards and ideals. V. IMPLICATIONS FOR INTERNATIONAL RELATIONS Although international relations have been influenced by key religious figures including Hugo Grotius, the father of international human rights, international relations scholarship and practice until recently have been reticent to consider religion or religious freedom. There is â&#x20AC;&#x153;a general
lack of focus on religious freedom in policy and academic circles.” 45 Some do not think religious freedom is as important as other issues for world politics. Others see religious freedom as a normative topic or specific to communities rather than society as a whole. 46 “From the inception of international relations as a discrete discipline, its approach has been defined by the 17th century Westphalian subordination of religion to the state.” 47 Up until approximately twenty years ago, most international relations scholars and practitioners viewed religion as immaterial to global politics.48 Although the United States is a religious nation—one of the most religious in the world—neither scholars of U.S. foreign policy nor its practitioners have taken religion very seriously. 49 But that dynamic is changing. Today, policymakers seek out representatives from religious groups. Scholars and advocacy networks model relations between religion and democracy, religion and peace, and religion and economic growth. 50 And there is more study and commentary presently on religion related issues. Several reasons exist for why religious freedom has become a more prominent concept in international relations. First, in the past twenty years, religion has had a significant resurgence worldwide—not only in terms of the number of people who practice religion but also the impact of religion on various regions. Second, that resurgence has both an explanation and a result. As secularism has grown in the realm of governance and authority, religious considerations have increased in the individual and community realms. 51 In addition, as religion has increased so too has its impact on various 45
Peter Henne, Should International Relations Scholars Care About Religious Freedom? E-INT’L RELATIONS (April 22, 2013), http://www.e-ir.info/2013/04/22/shouldinternational-relations-scholars-care-about-religious-freedom/. 46 Id. 47 Supra note 1. 48 Supra note 22. 49 Id. 50 Id. 51 Michael C. Desch et al., Religion and International Relations: A Primer for Research 76, 81 (Univ. Notre Dame, Working Paper No. 5, 2011), http://rmellon.nd.edu/assets/101872/religion_and_international_relations_report.pdf.
global issues—in particular religious conflict and religious extremist based terrorism. But cultural distinctions are also important to note here. Since the constitutional and human rights concepts we have discussed stem from Christian principles and Western, or Northern, philosophy, the concept is more complicated to apply in international relations with Eastern, or Southern, nations or societies that have not developed in the same manner or with the same theological or philosophical references. It is also significant to understand the continued impact of realist perspectives. Realism has been the overarching theoretical perspective for international relations. Realism essentially is the idea that moral absolutes cannot be adhered to consistently in matters of state-craft. 52 Contemporary realist theorist, Hans Morgenthau, notes, “The moral problem of politics is posed by the inescapable discrepancy between the comments of Christian teaching, of Christian ethics, and the requirements of political success. It is impossible . . . to be a successful politician and a good Christian.” 53 In other words, according to many international relations realists, traditional morality or Christian morality cannot govern international affairs. But religious freedom offers opportunities to international relations that the realist perspective cannot. As Kristin Hasler notes, “Realism focuses on material factors such as economic and military power and assumes that all actors have the same goal—survival 54 . . . Religion fundamentally differs in its primary concern—humanity’s relation with the transcendent.” 55 As such, religious freedom can grapple with and address issues that go beyond merely the will to survive or personal interest— consider religious based terrorism or even faith based humanitarian relief as examples. “The growing importance of religion in international relations should push scholars to move away from purely state based theories and review theoretical frameworks that consider a variety of actions and their beliefs and identities.” 56
Id. at 82. Id. at 84. 54 Supra note 9. 55 Id. at 139. 56 Id. at 140. 53
VI. APPLICATION OF RELIGIOUS FREEDOM TO GLOBAL JUSTICE CONCERNS Religion can have both a positive and negative impact on various global justice concerns. But applying religious freedom principles can be beneficial in a number of contexts, and specifically for national security, poverty, and the status of women and children. A.
National Security & Terrorism
Religious freedom has tremendous implications for national security. The level of religious freedom in any particular country correlates to both its stability and its security. But as noted, U.S. officials have generally been reticent to consider religious freedom. The Center for Strategic and International Studies concludes, “U.S. government officials are often reluctant to address the issue of religions, whether in response to secular U.S. legal and political tradition . . . or simply because religions are perceived as too complicated or sensitive. Current U.S. government frameworks for approaching religion are narrow, often approaching religions as problematic or monolithic forces, overemphasizing terrorism and sometimes marginalizing as peripheral the humanitarian and cultural issues.” 57 1.
Security interests and threats
U.S. security interests can be gauged in part by how a particular country or entity supports or represses religious freedom. Religion also deprives powerful political force in countries central to U.S. interests. 58 Religious freedom, or lack thereof, can indicate potential national security threats. Regimes that are identified for severe violence and repression of religious freedom overwhelmingly emerge as national security concerns. 59 For example, Burma, China, Iran, Iraq and Sudan had previously been identified as countries where religious freedom was considerably 57
Supra note 1. Id. 59 William Inboden, Religious Freedom and Nat’l Security, HOOVER INST. (October 2, 2012), http://www.hoover.org/research/religious-freedom-and-national-security. 58
restricted, and with the exception of Burma, each later was identified as a country of particular concern for U.S. national security. William Inboden notes, “Countries with egregious violations of religious freedom are largely the same as those that pose a threat to the U.S. 60 . . . There is not a single nation in the world that both respects religious freedom and poses a security threat to the U.S.”61 Nations engaged in religious persecution are not automatically security threats, but are more likely to be. 62 This suggests that there might be more to the relationship between these two issues than is commonly appreciated. The correlation between religious persecution and national security threats is not just a 21st century phenomenon. The Cold War era was a stark example of restrictions on religious liberty. Correlation, however, is not causation and religious freedom may function as a proxy for democratic rights and institutions. 63 But even in that sense, religious freedom may be a better indicator of those democratic rights and institutions than other human rights. While other human rights are important and perhaps just as important as religious freedom, the particular characteristics of religious freedom make it uniquely salient for national security. 64 Further, Inboden notes, “religion informs the most consequential matters on earth. Many religious believers hold that their ultimate loyalties lie not to a particular government or nation-state but to the divine as they understand it.” 65 This perspective is significant in both understanding and addressing oppressive regimes and religious terrorism as well as providing humanitarian relief and ending civil wars. 2.
Significance of regime types
Regimes and entities that oppress religion or that have higher propensities for violence are of particular concern for national security. The relationship between regime type and the propensity for political 60
Id. Id. 62 Id. 63 Id. 64 Id. 65 Supra note 59. 61
violence involves two salient factors—the level of differentiation between religion and state, and the political theology of the majority religion. 66 Daniel Philpott notes, “[R]eligious communities are prone to violence when they hold a political theology that interprets the scriptures, traditions, and divine commands as to favor an integrated state, one that makes its religion official and suppresses other faiths.” 67 Conversely, states with high levels of differentiation between religion and the government rarely have the propensity for political violence. 68 National security concerns may be affected by regime type and their impact on religious freedom particularly in the form of jihadist terrorism, theocratic regimes, and authoritarian power. a.
The central U.S. national security issue today is Islamist terrorism, fed by radical interpretations of Islam. Jihadist terrorism has grown to one of the most significant security concerns worldwide. But not until the 1980’s did terrorism take on major religious overtones. It has developed and has been emboldened by religious extremism. The events of September 11, 2001, had a remarkable impact on national security and international relations. In particular, September 11 brought global attention to the issue of religious extremism, and specifically Islamic terrorism. Over 80% of the articles published on religion in international relations journals appeared after September 2001. 69 But Ron Hassner notes that the literature on this topic in general suffers from four interconnected blind spots: 1) students of religion and war tend to restrict their analysis to theology as gleaned from sacred texts; 2) the focus on religion as a cause of war misses how religion can shape the means, nature, and outcomes of ongoing wars; 3) the literature has deemphasized which religious rivalries overlap with political rivalries; and 4) the contemporary association of a particular brand of Islam with the 66
Id. Id. 68 Id. 69 Ron E Hassner, Religion as a Variable, RELIGION AND INTERNATIONAL RELATIONS: A PRIMER FOR RESEARCH 68 (2013). 67
trend in global terrorism may have put more focus on that brand than on religious movements in general. 70 Yet, Jihadist terrorism has extended beyond the events of 9/11 and has caused death, destruction, and fear in Paris, Beirut, Turkey, Iraq, Nigeria, and other locations. The spread of Al Qaeda, the rise and impact of ISIS in the Middle East and Boko Haram in Africa, have sharpened our security concerns. But while Jihadist terrorism has received much attention for their ideology and terrorist group, less attention is focused on their religious intolerance. For instance, targeting religious pluralism is a favorite tactic of these terror groups to help assert political control.71 But that tactic and other methods of religious oppression is rarely discussed. b.
Theocratic and Authoritarian Regimes
Though theocratic regimes share some common tenets of political theology, theocratic regimes are distinguished by a government with effective control over the nation-state, and adopt a particular religious ideology. 72 Such a regime may not in itself be an opponent to the U.S., but intolerance within the country can cultivate violence that raises security concerns. Saudi Arabia is a significant example as they have not been in opposition to or a significant security concern for the U.S., yet the majority of the 9/11 attackers were of Saudi origin and taught by more radical sects of their Islamic system. Similarly, not all authoritarian states violate religious freedom, but those that do are more likely to pose a security threat. 73 Such regimes often also foment nationalism among their citizens and seek to bring any independent sections of civil society under state control. 74 Consider the religious persecution, particularly of Christians in China, and the implications for US/China relations. Peter Henne notes, â&#x20AC;&#x153;When states limit religious freedom, they restrict the religious practice of some or all religious communities and harass members of religious communities and/or favor certain religious 70
Id. at 71. Inboden, supra note 59. 72 Id. 73 Id. 74 Id. 71
traditions at the expense of others.” 75 This directly affects targeted groups, but can also disrupt society in general. “Restrictions on religious freedom can radicalize repressed religious communities and produce violent offshoots of mainstream movements.” 76 Similarly, a lack of religious freedom usually includes support for certain religious communities or groups. The states targeting of religious communities contribute to the rise of violent extremism.77 The Religious Freedom Project of Georgetown’s Berkeley Center for Religion, Peace and World Affairs has documented this phenomenon. 78 And the Global Restrictions on Religion Project of the Pew Research Center suggests a connect ion between government restrictions on religion and religious hostility. 79 3. Global persecution, discrimination, and infringement of religious liberty Religious persecution is generally associated with egregious abuse—torture, rape, unjust imprisonment—on the basis of religion. A political order centered on religious liberty is free of such abuses, but also protects the rights of individuals and groups to act publicly in ways consistent with their beliefs. Those rights include the freedom to influence public policy within the bounds of liberal norms. Addressing these aspects of religious liberty is a critical step in creating stable selfgovernment in society with religious groups. 80 Unfortunately, the effort against religious persecution is generally considered humanitarian effort. 81 A sampling of countries by region indicates that persecution, discrimination, and infringement on religious liberty exist throughout the globe. a.
Henne, supra note 45. Id. 77 Id. 78 Id. 79 Id. 80 Farr, supra note 1, at 4. 81 Id. 76
Six of the top ten countries for highest level of persecution of religion are from the Middle East (#2 Iraq, #4 Afghanistan, #5 Syria, #6 Pakistan, #9 Iran, and #10 Libya) according to Open Doors 2016 World Watch List. Further, the U.S. Commission on International Religious Freedom declared that Saudi Arabia, a theocratic monarchy, is probably the worst oppressor of religion in the world. 82 Also a theocratic monarchy, Jordan’s security forces use torture on a regular basis and restrict many freedoms. The Lebanese government and army do not respect human rights and several terrorist organizations that are headquartered within the country commit many abuses. Although Syria is technically a parliamentary democracy, in practice President Bashar Assad rules with absolute power. Arbitrary arrests, torture and disappearances of prisoners occur regularly. In Egypt, a social democracy in which Islam is the state religion, freedom of speech and press and other guarantees are often withheld. b.
For 14 years straight North Korea has been listed on Open Doors World Watch List as the most extreme in terms of religious persecution. Christianity in particular is seen as deeply Western and despicable, and some 50,000-70,000 Christians are imprisoned in labor camps. China is at #33 on the same watch list, and its long-standing Maoist/Communist system has required religious groups to be registered and participate in “patriotic” activities with persistent persecution for house churches among others. Countries such as Myanmar (formerly Burma) also raise concern for their persecution of minority religious groups such the Rohingyas. c.
Eritrea is currently at #3 on the World Watch List and has an absolutely authoritarian regime intolerant toward any form of association, dissent and free expression. The situation in Eritrea is contributing to the global refuge crisis and has also added to the spread of radical Islam in the Horn of Africa. 83 Nigeria, while a constitutional democracy, is a split country with the north representing Sharia (Islamic law) and the south a 82
Human Rights in Arab Countries, DISCOVERTHENETWORK.ORG, http://www.discoverthenetworks.org/viewsubcategory.asp?id=857 (Feb. 14, 2005). 83 See World Watch List, OPEN DOORS, http://www.opendoorusa.org/download/2017world-watch-list?wpdmdl=13500.
more democratic (and Christian) form of governance. That divide has made Nigeria ripe for radical groups such as Boko Haram. d.
While generally religious persecution and oppression is associated with theocratic and authoritarian regimes particularly in Eastern and Southern regions, threats to religion liberty also exist within Western/Northern countries. In response to fears of religious extremism and related terrorism, many of these countries and others have responded with laws and other measures that curb religious freedom in the pursuit of security. Of the 30 specific types of limitations studied by the Religion and State Project, 28 are now more common than in 1990. 84 Proselytizing is now restricted in 99 countries compared to 79. 85 82 countries require people from minority religions to register with the state, 73 countries limited places of worship from being erected, and 65 restrict public observance of religion. 86 Specific examples include Russia’s Law on Religion that acknowledges Buddhism, Christianity, Islam and Judaism, but in practice these groups are often persecuted as many in Russia consider these religions, including various Christian sects, as altering the religious and cultural status quo. 87 Similarly Romania recognizes 18 denominations but those not represented have difficulty building, renting place to meet, and are often persecuted. 88 Denmark’s “Imam Law” limits the number of religious residence visas. Lastly, Italy does not recognize Islam as a religion. 89 The U.S. is also not immune from various infringements on religious liberties. Recently, bakery owners in Oregon declined to bake a wedding cake for a same-sex couple, and farmer owners in New York declined to host a same-sex wedding both on religious grounds. They were 84
Jonathan Fox, Equal Opportunity Oppression: Persecution is a Global Problem, FOREIGN AFFAIRS (Aug. 31, 2015), https://www.foreignaffairs.com/articles/2015-0831/equal-opportunity-oppression. 85 Id. 86 Id. 87 Id. 88 Id. 89 Id.
fined for their religious beliefs. These are the few examples amongst a series of cases that have arisen in the U.S., which have created tensions between various religious freedoms and other civil liberties. 90 e.
Religious freedom and national security policy
As Peter Henne states, “If a lack of religious freedom can lead to extremist violence, then we should not confine religious freedom to the margin of international relations. Attention to how religious repression contributes to violence can help policy makers prevent and respond to civil war, refugee flight, and terrorist campaigns.” 91 If religious freedom violations potentially lead to national security concerns, William Inboden notes three ways that religious freedom may be better integrated with security policy. First, Inboden notes religious freedom violations can serve as a diagnostic or leading indicator of potential security threats. Second, ; religious freedom promotion can function as a mitigating factor in ameliorating existing security threats. And finally, Inboden acknowledges that improvements in religious freedom also prevent the emergence of new security threats. 92 Religion may also provide multiple ways to address national security concerns. According to Ron Hassner, “Religious freedom can be conducive to compromise and peacemaking in conflicts irrespective of the religious or secular nature of the combatants . . . religion can prove significant in war not only because of how it affects the participants in conflict but because of how it affects victims, observers, and third parties.” 93 However, as The Economist notes, “The strange thing is that when America has tried to tackle religious politics abroad—especially jihadist violence—it has drawn no lessons from its domestic success. Why has a country so rooted pluralism made so little of religious freedom?” 94 90
See Roger Pilon, Whatever Happened to Religious Freedom?, WALL ST. J (July 13, 2015); See also, Thomas M. Messner, From Culture Wars to Conscience Wars: Emerging Threats to Conscience, BACKGROUNDER (Apr. 13, 2011). 91 Henne, supra note 45. 92 Inboden, supra note 59. 93 Hassner, supra note 69, at 74. 94 Farr supra note 1, at 13.
Poverty is often considered the most pervasive international concern and a root issue behind many of the other major international relations and human rights concerns. A staggering 80% of the world’s population lives in poverty at various levels. And notably, 80% of said percentage is women, children, and elderly individuals. The “diseases” of poverty, both physical and circumstantial, continue to result in cyclical and generational poverty. But poverty is also an issue where religious freedom may have a significant impact. Unlike other topics, this issue is one where both the U.S. government and international communities have embraced faith based initiatives and organizations, in large part to the effectiveness of those groups in poverty alleviation. While the governmental structures, such as USAID, IMF, etc. provide macro supports to address poverty, faith based groups and initiatives provide micro level supports that impacts individuals and communities in profound ways. 95 Thus, freedom of religion plays an important role in allowing particular faith based organizations to exist and thrive in order to provide the necessary goods and services to address poverty and other concerns. While Christian relief organizations such as World Vision, World Relief, Compassion International, and others have been significant, so too have organizations from other faiths. Interestingly, according to Talking Points, “the LDS Church has initiated a highly effective poverty alleviation program that builds “self-reliance”— a tenant of their faith—by providing resources such as computer access, employment counseling, etc.” 96 While poverty may exist in both developed and lesser-developed countries, as well as both religious and non-religious states, it should be noted that poverty rates tend to correspond to the level of development and level of religious freedom of each country. A closer examination indicates a correlation between those countries that have higher degrees of religious, and other oppression and the poverty rate and/or development level. 95
Religious freedom helps tackle “small-p” poverty through “self-reliance” – Case Study, RELIGIOUS FREEDOM & BUS. FOUND. (Aug. 17, 2015), http://religiousfreedomandbusiness.org/2/post/2015/08/religious-freedom-helps-tacklesmall-p-poverty-through-self-reliance-case-study.html. 96 Id.
Poverty alleviation, thus, fundamentally intersects with the underlying democratic and human rights framework within a particular country. Without religious rights and the correlating rights that accompany it, people in both developed and lesser-developed countries do not have the means to address their own poverty. C.
Status of Women and Children 1.
Women and religious freedom
Religious freedom is a significant value for men, women, and children, and as mentioned by Talking Points, may have particular importance to women because of the crucial role religion plays in providing the rationale for the equality of every human person. 97 Further, according to Talking Points, data indicates that countries around the world that respects religious freedoms are also more likely to recognize the equality of women. 98 Religious freedom relates to the status of women in two important ways: it allows women to believe and practice their religions and faith perspectives freely without coercion from family or community, and it engages women in the community in a way which upholds their other rights and status in society. 99 Allison Stuart states, “Religious institutions play a vital role in the cultivation and realization of all rights, [including] religious rights.”“ 100 Despite the fact that women make up more than one half of the world’s population, and more than one half of the world’s religious population, religious institutions remain male-dominated worldwide within almost every religion. The correlation between the status of women and their status within their religions is both significant and ironic.
Talking Points: Women & Religious Freedom, WOMEN SPEAK FOR THEMSELVES, http://womenspeakforthemselves.com/fact-sheets/talking-points-women-and-religiousfreedom (last visited Feb. 18, 2017). 98 Id. 99 Id. 100 Allison Stuart, Freedom of Religion and Gender Equality: Inclusive or Exclusive?, HUMAN RIGHTS LAW REVIEW 429, 430 (2010).
In light of religious and cultural contexts, traditional and often limited interpretations of human rights hamper the full realization of religious and other rights for women. 101 In addition, only a few of the major religions accept that women may be official interpreters of their sacred texts or official intermediaries between God and the faithful. 102 Since religions are generally not democratic organizations, women generally are not in positions of power and their voices and views often go unheard. Women are therefore not able to influence the content of their religion or shape their role within it. 103 “Although states can and should allow religions internal autonomy, they still have supervisory roles to play in order to guarantee that gender equality is being ensured within religion and religious communities.” 104 Gender equality in various contexts would involve fundamental changes to the structure, composition and official views of most religions and thus presents a challenge and an opportunity. 105 By critically analyzing religions, “gender discrimination can be identified and rectified.” 106 In addition, proposed changes in law can lead to changes in religious rules and doctrines. Although the law can be used to facilitate changes in culture, this must be done sensitively and only to a limited context.107 But the State is not powerless in relation to religions. States have an international obligation to change discriminatory religious attitudes and allow women equal rights within religions and society. Although change must come from within the religion itself, the State can help to facilitate positive change in the religion toward gender equality. 108 For example, the European Convention for the Protection of Human Rights and Fundamental Freedoms gives states an obligation to 101
Id. at 429. Id. at 440. 103 Id. at 441. 104 Id. at 447. 105 Id. at 448. 106 Stuart, supra note 100, at 450. 107 Id. at 446. 108 Id. at 495. 102
promote gender equality even though the struggle for gender equality within religions may be harder to resolve. 109Article 9 of the Convention gives the right to freedom of thought, conscience and religion and applies equally to women. Women in oppressive regimes and religions face particular difficulty in having a voice, but also in protecting their safety and welfare. While most religions may discriminate or consider women inferior to men, some religions may have more severe consequences for women. 110 Azam Kamgulannotes that the past 20 years have been some of the darkest for women’s lives worldwide, particularly in the context of “political” Islam. Most troubling for women in these regions is the influence of Islam on family law—particularly in the Middle East, North Africa and parts of Asia—women suffer grave injustices related to marriage, divorce, “honor” killings, domestic violence, rape and other forms of sexual abuse. Fortunately since the mid-1980’s, there have been movements in Egypt, Pakistan, Sudan and Jordan against polygamy, honor killings, divorce law, and sharia (Islamic law) as the basis of family law. 111 But women in these regions and others continue to struggle with these cultural and religious issues. A tension exists between upholding religious freedom with upholding women’s rights when religion and the status of women are seemingly in conflict. In some countries (such as in Canada and the UK) with concentrations of Muslim populations, efforts to create parallel legal systems have been pursued such as Sharia arbitration courts. However, both Muslim women’s organizations and others have advocated against these parallel systems as they create a greater likelihood of discrimination or disparity for women in these contexts. 112
Id. at 453. Azam Kamgulan, Women and Religious Opression, FAMAFRIQUE, http://www.famafrique.org/oppression.htm. 111 Zohra Moosa, Balancing Women’s Rights With Freedom of Religion: The Case Against Parallel Legal Systems for Muslim Women in the UK, MINORITY RIGHTS (2010) http://minorityrights.org/wp-content/uploads/old-site-downloads/download-845Balancing-womens-rights-with-freedom-of-religion.pdf. 112 Id. 110
Given the influence that religion has on the lives of not only believers, but society as a whole, the disenfranchisement of women has serious repercussions not only for gender equality but for the overall welfare of the society. 113 On the other hand, many parts of the world exemplify how religious freedom of women can improve not only their freedom to exercise their religious beliefs, but also their status, as well as the status of the children and elderly under their care.
Children and Religious Freedom
Children have rights and liberties like adults, but their vulnerabilities mean there are some necessary restrictions to ensure their security and well-being. 114 Children have freedom of religion based on personal liberties to freedom of speech, expression, movement, thought, conscience, religion and the right to a private life. They also have collective liberties including freedom of association, peaceful meeting, collective labor and the right to strike. However as Heiner Beliefeldt, the U.N. Special Rapporteur on Freedom of Religion or Belief notes, “Parents are also not obliged to provide religiously ‘neutral’ upbringing in the name of the children’s right to an open future . . . The rights of parents to freedom of religion or belief include their rights to educate their children according to their own conviction and to introduce their children to religious initiation rites.” 115 While parents have the right to raise and instruct their children in their particular religious traditions and teachings, children can freely determine the religions or convictions of their choice and should be free of imposition or coercion. 116
Stuart, supra note 100, at 443. Understanding Children’s Rights to Freedom, HUMANIUM, http://www.humanium.org /en/fundamental-rights/freedom/. 115 Children also have the right to freedom of religion or belief, and that must be protected, UNITED NATIONS HUMAN RIGHTS (Oct. 23, 2015), http://www.ohchr.org /EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16647&LangID=E. 116 Supra note 114. 114
Every individual child is a rights holder in his or her own capacity as recognizes in Article 14 of the Convention on the Rights of the Child . . . Violations of freedom of religion or belie often affect the rights of children and their parents . . . Religious community leaders should support the elimination of harmful practices inflected on children, including by publicly challenging problematic religious justifications for such practices, bearing in mind the status of the child as a rights holder. 117 But this can also raise tensions and significant concerns in many religions and in many regions as it relates to parent’s rights. “The interests of parent and children are not necessarily identical, including in the area of freedom of religion or belief.” 118 But both the children and their parents have rights to be protected to ensure religious liberty. Some necessary balance may need to be struck to uphold those distinctive but equally important rights. VII.
Religious oppression is a high priority not only for states to combat within their boundaries, but for the international community to weigh and address across the globe. David Saperstein, U.S. Ambassador at Large for International Religious Freedom, stated in the 2014 International Religious Freedom Report, “There is an absolute and unequivocal need to give voice to the religiously oppressed in every land afraid to speak of what they believe in; who face death and live in fear, who worship in underground churches, mosques or temples, who feel so desperate that they flee their homes to avoid killing and persecution simply because they love God in their own way or question the existence of God.” 119 Certainly in 2017, and the foreseeable future, this absolute and unequivocal need has not lessened but has increased to a significant extent. It is appropriate, timely, and necessary for the international relations community to be at the forefront of addressing this global concern.
Supra note 115. Id. 119 Joe Carter, State Department Report on Religious Freedom Highlights Christian Persecution, ETHICS & RELIGIOUS LIBERTY CONVENTION OF THE S. BAPTIST CONVENTION (Oct. 16, 2015) http://erlc.com/resource-library/articles/state-departmentreport-on-religious-freedom-highlights-christian-persecution. 118
Given the range of global injustices related to religious oppression and persecution, and given the implications for international relations and global affairs more broadly, it is not only important for the international community to recognize the growing trends toward religion and religious conflicts, but to consider freedom of religion as an essential element for international relations. The topic of religious freedom is thus worthy of focused concern and study, as well as related policy and practice. Recognizing freedom of religion as a foundational right for human dignity is important for a deeper understanding not only of the implications, but the opportunities that may be available for international relations. Freedom of religion does not provide just a different lens, but may provide perspectives outside a singular lens that offers ways to consider underlying issues and related methods to address conflict and provide for needs. As such, freedom of religion must be pursued, protected and balanced within international relations and for the cause of global justice.
THE MYTH OF “SEPARATE ENTERPRISES” IN INTERNATIONAL TAXATION: APPROACHES TO ATTRIBUTION OF PROFITS TO PERMANENT ESTABLISHMENTS Charles Lincoln* I. Introduction When dealing with permanent establishments and attribution of profits, the Organization for Economic Co-operation and Development (“OECD”) and the United Nations (“UN”) Models create a fiction of a “separate and independent enterprise” 1 or of a “distinct and separate enterprise.”1 However, all three approaches provide a different way for how to determine the internal profits and expenses between the enterprise and the permanent establishments (“PE”). The Commentary of each respective approach further provides different ways for remunerating and attributing profits between the permanent establishment and the enterprise.
Dealings are the transactions between the head office and the PE. Because the permanent establishment is not a separate legal entity—the permanent establishment is just part of the enterprise—such transactions between the two are called “dealings.” 2 Expenses can be deductible based on the rules set out in the OECD Commentary through tax treaties. 3 It *
Charles Edward Andrew Lincoln, IV, (“Charlie”) received his J.D. from Texas A&M University in May 2016 after graduating, cum laude, with a Bachelor’s Degree in Government from Harvard University, in June 2013. Throughout his College and Law School years, Charlie has been fascinated by the intersection of philosophy and power in politics. In 2016, Charlie began the advanced LL.M. program in International Tax Law at the University of Amsterdam, for which he plans to write a thesis on the transfer pricing and valuation of intangibles. Charlie hopes to work in International Cooperation and Policy Development, and may be reached at charlesedwardandrewlincolniv@post. harvard.edu 1 Org. for Economic Co-operation and Dev. [OECD], Model Tax Convention on Income and on Capital, at 22, (July 15, 2014). 2 Org. for Economic Co-operation and Dev. [OECD], Model Tax Convention on Income and on Capital, art. 7 ¶ 2 (May 29, 2009). 3 See RAFFAELE RUSSO, THE ATTRIBUTION OF PROFITS TO PERMANENT ESTABLISHMENTS: THE TAXATION OF INTRA-COMPANY DEALINGS 433-34 (2005). 4 Nat’l Westminster Bank, P.L.C. v. United States, 58 Fed.Cl. 491, 506 (2003).
depends on what scenarios profits and expenses may be attributed to a PE. The ultimate “profits”/income that may be taxed by a permanent establishment by a source state are the profits attributed to the permanent establishment minus the expenses. The OECD Model Convention—in both the 2008 approach and the 2010 approach—provides how and when to attribute profits between resident-based enterprises (i.e. home offices in home jurisdictions) and permanent establishments 4—based in “source” jurisdictions. The 2008 OECD approach provides a way to apply the arm’s length principle as an analogy to the PEs and the resident home of the enterprise. Before conducting this analysis to allocate profits, there must exist a permanent establishment based off Article 5. In general, Article 5(1) provides for “a fixed place of business through which the business of an enterprise is wholly or partly carried on.” Article 5(1) provides for a place of management, a branch, an office, a factory, a workshop, a mine, an oil or gas well, etc. Article 5(3) provides for a construction site. Article 5(4) provides for a list of exceptions PE. Article 5(5) provides for a dependent agent PE. Article 5(6) provides for an independent agent PE. Article 5(7) provides for a subsidiary—CFC type rule—PE. The three modes of analysis below do not operate to show a permanent establishment exists, but presuppose a permanent establishment does exist. Assuming a permanent establishment does exist, country where the permanent establishment exists has a profits of the PE. When a permanent establishment has Article 7 (Business Profits) provides for how much permanent establishment may be taxed.
then the source right to tax the been identified, income of the
In regards to expenses, Article 7(3) of the OECD 2008 model tax treaty states: “In determining the profits of a PE, there shall be allowed as deductions expenses which are incurred for the purposes of the PE, including executive and administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere.”
From this point forward, the term “permanent establishment” has been replaced entirely with the acronym “PE” for efficiency.
The key to interpreting Article 7(3), is understanding that Article 7 Commentary Paragraph 38 provides that costs “incurred for the purposes of the permanent establishment” are allowed as deductions. 5 This provision in the Commentary indicates that expenses having a connection, or nexus, to the income the permanent establishment earns, can be deducted from the income of the PE. 6 There are two approaches for splitting profits: the “relevant business activity/functionally separate entity approach” and the “single enterprise approach”. 7 These approaches are expanded upon below. The authorized OECD approach (hereinafter AOA) that requires the arm’s length principle to be applied by analogy to the PE—such that the permanent establishment is a type of associated enterprise. 8 Implementing the AOA Method starts with hypothesizing a permanent 6
Org. for Economic Co-operation and Dev. [OECD], Model Tax Convention on Income and on Capital: Condensed Version, at 141, (August 17, 2010). (“38. Article 7, as it read before 2010, included the following paragraph 3: In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere. Whilst that paragraph was originally intended to clarify that paragraph 2 required expenses incurred directly or indirectly for the benefit of a permanent establishment to be taken into account in determining the profits of the permanent establishment even if these expenses had been incurred outside the State in which the permanent establishment was located, it had some times been read as limiting the deduction of expenses that indirectly benefited the permanent establishment to the actual amount of the expenses”). 7 See Andrea Black, Attribution of Profits to PES-Implications of the ‘Authorized’ OECD Approach (Part 1), 20 J. INT’L TAX’N 18, 24 (2010). (stating clearly this interpretation). (Stating clearly, “[i]n the Article itself and in the commentary, the expression ‘incurred for the purposes of the permanent establishment’ is used. This indicates that if an expense has a connection or ‘nexus’ with the income earned by the PE, it can be offset or deducted from the income of the PE.” 8 PHILLIP BAKER & RICHARD S COLLIER, THE ATTRIBUTION OF PROFITS TO PERMANENT ESTABLISHMENTS: SUBJECT II, AT 18-9 (2006). 9 Black, supra note 7. (“The technical basis for this approach ‘begins with Article 7(1) and identifies the ‘profits of an enterprise’ as those of the business activities of the entire single enterprise of which the permanent establishment is part. The profits of the entire single enterprise are earned from transactions with third parties and with associated enterprises. Once the profits of this single enterprise have been determined, a share of those profits would be allocated to the permanent establishment by application of the central directive in Article 7(2) or some other basis of apportionment (which would be authorized under Article 7(4))”); See BAKER & COLLIER, supra note 8, at 19.
establishment as being separate from the home enterprise as indicated in Article 7(2): “if it were a separate and independent enterprise engaged in the same or similar activities under the same or similar conditions, taking into account the functions performed, assets used, and risks assumed by the enterprise through the permanent establishment and through the other parts of the enterprise.” This too is consistent with the Article 7(2) provision whereby the source jurisdiction gains a taxing right over the PE’s profits. 9 Following this step, the hypothetical situation continues by analyzing the business activities through a functional and factual analysis. 10 This process will be expanded upon below. II. 2008 OECD Approach A. Rule of Attribution of Profits for the Pre-2008 OECD Approach The pre-2010 OECD provides that notional payments should in some scenarios not be deducted. But in some scenarios they can be deducted. Article 7 of the 2008 OECD Commentary follows an approach of allowing deductions for some items of income and not for others. Paragraph 3 of Article 7 states: In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere.” (Emphasis added.) 10
George Villano et al., Can Treaties Bring Peace to the IRS and Foreign Banks? (Part 2), 25 J. INT’L TAX’N 33, 39 (2014). (“The Treaty Method requires hypothesizing a permanent establishment as a separate and independent enterprise, ‘engaged in the same or similar activities under the same or similar conditions, taking into account the functions performed, assets used and risks assumed by the enterprise through the permanent establishment and through the other part of the enterprise.’ This is consistent with the language of Article 7 of the OECD model treaty,25 which allocates taxing rights to the jurisdiction in which PEs are located over the profits attributable to the PE”). 11 Id. (“Strictly speaking, this separate enterprise hypothecation should begin with a ‘functional and factual’ analysis in relation to the PE to treat the permanent establishment and the remainder of the entity of which it is a part as if they were associated enterprises owning and using their own assets and liabilities”).
This can be interpreted to mean that only actual expenses incurred could be deducted. However, the commentary leads to some confusion because not all “expenses” may be deducted in the same way. Expanding on these allowed deductions for expenses, the Commentary of the pre-2010 OECD Model states: 31. In applying these principles to the practical determination of the profits of a permanent establishment, the question may arise as to whether a particular cost incurred by an enterprise can truly be considered as an expense incurred for the purposes of the permanent establishment, keeping in mind the separate and independent enterprise principles of paragraph 2. Whilst in general independent enterprises in their dealings with each other will seek to realise a profit and, when transferring property or providing services to each other, will charge such prices as the open market would bear, nevertheless, there are also circumstances where it cannot be considered that a particular property or service would have been obtainable from an independent enterprise or when independent enterprises may agree to share between them the costs of some activity which is pursued in common for their mutual benefit. In these particular circumstances, it may be appropriate to treat any relevant costs incurred by the enterprise as an expense incurred for the permanent establishment. … The question must be whether the internal transfer of property and services, be it temporary or final, is of the same kind as those which the enterprise, in the normal course of its business, would have charged to a third party at an arm’s length price, i.e. by normally including in the sale price an appropriate profit. (Emphasis added.) This paragraph indicates that dealings incurred may be deducted with a cost plus mark-up as long as the dealings—checked through a transfer pricing analysis—would have normally been charged to a third party when conducting such a transaction of property or services. The dealings must be at the right price whereby the goods or services would be priced with a third party. In determining this right transfer price, the commentary provides some guidance on what types of activities/services/goods may be granted a cost, cost plus mark-up, or no deduction. Actual costs deductions are allowed under Article 7, Paragraph 3, but the Commentary allows for cost plus mark-up as well. First, costs may be deducted for temporary use of 34
assets; 11 creation and/or acquisition of intangible rights; 12 and, general management activity. 13 Second, costs plus mark-up may be deducted for inventory; 14 services when the main trade of the enterprise and is to provide services to third parties; 15 and, where the permanent establishment’s main activity is providing the services to the enterprise as a whole (for the advantage of the enterprise). Third, there are no deductions available for good management; 16 and, internal interest. 17 In a scenario where the Head Office (hereinafter HO) is providing services to the PE, it would fall under general management services given that the main business operations were manufacturing high-end furniture, and thus only costs could be deducted. If the facts were to change where the HO would be in the business of providing training services to third parties, then the expenses—under the pre-2010 approach—would be deductible with a cost plus mark-up. This is because the HO has fallen into the category of C7(35) where the Commentary on the Pre-2010 Model allows for cost plus mark-up deductions where the enterprise is involved in providing services to third parties as its main business. The pre-2010 version of the OECD Model approach allowed for states to have room for interpreting Article 7 paragraph 1 in a way to interpret that there is a one entity. 18 This room for interpretation allowed for the single entity approach whereby countries could interpret a permanent establishment as existing in one entity in conjunction with the original company in the residence state and the source state. 19 12
Org. for Economic Co-operation and Dev. [OECD], The 2008 Update to the OECD Tax Convention, at 31 (July 18, 2008), https://www.oecd.org/ctp/41032078.pdf. 13 Id. 14 Id. at 31–32. 15 Id. at 31. 16 Id. 17 Id. at 33. 18 Org. for Economic Co-operation and Dev. [OECD], The 2008 Update to the OECD Tax Convention, at 34–35 (July 18, 2008), https://www.oecd.org/ctp/41032078.pdf; See generally O.C.R. Marres, Interest Deduction Limitations: When To Apply Articles 9 and 24(4) of the OECD Model, 56 EUR. TAX’N 1 (2016). 19 Raffaele Russo, The 2008 OECD Model Tax Convention – Guest Editor’s Note, EUR. TAX’N 458 (2008). 20 Id.
This single entity approach would mean that a company can use losses to balance out against profits while taking into account the PE. Balancing out profits and losses is one of the main operations of the single entity approach. The first step of this approach is to follow the idea that there are separate entities. Following this separate entity approach, we analyze looking at Company H’s activities in State H (the resident state) and State P (the source state where the permanent establishment exists). The second step is to determine the profits of the entity by applying by analogy the Transfer Pricing Guidelines’ arm’s length principle for determining the value of any transactions between associated enterprises attributable to the PE. 20 To determine the deductions available, one must first look at the deals carried on through the PE. This is done by a functional and factual analysis. 21 This analysis 22 involves looking at the attribution of risks and 21
Org. for Economic Co-operation and Dev. [OECD], The 2008 Update to the OECD Tax Convention, at 25–27 (July 18, 2008), https://www.oecd.org/ctp/41032078.pdf. 22 Villano et. al., supra note 10. (“Strictly speaking, this separate enterprise hypothecation should begin with a ‘functional and factual’ analysis in relation to the permanent establishment to treat the permanent establishment and the remainder of the entity of which it is a part as if they were associated enterprises owning and using their own assets and liabilities”). 23 Org. for Economic Co-operation and Dev. [OECD], 2010 Report on the Attribution of Profits to Permanent Establishments, at 224 (July 22, 2010), https://www.oecd.org /ctp/transfer-pricing/45689524.pdf. (laying out, in Paragraph 21 of Commentary on Article 7 from the 2010 OECD Commentary, the steps for a functional and factual analysis: 21. Under the first step, a functional and factual analysis is undertaken which will lead to: - the attribution to the permanent establishment, as appropriate, of the rights and obligations arising out of transactions between the enterprise of which the permanent establishment is a part and separate enterprises; - the identification of significant people functions relevant to the attribution of economic ownership of assets, and the attribution of economic ownership of assets to the permanent establishment; - the identification of significant people functions relevant to the assumption of risks, and the attribution of risks to the permanent establishment; - the identification of other functions of the permanent establishment; - the recognition and determination of the nature of those dealings between the permanent establishment and other parts of the same enterprise that can appropriately be recognized, having passed the threshold test referred to in paragraph 26;
economic ownership, and attribution of free capital 23 to support risk and assets. 24 Article 7(3) provides for deductions of expenses incurred by stating, 25 “there shall be allowed as deductions expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere.” 26 With this statement alone from Article 7(3), it is not clear when or how these deductions may be calculated or what expenses are allowed to be deducted (such as for services, interest of loans, management, - and the attribution of capital based on the assets and risks attributed to the permanent establishment). 24 Villano et. al., supra note 10, at 21. (“First, an appropriate arm’s-length amount of ‘free capital’ (i.e., capital that is not deductible for tax purposes) must be attributed to the PE. The notional attribution of ‘free’ capital to the permanent establishment for tax purposes should be done irrespective of any regulatory requirements for any such capital to be formally allotted to the permanent establishment (so that the permanent establishment in question may be wholly debt-funded).27 ‘Free’ capital should be allocated in accordance with the risks measured and attributed to the permanent establishment (i.e., such capital as is needed to support those risk”). 25 Villano et. al., supra note 10, at 20. (“Following the OECD language, dealings between different parts of the entity should be recognized, provided that they relate to ‘a real and identifiable event’ that has taken place, as determined based on a functional and factual analysis. Under this step, it is important to understand whether the dealing (1) results in a transfer of ‘ownership’ of the financial assets from one part of the enterprise to another; or (2) is the provision of a service by one part of the enterprise to another, which should be priced based on the arm’s-length principle”). 26 Joel D. Kuntz & Robert J. Peroni, Business Profits and Permanent Establishments, U.S. INT’L TAX’N ¶ C4.05, 2017, at 1, 7. (“In computing the business profits or industrial or commercial profits attributable to a PE, a taxpayer generally may subtract the deductions reasonably connected with the profits”). 27 Org. for Economic Co-operation and Dev. [OECD], Model Tax Convention on Income and on Capital: Condensed Version 2003, art. 7, ¶ 3, (Jan. 28, 2003); See also Org. for Economic Co-operation and Dev. [OECD], Model Tax Convention with Respect to Taxes on Income and on Capital, art. 7, ¶ 3, (2014). (“Where, in accordance with paragraph 2, a Contracting State adjusts the profits that are attributable to a permanent establishment of an enterprise of one of the Contracting States and taxes accordingly profits of the enterprise that have been charged to tax in the other State, the other State shall, to the extent necessary to eliminate double taxation on these profits, make an appropriate adjustment to the amount of the tax charged on those profits. In determining such adjustment, the competent authorities of the Contracting States shall if necessary consult each other”).
intangibles, royalty payments, etc.). The Article 7 Commentary provides some guidance for when and how these deductions may be calculated. The 2008 commentary allows for deductions for costs: transfer of goods for resale—in other words inventory; 27 and, three specific services. The two specific services are: (1) where the activity of the permanent establishment or the enterprise engages in the main trade of the whole enterprise for providing services to third parties; 28 (2) where the PE’s main activity is providing services to the main enterprise as a whole 29— for the advantage of the enterprise. 30 This is separate from the services rule where services that merely make part of the general management activity when taken as a whole. 31 Commentary of Article 7, Paragraph 35 of the 2008 OECD Model Convention elaborates on the deductions available for specific “services,” to third parties, by stating that it is difficult to determine whether or “not to allow the cost plus a mark-up to represent the profit “to the part of the enterprise providing the service.” It is difficult to determine because the “trade of the enterprise . . . may consist of the provision of such services and there may be a standard charge for their provision. In such a case it will usually be appropriate to charge a service at the same rate as is charged to the outside customer.” 32 In a sense, this second sentence from the Commentary on Article 7 acts as a sort of “arm’s length” procedure in that it operates to make sure that the price of service is correctly identified. Also, this sentence provides for cost plus mark-up deductions for services where the permanent establishment 28
The 2008 Update to the OECD Model Tax Convention, supra note 17, at cmt. 7, ¶ 33. Id., at ¶ 35. Such an example would be training services as their main business. 30 Id. (explaining that costs must represent a significant part of the expenses of the enterprise. Host of the permanent establishment may require that the profit margin be included in the amount of the costs. The main activity of the permanent establishment must be to provide services to the enterprise, then it would be appropriate “cost plus mark–up.” Of course this is an optional exception to the services rules, and the country need not accept this). 31 Id. 32 Id., at ¶ 37 (explaining that, such as providing training for the whole enterprise. In such a case, it would “be appropriate to treat the cost of providing the services as being part of the general administrative expenses of the enterprise as a whole”). 33 Id., at ¶ 29. In other words, the cost plus mark-up is the cost minus the mark-up price equals the profit margin. 29
and enterprise are in the business of providing services to third parties. Once the price is correctly identified, then the proper procedure is to apply the cost plus mark-up to represent the total profit available for deductions. 33 However, for PE’s where the main activity is providing services to the permanent establishment as a whole, Paragraph 36 goes on to say, “[w]here the main activity of a permanent establishment is to provide specific services to the enterprise to which it belongs and where these services provide a real advantage to the enterprise and their costs represent a significant part of the expenses of the enterprise, the host 34 country may require that a profit margin be included in the amount of the costs.” 35 In other words, the profit margin should be included in the costs for specific services to provide a real advantage to the enterprise and represent a significant expense on the part of the whole enterprise. This again is an exception to the “general services rule” making up part of the specific deductions. Specifically, the 2008 version allows for specific deductions. For deductions of costs, only three categories may be deducted: temporary use of assets; 36 creation and acquisition of intangible rights and royalties; 37 and services (general management). 38
Id., at ¶ 36. Id., at ¶ 36. (referring to the temporary use of assets exception). 36 Org. for Economic Co-operation and Dev. [OECD], Model Tax Convention on Income and on Capital, (2016) Models IBFD. 37 Id. at 33. (referring to the temporary use of assets exception). 38 Id., at ¶ 34. (providing for costs of allocation or development shifted from head office to permanent establishment based on the use of the intangibles of the permanent establishment). 39 Id., at ¶ 37-9. (providing for deductions you get—costs without mark-up—which is in contrast to the “good management” ban on deducting costs for “good management” provided in ¶ 38-39). 35
III.2010 OECD AOA A. Rule for Attribution of Profits for 2010 AOA (Authorized OECD Approach) Approach The 2010 OECD provides for the AOA approach of treating the permanent establishment and the enterprise as separate entities. Known as the “separate enterprise approach,” Paragraph 2 of Article 7 provides: the profits that are attributable in each Contracting State to the permanent establishment . . . are the profits it might be expected to make, in particular in its dealings with other parts of the enterprise, if it were a separate and independent enterprise engaged in the same or similar activities under the same or similar conditions, taking into account the functions performed, assets used and risks assumed by the enterprise through the permanent establishment and through the other parts of the enterprise. The Commentary expands on this stating, “the deduction of an arm’s length charge for these dealings, as opposed to a deduction limited to the amount of the expenses, is required by paragraph 2” of Article 7 of this Model. Further, the Commentary at paragraph 24 explains that “Paragraph 2 refers specifically to the dealings between the permanent establishment and other parts of the enterprise … in order to emphasize that the separate and independent enterprise fiction of the paragraph requires that these dealings be treated the same way as similar transactions taking place between independent enterprises,” 39 (emphasis added) to show that deductions for inter-company dealings—even if notional—must be calculated as if the permanent establishment was dealing with a third party. Thus, in line with the separate enterprise approach, the 2010 AOA allows for notional intra-company dealings to be deducted for costs plus mark-up in almost any scenario. If the scenario were to change where the HO provides services to the PE, the permanent establishment would pay notional fees to the HO. These fees would be deductible on a cost-plus profit margin basis. 40
2010 Report on the Attribution of Profits, at 14-9 (Jul. 22, 2010).
Similar to the 2008 analysis, one in general starts with Article 7 for business profits. Then one characterizes the type of income that is flowing. The income could be interest—under Article 11, for example, whereby one looks at whether the interest is effectively connected to see if it is attributable to the PE. 40 Characterizing the type of income involves a functional analysis. Then, if the activities constitute a permanent establishment under Article 5, it falls under Article 7 for business profits. If there is no PE, then the income is characterized as the specific income characterization article. Similar to the 2008 approach, the first step is determining that the permanent establishment is a separate entity—following the AOA approach. The separate entity approach starts with identifying the deals carried on through the permanent establishment by conducting a functional and factual analysis. 41 This functional and factual analysis identifies people functions, attributes risk, economic ownership, and free capital to support risk and assets as the 2008 approach did. 42 This would make the deductions available through the separate entity approach are the same as the 2008 approach. IV. UN Approach: The 2011 UN Model Tax Convention provides that only actual reimbursements paid by the permanent establishment can be deductible. Article 7, Paragraph 3 of the UN Model states: In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the business of the permanent establishment including 41
Model Tax Convention with Respect to Taxes on Income and on Capital, supra note 32. See above for functional and factual analysis. 43 Villano, et. al., supra note 10, at 21. (“Having attributed assets (and income) to the PE under the arm’s-length principle, it is necessary to look at the expenses attributable to the PE for Article 7 purposes. Aside from the commentary on Article 7 of the OECD model treaty (and general transfer pricing rules) on the attribution of expenses to PEs, the OECD Report focuses in particular on the amount of ‘capital’ that should be attributed to the PE (i.e., an amount appropriate to support the PE’s functions performed, assets used, and risks assumed). The amount of capital deemed to be attributed to a PE for these purposes will have an effect on the amount of interest expense that otherwise would be attributed to the PE for tax purposes”). 42
executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere. However, no such deduction shall be allowed in respect of amounts, if any, paid (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on moneys lent to the permanent establishment. (Emphasis added.) According to this paragraph, expenses actually incurred and reimbursed are only allowed to be deducted if they were actually paid. However, a complication arises in Paragraph 27 of the Commentary of the UN on Article 7 that states: “The deduction allowable to the permanent establishment for any of the expenses of the enterprise attributed to it does not depend upon the actual reimbursement of such expenses by the permanent establishment.” This seems to imply that the expenses of the permanent establishment that may be deducted to not depend on “actual reimbursements.” To resolve this confusion, it may be helpful to look at the pre-2010 OECD that seems to have been guidance for the UN Committee’s decision. And, it may be helpful just to look at Article 7, Paragraph 3 that states deductions may only be made if the expenses were reimbursed. Given this procedure of analysis, if a permanent establishment does not reimburse the HO for the training services that the HO’s meaning that there is no deduction allowed under the UN Model. If facts were to change where the HO would be in the business of providing training services to third parties, then the expenses—under the UN approach—would allow for deductions for costs only assuming they were actually made and not just notional. The rule of decision for attributing profits for a PE provides how to allocate operational costs of the enterprise and the permanent establishment as a whole in order to find deductions available for costs
incurred. 43 The first step in the 2011 UN Model looks at whether there is an operational cost available by looking into if the operational cost has a significant function for the resident company. To do this, one uses a functional and risk analysis. This analysis depends on the initial determination of an existing PE. The policy under the rules of attribution is that the UN tries to reserve the most amount of profits for the source country—and; thereby, providing for the most non-deductible and taxable income for the source state. The UN Model uses the same method as the OECD, but does not allow for notional payments to be deducted as described above. No deductions for amounts “paid (otherwise than towards reimbursement of actual expenses)” by the permanent establishment to its head office— except for interest on intra-bank loans. 44 Given that the UN Model does not follow the AOA, this means that the intercompany dealings are not recognized in so much as such dealings are in the AOA. The UN Model does not allow deductions for notional interest, royalties, and fees. This is again a policy of balancing taxing rights between the source and residence. V. Conclusion Overall, when dealing with permanent establishments and attribution of profits, the OECD and UN Models create a fiction of a “separate and independent enterprise” or of a “distinct and separate enterprise.” All three approaches provide different ways for how to determine the internal profits of expenses between the permanent 44
Model Tax Convention with Respect to Taxes on Income and on Capital, supra note 327. 45 Model Tax Convention with Respect to Taxes on Income and on Capital, supra note 27; Villano, et. al., supra note 10, at 22. (“There are two main approaches for attributing the external interest expense of the enterprise to its PE: (1) a tracing approach, and (2) a fungibility approach. Under a ‘pure’ tracing approach, any internal movements of funds provided to a permanent establishment are traced back to the original provision of funds by third parties. The interest rate on the funds provided to the permanent establishment is determined to be the same as the actual rate that the enterprise incurred to the third-party provider of funds. In certain circumstances, a tracing approach could be evidenced by internal dealings that allocate the enterprise’s actual interest expense to the PE.”).
establishment the enterprise as a whole. Yet at the same time, some inconsistencies exist, because the separate entity approach is a fiction. Really, the permanent establishment is part of the whole enterprise, and the fiction is to help allocate profits to source countries. It would be more in conformity with reality if the OECD and UN adopted a “single entity” approach. 45
See The 2009 Leiden Alumni Seminar: Case Law on Treaty Interpretation, 50 EUR. TAX’N. 108 (2010); Id. at 110.
IS NEWSCASTING REINVENTING SEXUAL HARASSMENT? Natalie L. Coburn Introduction The sexual harassment allegations against Roger Ailes, former Chairman and CEO of Fox News, illustrates ongoing workplace gender inequality. 1 The famous cases of harassment in recent years involving Donald Trump and Erin Andrews show just how ubiquitous sexual harassment is against women. 2 History has denied women the right to vote, limited them to secretarial employment, and relegated them to housewives. 3 While today’s standards have relieved some of these barriers, women seek equal treatment in the workplace. 4 Sexually charged remarks, sexual physical contact, and prolonged sexual harassment are typical occurrences. 5 Extensive case law and national statistics demonstrate sexual harassment that men exhibit in the average workplace. Per the United States Equal Employment Opportunity Commission (“EEOC”), sexual harassment complaints women report ranged from 6,657 in 2010 to 5,655 in 2015. 6 Yet, Carlson’s report against Ailes opened the floodgates,
See Kim Bellware, Here Are the Women Publicly Accusing Roger Ailes of Sexual Harassment, HUFFINGTON POST, (Aug, 12, 2016, 4:09 AM), http://www.huffingtonpost.com/entry/roger-ailes-accuserslist_us_57a9fa19e4b06e52746db865. 2 See Max Blau, These Women Have Accused Trump of Sexual Harassment, CNN POLITICS, (Oct. 24, 2016, 6:21 PM), http://www.cnn.com/2016/10/14/politics/trumpwomen-accusers/. 3 Mehroz Baig, Women in the Workforce: What Changes Have We Made?, THE HUFFINGTON POST, (Dec. 19, 2013), http://www.huffingtonpost.com/mehrozbaig/women-in-the-workforce-wh_b_4462455.html.4 See Orquiola v. Nat’l City Mortg. Co., 510 F. Supp. 2d 1134, 1138 (N.D. Ga. 2007). 4 See Orquiola v. Nat’l City Mortg. Co., 510 F. Supp. 2d 1134, 1138 (N.D. Ga. 2007). 5 Madeja v. MPB Corp., 149 N.H. 371, 374-76 (2003). 6 Charges Alleging Sexual Harassment FY 2010 - FY 2015, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm (last visited Mar. 22, 2017).
exposing that harassment does go unreported. 7 Female newscasters may not report harassment to avoid accusations of lying, public shame, and emotional trauma. 8 Female newscasters refrain from reporting instances of sexual harassment, due to fear that retaliation will negatively impact their professional careers. This paper will explore how women who report sexual harassment are retaliated against in the workplace and specifically are (1) fired, (2) alienated by coworkers and superiors, and (3) receive decreased salaries, are demoted, suspended or are transferred to an alternate office. 9 1. Terminating Complainants of Sexual Harassment Women who report sexual harassment to employers are frequently fired. This is allegedly the case for Rudi Bakhtiar, a former Fox newscaster, who claims she was sexually harassed by Roger Ailes and fired after reporting sexual harassment by Brian Wilson. 11 If not fired immediately, overtime women experience a decrease in the hours scheduled to work and unusually poor reviews prior to termination. 12 Courts place high standards on proving that an employee is fired directly because of their complaints of sexual harassment and not because of poor 10
Margaret Sullivan, Gretchen Carlson Is Close to Settling Her Case Against Ailes. Let’s Hope She Doesn’t, WASH. POST, (Aug. 18, 2016), https://www.washingtonpost.com/lifestyle/style/gretchen-carlson-is-close-to-settling-hercase-against-ailes-lets-hope-she-doesnt/2016/08/18/e38da9f6-6564-11e6-8b27bb8ba39497a2_story.html?utm_term =.78fafe8b381d. 8 Jessica Goldstein, Gretchen Carlson’s Lawsuit Opened a Floodgate of Harassment Allegations Against Roger Ailes, THINK PROGRESS, (Jul. 11, 2016), https://thinkprogress.org/gretchen-carlsons-lawsuit-opened-a-floodgate-of-harassmentallegations-against-roger-ailes-950a335a817d#.4b5urdtym. 9 See Soto v. McHugh, 158 F. Supp. 3d 34 (D.P.R. 2016). 10 See Hinton v. Supervision Int’l, Inc., 942 So. 2d 986 (Fla. Dist. Ct. App. 2006).; Koss v. Palmer Fire Dist. No. One, 53 F. Supp. 3d 416 (D. Mass. 2014).; Texas Dep’t of Assistive & Rehab. Servs. v. Abraham No. 03-05-00003-CV WL 191940 (Tex. App. Jan. 27, 2006). 11 Bellware, supra note 1. 12 Hawk v. Land Air Express of New England, Ltd., No. 05–cv–283–JD, 2006 WL 2850589 (D.N.H. Oct. 2, 2006) (Order granting Defendant’s Summary Judgment in part, and denying in part).
work performance. 13 Both practices discourage women from seeking aid from superiors and filing formal complaints with government agencies. 14 Employers that receive reports of sexual harassment or are accused of the harassment, show patterns of terminating the female complainant. 15 Employers generate false assurances that the accusations will be thoroughly investigated and resolved before firing complainants. 16 The case law analyzed below show that women wait several weeks and are subjected to additional harassment before superiors revisit their complaints. 17 Victims contact employers multiple times, receiving no response or false updates on the status of investigation. 18 1.1 Developing False Reasons for Termination Employers manufacture reasons for termination and no steps are taken to resolve accusations of sexual harassment. 19 Female victims are subject to impromptu work performance reviews and falsely criticized for their work ethic and sudden failure to produce results. 20 Courts note that employers purposefully subject women to these evaluations to discourage courts from associating termination with filing internal complaints. 21
See Koss v. Palmer Fire Dist. No. One, 53 F. Supp. 3d 416, 424-25 (D. Mass. 2014). Id. 15 Employers who receive reports of sexual harassment or are accused of the harassment, show patterns of terminating the female complainant. e.g Texas Dep’t of Assistive & Rehab. Servs. v. Abraham, No. 03-05-00003-CV, 2006 WL 191940, 4 (Tex. App. Jan. 27, 2006); Hinton v. Supervision Int’l, Inc., 942 So. 2d 986 (Fla. Dist. Ct. App. 2006); Koss v. Palmer Fire Dist. No. One, 53 F. Supp. 3d 416 (D. Mass. 2014). 16 Employers generate false assurances that the accusations will be thoroughly investigated and resolved before firing complainants. Id. 17 The case law analyzed below show that women wait several weeks and are subjected to additional harassment before superiors revisit their complaints. e.g. Banker v. Univ. of Louisville Athletic Ass’n, Inc., 466 S.W.3d 456, 458-59 (Ky. 2015). 18 Victims contact employers multiple times, receiving no response or false updates on the status of investigations. E.g. Banker v. Univ. of Louisville Athletic Ass’n, Inc., 466 S.W.3d 456, 458-9. 19 E.g. Faccio-Robert v. Empress River Casino, 80 F.Supp.2d 918 (N.D. Ill. 2000). 20 Hawk v. Land Air Express of New England, Ltd., No. 05-CV-283-JD, 2006 WL 2850589, 4 (D.N.H. Oct. 2, 2006). 21 E.g. Hawk v. Land Air Express of New England, Ltd., No. 05-CV-283-JD, 2006 WL 2850589, 4 (D.N.H. Oct. 2, 2006). 14
1.2 Blaming Prior Acts for Termination Employers also use preexisting and previously ignored records of insubordination and inadequate work performance to justify terminating complainants. 22 Past negative work reviews are used to hide the fact that an employee is fired because of her complaint. 23 Women with negative employment histories are discouraged from and punished for complaining of harassment. 24 Courts need to focus on the timeline when sexual harassment was reported and the employee was terminated, not on the complainant’s past misconduct and the employer’s employment policies. Hence, while an employer choses to fire an employee because of sexual harassment accusations, the timeline may demonstrate the truth of what justifications exist for termination. 25 1.3 Concealing Retaliation from a Court Women fired for work performance allegations seek legal damages for retaliatory firing and sexual harassment. 26 Courts require complainants proving sexual harassment to demonstrate “but for” causation or the actual cause of termination. 27 As shown, employers have escaped liability by developing alternate reasons for termination. 28 For some courts, it is difficult to discern between true and incorrect reasons for termination. 29 In Hawk, Linda Hawk makes claims of sexual harassment and retaliation by her employer after her termination. 30 After complaining to her superior and filing a complaint with human resources, she received an impromptu evaluation and was fired. 31 The court upheld the retaliation claim, arguing her performance evaluation was three months after the handbook delegated time of ninety days and her employer allotted only 22
E.g. Blomker v. Jewell, 831 F.3d 1051, 1059 (8th Cir. 2016). Id. at 1058. 24 Id. at 1059. 25 Id. at 1058. 26 Hinton v. Supervision Int’l, Inc., 942 So.2d 986, 988 (Fla. Dist. Ct. App. 2006). 27 Jewell, 831 F.3d at 1060. 28 Supervision Int’l, Inc., 942 So. 2d at 988. 29 Hawk v. Land Air Express of New England, Ltd., No. 05-cv-283-JD, 2006 WL 2850589, (D.N.H. Oct. 2, 2006). 30 Id. at 1. 31 Id. at 2.
two weeks to make substantial changes in her work performance. 32 It is evident there is a pattern in employers’ approach to terminating the employee and developing false justifications. This case demonstrates employer dishonesty and abuse of authority, unlike similar cases of systematic firing. 33 2. The Alienation of Women Who Report Sexual Harassment The second retaliatory issue is alienating women who report sexual harassment. Women seeking work related assistance from coworkers and employers are ostracized for reporting harassment. 34 Alienating complainants generates fear that an employee risks exclusion from promotions, work functions, and company updates. 35 Alienation requires understanding how and why complainants are excluded. 2.1 Why Women Alienate Women Who Report Sexual Harassment Female peers alienate complainers of harassment to prevent being associated with any controversy. 36 Women who want to be taken seriously and approved or respected by male counterparts are expected to ignore sexual harassment. 37 Male superiors also encourage women to fit in by submitting to sexual advances. 38 Former National Republican Committee advisor Kellie Boyle alleges Ailes propositioned her in 1989, stating, “You know, if you want to play with the big boys, you have to lay with the big boys”. 39 Behind the scenes, NBC employee Shelley Ross was subjected to the same treatment when Ailes approached her arguing that “loyalty” comes in the form of “sexual alliance”. 40 Women who did and did not work alongside Ailes were encouraged to entertain sexual behavior in furtherance of their careers. 41 32
Id. at 4. Sims v. First Bank, 478 F. Supp. 2d 911, 912 (S.D. Miss. 2006). 34 Beckmann v. Edson Hill Manor, Inc., 764 A.2d 1220,1221 (Vt. 2000). 35 EEOC v. Fed. Express Corp., 188 F. Supp. 2d 600, 604 (E.D.N.C. 2000). 36 Texas Dep’t of Assistive & Rehabilitative Servs. v. Abraham, No. 03-05-00003-CV, 2006 WL 191940, at *3 (Tex. App. Jan. 27, 2006). 37 Bellware, supra note 1. 38 Id. 39 Bellware, supra note 1. 40 Id. 41 Id. 33
2.2 Why Men Not Accused of Harassment Alienate Complainants Preventing additional accusations is the second reason for alienating complainants. 42 In Beckman, Anita Beckman alleges that she was sexually harassed by the head chef, Matt Delos. 43 The chef allegedly admitted to making comments about her body and asking Beckman if she had recently engaged in sexual activity, in front of kitchen staff. 44 After Beckman responded by telling the head chef that his comments constituted sexual harassment, the sous chef, head chef, and kitchen assistant began to ignore her questions about the menu and other work related inquiries. 45 One employee even responded “we better not talk to you because anything we might say, you might accuse us of sexual harassment”. 46 Beckman alleges this alienation lasted for a period of weeks after the incident. 47 2.3 Why Men Accused of Sexual Harassment Alienate the Accuser Thirdly, male employees accused of harassment alienate complainants because of a bruised ego. 48 Sexual harassment may involve not only empty sexual comments and physical contact retained in the workplace but also may involve a genuine attempt to date the victim or gain her attention romantically. 49 Men denied the opportunity to date the complainant may spread rumors about the woman’s work ethic and complain to superiors about their inability to work with her. 50 Men entice other coworkers to alienate the accuser and disclose the complaints made against them. 51 The case of Madeja involves a male coworker alienating Michelle Madeja after being denied the opportunity to come to her house and drink 42
See Beckmann v. Edson Hill Manor, Inc., 764 A.2d 1220,1221 (Vt. 2000). Id. 44 Id. 45 Id. 46 Id. 47 See Beckmann v. Edson Hill Manor, Inc., 764 A.2d 1220,1221 (Vt. 2000). 48 See generally Madeja v. MPB Corp., 821 A.2d 1034, 1041 (2003). 49 Id. at 1040-41. 50 See id. at 1041. 51 See id. 43
with her. 52 The coworker asked twice to come to her house and showed up unannounced. 53 The male made false claims about her attitude and lack of team work; and after the sexually harassing behavior was reported, recruited other employees to disparage her work ethic. 54 He stated, “[T]he company didn’t get rid of her, so, you know…we decided to be cold to her, you know, treat her like not part of the group.” 55 This case presents a clear example of workplace alienation initiated by coworkers after an accusation of sexual harassment. 3. Impacting the Advancement of Complainants Preventing women from climbing the corporate ladder is not limited to termination and alienation. 56 Employers make voluntary employment unattractive by reducing salary, imposing suspensions, transferring or demoting an employee. 57 3.1 Demotion and Transfer Employers modify the complainant’s tasks to eliminate interaction with the accused or move them to an alternate department, instead of punishing the male responsible. 58 This limits possible interactions between both parties, but places a burden on the victim. 59 The woman must adjust to new tasks, scheduling, and job expectations. 60 Employers who take this action thus criticize and impose punishment on the accuser. 61 3.2 The Reduction of Wages and Denial of Promotions Employers also reduce an employee’s salary or overlook the employee for promotional opportunities. 62 Preventing employees from 52
Id. Id. 54 Id. 55 Id. 56 See Soto v. McHugh, 158 F. Supp. 3d 34, 43 (D.P.R. 2016). 57 See id. 58 See Davis v. Wal-Mart Stores, Inc., No. 3:05-CV-1805-L, 2007 WL 836860 (N.D. Tex. Mar. 19, 2007). 59 See id. 60 See id. at 7. 61 Id. 62 Soto v. McHugh, 158 F. Supp. 3d 34, 39–40 (D.P.R. 2016). 53
moving up the corporate ladder or increasing their salary is a common response to filing complaints with the superior of their direct boss. 63 An employee may be denied a promotion that an employer grants to a less experienced employee, despite impeccable employment reviews and work performance. 64 3.3 Suspension Employers suspend female employees after complaints of sexual harassment have circulated. 65 Though the suspension is in reality a form of punishment, it is masked as an opportunity to evaluate the accusations and determine the appropriate action. 66 Yet once a suspension has run its course, employers may not respond to an employee’s requests to return to work or will ultimately terminate or transfer the employee once she returns. 67 3.4 Concealing Retaliation from a Court Employers reframe these retaliatory alternatives to firing in a positive light. Employers argue the steps taken are necessary to diffuse the situation and allow the accuser time to recover. 68 Analyzing these excuses does require the courts to exercise their judgment, to determine if the employer is using these alternatives to retaliate against the complainant.69 Former Fox News host Andrea Tantaros claims she was demoted and taken off the air after accusing Ailes of sexually harassing her. 70 Fox claimed the sole reason for her demotion was because she violated company policy on book publications. 71 Similarly, in Soto, Osiris Soto maintained eleven years of work experience, had never received a negative review or disciplinary report, and worked as a manager for two years. 72 Over the course of filing two EEOC reports Soto’s work load was reduced, she was transferred to a position she held when first hired, passed 63
Orquiola v. Nat’l City Mortgage Co., 510 F. Supp. 2d 1134, 1138 (N.D. Ga. 2007). Soto, 158 F. Supp. 3d at 45. 65 Orquiola, 510 F. Supp. 2d at 1138. 66 Soto, 158 F. Supp. 3d at 44. 67 Orquiola, 510 F. Supp. 2d at 1138. 68 Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001). 69 Bellware, supra note 1. 70 Id. 71 Id. 72 Soto, 158 F. Supp. 3d at 37. 64
over for a position for which she qualified, and excluded from a salary increase. 73 The blatant acts of retaliation exhibited by Sotoâ&#x20AC;&#x2122;s employer depict the lengths to which an employer has gone to punish women for exposing sexual harassment. 74 4. Legal Resolutions 4.1 Identifying the Problems First, courts should develop a clear-cut process to identify sexual harassment, preventing employers from overlooking and punishing reporters of sexual harassment. Courts often argue that sexual harassment must be severe and pervasive enough to pursue a case. 75 Occurrences of sexual harassment, while identified by the court, are too often deemed not actionable because they lack a requisite level of offensiveness. 76 While some courts require outright physical contact, others permit accusations of sexual harassment that involve solely conversation. 77 Any form of sexual harassment should be actionable, regardless of the level of offensiveness or lude behavior. By imposing this indeterminate and personalized offensiveness quota, courts are discouraging women from complaining of sexual harassment, as their complaints may not achieve the requisite level and result in retaliation and a lack of support from the courts. Secondly, courts should not dismiss sexual harassment claims merely because it does not entice an employee to quit their job. 78 This form of analysis suggests that women should be responsible for separating themselves from their harassers instead of men being punished and inconvenienced for their behavior. Women should be able to rely on courts to protect their right to be free from sexual advances without having to quit their job, risk their financial livelihoods, and sacrifice the opportunity to climb the corporate ladder.
Id. See generally Soto v. McHugh, 158 F.Supp.3d 34 (D.P.R. 2016). 75 Blomker v. Jewell, 831 F.3d 1051, 1058 (8th Cir. 2016). 76 Id. 77 Id. 78 Id. 74
Lastly, courts should not argue that sexual harassment is not actionable if there is only one instance of harassment. 79 This analysis encourages women who have been harassed to endure additional harassment, before being taken seriously and having their concerns acted on. It also sets a precedent that outside of employer-imposed punishment, there is no legal ramifications for severe or minor single instances of harassment of a woman. Courts should permit single instances of sexual harassment, encouraging women to come forward with their accusations. 4.2 Increasing Employer Duties Employers should be required to adhere to specific guidelines, enforced legally, to prevent and resolve sexual assault accusations. Employers should be required to conduct in-depth sexual harassment training that focuses on identifying and avoiding sexually harassing behavior. 80 This training would reinforce for all employees (including those who might harass and those who might fall victim to harassment), of the importance of a harassment free work environment and remind employers that sexual harassment does occur. Next, employers should be forced to take prompt, legally proscribed steps to monitor and evaluate the truthfulness of allegations of sexual harassment that do not place undue burden on the complainant. 81 Adhering to consistent steps would prevent employers from applying inconsistent resolutions to accusations and provide expectable outcomes to victims and perpetrators. Employers should also be required to fire employees found responsible for sexual harassment, after two reported incidents. 82 By enforcing this strict rule, the accused are forced to make quick changes in their behavior and it reinforces the severity of displaying sexual harassing behavior.
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001). Randy Sutton, Annotation, When Is Supervisorâ&#x20AC;&#x2122;s or Coemployeeâ&#x20AC;&#x2122;s Hostile Environment Sexual Harassment Imputable to Employer Under State Law, 94 A.L.R. 5TH 1 (2001). 81 Id. 82 Id.
Conclusion Women in the newscasting industry appear to rarely complain about the presence of sexual harassment in the workplace. Yet case law stemming from sexual harassment complaints demonstrates its existence amongst woman. These women are retaliated against for speaking out against alleged instances of sexual harassment. Women in newscasting avoid making complaints of sexual harassment out of fear that their employers and fellow employees will exhibit retaliation. The threat of being terminated, alienated, and steered away from professional advancement outweighs reporting and thus victims endure unwanted, sexually harassing comments and physical interactions. A single victim should not have to step forward to open the floodgates of complaints of harassment. Female newscasters should not fear that they will not be believed or will face scrutiny. Courts and employers must be responsible for implementing guidelines for identifying and responding to sexual harassment that encourage reporting and place the burden of making systematic investigations of these claims on the employer and the accused. The courts need to eradicate the shameful act of sexual harassment in the workplace and not overlook its victims.