This suggests that the norms are probably not customary law, since states would not be expected to enter into treaties if they thought an existing law already applied.
The OECD harmful tax practices guidance thus seems to fall short of international law in the formal sense of treaty or custom. Yet states feel compelled to adhere to the recommendations and guidelines, perhaps not least because there are—at least potentially—real consequences for failure to comply.
If the OECD initiative is not law, it nevertheless creates a strong degree of obligation among member and non-member states alike. This sense of obligation makes it difficult to simply dismiss the guidance as “not law.”
To resolve this problem, we may again consult the international law literature, which suggests that the distinction between something that is or is not hard law may not be binary but may present a spectrum or continuum based on theories about obligation and its attendant features.
Some international law scholars use the term soft law to describe some norms that may not themselves constitute law but seem to have effects that evoke a legal process or form. The international law literature frames soft law as norms that are not thought of as law per se but compel a law-like sense of obligation in states. If a soft to hard law continuum exists, it seems to be characterized by a sense that the less we are inclined to equate a practice or pronouncement with a legal obligation, the more a label like soft law seems appropriate.
The category of soft law thus seems to offer a third way between the potentially uncomfortable position of describing the OECD guidance as “law” and therefore implying states must comply with it, and the potentially unrealistic position of describing it as not law at all, despite evidence that countries do in fact comply with it, often against their self-interest or will (or both). But describing OECD guidance as soft law does not simplify the analysis of how international tax law develops. Instead, the description opens up an important inquiry regarding who is involved in shaping tax norms.
As a few tax scholars have noted, describing something as law, whether hard or soft, creates expectations about how countries may behave.
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