Opinio Juris

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.

I am very grateful to Professors Mitu Gulati and Sarah Ludington for the wealth of information they have gathered about the life of Alexander Sack, the Russian legal scholar who penned the doctrine of odious debts, in their article "A Convenient Untruth: Fact and Fantasy in the Doctrine of Odious Debts." I have taken note of the authors' view that an inadvertent error was made by Michael Hoeflich, whom I cited in my book, Odious Debts: Loose Lending, Corruption and the Third World's Environmental Legacy. I will amend the online version of my book, to discuss their view that Sack was a legal advisor to the Provisional Government of 1917, rather than a minister in the Tsarist regime.

In their paper's abstract, Gulati and Ludington set out to expose the "murky reality" of the life of Alexander Nahum Sack, and how this reality conflicts with the "myth perpetuated in the odious debts literature." The dominant theme, though insinuated rather than stated clearly, is that the odious debts movement has deliberately exaggerated Sack's eminence in order to establish the doctrine as customary international law. The authors also make few distinctions among the various organizations in the debt forgiveness movement. I would recommend that the authors stick to the facts rather than assign motives, and be precise in their charges rather than employing broad brushes.

The facts they do present in their paper, in my view, do not diminish Sack's scholarship on the issue of state debts and odious debts, in particular, but strengthen it. Moreover, rather than dispel myths, I fear their paper creates them.

Let me start with the issue I know best, the views that the authors, with their broad brush, may be wrongly ascribing to me. They seem to think that I have embraced Sack's doctrine in order to indiscriminately relieve Third World debts. They have jumped to that conclusion without any basis in fact – nothing in my writings or in my organization's indicate that Probe International is after debt relief, per se. Rather, as our history shows, we want honest and accountable international finance by establishing the responsibilities of creditors (or borrowers), and thus their rights to repayment (or repudiation). For this reason, we have always argued against giving blank checks to Third World governments in the first order, or in the form of debt relief.

While we are concerned about Third World poverty, we are not a poverty group. But, we believe, a crucial step in eliminating Third World poverty is to eliminate the moral hazard that has plagued sovereign Third World borrowing for the past 60 years. We applaud Sack for wanting countries and their citizens to assume responsibility for legitimate state debts. We also applaud him for wanting to place responsibility for the illegitimate debts where they belong — with the lenders and the true borrowing party, the dictator. Nowhere do I try to make of him a radical, as the authors seem to believe.

From this wrong premise as to my motives (as part of the so-called "radical debt forgiveness movement"), the authors seem to have leapt to other unwarranted assumptions. For example, to extract this "radical debt forgiveness" agenda from Alexander Sack's doctrine they imply that I (and the "debt forgiveness crowd") had to do some fancy footwork around Sack's "consistently and uncompromisingly pro-creditor position" to fit his thesis to our bill. Here they have misrepresented Sack's thesis.

Sack argued that state debts should be repaid in the interest of international commerce, with one exception — when the debts are odious. This is the qualifier — when creditors lend to a sovereign they need beware that the funds are not ultimately used against the interests of the people, to oppress the people, for manifestly personal purposes, etc., lest they lose their claim to repayment. To avoid arbitrary repudiation, Sack also proposed an arbitral procedure in which each side could make their case.

Are the authors saying that Sack didn't mean to carve out "odious" debts as the exception to the rule of repayment of state debts? Are they saying that he disingenuously designed his test of odiousness to fail and therefore to appease creditors of the day? I prefer to take Sack at his written word rather than assign motives to a dead man as the authors seem to have done.

To their credit, Professors Gulati and Ludington concede that Sack's innovative proposal for a new body of law that viewed states as private actors when they borrowed from foreign citizens on the international debt market – essentially, private contract law — didn't turn out to be harebrained after all, even though it was dismissed at the time by some in the legal academy. "Sack was prescient," they say, "because this is indeed the way in which the law governing state debts to foreign bondholders has evolved."

I would argue that Sack's genius may have stemmed from his economics and public finance perspective, and from experience that gave him novel insight into the perils of sovereign borrowing.

But there I go again, "lionizing" the man. I don't mean to give credit to Alexander Sack to the exclusion of other scholars who have written about sovereign debt: I am grateful to Jeze for his articulation of the phrase "debts de regime," to Charles Cheney Hyde for his notion of "hostile debts," to the American Commissioners to the Spanish-American War peace negotiations for their arguments against assuming the so-called Cuban debts, to Chief Justice Taft for his opinion about the legitimacy of the Tinoco debts, and to Grotius for using the word "odious" 400 years ago, etc. The more the better, I say. But, as professors Gulati and Ludington point out, Sack did a rather good job synthesizing the various principles articulated by the above mentioned scholars and developing the concept of the duty of creditors. In short, he fashioned the doctrine of odious debts.

His inspired insights resonate with me. And — I'll go out on a limb here – with millions (even billions, I dare say) of ordinary citizens around the world who sense that there ought to be a law against the kind of unaccountable sovereign borrowing that created the intractable Third World debt crisis.

As a non lawyer, but as one who is constantly searching for rules of law to correct injustices, derisive treatment of Alexander Sack at Gulati and Ludington's hand suggests to me that the problem rests more with the process of international law-making than with Mr. Sack.

Put another way, does it really matter to law-makers today if Alexander Sack is deemed to have had no authority (according to the rules of international law making) to influence international public law, if the people, masses of people, say his formulation of the doctrine of odious debts is the law they want? More than people wanting his law, his doctrine has been accepted by quasi-judicial bodies such as the South African Truth and Reconciliation Commission, which surely must have some standing, by large segments of the Church community as a whole, which as we all know once wrote the law, and by leaders and governments in numerous countries. And their approach is not to repudiate, but to investigate, to separate the odious debts from the non-odious debts, and then to arbitrate. Alexander Nahum Sack made a great contribution to the advancement of the rule of law, a contribution that almost a century later resonates with great force. We should give the man his due.

And that is something the authors seem intent on robbing him of posthumously.

I am not persuaded that Sack did not enjoy wide respect in his day. For someone – a Jew in the anti-Semitic Europe of 100 years ago no less — to have been welcomed into the University of Petrograd, the school of International Law at The Hague, the Institute des Sciences Sociales et Politiques and the Ecole des Hautes Etudes Internationales in Paris, as he was, is remarkable. For a prestigious publisher to publish his major work, as it did, and for the work to be widely and favorably (and unfavorably) reviewed by some of the most prominent scholars in international law as it was, also demands respect. For respected schools such as Northwestern University and later New York University to have sought him, as they did, also speaks to the high regard in which he must have been held. There is no basis on which to judge Sack's hardships as being deserved. After all, they chiefly stemmed from an accusation of having Soviet sympathies, a not uncommon charge in that nascent McCarthyite era, but surely a threatening and disturbing one to someone such as Alexander Sack.

To denigrate Sack, as the authors do, by portraying him as having no eminence as a scholar in any field of law, by describing his teaching history as "peripatetic," and his response to ill-treatment (firing) by NYU as "cantankerous, outspoken, querulous and litigious" rings of "it serves him right."

In the end, it seems to me that Gulati and Ludington are saying that Alexander Sack's formulation of a doctrine of odious debts should be discounted because he wasn't eminent enough or pleasant enough to win friends and influence people in international law. That he may have been difficult to work with (if this is indeed the case) seems beside the point. Many great personages throughout history have been difficult if not impossible to work with. We remember them for their accomplishments, not for their desirability as dinner guests.

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?