TREATY TACTICS DEFENDING FREE SPEECH

There exist several important treaties between the US and UK. These include matters of:

· Extradition

· Taxation

· Tax information exchange

Now that the UK is seeking to act extra-territorially, trespassing on constitutional guarantee of freedom of speech, the Trump administration has a range of legal powers to pressurize, or isolate the UK state.

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The Verge Reports (Aug 23, 2025):

Will Trump help 4Chan escape the UK’s internet police?

4Chan’s lawyers have called for a “diplomatic and legal” solution for their potential £18 million fine for violating the Online Safety Act. But how far would Trump go for them?

by Tina Nguyen

After the United Kingdom began enforcing its sweeping Online Safety Act in April, British regulator Ofcom served violation notices to three notorious sites: 4chan, Gab, and Kiwi Farms, each of which risked multimillion-dollar fines.

Late last week, Preston Byrne, a First Amendment lawyer representing them, struck back. Byrne announced he would sue Ofcom in US federal court and added an unusual request. He called on the Trump administration “to invoke all diplomatic and legal levers available to the United States” to protect his clients from the OSA’s reach.

Byrne’s request could put a trio of sites known as hotbeds of violence, harassment, and extremism at the vanguard of the Trump administration’s sweeping new diplomatic mandate: stop foreign countries from using their laws to stifle American speech — especially hate speech — on the internet.

In an interview with The Verge, Byrne said that he’d already been in communications with Congressional offices and administration officials who were following not just this case, but other enforcement incidents he’d flagged in Europe. While the Biden administration didn’t visibly intervene in European investigations into American websites, Byrne claimed that current members of the “U.S. Federal Government” were “very hungry for information, for solid, actionable information, about this… as a free speech activist, I’ve been impressed, I’ve been humbled, I’m immensely grateful to our government, and how they’re responding. I have nothing bad to say about how the government has handled this.”

International internet regulation has expanded as the US political right has gained force online, fueling a backlash against, in particular, the European Union’s Digital Services Act and the UK’s OSA. In February, Vice President J.D. Vance told a shocked crowd at the Munich Security Conference that “in Britain, and across Europe, free speech, I fear, is in retreat,” implicitly threatening to withdraw defense funding — an existential need for the E.U. as Russia’s invasion of Ukraine continued — if they did not relent. Secretary of State Marco Rubio began restricting visas for foreign nationals who enforce laws against American companies for violating content moderation laws and recently began instructing its embassies to begin pushing back against their European counterparts, sending along talking points in a cable sent in August.

And the OSA has faced a rocky rollout in the UK. The law can penalize platforms for not verifying users’ ages before they access pornographic or otherwise “harmful” content, or for failing to remove illegal material. When it took effect in late July, several major U.S. companies — including Reddit, Bluesky, X, and Grindr — were forced to implement age verification systems that haphazardly blocked some or all access for users who didn’t want to hand over an ID or face scan.

Wikipedia has expressed concerns it would have to expose anonymous editors and moderators to comply with the OSA, and is currently suing in UK court.

Byrne’s legal goal, if Trump doesn’t intervene, is more aggressive than Wikipedia’s: he wants a US federal court to declare that the OSA is not enforceable on American companies. “Reportedly, they [the U.S. government] have pushed back on the UK on this one issue, but ultimately, it doesn’t matter. Because one lawyer, a solo practitioner working in his free time, armed with the First Amendment, can bring the OSA to a grinding halt at the shoreline of the United States.”

But he and associates are also pushing hard for a backchannel deal, and Byrne told The Verge that he had begun reaching out to members of the administration on behalf of his clients after Trump was elected. “The relevant client and I looked at each other and I said, listen, I think we’ll have a lot easier time contacting some people in the DOJ and saying, ‘Hey, did you know that this is happening and it’s infringing on Americans’ free speech rights?’”

The Verge confirmed that Byrne had made contact with Congressional offices; the State Department did not return a request for comment regarding whether they were in contact with Byrne. Although Byrne said was not in active conversation with the White House or Congress regarding this case (“I wouldn’t call them ‘partners,’ the communication between our legal team and [the government] has been mostly one way”) his clients had been seeing quiet results. Previously, the Biden Administration had been serving notices from Germany to one of Byrne’s clients for violating the online safety law NetzDG, but Byrne argued that they had done so in a way that circumvented the Mutual Legal Assistance Treaty. “When we made contact with the [Trump] government over Ofcom, we disclosed the misuse of the MLAT procedure to serve foreign censorship demands under the Biden Administration,” he continued. “The notices [from Germany] have since stopped.”

The Trump administration’s definition of a “diplomatic solution” might be more aggressive than a lawsuit. In July it raised tariffs on Brazil by 40 percent after Brazilian Supreme Court Justice Alexandre de Morales charged U.S.-based companies and U.S. citizens with legal violations for their social media content; earlier that month, Rumble and Trump Media, the Trump-founded company that owns Truth Social, filed a joint lawsuit alleging that Morales was targeting their users’ American rights to privacy. (Morales’s visa was also revoked by the State Department, as well as those of several other Brazilian judges.)

But Rumble and Truth Social — as well as more mainstream platforms like Reddit, Wikipedia and Bluesky — have less baggage than Byrne’s latest clients. Gab, Kiwi Farms, and 4Chan have reputations as cultivated sources of sexist, racist, and white nationalist content, linked to acts of fatal violence and harassment. Gab, a proudly and openly white nationalist social media site which has long refused to remove antisemitic content from their platform, went temporarily offline in 2018 after a mass shooter used it to announce his attack on the Tree of Life synagogue in Pittsburgh, Pennsylvania. The Kiwi Farms community organizes harassment campaigns — with particular vitriol against transgender people — that have been tied to multiple suicides. 4Chan, the primordial soup of unsavory internet culture, has helped spawn, among other things, mass shootings, QAnon, and Gamergate.

These sites allow their users to post anonymously, and they’re unsurprising targets for Ofcom, whose initial complaint against 4Chan said that the site had failed to offer a risk assessment about its userbase and was not complying with Ofcom “safety duties.” The complaint said 4chan could be subject to the law’s general fine of either £18 million or 10 percent of qualifying worldwide revenue, whichever is greater. Ofcom declined to comment, citing the complaint’s status as an ongoing investigation. (A fourth site, which offers information about methods of suicide, was also targeted; Byrne says he’s been in contact but does not currently represent it.)

Byrne is no stranger to representing lighting-rod, right-wing tech companies in court. Parler, a platform founded as a conservative-friendly alternative to Facebook, was among his former clients. “I’ve been saying no to foreign governments for eight years, because I was willing to represent free speech websites,” he told The Verge, and from his perspective, these were simply three more sites whose First Amendment rights were being targeted by Europeans. “The First Amendment allows Americans to talk to foreigners, to grant anonymity to foreigners, and not censor foreigners,” he said. “The First Amendment does not disappear because there is a contrary foreign rule on foreign shores.”

The US government directly defending them, instead of sticking with a safer embattled platform as a poster child, would be a show of force — and if successful, a demonstration that the OSA is toothless against any service with Trump’s backing, no matter how extreme its content. The administration’s protection of American speech abroad would stand in stark contrast with its approach inside the country, where the same State Department that’s pushing back against Europe’s digital laws is also using social media posts to deny and revoke student visa applications, targeting them for posting pro-Palestine content online.

Murky battles over digital sovereignty date back to the dawn of the internet, said Milton Mueller, the head of the Internet Governance Project and a professor at Georgia Tech. In 2000, he notes, the French government sued Yahoo for hosting an auction site that sold Nazi artifacts and was globally accessible — including to users in France, where buying and selling Nazi memorabilia is criminalized. Yahoo, which is based in the U.S., argued that they and their users were protected under America’s First Amendment rights. Eventually, they came to an agreement to simply block the objectionable Nazi content in France, which soon became the prevailing solution to any issue of social media content infringing laws in other countries.

“It was an undermining of the global accessibility of information, and one of the first steps towards the fragmentation of internet content into the territorial jurisdictions of states,” he told The Verge.

In addition to seeking to avoid potential fines posed by the OSA, Byrne wants to break that detente. “None of my clients, including 4chan, will allow themselves to be deputized by a hostile foreign government which wants to censor its own people,” he wrote. “Ofcom has the power, if it wants, to get a court order and serve that order on UK-based ISPs to DNS block 4chan. That is entirely a domestic UK matter for Ofcom and the British courts to decide upon.”

If the suit — or Trump administration intervention — favors 4chan and other Ofcom targets, the result could be a blow against the DSA, OSA, and similar laws.

“I think what makes it most interesting in this case,” Mueller added, “is that the US government, apparently, [would be] backing 4Chan’s rights.”

USING TREATY TACTICS

The Vienna Convention 1969 sets out the legal framework for dealing with termination and suspension of the operation of Treaties.

Tax Notes has posted (22 April 2025):

Three Tax Treaty Terminations From the Global South: A Harbinger of Things to Come

Introduction

Denunciation “is a procedure initiated unilaterally by a State to terminate its legal engagements under a treaty.”¹ Double tax agreements between two or more states allocate taxing rights over income between those countries to prevent double taxation. Because DTAs are not frozen in time, they may be amended, renegotiated, or denounced (terminated).

In the new-world order in which international relationships are changing, it is expected that change will reach DTAs in terms of aligning preexisting agreements with the new trade order. Global South countries aspiring to a fair sharing of taxing rights and the establishment of a new international tax architecture could turn the denunciation of unfair preexisting tax treaties into a major issue.²

In the African context, denunciations of DTAs with France by Burkina Faso on August 7, 2023,³ and Niger and Mali on December 5, 2023,⁴ could be part of these dynamics. The three DTAs were concluded by France with Niger,⁵ Burkina Faso,⁶ and Mali⁷ during the years following independence,⁸ with an almost identical content. They included elements that called for the avoidance, prevention, or elimination of double taxation and the establishment of mutual administrative assistance regarding income tax, inheritance tax, registration tax, and stamp tax.

The denunciations aroused interest not only because of their exceptional character,⁹ or because they occurred in the context of high political tensions between Mali, Burkina Faso, Niger, and France,¹⁰ but also because they raised important questions about their meaning and their foundations regarding the international tax system.

First, while Burkina Faso invoked the refusal of France to accept its request for renegotiation of its outdated DTA to comply with developments in domestic, regional, and international rules, Mali and Niger argued that the hostile attitude of France and the unbalanced character of their DTAs caused a considerable shortfall for their countries. Further, the reasons given by Mali and Niger are implicitly behind the denunciation of Burkina Faso. The Mali and Niger DTAs were also outdated. France has not formally announced its opinion on the reasons for the denunciations.

Second, the DTAs contained termination clauses that the three countries could have invoked. However, Mali and Niger refrained from doing so and instead based their denunciations on the provision of the Vienna Convention on the Law of Treaties of May 23, 1969, on noninterference in the domestic affairs of states and the supervening impossibility of performance because of a fundamental change in circumstances; but Niger later referred to the termination clause. Burkina Faso expressly decided not to apply the clause without referring to the Vienna Convention on the Law of Treaties, but only used France’s refusal to accept Burkina Faso’s request for renegotiation of the DTA as grounds for the termination. While France has not formally expressed an opinion on the reasons for the denunciations, it has indicated that the three countries did not comply with the termination clauses contained in the DTAs.

Third, the termination clauses provided that the DTAs may be terminated, after a number of years, by notification of diplomatic note, but this notification must take place during a specified period of the year — between January 1 and June 30 — and the DTAs will come to an end on the expiry of a notice period of at least six months. Burkina Faso and Mali did not comply with the January-June notification period or the notice period. They announced their denunciations on August 7, 2023, and December 5, 2023, respectively, with a period of notice of three months. Niger also did not comply with the January-June notification period, announcing its denunciation (like Mali) on December 5, but while Niger initially gave a period of notice of three months, it eventually applied a notice period of six months. Burkina Faso explained its decision not to apply the termination clause by the circumstances of the denunciations. This is implicitly the same for Mali and Niger.

Last, while France recognized the termination of the DTAs with Burkina Faso and Mali, it considered the Niger DTA as only suspended, but not terminated. France concluded, under the principle of reciprocity and the termination clauses (except for Niger), that the DTAs would cease to apply or have effect in France at the date on which the three countries ceased applying them in their territories.

This article presents some of the questions raised by the termination of the bilateral DTAs by examining the grounds of the terminations by the three countries. In other words the reasons for the denunciations; the international legal basis; and the termination procedures — that is, the denunciation procedure followed by the three countries, and subsequently the cessation of the effects of the DTAs in France.

Grounds of Termination of the DTAs

Examination of the grounds of termination of the three DTAs requires an analysis of each separate country’s denunciation and their international legal basis.

Reasons for the Denunciations

If the denunciations were motivated by tax, namely the unbalanced and outdated character of the DTAs, it cannot be denied that political considerations played a role.

Political Considerations

Political considerations can affect the life of DTAs. On August 8, 2023, Russia suspended certain provisions of its DTAs with 38 countries considered unfriendly, including France. This partial suspension was notably a Russian countermeasure against unilateral economic sanctions and the inclusion of Russia on the EU blacklist of noncooperative jurisdictions for tax purposes.¹¹ The three denunciations under consideration also had political considerations. Some observers are of the opinion that the denunciations “seem to be part of a broadly geopolitical context.”¹²

The relationship between Mali, Burkina Faso, Niger, and France has worsened since the regime changes in all three countries. The new leaders criticized the incapability of their predecessors to deal with the attacks of armed terrorist groups and called into question the military presence and influence of France in their territories.¹³ Tense relationships between the new political authorities and France favored or sparked denunciation of the DTAs that had bound them together for over 50 years.

Mali and Niger explicitly referred to political considerations in their joint communiqué announcing the denunciations. According to the communiqué, “the conclusion and signature of a bilateral treaty between States aims to enhance international cooperation and friendly bonds. However, the hostile attitude of France against our states, contravenes this rationale.”¹⁴ Burkina Faso has not expressly invoked the hostile attitude of France, but one can perceive that this rationale implicitly favored the Burkina Faso denunciation. Politically, the three denunciations only became viable when the new political leaders assumed power. These individuals openly declared their intention to emancipate their countries from France and what they called its “hostile attitude.” The former Burkina Faso government had requested unsuccessfully that its DTA with France be renegotiated but had abstained from explicitly denouncing the treaty probably because of French influence.¹⁵

The Tax Reasons

Disagreement over a DTA’s content may lead to denunciation by a party. An earlier example involving France is the denunciation of the February 8, 1957, income and capital tax treaty between France and Denmark, which Denmark denounced on June 10, 2008. The major disagreement was over the exclusive right to tax pensions in the state of residence. Denmark wanted to tax Danish-source pensions for Danish pensioners residing in France,¹⁶ and failure to reach an agreement resulted in Denmark’s denunciation.¹⁷

Another example involving France is the December 31, 1953, inheritance tax treaty between France and Switzerland, which France denounced June 17, 2014. The treaty called for the principle of taxation of inheritances in the country of the deceased’s domicile. Ownership of real property in France through a real estate investment company¹⁸ precluded taxation in France and favored taxation in Switzerland at a very low rate.¹⁹ France negotiated and obtained a new agreement on July 11, 2013, based on taxation of the whole patrimony according to the country of the inheritor’s domicile; however this was ultimately not accepted by Switzerland.²⁰ France denounced the tax treaty of 1953 by a diplomatic note of June 17, 2014.²¹ In describing these denunciations, it is inaccurate to say that “the tax issues do not appear of prime importance.”²²

Beyond the apparent political context, tax considerations were at the core of the denunciations. The first tax reason is an unbalanced DTA. In their joint communiqué announcing the denunciation, Mali and Niger expressly invoked the “unbalanced character of the double tax Agreements causing a considerable shortfall” for the two countries.²³ Burkina Faso has not expressly invoked the unbalanced character in its diplomatic note, but this reason was implied.²⁴ It was clearly mentioned by Burkinabé Minister of Finance Aboubacar Nacanabo in an interview with national television:

It is supposed to be win-win, but, in practice, we do not have companies from Burkina Faso operating in France. There are French companies that operate here in Burkina Faso instead. Thus, ultimately, it is Burkina Faso, in reality, that transfer its taxing right. But, in France, because we do not have companies there, ultimately, the convention does not benefit to Burkina Faso.²⁵

For example, Moumouni Lougué, Burkinabé former director general of tax,²⁶ cited the exemption from the 20 percent domestic withholding tax that benefited French companies receiving payments from Burkinabé entities for services, royalties, management fees, and technical services fees. Given the fact that mainly French companies performed these transactions and received the related payments from Burkina Faso (the contrary was rare), the country saw this withholding tax exemption as unbalanced.

The second tax reason that motivated the denunciations is that they were outdated and notably inconsistent with international standards.²⁷ That is the reason behind Burkina Faso’s request for renegotiation, France’s rejection of which led to the denunciation of the DTA. According to Burkina Faso:

The denunciation is the consequence of the refusal of France to accept the request of Burkina Faso, expressed January 2020, to renegotiate the said treaty. Indeed, by note verbale n° 0002/MAEC/SG/DGAJC/STAI/iv dated January 5 2020, the Ministry of Foreign Affairs and Cooperation of Burkina Faso submitted to the Embassy of France in Ouagadougou a proposal of renegotiation of the double tax agreement signed on 11 August 1965 between our two countries, in order to make it comply with the evolution of tax rules at the domestic, regional, and international level. As France remained silent to this request, despite the reminder made by Burkina Faso at the end of the year 2021, the government of Burkina Faso has no choice but to terminate the treaty.²⁸

According to Nacanabo, the DTA “neither complied with the United Nations Model nor with OECD model, still less with the model developed by African countries through the ATAF.”²⁹

Regarding compliance with the evolution of international and regional standards, it should be remembered that there are two influential model tax conventions, updated regularly: the OECD model³⁰ and the U.N.³¹ model, which is more favorable to developing countries.³² The African Tax Administration Forum (ATAF) also drafted a model tax convention³³ which draws on the U.N. model. It seemed reasonable for Burkina Faso to request the adaptation of its DTA with France, which was signed more than 50 years ago. The DTAs of Mali and Niger, signed at the same period and almost identical, were also inconsistent with the U.N. model. Mali and Niger have not expressly invoked the outdated character of their DTAs, but this reason was implied. By way of example, the DTAs prevented Burkina Faso, Mali, and Niger from imposing withholding tax on royalties³⁴ and fees for technical services³⁵ paid by a resident of the countries to a French resident.³⁶ Other examples include the absence of provisions allowing the countries to impose withholding tax on income from automated digital services,³⁷ the imprecise definition of permanent establishment³⁸ notably for construction sites and furniture services,³⁹ the absence of reference to the attractive force of PEs,⁴⁰ etc.

Regarding compliance with the evolution of domestic rules, the countries’ tax policies had significantly changed since the DTA signings, calling for an adaptation. Further, changes in the countries’ international tax policies promoted fair sharing of taxing rights, the fight against tax evasion, and the rationalization of tax incentives granted to foreign investors in the context of diversification of exchanges with the rest of the world. Article 8.5 of the three DTAs stated that:

Where, owing to changes in the taxation laws of either of the Contracting States, it appears expedient to adapt certain articles of the Convention without affecting its general principles, the necessary adjustments may be made, by mutual agreement through an exchange of diplomatic notes.

However, the countries found this provision to be unable to facilitate adapting DTA provisions relating to income tax to bring them into compliance with domestic law developments.

Finally, renegotiation of the DTAs could have been an alternative to the denunciation of the treaties for all three countries. Renegotiation “consists of conducting a dialogue between the parties to a treaty with the view of maintaining the treaty relationship while making substantial changes to it.”⁴¹ Renegotiation may be used as an alternative to denunciation of a DTA that no longer benefits the parties.⁴² In fact:

A tax treaty (re)negotiation is often a lengthy, costly process [and] a successful renegotiation of a tax treaty obviously requires agreement between both contracting states.⁴³

Therefore:

If initiating a tax treaty renegotiation does not seem to be cost efficient, it may be considered to either leave the existing treaty in place or to terminate the treaty altogether.⁴⁴

In the denunciations examined, Burkina Faso invoked the refusal of France to accept its request for a DTA renegotiation to justify its decision to denounce it. France was uncooperative with Burkina Faso regarding amending the DTA. Mali and Niger did not mention a rejection by France of a request of renegotiation.

The Denunciations’ International Legal Basis

The Invocation (or Not) of the Termination Clause

The Vienna Convention on the Law of Treaties of May 23, 1969, establishes a general principle according to which the suspension, termination, or denunciation of a treaty may take place only as a result of the application of provisions of the treaty itself or of the Vienna Convention.⁴⁵ The latter provides that the termination of a treaty or the withdrawal of a party may take place in conformity with the provisions of the treaty or at any time by consent of all the parties after consultation with the other contracting states.⁴⁶ In the denunciations examined, each of the DTAs contained a denunciation clause in its article 44. This clause stated that after a specified period, each party could denounce the treaty with a certain month’s advance notice at the end of which the treaty will terminate. Thus, the legal challenge was the application of the termination clause. The three countries only had to invoke the denunciation clause and follow its conditions to terminate the treaties.

However, in its diplomatic note, Burkina Faso indicated that it will not apply the termination clause because “the circumstances of the denunciation no longer permit the application of provisions of article 44 of the convention.”⁴⁷ Although Mali and Niger in their joint communiqué referred to the Vienna Convention,⁴⁸ it was not to invoke the termination clause.⁴⁹ In their communiqué, the two countries adopted the same attitude as Burkina Faso. If Mali’s position did not change in that respect, paradoxically, the attitude of Niger evolved because Niger ultimately invoked the termination clause and determined the termination date of the double tax treaty “in accordance with the provisions of article 44 of the convention.”⁵⁰

Vienna Convention-Based Terminations

The denunciations of Mali and Niger were notable because the two states invoked, in their joint communiqué,⁵¹ the provisions of the Vienna convention,⁵² namely noninterference in the domestic affairs of states, making it impossible to carry out treaty provisions following a fundamental change of circumstances. The question is whether these causes could be invoked by the two states to denounce the DTA under the Vienna Convention.

Noninterference in the domestic affairs of states is a rule of customary international law, provided in the Charter of the U.N. and in the preamble of the Vienna Convention, but it is not among the causes for termination of treaties mentioned in articles 54 to 64 of the Vienna Convention. The invocation of the rule of noninterference by the two states could be analyzed as a countermeasure against what they considered a French “hostile attitude.” It should be recalled that Mali and Burkina Faso considered that “the conclusion and signature of a bilateral treaty between States aims to enhance international cooperation and friendly bonds. However, the hostile attitude of France against our states, contravenes this rationale.”⁵³

Supervening impossibility of performance is a cause for termination of treaties, according to article 61 of the Vienna Convention. Under this provision, the impossibility of performance of a treaty allows its termination when it results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty, on the condition that it is not the result of a breach by that party, either of an obligation under the treaty or of any other international obligation owed to any party to the treaty. In the denunciations examined, by invoking these provisions, the two countries probably meant that the performance of the treaties became impossible because of the hostile attitude of France; the application of the treaties requires the cooperation of both parties. This was questionable because the impossibility of performance refers a priori to a treaty with a physical object whose disappearance leads to the termination. Even if the object was defined broadly as the purpose of the treaty, this invocation could be improper because the purpose of the double treaties had not strictly disappeared.

Fundamental change of circumstances is a cause for termination of treaties according to article 62 of the Vienna Convention. Considered as declaratory of customary international law, this article defines strictly the cumulative conditions under which a change of circumstances may be invoked. These are:

· the change must be to circumstances existing at the time of the conclusion of the treaty;

· the change must be fundamental;

· it must not have been foreseen by the parties when they concluded the treaty;

· the existence of the circumstances must have constituted “an essential basis of the consent of the parties to be bound by the treaty”; and

· the effect of the change must be “radically to transform the extent of the obligations still to be performed under the treaty.”

States often have recourse to denunciation on the grounds of a change in circumstances.⁵⁴ But the restrictive interpretation of the principle of fundamental change of circumstances⁵⁵ may limit its use under the Vienna Convention to terminate tax treaties. In these denunciations, Mali and Niger had a number of grounds on which to allege a change of circumstances. Their DTAs were signed more than 50 years ago when the trade flows came from France to the three countries, so that the treaties mainly benefited France. But it was expected that with the passage of time trade would become more bilateral with both parties benefiting from the DTAs. The change in circumstances was perhaps the awareness that the expected growth in bilateral trade was not happening. This circumstance has been used by the three countries to explain the unbalanced character of the DTAs and why their countries do not benefit from them — only France did.

Procedures for Termination of the Three Countries

The three countries did not follow the rules for the period at which the denunciations were required to be made public or the notice period at the end of which the DTA would come to an end.

The Period of the Denunciations

The termination clause’s first requirement was the minimum period during which the DTA denunciation was not possible after its entry into force. The DTAs could only be denounced after a period of three years⁵⁶ after entry into force for Burkina Faso and Niger and after six years for Mali.⁵⁷ This condition was not at issue because the periods had been exceeded for a long time.

After the initial periods, the DTA denunciation was allowed on the condition that it be done at a specified period of the year: before June 30 for Burkina Faso⁵⁸ and from January 1 to June 30 for Niger⁵⁹ and Mali.⁶⁰ Burkina Faso violated this provision by announcing its denunciation on August 7, 2023.⁶¹ Mali and Niger did not comply by announcing their denunciations on December 5, 2023.⁶²

The Notice Period

Once the denunciation notification has been announced during the proper period, the DTAs do not come to an end immediately. The termination clauses require a notice period of at least six months, with the DTAs terminating January 1⁶³ of the year following the denunciation notification.⁶⁴ None of the countries complied with this clause. Burkina Faso notified its denunciation on August 7, 2023, which took effect after only three months (November 7, 2023)⁶⁵ and was terminated on November 8, 2023. Mali⁶⁶ and Niger⁶⁷ notified their denunciations on December 5, 2023, and initially had only a three-month notice period, with the denunciations to take effect March 5, 2024. But Niger ultimately applied a notice period of six months from the date of the notification of the denunciation and ceased to apply the convention on June 5, 2024. Even though Niger applied a six-month period of notice by referring to the denunciation clause, it did not comply with the termination clause because the denunciation was not notified during the correct period.

The Cessation of Effects in France

Because the three countries did not follow the required time parameters for the DTA terminations, France had to decide how to respond to the premature denunciations in its territory. It solved the issue question after determining its own legal relationship to the denunciations.

The French Legal Qualification of the Denunciations

The French government deplored the noncompliance with the DTA termination rules⁶⁸ as part of its position on the denunciations published in notices in its official gazette.⁶⁹ Also, French tax authorities published guidelines on the tax consequences of the denunciations.⁷⁰ France gave the same legal qualification response to the denunciations of Burkina Faso and Mali, but a different one to Niger. For Burkina Faso and Mali, the notice titles had the same wording: “Notice relating to the denunciation by Burkina Faso of the Convention,”⁷¹ and “Notice relating to the denunciation by Mali of the Convention.”⁷² For Niger, the notice title was different: “Notice relating to the suspension by the de facto authorities of Niger of the Convention.”⁷³ France recognized the political authorities of Burkina Faso and Mali and acknowledged their power to denounce the DTAs. However, for Niger, France affirmed its nonrecognition of the country’s political authorities, characterizing the government as de facto authorities and therefore not empowered to denounce the DTA.⁷⁴ In short, France considers the Burkina Faso and Mali denunciations as legitimate and therefore recognizes the end of their DTAs. But France views the Niger denunciation as only a suspension of the DTA. This difference of qualification affects the outcomes of the denunciations for France.

The End of the Effects of the Conventions in France

For the Burkina Faso and Mali denunciations, France combined the principle of reciprocity with the termination clauses to determine the effect on the DTAs. While France followed the DTA cessation rules as if the denunciation had been served in accordance with the termination clause, it also considered the DTAs to be suspended during the period between the date at which the two countries ceased to apply the conventions and the rule-based cessation date. Thus, for Burkina Faso, France ceased applying the DTA on November 8, 2023. However, because under article 44 of the DTA the denunciation should have taken effect on January 1, 2025, France considered the DTA to be “suspended” from November 8, 2023, to December 31, 2024.

Similarly for Mali, France stopped applying the DTA on March 5, 2024, the date at which Mali ceased to apply it under its three-month notice period. Again, considering that the denunciation should have taken effect January 1, 2025, France treated it as suspended from March 5 to December 31, 2024.

However, for the Niger denunciation, France’s response is based solely on the principle of reciprocity because it does not recognize the current government as empowered to make the denunciation. It therefore considers the DTA suspended as of June 5, 2024, the date on which Niger ceased to apply it.

Conclusion

Beyond politics, Burkina Faso, Mali, and Niger had legitimate tax reasons to denounce their DTAs with France, even if the international legal basis of the denunciations and the procedures followed by the three countries were questionable. It is regrettable that France did not formally respond to the tax reasons invoked by the three countries, the unbalanced and outdated character of the DTAs, because it leaves the French position unclear on these fundamental questions.

Are there other African countries with similar DTAs that could follow the example of these three? There is reason to doubt it because the tense political relationship between the new government authorities of the three countries and France played an important role in the three denunciations. But sooner or later, the question will arise as to the future of similar African DTAs signed just after independence. African countries with similar DTAs should request renegotiation to create a fairer sharing of taxing rights and to bring the DTAs to the standards of the U.N. or ATAF model tax conventions.

More broadly, unbalanced DTAs remind us of the importance of the U.N. framework convention project on international tax cooperation, which is strongly supported by Global South countries, including African countries⁷⁵ that have rejected OECD proposals for international tax system reforms.

Finally, the denunciations examined in this article can be seen as a consequence of the emergence of a new world order and a glimpse of what may happen if the old-world order seeks to retain its old-world treaties or enact “new” treaties with old-world terms. If OECD countries seek to maintain their dominance, then many countries in the Global South may follow the example of Burkina Faso, Mali, and Niger. If OECD countries are willing to listen to the concerns of the Global South countries, then the rate of denunciations should not escalate. Ironically, U.S. rejection of the OECD global tax deal could be seen as equivalent to a denunciation.

FOOTNOTES

¹ United Nations, Final Clauses of Multilateral Treaties Handbook at 109 (2003).

² United Nations Conference on Trade and Development, “Chapter V: The Global South and New International Tax Architecture: The Quest for Development Finance” in Trade and Development Report 2024. Rethinking Development in the Age of Discontent, UNCTAD/TDR/2024, at 167-189 (2024).

³ Burkina Faso denounced its DTA with France via a diplomatic note (n° 2023-609/MAECRBE/CAB of Aug. 7, 2023) addressed to the Embassy of France in Ouagadougou.

⁴ Mali and Niger denounced their DTAs with France by a joint communiqué (n° 001, dated Dec. 5, 2023). Officially, Niger denounced its DTA by a diplomatic note (n° 015075/MAE/C/NE/SG of Dec. 5, 2023) addressed to the Embassy of France in Niamey. We do not have access to the diplomatic note sent by Mali to the Embassy of Mali in France. However, it is confirmed that the denunciation is dated Dec. 5, 2023 (date of the communiqué).

⁵ The agreement between the government of the French Republic and the Republic of Niger for the elimination of double taxation and the establishment of mutual administrative assistance on tax was signed in Niamey on June 1, 1965. It was supplemented by a protocol and an exchange of notes signed on June 1, 1965. It entered into force on Feb. 15, 1967. An amendment agreement to the tax treaty was signed in Niamey on Feb. 16, 1973, and entered into force on Oct. 1, 1974.

⁶ The agreement between the government of the French Republic and the Republic of Upper Volta (current Burkina Faso) for the elimination of double taxation and the establishment of mutual administrative assistance on tax was signed in Ouagadougou on Aug. 11, 1965. It was supplemented by a protocol and an exchange of notes signed on Aug. 11, 1965. It entered into force on Feb. 15, 1967. An amendment agreement to the tax treaty was signed on June 3, 1971, and entered into force Oct. 1, 1974. It was lastly amended by the multilateral convention to implement tax treaty related measures to prevent base erosion and profit shifting signed in Paris on June 7, 2017, and entered into force on Jan. 1, 2019, in France and Feb. 1, 2021, in Burkina Faso.

⁷ The agreement between the government of the French Republic and the Republic of Mali for the avoidance of double taxation and establishing mutual administrative assistance with respect to tax was signed in Paris on Sept. 22, 1972. It was supplemented by a protocol and an exchange of notes signed on Sept. 22, 1972. It entered into force Jan. 1, 1975.

⁸ All three countries are former French colonies. They gained independence on Aug. 3, 1960 (Niger), Aug. 5, 1960 (Burkina Faso), and Sept. 22, 1960 (Mali).

⁹ These denunciations have been considered as a “quite exceptional situation”: PricewaterhouseCoopers, “2024: Une Année Mouvementée pour le Réseau Conventionnel Français,” 9 eMag Fiscalité Directe (Dec. 2024) (in French). Unless otherwise noted, all translations from the original French are by the author.

¹⁰ These tensions arose after changes in the countries’ political regimes via military coups in Mali on May 25, 2021, Burkina Faso on Sept. 30, 2022, and Niger on July 26, 2023.

¹¹ PricewaterhouseCoopers, supra note 9. In the same way, Belarus, like Russia, on Mar. 13, 2024, partially suspended application of certain provisions of its DTAs with states considered unfriendly (27 states including France); Alice de Massiac and Clara Maignan, “Suspension Partielle de la Convention Fiscale France/Biélorussie,” Deloitte (Sept. 10, 2024) (in French).

¹² PricewaterhouseCoopers, supra note 9.

¹³ The diplomatic relationship between the three countries and France has deteriorated to such an extent that France’s ambassadors in the three countries were ordered or requested to leave the country by Mali in Jan. 2022, Burkina Faso in Dec. 2022, and Niger in Aug. 2023. In Niger, the political tensions were very high, especially when France supported military intervention in Niger. Mali and Niger denounced their DTAs with France a few months after France (among other countries) expressed support for a military intervention by the Economic Community of West African States to restore President Mohamed Bazoum to power following the July 26, 2023, coup.

¹⁴ Joint Communiqué of Dec. 5, 2023.

¹⁵ It has been said that “this denunciation is an act full of courage”; “Le Niger et le Mali Dénoncent les Accords de Nondouble Imposition Avec la France: les Secteurs qui Seront Impactés,” The Conversation (Feb. 12, 2024) (in French) (interview of Amadou Ousmane, chief of economics department of the University Abdou Moumouni of Niamey in Niger).

¹⁶ Article 13 of the tax treaty stipulated that private pensions and life annuities derived from one contracting state and paid to persons having their tax domicile in the other contracting state are exempted from tax in the first state. However, Denmark wanted to tax Danish-source pensions. Many Danish pensioners chose to establish themselves in France after they retired. Danish authorities were facing contributions to the pension system deducted from the base of income tax of an active laborer who, once retired and established in France as resident, did not pay tax on income in Denmark on Danish source pensions. That is why Denmark wanted to tax Danish-source pensions. Sophie Cazaillet, “France-Danemark: des Relations Fiscales pas très Conventionnelles — Questions à Maximilien Jazani, Managing Partner, Manswell,” Lexbase Fiscal, n° 527 (May 16, 2013) (in French).

¹⁷ More than 60 years later, the two countries signed a new double tax agreement on Feb. 4, 2022, that entered into force on Dec. 29, 2023. Under the new tax treaty, Denmark now has the right to tax pensions paid to Danish pensioners established in France. Cazaillet, supra note 16.

¹⁸ If real estate assets were classically taxed in the country where they are located, real estate investment companies, followed, for their part, the regime of transferable securities taxable in the country of the deceased’s domicile; Annabelle Pando, “Successions Franco-Suisses: le Statu quo Fiscal,” Actu-Juridique (Mar. 23, 2023) (in French).

¹⁹ France considered that this agreement was incompatible with the proper application of the French current inheritance legislation “because it created situations of non-taxation and tax planning to the detriment of the French public finances.” “Jérôme Buisson: Question N° 7205 au Ministère de l’Économie,” (question submitted Apr. 11, 2023; response issued Nov. 14, 2023) (in French).

²⁰ For its part, Switzerland considered its provisions unbalanced because it would have resulted in the taxation in France of nearly 190,000 Swiss citizens who were residents of France. The National Council therefore rejected the vote Dec. 12, 2013, and the Swiss Parliament refused to ratify the treaty; see Pando, supra note 18.

²¹ The tax treaty of 1953 ceased to apply for inheritances of persons deceased as from Jan. 1, 2015; see Pando, supra note 18.

²² In its tax magazine, PricewaterhouseCoopers mentioned that these denunciations “seem to be part of a broadly geopolitical context” and that “the tax issues do not appear of prime importance”; PricewaterhouseCoopers, supra note 9.

²³ Joint Communiqué of Dec. 5, 2023.

²⁴ The three conventions had been signed “in a period of time where France was very present and where the sovereignty of certain of these States was de facto very limited”; in addition, “in 1972, Mali was just coming out of a period of socialism and rapprochement with the Soviet Union. The idea for the power of former president Moussa Traoré was to attract French investors”; Amavi Gustave Kouevi, teacher-researcher in public law at Paris 1 Panthéon-Sorbonne University, cited in Pierre Desorgues, “Pourquoi le Mali et le Niger Rétablissent la Double Imposition Avec la France?” TV5 Monde (Dec. 13, 2023) (in French).

²⁵ Aug. 22, 2023, interview of the Minister of Finance of Burkina Faso by Radio Television of Burkina, Lefaso.net, “Burkina/Dénonciation de la Convention Fiscale de non Double Imposition: Le Modèle Avec la France n’est pas Conforme Avec Celui des Nations-Unies, Selon le Ministre de l’Économie, Aboubakar Nacanabo,” Aug. 23, 2023.

²⁶ Interview of the former director general of taxes of Burkina Faso Moumouni Lougé in “Dénonciation de la Convention Fiscale Avec la France: ‘Ce que Gagne le Burkina’ (Moumouni Lougue, Ancien DGI, Gérant du Cabinet NOVID International Sarl),” Economiste du Faso, Aug. 10, 2024 (in French).

²⁷ The three conventions had lived for more than 50 years. As a reminder, the DTA between France and Mali, signed on Sept. 22, 1972, was supplemented by a protocol and an exchange of notes of Sept. 22, 1972. The DTA between France and Niger, signed in Niamey on June 1, 1965, was supplemented by a protocol and an exchange of notes of June 1, 1965 and an amendment agreement to the tax treaty of Feb. 16, 1973. The double tax agreement between France and Burkina Faso, signed on Aug. 11, 1965, was supplemented by a protocol and an exchange of notes on Aug. 11, 1965, an amendment agreement signed on June 3, 1971, and was lastly amended by the multilateral convention to implement tax treaty related measures to prevent base erosion and profit shifting. This latter modification, however, had a very limited scope.

²⁸ Diplomatic note of Aug. 7, 2023.

²⁹ Radio Television of Burkina, supra note 25.

³⁰ OECD, “Model Tax Convention on Income and Capital” (2017).

³¹ U.N., Department of Economic and Social Affairs, U.N. Model Double Taxation Convention Between Developed and Developing Countries (2021).

³² The U.N. model draws heavily on the OECD model convention that favors capital-exporting countries over capital-importing countries. But the U.N. model is generally considered more favorable to developing countries in the sharing of taxing rights because it imposes fewer restrictions on the taxing rights of the source country than the OECD model.

³³ ATAF model agreement for the elimination of double taxation with respect to taxes on income and the prevention of tax avoidance and evasion (2019).

³⁴ Article 20.2 of the three DTAs.

³⁵ Article 10 of the three DTAs.

³⁶ Article 12 of the U.N. model does not prevent the source country from imposing withholding tax on royalties paid by a resident of the source country to a resident of the other country. U.N. model article 12A does not prevent the source country from taxing fees for technical services paid by a resident of the source country to a resident of the other country.

³⁷ Article 12B of the U.N. model does not prevent the source country from imposing withholding tax on income from automated digital services.

³⁸ Article 3 of the three DTAs.

³⁹ Under article 5 of the U.N. model, the time threshold for a construction site PE is six months. Also, furnishing services in a country for 183 days or more constitutes a PE.

⁴⁰ Article 7 of the U.N. model provides for a limited attractive force of the PE. According to this article, taxable profits of an enterprise possessing a PE are those attributable to: (a) a PE; (b) sales in the other state of goods or merchandise of the same or similar kind as those sold through the PE; or (c) other business activities carried on in the other state of the same or similar kind as those effected through the PE.

⁴¹ Randi Ayman, “The Denunciation and the Renegotiation of Treaties” (law thesis, Paris 1 — Panthéon-Sorbonne, 2020) (in French).

⁴² Id.

⁴³ Edwin van der Bruggen, “Tax Treaty Renegotiations by Developing Countries: A Case Study Using Comparative Analysis to Assess the Feasibility of Achieving Policy Objectives,” Asia-Pacific Tax Bull. 255 (July/Aug. 2002).

⁴⁴ Id., at 256.

⁴⁵ Article 42.2 of the Vienna Convention on the Law of Treaties.

⁴⁶ Article 54 of the Vienna Convention on the Law of Treaties.

⁴⁷ Diplomatic note of Aug. 7, 2023.

⁴⁸ Joint communiqué of Dec. 5, 2023.

⁴⁹ Joint communiqué of Dec. 5, 2023.

⁵⁰ In a communiqué dated Sept. 23, 2024, referring to the diplomatic note of Dec. 5, 2024 (by which the denunciations have been notified), the directorate general of tax of Niger indicated that “in accordance with the stipulations of Article 44 of the convention, the time period of six months set for their entry into force of the denunciation expires on 5 June 2024.”

⁵¹ Joint communiqué of Dec. 5, 2023.

⁵² Niger, Mali, and Burkina Faso acceded to the Vienna Convention on the Law of Treaties on Oct. 27, 1971, Aug. 31, 1998, and May 25, 2006, respectively. France is not a party to the Vienna Convention. However, France “considers itself bound by the numerous provisions being limited to a simple codification of the Law treaties, its reluctance concerning the new notion of jus cogens”; Emmanuel Decaux, “Déclarations et Conventions en Droit International,” Cahiers du Conseil constitutionnel n° 21 (Jan. 2007) (in French).

⁵³ Joint Communiqué of Dec. 5, 2023.

⁵⁴ Ayman, supra note 41.

⁵⁵ “The principle has been invoked many times, and recognized by treaties. But so far it has not been applied by an international tribunal, though no tribunal has denied its existence. In the Gabčíkovo-Nagymaros Case the International Court of Justice (ICJ) rejected Hungary’s argument that profound political changes, diminishing economic viability of a project, progress in environmental knowledge, and the development of new norms of international environmental law, constituted a fundamental change of circumstances. The ICJ emphasized that the stability of treaty relations requires that Art. 62 VCLT be applied only in exceptional cases.” Anthony Aust, “Treaties, Termination,” Max Planck Encyclopedia of Public International Law (June 2006).

⁵⁶ Article 44 of the DTA.

⁵⁷ Id.

⁵⁸ Id.

⁵⁹ Id.

⁶⁰ Id.

⁶¹ Diplomatic note of Aug. 7, 2023.

⁶² Joint communiqué of Dec. 5, 2023.

⁶³ Article 44 of the double tax agreements.

⁶⁴ It should be noted that the convention ceases to apply Jan. 1 of the following year, but its effects are limited: i) for income taxes, it is limited to income acquired or paid during the year in which notice of termination was given; ii) for succession duties, it is limited to the estates of persons deceased no later than Dec. 31 of that year; iii) and for other registration duties and stamp duties, it is limited to deeds and judgments dated not later than Dec. 31 of that year.

⁶⁵ Diplomatic note of Aug. 7, 2023.

⁶⁶ Joint communiqué of Dec. 5, 2023.

⁶⁷ Joint communiqué of Dec. 5, 2023.

⁶⁸ Response of Ministry of Economy to a written question from Senator Jean-Luc Ruelle, published Mar. 14, 2024, Senate gazette of Mar. 14, 2024, at 996; Erratum: Senate gazette of May 16, 2024, at 2268.

⁶⁹ French Official Gazette n° 0145 of June 21, 2024.

⁷⁰ French Republic, “INT — Convention Fiscale Entre la France et le Mali,” BOI-INT-CVB-MLI (Apr. 9, 2024); French Republic, “INT — Convention Fiscale Entre la France et le Burkina Faso,” BOI-INT-CVB-BFA (July 8, 2024); French Republic, “INT — Convention Fiscale Entre la France et le Niger,” BOI-INT-CVB-NER (Apr. 9, 2024).

⁷¹ Government of France notice relating to Burkina Faso DTA denunciation.

⁷² Government of France notice relating to Mali DTA denunciation.

⁷³ Government of France notice relating to Niger DTA denunciation.

⁷⁴ France continues to support the deposed president Mohamed Bazoum who has not resigned since the military coup of July 26, 2023, and is still in detention.

⁷⁵ On Dec. 24, 2024, the U.N. General Assembly adopted the terms of reference for the development of the U.N. Framework Convention on International Tax Cooperation. The decision followed the approval of the terms by the U.N. Second Committee (Economic and Financial) on Nov. 27, 2024.

The UK’s overreach may prompt a cascade of US responses, not only under US domestic law, but under international treaty law.