A Convenient Untruth: Fact and Fantasy in the Doctrine of Odious Debts (with Response: Reflections on 'A Convenient Untruth')

Abstract

The few years since the U.S. incursion into Iraq in 2003 have witnessed an explosion in the literature on odious debts - that is, debts incurred (a) without the consent of the people (e.g., by a despotic regime); (b) from which no benefits accrued to the people; and (c) when the creditors had knowledge of the foregoing. The key question in the literature is whether successors to the despotic regime are obligated to pay the debts of the despot. That is, whether the newly democratic nation of Iraq is obligated to pay the debts of Saddam Hussein. The starting point for almost every discussion - scholarly or popular - of this doctrine is an obscure legal scholar named Alexander Nahum Sack, variously described as the pre-eminent scholar on public debts of his time, a former minister to Tsar Nicholas II, and a Russian professor of law who penned the doctrine of odious debts while teaching in Paris. This Article excavates the background of Alexander Sack, separating the reality of his life from the myth perpetuated in the odious debts literature. Instead of the heroic and eminent Tsarist exile, the evidence reveals a peripatetic legal scholar who taught in five different universities on two continents, and after being fired from a tenured position, ended his life penniless. We are left then with these questions: What does the reality of Sack mean for the legal status of the odious debts doctrine? And how is it that he achieved this iconic status when even minimal inquiry would have revealed a far more murky reality?