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?






Virginia Journal of International Law, Vol. 48-3: Opinio Juris Online Symposium

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law is pleased to continue its partnership with Opinio Juris in this third online symposium. This week’s symposium will feature three articles recently published in Vol. 48-3 of VJIL, available here .

Our discussion on Tuesday will focus on the mysterious history of Alexander Nahum Sack, the Russian-born legal scholar whose once obscure theory of “odious debts” has found new life among contemporary proponents of debt forgiveness. In their article, A Convenient Untruth: Fact and Fantasy in the Doctrine of Odious Debts, Sarah Ludington (Duke) and Mitu Gulati (Duke) draw on archival research in arguing that much of Sack’s iconic status within the contemporary literature is a product of myth instead of fact: a “convenient untruth” that has been used to bolster the validity of the odious debts doctrine so as to place it among the “teachings of the most highly qualified publicists” of customary international law. Patricia Adams, Executive Director of Probe International, will be the respondent.

On Wednesday, Jenia Iontcheva Turner (SMU) will discuss Defense Perspectives on Law and Politics in International Criminal Trials. In her article, Professor Turner explores the purposes of international criminal trials through the perspectives of defense attorneys. In addition to examining scholarly articles and case law, Professor Turner draws on her own survey of defense attorneys who are currently working or who have worked at the ICTY, the ICTR, and the Special Court for Sierra Leone (SCSL). Professor Kevin Heller will be the respondent.

The symposium will conclude on Thursday with a discussion of Vile Crime or Inalienable Right: Defining Incitement to Genocide. In her article, Susan Benesch (Georgetown) identifies the role of incitement in genocide and outlines the existing law on incitement to genocide in order to propose a test that could be used to define the crime in future cases. Professors Mark Drumbl (Washington & Lee), Gregory Gordon (North Dakota), and Chimène Keitner (Hastings) will each provide their comments in response.

We encourage you to join in the online discussion this week. Throughout the symposium, we hope that you will visit our website to read full copies of the articles and to continue the scholarly conversation.