Representativity in International Customary Law: An Epistemic-Legal Approach

This article examines the undertaxed profits rule (UTPR), a core component of the Pillar Two policy of the OECD’s mission to combat base erosion and profit shifting (BEPS) in relation to international customary law. By examining the role of influential states and the persistent objector principle through an epistemological-legal lens, the article explores the potential of the UTPR to evolve into a binding customary international law norm. The analysis highlights the complexity of achieving consensus in a multipolar world and the significant impact of powers within the European Union. While the UTPR has normative and legal significance, its evolution into customary law is being challenged by divergent geopolitical interests and the ambiguous nature of representativity within state practice. As such, the UTPR serves as a critical test case for the adaptability of customary law to taxation challenges in the context of the current geopolitical environment.