Odious debt

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In international law, odious debt, also known as illegitimate debt, is a legal theory that holds that the national debt incurred by a regime for purposes that do not serve the best interests of the nation, should not be enforceable. Such debts are, thus, considered by this doctrine to be personal debts of the regime that incurred them and not debts of the state. In some respects, the concept is analogous to the invalidity of contracts signed under coercion.

Origin[edit]

The doctrine was formalized in a 1927 treatise by Alexander Nahum Sack,[1] a Russian émigré legal theorist, based upon 19th-century precedents including Mexico's repudiation of debts incurred by Emperor Maximilian's regime, and the denial by the United States of Cuban liability for debts incurred by the Spanish colonial regime.

According to Sack:

When a despotic regime contracts a debt, not for the needs or in the interests of the state, but rather to strengthen itself, to suppress a popular insurrection, etc, this debt is odious for the people of the entire state. This debt does not bind the nation; it is a debt of the regime, a personal debt contracted by the ruler, and consequently it falls with the demise of the regime. The reason why these odious debts cannot attach to the territory of the state is that they do not fulfil one of the conditions determining the lawfulness of State debts, namely that State debts must be incurred, and the proceeds used, for the needs and in the interests of the State. Odious debts, contracted and utilised for purposes which, to the lenders' knowledge, are contrary to the needs and the interests of the nation, are not binding on the nation – when it succeeds in overthrowing the government that contracted them – unless the debt is within the limits of real advantages that these debts might have afforded. The lenders have committed a hostile act against the people, they cannot expect a nation which has freed itself of a despotic regime to assume these odious debts, which are the personal debts of the ruler.[2]

Reception[edit]

Patricia Adams, executive director of Probe International (an environmental and public policy advocacy organisation in Canada), and author of Odious Debts: Loose Lending, Corruption, and the Third World's Environmental Legacy, has stated that:

by giving creditors an incentive to lend only for purposes that are transparent and of public benefit, future tyrants will lose their ability to finance their armies, and thus the war on terror and the cause of world peace will be better served.

In a Policy Analysis for the Cato Institute, Patricia Adams suggested that the debts incurred by the Iraqi state during the rule of Saddam Hussein are odious, as the money borrowed was spent on weapons, instruments of repression and palaces.[3]

An article by economists Seema Jayachandran and Michael Kremer has renewed interest in this topic. They propose that the idea can be used to create a new type of economic sanction to block further borrowing by dictators.[4] Jayachandran proposed her new recommendations November 2010 at the 10th anniversary of the Jubilee movement held at the Center for Global Development in Washington, D.C..

Application[edit]

In December 2008, Rafael Correa, President of the Republic of Ecuador, declared Ecuador's national debt illegitimate odious debt, based on the argument that it was contracted by corrupt and despotic prior regimes. He succeeded in reducing the price of the debt letters before continuing paying the debt.[5]

After the overthrow of Jean-Claude Duvalier from Haiti, there were calls for cancellation of Haiti's debt to multilateral institutions, based on the argument that it was unjust odious debt, and that Haiti could better use the funds going towards debt service for education, health care, and basic infrastructure.[6] As of February 2008, the Haiti Debt Cancellation Resolution had 66 co-sponsors in the U.S. House of Representatives.[7] Several organizations in the U.S. issued action alerts around the Haiti Debt Cancellation Resolution, and a Congressional letter to the U.S. Treasury,[8] including Jubilee USA, the Institute for Justice & Democracy in Haiti and Pax Christi USA.

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