How the U.S. Constitution Shapes International Tax Law: Instrument Choice in Tax Agreements

Authors

• Noam Noked, The Chinese University of Hong Kong
• Young Ran (Christine) Kim, Yeshiva University Benjamin N. Cardozo Law School.
• Reuven Avi-Yonah, University of MichiganFollow

Document Type

Article

Publication Date

2026

Abstract

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed “treaty avoidance” strategies, including coordinated unilateralism and reliance on executive agreements. While these approaches may circumvent the need for Senate approval, they may result in second-best solutions, violate existing treaty obligations, or raise additional concerns, such as extraterritoriality and lack of legitimacy.

Comments

© 2026 Washington University Law Review. Reproduced with permission.

Recommended Citation

Noked, Noam, Christine Kim, and Reuven Avi-Yonah. "How the U.S. Constitution Shapes International Tax Law: Instrument Choice in Tax Agreements." Washington University Law Review 103, no. 6 (2026): 2081-2117.