The relevance of the OECD and UN Model Conventions and their Commentaries for the interpretation of US tax treaties

General comments

The USA is currently a party to about sixty bilateral double income tax treatiesthat apply with respect to approximately sixty-five countries (because the oldtreaty with the USSR continues to apply to certain members of the Commonwealthof Independent States).

The USA has a rather peculiar history with the development of model treatieswithin the framework of the OECD and the UN. A US professor was one of the teamof international tax experts that developed the famous study of internationaltax policy under the auspices of the League of Nations, even though the USAnever became a member of that organization. US representatives and experts havebeen heavily engaged in the development of model treaties by both the OECD andthe UN. However, the US Treasury has declined fully to embrace either Model asthe basic treaty negotiating position of the US government when endeavouring toestablish double tax treaties with potential and existing treaty partners.

The attitude of the US government in this respect is not unique to tax treatymatters. The phenomenon is sometimes referred to critically as ‘USexceptionalism’. For example, US members of the International Law Commissionwere deeply involved in the negotiation of the Vienna Convention on the Law ofTreaties (Vienna Convention) and consulted regularly with attorneys and otherofficials of the US government. However, the USA has never acceded to the ViennaConvention and is not a party to it. Nonetheless, US representatives havesometimes made reference to the Vienna Convention on the ground that, at leastin certain situations, it represents the ‘best evidence’ of customaryinternational law with respect to treaty interpretation and administration. Asindicated later in this chapter, such a position is similar to pronouncementsmade periodically with respect to the US attitude to the model treatiesdeveloped by the OECD and the UN.