Abstract

http://ssrn.com/abstract=1366028
 


 



Applied Legal History: Demystifying the Doctrine of Odious Debts


Sarah Ludington


Campbell University - Norman Adrian Wiggins School of Law; Duke University School of Law; North Carolina Central University (NCCU); Campbell University Norman Andrian Wiggins School of Law

G. Mitu Gulati


Duke University - School of Law

Alfred L. Brophy


University of North Carolina (UNC) at Chapel Hill - School of Law

March 17, 2009

Duke Law School Public Law & Legal Theory Paper No. 236

Abstract:     
"Odious debts" have been the subject of debate in academic, activist, and policy circles in recent years. The term refers to the debts of a nation that a despotic leader incurs against the interests of the populace. When the despot is overthrown, the new government-understandably-does not wish to repay creditors who helped prop up the despot. One argument has focused on whether customary international law supports a "doctrine" of odious debts that justifies non-payment of sovereign debts when three conditions are met: (1) the debts were incurred by a despotic ruler (without the consent of the populace); (2) the funds were used in ways that did not benefit the populace; and (3) the creditors were aware of the likely illegality of the loans. Advocates of this doctrine, which was synthesized by Alexander Sack in 1927, typically cite two examples of U.S. state practice for support: the negotiations between the United States and Spain following the Spanish-American War, in which the United States repudiated Cuba's colonial debt, and the Tinoco Arbitration, which repudiated certain debts of the deposed Costa Rican dictator, Frederico Tinoco. Those historical precedents do not support the first condition of Sack's doctrine of odious debts, but do support the second two requirements. In addition to these two instances, United States history is rich with examples of debt repudiation by states. Those examples suggest a doctrine of odious debts that is broader and more flexible than the one written by Sack. Indeed, it may be appropriate to speak of the doctrines (not just doctrine) of odious debts.

Number of Pages in PDF File: 37

Keywords: odious debts, international law, Alexander Sack

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Date posted: March 21, 2009 ; Last revised: July 23, 2009

Suggested Citation

Ludington, Sarah and Gulati, G. Mitu and Brophy, Alfred L., Applied Legal History: Demystifying the Doctrine of Odious Debts (March 17, 2009). Duke Law School Public Law & Legal Theory Paper No. 236. Available at SSRN: http://ssrn.com/abstract=1366028 or http://dx.doi.org/10.2139/ssrn.1366028

Contact Information

Sarah Ludington
Campbell University - Norman Adrian Wiggins School of Law ( email ) ( email )
United States
Duke University School of Law ( email )
Box 90360
Duke School of Law
Durham, NC 27708
United States
North Carolina Central University (NCCU) ( email )
Durham, NC 27707
United States
919-530-6171 (Phone)
Campbell University Norman Andrian Wiggins School of Law ( email ) ( email )
United States
Gaurang Mitu Gulati (Contact Author)
Duke University - School of Law ( email )
Box 90360
Duke School of Law
Durham, NC 27708
United States
Alfred L. Brophy
University of North Carolina (UNC) at Chapel Hill - School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-4128 (Phone)

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