A Convenient Untruth: A Reply to Adams

by Sarah Ludington and Mitu Gulati

Our hope for those who are working to promote the legal concept of odious debt—whatever their political stripe or ecumenical affiliation—is that our exploration of Sack’s life will serve to lessen the focus on Sack and his theory in a way that will redound to the benefit of the movement. The emphasis on Sack’s résumé has had two negative effects on odious debts scholarship.



First, scholars have glossed over the details of Sack’s theory, which simply does not do the work that odious debts proponents want it to. Which of the modern world’s debt-burdened nations will be helped by a doctrine that requires state succession as a condition precedent? Under Sack’s doctrine, mere political transformation, no matter how revolutionary (e.g., from absolutist monarchy to authoritarian oligarchy to representative democracy), would never trigger the possibility of odious debts forgiveness. Taken seriously, the three conjunctive prongs of Sack’s doctrine—despotic regime, lack of benefit to the populace, and creditor awareness of the illegal purposes of the loan—would disqualify virtually all debt from being odious. We think it quite clear that Sack intended his doctrine to be extremely strict and creditor-friendly, to avoid future financial fiascos similar to the Soviet repudiation of the Tsar’s debts.



Second, the focus on Sack has drawn attention away from other scholars and sources that may ultimately prove more—or less—valuable to promoting a strong doctrine of odious debts. If we are going to laud the synthesizers of doctrine, perhaps more attention should be paid to Mohammed Bedjaoui, who reviewed the odious debts literature and attempted to formulate a doctrine in the 1970s. Or to Gaston Jèze, who braved violent public objections to represent Haile Selassie in his negotiations with Italy before the League of Nations. And perhaps scholars should be investigating more carefully other historical figures and precedents that are viewed as the pillars of the odious debts doctrine. Is the characterization of the Tinoco arbitration in the odious debt literature accurate? Or the U.S. position in its negotiation with Spain over Cuba? What other historical icons have been under-analyzed or taken for granted? Imagine showing up in federal court in New York (most sovereign debt contracts are governed by New York law), arguing for the adoption of a doctrine of public international law. Credibility with the judge, who is already going to be wary about doing anything perceived to be an extension of law, will evaporate when she discovers that the historical underpinnings of the doctrine haven’t been adequately researched.



Finally, our article gives Sack every credit he deserves; he was a remarkable student or else he would not have received a higher education in anti-Semitic imperial Russia; he did teach at numerous prestigious law faculties; he did synthesize the existing strands of the odious debts doctrine and coin a lasting name for the idea; he did publish a treatise on sovereign debt partition that was widely reviewed and, in part, well received. But what our article doesn’t do is give Sack the credits he doesn’t deserve and never claimed for himself. He never claimed to have been a tsarist minister, and there is no evidence that he considered himself to be a foremost scholar of sovereign debt in his lifetime.



It would have been easy to stop researching Sack after determining that he was never a tsarist minister. But we felt compelled to continue seeking the details of his life partly because we were curious, but also out of a sense of fairness to the man, who lived a difficult life and whose fate was shaped by some of the harsher forces of recent history—institutionalized anti-Semitism, revolution, civil and world wars. Is his life fairly summarized by the phrase—however felicitous—“once a minister of Tsarist Russia and thence, after the October Revolution, a Parisian law professor”? (Hoeflich, 1982 U. Ill. L. Rev. 39, 41 (1982)). Why not strive for accuracy, and describe him as “a professor of international law and finance who synthesized a cautious version of the odious debts doctrine in 1927”? What we gain in accuracy we lose in glamour. And while we might feel gratitude to Sack for his work in synthesizing the odious debts doctrine, it does not follow that we should “reward” him by puffing his résumé or accomplishments posthumously. Instead, we have memorialized the man by describing the contours of his life with as much accuracy as the distance of history permits.



When a myth is unquestioningly repeated by so many scholars and political activists, it is a fair question to ask why. What purpose does this myth serve? What wish—articulated or not—does it fulfill? Perhaps we will learn the answer to those questions another day.








http://opiniojuris.org/2008/04/15/a-convenient-untruth-a-reply-to-adams/

One Response

  1. Yes! I wholeheartedly agree with Mitu Gulati and Sarah Ludington that those who are working to promote the legal concept of odious debt should marshal every legal argument, precedent, jurist, and highly qualified publicist to make the case. And debt activists need to expand their legal arguments to include the wealth of new ideas being generated by legal scholars such as Mitu, Jeff King, Lee Buchheit and others similarly inspired.

    But I don’t think it is necessary to diminish Sack’s doctrine to promote others’ approaches. Sack’s criteria will work in some situations (Indonesia, for example), but maybe not in others. And no matter how pro-creditor Sack was, he clearly felt that some state debts would be too odious to subject to the general rule that debts incurred by one government should be inherited by subsequent ones. His definitions of odious debts, by the way, bear a striking resemblance to the Third World’s debts of today. In any case, we should use the growing body of precedents, laws (both public international and private domestic), and the teachings of qualified publicists to bring the full force of the general principles conveyed by Sack’s doctrine of odious debts — that sovereign debts are not automatically enforceable and creditors have a duty to ensure their proper use if they want to be repaid — to bear in legal fora.

    I think it is fair to say that debt activists have never wanted or needed a hero, just good legal tools. And I, for one, am very, very grateful that the legal academy has turned its sights to this issue in a way that is helping profoundly to assemble those tools.

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