Author Archive for
Sarah Ludington and Mitu Gulati

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.

A Convenient Untruth: Fact and Fantasy in the Doctrine of Odious Debts

by Sarah Ludington and Mitu Gulati

Those of you who follow the literature and debate about odious debts forgiveness have probably noted the frequent mention of Alexander Sack, who is credited with authoring the doctrine of odious debts in his 1927 treatise on the subject of sovereign debt partition: Les Effets des transformations des Etats sur leurs dettes publiques et autres obligations financiers. Sack is variously described as a tsarist minister, a Russian jurist living in Paris, the foremost scholar of sovereign debts of the day, and the father of the odious debts movement. Sack has been lauded so frequently by odious debts proponents that his name even worked its way into the official proceedings of the Iraqi National Assembly, when it declared its willingness to repudiate debts incurred by Saddam Hussein:

There is a strong basis in international legal principle and precedent to define these debts as being “odious” and thus not legally enforceable. This legal doctrine of odious debt was formulated in the 1920s by Alexander Sack, a former Russian Minister working as a legal professor in the Sorbonne University in Paris. He published the most extensive and important works on the treatment of state debts in the event of regime change.

We have just published an article that examines the life of Professor Sack and his relevance to the odious debts movement. We began with the project of confirming the biography recited by odious debts proponents; what we found surprised us, because so little of the Sackian myth held up to reality.

To summarize our findings, Sack was indeed a professor of law who was born and trained in pre-Soviet Russia, but he was not a tsarist minister. He was only 27 and recently returned home from military service when Tsar Nicholas II, the last tsar of Russia, abdicated. Sack was also Jewish, further reducing the likelihood that he could have risen to a position of prominence in the regime of the notoriously anti-Semitic Tsar. Sack left Russia in 1920 and was teaching law in Paris when he published his famous treatise, but he left Europe for good in 1930 and spent the remainder of his life (and the majority of his teaching career) in the United States. And while it is always difficult to measure a scholar’s eminence in his field, an examination of contemporary reviews reveals that Sack’s treatise, while well received in some parts, hardly established him as the preeminent scholar in the field of sovereign debts. His doctrine of odious debts, which appears to have been synthesized from a variety of international law treatises that Sack cites in Les Effets, was virtually overlooked until odious debts forgiveness became a hot political topic in the 1990s. Last but not least, Sack was not a political revolutionary—as, we suspect, many of his modern supporters would like him to be. His writings as a whole suggest that he was actually quite conservative and likely would have been unsupportive of the modern odious debt movement that holds him up as a hero.

Perhaps most surprisingly, we found that Sack was not the source of his own mythology. We found several resumes and job applications authored by Sack, and in none of them does Sack claim to have been a tsarist minister. And so as researchers, we began to question the significance of the Sackian myths to the group of scholars and odious debts proponents who had been perpetuating the myths. Why had the odious debts movement invested such weight in the resume of this obscure legal scholar? How and why did Sack’s iconic status arrive so suddenly and with so little biographical information about the man?

The answer lies partly in a quirk of customary international law. Sack’s prominence—particularly his status as a minister in the tsarist government—lends authority to his doctrine of odious debts and buttresses the claims of its proponents that such a doctrine exists as part of customary international law. The “teachings of the most highly qualified publicists”—which include the writings of prominent scholars in international law—are among the secondary sources of authority that customary international law recognizes, and thus Sack’s eminence is directly linked to a desire to validate his doctrine of odious debts. Ministerial experience would show that Sack had authority and first hand knowledge of state practice, and perhaps even shaped state practice—similar, for example, to Charles Cheney Hyde, who was both the legal counsel of the state department (and thus in a position to shape state practice) and a professor of international law.

The rest of the answer may lie in Sack’s probable greatest achievement—the coining of the phrase “odious debts.” The idea of odious debts—debts void on moral or equitable grounds—had been floated and written about in international legal circles prior to the publication of Sack’s treatise. But, other writers had referred to them in a variety of other terms—as war debts, imposed debts, subjugation debts, or “dettes de regime.” What Sack did, it seems, was to synthesize the various strands of these arguments in his treatise and give them a catchy descriptor, one that has stood the test of time and can provide a rallying point for a movement.

For us, unearthing the Sackian story has been fun, fascinating actually. If we were real historians, there is undoubtedly much more we could have unearthed: for example, about Sack’s relationship with John Davis, the Davis Polk partner who argued Brown v. Board on the Board side, and the full story of why Sack was fired from his tenured position at NYU. But the more interesting story, and the one to which we have no definitive answer, is how this could have happened. How was the Sackian myth constructed with no one figuring out that it was a house of cards? And is this commonplace in public international law?

One answer we have gotten from our critics is that Sack’s identity and ideas are quite irrelevant to the modern ideas about odious debts. Okay, but surely it cannot help the credibility of those ideas if the founding father of a movement—the former tsarist minister turned revolutionary hero—is a fictional character. The two of us are supporters of the ideas behind the modern odious debt movement; we believe strongly that debt forgiveness could be a powerful and valuable instrument for international justice. And so we pose the following question to the odious debts movement: Why not drop Sack? His theory is too conservative and he wasn’t prominent enough to give any real credibility to the doctrine. Isn’t it time for a new hero?