THE INSTITUTIONALIST IMPLICATIONS

OF AN ODIOUS DEBT DOCTRINE

PAUL B. STEPHAN*

I
INTRODUCTION

Sovereigns incur debts, and creditors look to the law to hold sovereigns to
their obligations. The odious debt doctrine intrudes on this settled pattern when
(1) a despotic regime incurs a debt (2) for purposes that are inimical to the
general welfare of the population, and (3) the creditor knows of the loan's
illegitimate purpose. The doctrine purports to provide a successor regime with a
full legal defense to the creditor's claim for repayment when these three
requirements are met.' But this begs the question of its legal status.
The United States originated the concept of odious debt over a century ago,
but since World War II, it has regularly upheld the position of creditors in
negotiations with defaulting sovereign debtors. At present no treaty or
legislation specifically provides for this defense, and no domestic court in any
country or any modern arbitral tribunal has embraced it. Yet several prominent
persons, including at least one Nobel laureate in economics, have endorsed the
concept, and the doctrine enjoys a certain following among persons who think
about international debt.2 The regime change in Iraq has whetted interest in the
issue.
The status quo, it seems clear, is one where the doctrine does not have any
"legal effect," in the sense of modifying the legal relations between debtors and
creditors. Should the status quo be changed? In legal terms, the question is
Copyright 2007 by Paul B. Stephan.
This article is also available at http://law.duke.edu/journals/lcp.
* Lewis F. Powell, Jr., Professor; serving during 2007 as Counselor on International Law, Office
of the Legal Adviser, U.S. Department of State.
This paper draws in part on ROBERT E. SCOTF & PAUL B. STEPHAN, THE LIMITS OF
LEVIATHAN: CONTRACT THEORY AND THE ENFORCEMENT OF INTERNATIONAL LAW 206-12 (2006).

The reader should, however, hold Scott harmless for any errors or misjudgments that are contained
herein. Earlier versions were presented at workshops at Duke University School of Law, the University
of Virginia School of Law, and the 2006 Annual Meeting of the European Law and Economics
Association. I am grateful to all the participants for their comments and criticisms, and in particular to
Mitu Gulati for inviting me into the domain of international debt. The views contained herein represent
my personal judgments only and do not reflect the views of either the United States government or the
Office of the Legal Adviser.
1. For a good review of the doctrine, see Lee C. Buchheit, G. Mitu Gulati & Robert B.
Thompson, The Dilemma of Odious Debts, 56 DUKE L.J. 1201 (2007).
2. For support from economists, see Seema Jayachandran & Michael Kremer, Odious Debt, 96
AM. ECON. REV. 82 (2006); Joseph Stiglitz, Odious Rulers, Odious Debts, ATLANTIC MONTHLY, Nov.

2003, at 39. For support from political activists, see sources infra note 23.

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whether to recognize and define an odious debt defense through a treaty or

national legislative acts, on the one hand, or through the decisions of
authoritative dispute-settlement bodies, whether international arbitral organs
or domestic courts. As a matter of convention, the latter route would involve a
decision by such bodies to treat the doctrine as part of customary international
law.
Others may think about the odious debt doctrine as a means to optimize the
social welfare generated by sovereign-debt contracts. This article also looks at
social welfare in the economic sense but attacks the problem from a different
direction. If the doctrine has legal effect only because it is part of customary
international law, what does its invocation imply about the source of the rules
that determine the content and enforcement of sovereign debt contracts? Are
the capabilities of the institutions that develop and apply the doctrine as
significant as the content of the doctrine itself? Any debate about the doctrine
must consider the process that produces the doctrine.
This article concludes that no satisfactory mechanism exists for instituting an
odious debt doctrine. Granting the authority to void sovereign debts to an
international organization-the solution favored by several prominent
commentators-would present severe, and probably insoluble, agency
problems. The alternative approach of adopting the doctrine as a matter of
customary international law has even greater difficulties. At the end of the day,
establishment of the doctrine through the medium of "international law"
cannot offer a global solution to the problem of despotic debtor regimes and
conniving creditors.
Underlying this argument is a larger point. The institutional issue of odious
debt is a microcosm of the problems posed by customary international law.
Does the capacity of an authoritative adjudicator with real enforcement power
to base its decisions, and therefore its disbursement of enforcement resources,
on claims about international custom present any problems? Who wins and who
loses when an authoritative adjudicator looks to international custom rather
than to another source of law? Does the assertion of a capacity to base
enforcement decisions on international custom augment or diminish welfare?
By looking at how the odious debt doctrine might work, one may arrive at a
better understanding of how to think about these questions.
II
CUSTOMARY INTERNATIONAL LAW

It is not hard to offer a doctrinal account of customary international law, but

this step raises many questions and answers none. According to section 102(2)
of the Restatement (Third) of the Foreign Relations Law of the United States,
"Customary international law results from a general and consistent practice of

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THE INSTITUTIONALIST IMPLICATIONS

states followed by them from a sense of legal obligation."3 But what constitutes
the "practice of states"? Should state commitments to undertake certain
obligations count as state practice, even if noncompliance is persistent and
common? How widespread must a practice be to be "general," and what about
states that do not engage in the practice? How long must a practice be observed
before one can say it is "consistent"? And, hardest of all, when does practice
result from "a sense of legal obligation," rather than from some other
motivation? How can one possibly tell?
One might answer these questions using only objective standards, that is,
observable behaviors judged according to pre-announced criteria. But most
international-law scholarship points in a different direction. According to one
widely cited account, an "invisible college" of international-law specialists both
determines who belongs to the rulemaking group and uses general normative
principles such as human dignity, good faith, and fairness to decide what counts
as a binding norm.' Academic debate being what it is, a strand of scholarship
also exists that criticizes many conventional views about the content and
function of customary international law
When one moves from the academy to judges, a somewhat different picture
emerges. According to recent appellate decisions in the United States, state
practice is limited to actual state conduct and does not include aspirational
statements. Moreover, according to these decisions, only persons exercising
official power, such as judges and government officials, have the capacity to
recognize (as opposed to describe) what the set of customary-international-law
rules contains.6 But references to the mainstream academic conception-the
idea that a self-defined "in-crowd" can proclaim custom without bringing forth
compelling evidence of either practice or sense of legal obligation-continue to
crop up, most recently in dicta in a Supreme Court decision.7
For purposes of analysis, consider two highly stylized conceptions of
customary international law. The state actor conception derives the existence of

3. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW 102(2) (1987).

4. See, e.g., Oscar Schachter, Human Dignity as a Normative Concept, 77 AM. J. INT'L L. 848
(1983); Oscar Schachter, The Invisible College ofInternationalLawyers, 72 Nw. U. L. REV. 217 (1977).
5. JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 21-78 (2005);

Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A
Critique of the Modern Position, 110 HARV. L. REv. 815 (1997). This criticism in turn has prompted a
massive response from the international-law establishment. See, e.g., Symposium: The Limits of
InternationalLaw, 34 GA. J. INT'L & COMP. L. 253 (2006).

6. See, e.g., Flores v. S. Peru Copper Corp., 343 F.3d 140, 156-58, 157 n.26 (2d Cir. 2003); United
States v. Yousef, 327 F.3d 56, 99-103 (2d Cir. 2003).
7. Cf Sosa v. Alvarez-Machain, 542 U.S. 692, 733-34 (2004) (referring to "those sources we have
long, albeit cautiously, recognized" as including "customs and usages of civilized nations; and, as

evidence of these, to the works of jurists and commentators, who by years of labor, research and
experience, have made themselves peculiarly well acquainted with the subjects of which they treat")
(quoting The Paquete Habana, 175 U.S. 677, 700 (1900)). Although the quoted language refers to
"jurists and commentators" as just providing evidence of state practice, some have used this language
as support for the claim that the aspirational statements of jurists are themselves evidence of state
practice. See Bradley & Goldsmith, supra note 5, at 838-40 (describing use).

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a custom from credible manifestations of official adherence to a practice in

conditions in which adherence (that is to say, actual compliance, as
distinguished from formal acceptance) is costly. This conception rests on two
arguments for limitation, namely (a) that actual state behavior should count for
something, but that official pronouncements without corresponding action do
not count at all, and (b) that the best evidence that an actor considers itself
obliged to behave in a certain way is to see persistent conduct in the face of real
costs.8
The invisible college conception rests on two opposing arguments, namely
(a) that expert opinion provides better evidence of an existing international
consensus than do the observations of nonexperts (that is, regular judges not
specially trained in international law) about what nations do, and (b) the
officially stated aspirations of states matter a great deal, for aspirations provide
valuable indications of future behavior once norm internalization has occurred.'
These conceptions, of course, exaggerate the differences among those with an
opinion about what customary international law is and does. Still, this stylized
version helps to identify the underlying premises of a debate that has engaged
much academic attention and judicial resources.
Some elaboration is necessary. First, the two conceptions need not be seen
as a proxy for the question whether more or less customary international law is
desirable. On the one hand, the state-actor construct is not incompatible with a
robust and extensive body of customary law. Many good reasons exist for states
to delegate the authority to solve collective-action problems to a third-party
decisionmaker." Eyal Benvenisti, to cite one prominent scholar, argues that at
least some customary international law represents an efficiency-driven solution
to such problems. He posits that states recognize in advance that
straightforward negotiations may fail to produce desirable outcomes, either
because differences in state interests may thwart recognition of a globally
desirable result or because domestic interest groups may block one or more
states from acceding to that outcome. He gives as an example the allocation of
jurisdiction over waterways that affect multiple states. Faced with obstacles to
mutually beneficial agreements, Benvenisti argues, the affected states delegate
to a disinterested and expert third party, such as the International Court of

8. Thus some commentators have explained the definition of opinio juris as a shorthand for a kind
of state consent that implies voluntary choice. Maurice H. Mendelson, The Formation of Customary
InternationalLaw, 272 RECUEIL DES COURS 155, 268-93 (1998); George Norman & Joel P. Trachtman,
The Customary InternationalLaw Game, 99 AM. J. INT'L L. 541, 544, 570-71 (2005).
9. Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International
Human Rights Law, 54 DUKE L.J. 621 (2004).
10. Collective-action problems, generally speaking, are those in which cooperation has a positive
payoff but individual actors have an incentive to defect from the cooperative norm. For further
discussion, see Paul G. Mahoney & Chris William Sanchirico, Norms, Repeated Games, and the Role of
Law, 91 CAL. L. REV. 1281 (2003); Duncan Snidal, Coordination Versus Prisoners' Dilemma:
Implications for International Cooperation and Regimes, 79 AM. POL. SCI. REV. 923 (1985); Paul B.
Stephan, Redistributive Litigation-JudicialInnovation, Private Expectations, and the Shadow of
InternationalLaw, 88 VA. L. REV. 789 (2002).

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THE INSTITUTIONALIST IMPLICATIONS

Justice, the authority to reach an appropriate outcome. The third-party

decisionmaker in turn invokes an open-ended conception of customary
international law, one not depending on the inevitably incomplete set of express

international agreements, to reach the optimal result."

Moreover, if one believes that customary international law results from

voluntary state choices, it is not too great a stretch to conceive of domestic

judges as agents with the capacity to make these choices. A court might act as a

norm entrepreneur, hoping to persuade other jurisdictions to embrace a rule

that advances some desirable goal, or it might observe the emergence elsewhere
of a rule with international implications and assume that the political branches
would prefer to signal cooperation rather than defection (to use the vocabulary

of game theory). An early and significant decision of the U.S. Supreme Court
made exactly the latter argument to justify adherence to a doctrine of sovereign
immunity in the absence of a statutory rule.'2 It seems clear that, at a minimum,
domestic courts as well as arbitral tribunals have the capability to act in this
fashion in cases over which they otherwise have jurisdiction."
On the other hand, the invisible-college conception does not necessarily
lead to many binding rules. The dominant vision of customary international law
within contemporary academia represents a historically contingent reaction to
the particular events of the 1970s, rather than a coherent jurisprudential
position.'4 It does not take too great a leap of the imagination to conceive of an

11. Eyal Benvenisti, Customary International Law as a Judicial Tool for Promoting Efficiency, in
THE

IMPACT OF INTERNATIONAL

LAW ON INTERNATIONAL

COOPERATION:

THEORETICAL

PERSPECTIVES 85 (Eyal Benvenisti & Moshe Hirsch eds., 2004). For a sampling of scholarship about
customary international law that assumes rationalism in the face of collective-action problems, see
GOLDSMITH & POSNER, supra note 5; Tom Ginsburg, Bounded Discretion in InternationalJudicial
Lawmaking, 45 VA. J. INT'L L. 631 (2005); Andrew T. Guzman, A Compliance-Based Theory of
InternationalLaw, 90 CAL. L. REV. 1823 (2002); Norman & Trachtman, supra note 8; Francesco Parisi
& Vincy Fon, InternationalCustomary Law and Articulation Theories: An Economic Analysis, 2 BYU
INT'L L. & MGMT. REV. 201 (2006); Edward T. Swaine, Rational Custom, 52 DUKE L.J. 559 (2002);
Pierre-Hugues Verdier, Cooperative States: InternationalRelations, State Responsibility and the Problem
of Custom, 42 VA. J. INT'L L. 839 (2002).
12. Schooner Exchange v. M'Faddon, 11 U.S. 116 (1812) (holding that a vessel belonging to the
French navy was not subject to attachment by U.S. courts).
13. In limiting this assertion to cases over which courts otherwise have jurisdiction, the statement
in text takes into account the position that customary international law does not, simply by its status as
customary international law, constitute federal law for purposes of federal-court jurisdiction under
Article III of the Constitution or 28 U.S.C. 1331. For the assertion that customary international law is
federal law in both the constitutional and statutory jurisdictional senses, see RESTATEMENT (THIRD)
OF FOREIGN RELATIONS LAW 111, 115 (1987); LOUIS HENKIN, FOREIGN AFFAIRS AND THE

CONSTITUTION 219 (1972). For a critical response, see Bradley & Goldsmith, supra note 5; A. M.
Weisburd, State Courts, Federal Courts, and International Cases, 20 YALE J. INT'L L. 1 (1995). For
responses to this criticism, see Ryan Goodman & Derek P. Jinks, Filartiga'sFirm Footing: International
Human Rights and Federal Common Law, 66 FORDHAM L. REV. 463 (1997); Harold Hongju Koh, Is
InternationalLaw Really State Law?, 111 HARV. L. REV. 1824 (1998); Gerald L. Neuman, Sense and
Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66
FORDHAM L. REV. 371 (1997); Beth Stephens, The Law of Our Land: Customary InternationalLaw as
FederalLaw After Erie, 66 FORDHAM L. REV. 393 (1997).
14. Paul B. Stephan, Courts, the Constitution, and Customary International Law: The Intellectual
Origins of the Restatement (Third) of the Foreign Relations Law of the United States, 44 VA. J. INT'L L.

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alternative world in which the academic mainstream might view the persons
most likely to invoke customary international law, particularly domestic judges,
as reactionary obstructionists of progressive change. Fearful of development of
an approach to a customary international law grounded on protection of
property rights and economic liberty and insensitive to human dignity, scholars
might come to a consensus that states have not shown a sense of obligation
about much.'5 The point is, again, that one's conception of how customary
international law can be constituted is logically independent of one's
preferences about its content.
This article does not address this debate about the constitution of customary
international law at the level of first principles. Rather, it shows how different
conceptions of customary international law affect a theoretically rich problem
of great practical importance-namely, the legal status of the odious debt
doctrine. There are many good reasons to compel sovereign debtors to honor
their debt obligations, and other good reasons to relax this compulsion when
the obligations were assumed by particularly bad regimes for particularly bad
purposes and a new regime has superseded the original debtors. The question is
whether bodies with the capacity to coerce sovereign debtors might look to
customary international law as one of the reasons for staying their hand. How
these bodies might use customary international law, in turn, reveals something
about the implications of choices about what to regard as customary
international law.
III
SOVEREIGN-DEBT CONTRACTS

Debates over the enforceability of sovereign-debt contracts can take place

in any of several fora. Law is relevant to the extent that an enforcement dispute
will come to an independent body with the capacity to enforce, or block
enforcement of, the contract. An arbitral tribunal, perhaps empowered by a
bilateral investment treaty, might consider whether a failure to pay a debt
implicates those treaty rights. And creditors might seek enforcement of the debt
16
in a domestic court.
To be sure, most restructuring of sovereign debt does not involve arbitration
or litigation. Providers of capital, including international institutions such as the
International Monetary Fund (IMF), other states, and private lenders, can
assert considerable pressure simply by threatening to withhold future financing.
33 (2003) (linking academy's support for judicial enforcement of customary international law to
growing dismay with U.S. foreign policy and policymakers during the 1970s).
15. Cf Louis B. BOUDIN, GOVERNMENT BY JUDICIARY (1932) (attacking the institution of
judicial review as a means of resisting liberty-oriented constitutional jurisprudence of the contemporary
Supreme Court). For articulation of just such a critique of the customary international law of
investment protection, see M. SORNARAJAH, THE INTERNATIONAL LAW ON FOREIGN INVESTMENT
(2d ed. 2004).
16. For fuller discussion of sovereign debt and its restructuring, see William W. Bratton & G. Mitu
Gulati, Sovereign Debt Reform and the Best Interest of Creditors,57 VAND. L. REV. 1 (2004).

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THE INSTITUTIONALIST IMPLICATIONS

And what these bodies consider to be the proper limits of debt obligations may
matter more than what arbitral or judicial bodies think.
But the distinction between legal rules applied formally by disputeresolution bodies, on the one hand, and the considerations that may motivate
informal dispute settlement, on the other, matters. Institutions can forgive debts
or withhold future finance for any number of reasons, not only because of
specified legal criteria. Moreover, they do not have to behave consistently.
From a functionalist perspective, what distinguishes the work that legal doctrine
does from that of general policy preferences is the functioning of independent
dispute-resolution bodies with meaningful enforcement powers." This point
does not mean that legal rules are irrelevant to debtor-credit bargaining. Surely
these negotiations take place in the shadow of the law. But one should not
confuse the outcomes of this bargaining with the underlying legal obligation.
The accommodations made in settlement of a dispute represent at best a very
noisy signal about what the law requires.
When a regime borrows on behalf of a state, several legal issues arise. First,
does the sovereign have the capacity to endow its creditors with conventional
enforcement rights, including the ability to obtain arbitral awards and judicial
judgments and to attach the sovereign's property to obtain satisfaction? Second,
if the creditors can exercise these rights, can they assert them against later
regimes that subsequently obtain the authority to act on behalf of the
sovereign? Third, are there any circumstances under which a debt nominally
contracted on behalf of a sovereign later can be repudiated?
The first two questions have affirmative answers, due to the general
acceptance both of the rules of state succession and of limits on the doctrine of
sovereign immunity. This means that a loan contracted by one regime creates
legally enforceable rights that, depending on the sovereign's foreign asset
holdings and reliance on foreign-source revenues, can result in meaningful
recourse for creditors. Moreover, a regime change normally does not alter the
creditors' rights. Only because of the general principle of successor liability
does the third question become relevant.
IV
THE ODIOUS DEBT DOCTRINE

In the aftermath of the Spanish-American War, the United States took the
position that debts undertaken by Spain but secured with Cuban revenues were
invalid as to the Cuban security. Spain had used the proceeds from the loan to
finance the suppression of the Cuban opposition on whose side the United
States (at least nominally) had fought. The peace treaty that concluded the war

17. For more on the distinction between formal enforcement of obligations based on rules
announced ex ante and ex post informal enforcement, see ScoTT & STEPHAN, supra note *, at 4, 98101.

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reflected the U.S. position, although Spain never agreed with the U.S.
arguments.
Two decades later Chief Justice Taft, presiding over an arbitration between
Costa Rica and the Royal Bank of Canada, invoked similar arguments to
relieve Costa Rica from the burden of paying a debt for which a previous
dictator had contracted. The evidence suggested that the dictator had converted
the proceeds to his personal use, apparently with the knowledge of the lender.
Taft ruled that Costa Rica could repudiate the loan.18
Alexander Sack, an itinerant international-law scholar, then articulated
what he understood to be a principled version of the U.S. position. According
to Sack, an indebtedness incurred by a prior regime is "odious" and therefore
subject to repudiation without recourse if the regime acted without the consent
of the governed, the debt proceeds did not benefit the subjects of the regime,
and the creditor had adequate notice of both these facts. 9 The Sack formulation
has come to be the conventional statement of the doctrine.
But in spite of Sack's publication of the doctrine, it has played almost no
role in concrete disputes since then. In 1979 the holder of Chinese imperial
railroad bonds, issued shortly before the Nationalist revolution, brought a class
action against the People's Republic of China (the regime that succeeded the
Nationalists, who in turn were the successors of the imperial regime that issued
the bonds) to collect on these debts. The United States had just recognized the
People's Republic as the legitimate government of China. Initially China failed
to appear, and the trial court issued a default judgment against it. China then
sought to reopen the proceedings, defending its initial nonparticipation as
reflecting its unfamiliarity with modern legal proceedings and its bad
experiences with Western imperialism in the past. China also claimed that the
obligations constituted odious debt because of the quasi-colonial position of the
Western powers in 1911. The court reopened the proceedings, perhaps
implicitly giving some weight to the odious debt argument, although its decision
rested entirely on an interpretation of the doctrine of foreign sovereign
immunity."

Contrast this (at most) glancing reference to the odious debt doctrine with
the widespread reluctance of new regimes to invoke it. The last thirty years
have seen the collapse of authoritarian or Soviet-style governments in Europe,
Asia, Africa, and Latin America, all encumbered with serious human-rights
abuses and grave political injustices, yet none of the successor regimes has

18. Gr. Brit. v. Costa Rica, 1 R.I.A.A. 375 (1923) [hereinafter Tinoco Arbitration].
19. ALEXANDER SACK, LES EFFETS DES TRANSFORMATIONS DES ETATS SUR LEURS DETrES

PUBLIQUES ET AUTRES OBLIGATIONS FINANCIt-RES (1927). For recent commentary, see Anna

Gelpern, What Iraq and Argentina Might Learn from Each Other, 6 CHI. J. INT'L L. 391 (2005).
20. Jackson v. People's Republic of China, 794 F.2d 1490 (11th Cir. 1986). The precise holding of
the court-that the Foreign Sovereign Immunity Act's concept of restrictive immunity did not apply to
claims arising before the Act's enactment-later was repudiated by the Supreme Court. Republic of
Austria v. Altmann, 541 U.S. 677 (2004).

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sought debt relief on the grounds of its predecessors' unclean hands." One
might explain this deafening silence as reflecting the doctrine's nature as a
power rather than a right. Nothing obliges a new regime to use the doctrine,
and pragmatic reasons might counsel against doing so. Nonetheless, the failure
to observe the doctrine at work in the many cases where, by its terms, it could
have applied is noteworthy.
If customary international law were merely a product of specific and
material choices made by responsible official policymakers, then one could
comfortably conclude that the odious debt doctrine has not become part of that
body of unwritten but binding international obligations. Aside from a recent
unilateral decision by the government of Norway, in its capacity as creditor, to
attribute an act of debt forgiveness to the doctrine, no contemporary official
support exists.22 Sovereign debtors in particular have not sought its shelter. But
unofficial actors are not so easily discouraged, and one still encounters a claim
that the doctrine functions as a norm of customary international law. During the
1990s, supporters of developing countries' efforts to rid themselves of their
inherited debt burden revived the concept and suggested that both international
organs, including non-judicial bodies such as the IMF, and national courts ought
to invoke the odious debt doctrine to relieve sovereign debtors.'
For the odious debt concept to be anything more than a talking point in a
negotiation, some body with formal enforcement authority would have to
decide to apply customary international law to a dispute between a sovereign
debtor and its creditors. Because debts invariably rest on a local law of contract,
the adjudicator would have to choose between recognizing a customary rule and
applying national law. As a matter of industry practice, most formal sovereigndebt contracts contain choice-of-law provisions that direct the adjudicator to
use either English or New York law. But even in disputes governed by an
express choice of law, an English or New York court might decide that its law
comprises certain rules of customary international law.
Consider the dispute that became the leading Supreme Court case of Banco
2 Cuba asserted its right to collect money owed
Nacional de Cuba v. Sabbatino.
under a contract of sale for sugar. Sabbatino, the receiver for a U.S.-owned
21. See Joseph Hanlon, Defining "Illegitimate Debt": When Creditors Should Be Liable for
Improper Loans, in SOVEREIGN DEBT AT THE CROSSROADS: CHALLENGES AND PROPOSALS FOR
RESOLVING THE THIRD WORLD DEBT CRISIS 109 (Chris Jochnick & Fraser A. Preston eds., 2006).
22. Krishna Guha, Norway Debt Cancellation Hailed by Activists, FIN. TIMES, Oct. 4, 2006, at 43.
The loans involved ships built by Norwegian firms, and a skeptic might interpret Norway's debt
forgiveness as a price rebate in a tight market.
23. E.g., SOVEREIGN DEBT AT THE CROSSROADS, supra note 21; PATRICIA ADAMS, ODIOUS
DEBTS: LOOSE LENDING, CORRUPTION, AND THE THIRD WORLD'S ENVIRONMENTAL LEGACY
(1991); Soren Ambrose, Social Movements and the Politics of Debt Cancellation, 6 CHI. J. INT'L L. 267
(2005); Kevin H. Anderson, InternationalLaw and State Succession: A Solution to the Iraqi Debt Crisis?
2 UTAH L. REV. 401 (2005); David D. Caron, The Reconstruction of Iraq: Dealing with Debt, 11 U.C.
DAVIS J. INT'L L. & POL'Y 123 (2004); Anupam Chander, Odious Securitization, 53 EMORY L.J. 923
(2004); Detlev F. Vagts, Sovereign Bankruptcy: In re Germany (1953), In re Iraq (2004), 98 AM. J. INT'L
L. 302 (2004).
24. 376 U.S. 398 (1964).

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Cuban entity that had owned the sugar before the Castro regime had

expropriated it, argued that he had the superior claim to the money. The
Second Circuit, applying New York law, ascertained that New York would

invoke a customary-international-law doctrine invalidating expropriations that

were motivated by a retaliatory rather than a public purpose, that were
discriminatory in effect, or that provided inadequate compensation.' In
reversing that decision, the Supreme Court did not question the general
capacity of New York courts to select rules of decision from customary
international law. It determined, however, that the particular context, involving
the validity of an official act of a sovereign executed within its territory,
required application of federal common law that displaced state law. The Court
then concluded that this federal common law, unlike New York law, would not
look to customary international law.26

In the minds of many authorities today, Sabbatino stands for the proposition
that courts have the authority to create federal common law in areas dominated
by foreign relations concerns.27 What the Court believed it was doing, however,
was imposing a constraint on the otherwise broad power of state courts to apply
customary international law, as they understood it, to cases otherwise within

their jurisdiction. When it is not displaced by federal law, the choice to invoke
customary international law, which implies a power to determine its content, in
turn is binding on a federal court to the extent that it must look to a state's law
for a rule of decision in a case over which it has jurisdiction.28 Thus the law of
25. Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845 (2d Cir. 1962).
26. Sabbatino, 376 U.S. at 424-37. Within months, Congress repudiated Sabbatino's holding by
directing federal courts to consider whether an expropriation of property by a foreign sovereign
violated customary international law regardless of the official nature of the expropriation:
Notwithstanding any other provision of law, no court in the United States shall decline on the
ground of the federal act of state doctrine to make a determination on the merits giving effect
to the principles of international law in a case in which a claim of title or other right to
property is asserted by any party including a foreign state (or a party claiming through such
state) based upon (or traced through) a confiscation or other taking after January 1, 1959, by
an act of that state in violation of the principles of international law, including the principles of
compensation and the other standards set out in this subsection: Provided, That this
subparagraph shall not be applicable (1) in any case in which an act of a foreign state is not
contrary to international law or with respect to a claim of title or other right to property
acquired pursuant to an irrevocable letter of credit of not more than 180 days duration issued
in good faith prior to the time of the confiscation or other taking, or (2) in any case with
respect to which the President determines that application of the act of state doctrine is
required in that particular case by the foreign policy interests of the United States and a
suggestion to this effect is filed on his behalf in that case with the court.
Pub. L. No. 88-633, 301(d), 78 Stat. 1013, amending Section 620(e) of the Foreign Assistance Act of
1961, codified at 22 U.S.C.S. 2370(e)(2) (2001).
27. For a review and critique of this position, see Bradley & Goldsmith, supra note 5. For the
Supreme Court's recent endorsement (in dicta) of the power of federal courts to develop a federal
common law of foreign relations, see Sosa v. Alvarez-Machain, 542 U.S. 692, 714-20 (2004). For the
argument that Sosa confirms the point that federal courts lack a general power to recognize customary
international law absent a statutory directive to do so, see Curtis A. Bradley, Jack L. Goldsmith &
David H. Moore, Sosa, Customary InternationalLaw, and the Continuing Relevance of Erie, 120 HARV.
L. REV. 869 (2007).
28. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

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New York continues to hold that expropriations that are lacking in a public
purpose, are discriminatory, or are without adequate compensation are invalid,
except when federal law overrides this rule.
Absent application of the Sabbatino override, then, New York courts (and
presumably British ones as well) have the power to invoke international custom
and conceivably might do so with respect to the odious debt doctrine." But, as
noted above, the possession of a power does not imply the need to exercise it.
The question remains whether state courts, federal courts applying state law, or
an arbitral tribunal should recognize the odious debt doctrine as a means of
facilitating sovereign-debtor repudiation of unwelcome obligations. This inquiry
in turn requires a determination of the available alternatives.
Presumably, an adjudicator would consider the background of national rules
that might apply to a creditor's claim. Most contracts for sovereign debt,
whether bank loans or bonds, reflect the work of sophisticated counsel and are
unlikely expressly to bar enforcement. A waiver of sovereign immunity and the
act-of-state doctrine, as well as choice-of-forum and -of-law clauses, almost
always appears. But some elements of the odious debt doctrine have
counterparts in national law, in the sense that both justify the nonenforcement
of the obligation in spite of the contractual commitment.
First, a debtor can argue that, under its domestic legal order, the persons
who contracted for the debt lacked the legal authority to do so." This ultra vires
defense corresponds to Taft's determination in the Tinoco arbitration that the
Costa Rican dictator borrowed for his own benefit and violated various local
laws to do so. A similar argument was raised but rejected in Sabbatino, namely
that the Castro government's expropriation decree violated Cuban law because
of procedural irregularities. 1
Second, a creditor that colludes with a regime's agents in concealing the
circumstances of a transaction, such as by paying a bribe to place a loan,
presumably has committed fraud, for which rescission is a conventional remedy.
One may assume that the common-law doctrine of fraud can reach many abuses
that coincide with the conventional understanding of odious debt. Corruption
and secrecy, if proved, might render many loan contracts voidable, if not void.

29. I will not discuss here the applicability to sovereign-debt contracts of the act-of-state doctrine
articulated in Sabbatino, although in some cases it may be relevant. U.S. courts generally have regarded
the act-of-state doctrine to be inapplicable to loans payable outside the territory of the debtor
sovereign. Allied Bank International v. Banco Credito Agricola de Cartago, 757 F.2d 516 (2d Cir.
1985), cert. denied, 473 U.S. 934 (1985). There remains, however, some conceptual tension between the
odious debt doctrine, which calls on adjudicators to sanction illiberal states, and the act-of-state
doctrine, which insulates the official acts of illiberal states from conventional choice-of-law review by
foreign courts. See Anne-Marie [Slaughter] Burley, Law Among Liberal States: LiberalInternationalism
and the Act of State Doctrine, 92 COLUM. L. REV. 1907 (1992).

30. State v. Morgan Stanley & Co., 459 S.E.2d 906 (W. Va. 1995) (basing judgment against broker
on state customer's legal incapacity); Hazell v. Hammersmith & Fulham London Borough Council, 2
W.L.R. 372 (H.L. 1991) (holding debt contract unenforceable because Borough Council lacked legal
capacity to enter into it).
31. 376 U.S. at 415 n.17.

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What existing national law does not do, however, is rescind a contract when
the loan contract was unwise, or the use of the loan proceeds foolish or even
immoral, in the absence of a national law forbidding the borrowing authority
from undertaking the transaction. If most despots bother to enact domestic laws
that allow them to incur debts under conditions that please them, and if most
creditors do not pay bribes or engage in other conduct that might be
characterized as fraud, then national law at its current state of development
would limit the capacity of new regimes to repudiate the debts of their odious
predecessors.
V
THE CASE FOR RECOGNIZING AN ODIOUS DEBT DOCTRINE

Should adjudicators supplement national law with the odious debt doctrine?
One might start with a first-order analysis. Under what conditions would
creditors and sovereign debtors overall prefer legal rules that reward nonodious
regimes and isolate bad actors, which is to say both bad regimes and the lenders
who knowingly connive with them to finance bad projects?
The policy case for recognizing an odious debt doctrine rests on the
assertion that a rule making avoidable loans to bad regimes to do bad things
would generate a separating equilibrium that might enhance overall welfare. No
individual creditor or sovereign debtor, however, has an incentive to create
these rules. The problem is not good regimes, which probably would welcome a
contractual clause warranting their lack of odiousness and giving the creditor
remedies if loan proceeds were used for odious purposes. But potentially
odious regimes and their creditors have no motivation to embrace such a
clause. 2 Nor is unilateral leadership by a single jurisdiction likely to work. If one
important jurisdiction-New York or London-took the lead in adopting an
odious debt rule, bad regimes seeking to finance bad projects would take their
business to the other jurisdiction. Even if New York and London tried to
collaborate in adopting a rule together, each would fear that the other would
chisel on enforcement to attract more business from bad regimes.
In other words, a collective-action problem exists. As long as odiousness vel
non remains an insufficient ground for invalidating a sovereign's contract,
creditors cannot reward nonodious regimes. If creation of a separating
equilibrium were desirable, then some generally applicable mechanism to
invalidate contracts with bad regimes for bad purposes might benefit all
creditors and most sovereign borrowers. There are, of course, countervailing

32. The core problem is that bad behavior by the debtor is an externality that cannot be captured
by contract. The odious debt doctrine imposes a sanction that falls on the creditor. Bad regimes have no
incentive to inflict this sanction on creditors (who will charge them for the ex ante risk), and good
regimes have no mechanism for rewarding their creditors. Proposals to institute the odious debt
doctrine through contract fail to account for the externality. E.g., Adam Feibelman, Equitable
Subordination, Fraudulent Transfer, and Sovereign Debt, 70 LAW & CONTEMP. PROBS. (forthcoming
Autumn 2007).

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arguments, but for present purposes, consider the hypothetical position that
there exists some version of the odious debt doctrine that would generate
benefits that could exceed its costs. But how can this be achieved?33
An initial objection to a freestanding odious debt doctrine is that odiousness
is in the eye of the beholder and thus not truly verifiable. Here, the term
"verifiable" means to incorporate the teaching of the economics of information,
which distinguishes among private information (information that cannot be
credibly conveyed to third parties, such as a state of mind or future intentions),
observable information (information that persons in an ongoing relationship
can observe, such as quality of performance, but cannot prove to a disinterested
third party at an acceptable cost), and verifiable information (information that
can be verified by a disinterested third party at an acceptable cost). Within this
framework, only verifiable terms are contractible, for legal obligations subject
to third-party enforcement must rest on verifiable conditions. A comprehensive
definition of regime and project "badness" might run the risk of not being
ascertainable by a disinterested third party, given the many ways that people
might regard governments or projects as inadequate.
As Robert Scott and George Triantis have demonstrated, the law has
developed tools for working around this problem. The principal solution is the
use of a verifiable proxy for an unverifiable condition. The proxy might take the
form of a rule that imperfectly captures the condition (think of "over fifty-five
miles an hour" as a proxy for "unreasonably fast") or of an allocation of the
burden of proof to the person seeking to prove the condition. Proxies are costly,
for either an overinclusive or an underinclusive rule will depart from the
optimal but unverifiable condition. But in many circumstances the assumption
of these costs is an acceptable alternative to treating the condition as
noncontractible.4
For purposes of discussion, assume that a regime would qualify as odious
only if it both completely lacked democratic accountability due to suppression
of all forms of dissent and systematically engaged in extrajudicial violence
against its citizens. The debts of such a regime would be odious only if the
lender could be charged with the knowledge that the loan proceeds would be
used directly and exclusively to carry out repression. For purposes of discussion,
in other words, one can assume that there may exist conditions that are
sufficiently stringent to make them susceptible to objective proof. Let us also
stipulate that successor regimes would bear the burden of proving both that
their predecessor met this test and that creditors knew that the loans they made
met it.

33. For the argument, institutional issues aside, that an odious debt doctrine is unlikely to enhance
welfare, see Albert H. Choi & Eric A. Posner, A Critique of the Odious Debt Doctrine, 70 LAW &
CONTEMP. PROBS. 33 (Summer 2007).
34. Robert E. Scott & George G. Triantis, Anticipating Litigation in ContractDesign, 115 YALE
L.J. 814 (2006).

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Some, especially those who see the odious debt doctrine as a means to
launch a broad critique of global capitalism, might find this definition too
confining. Among other things, it rejects the argument that money is fungible
and that any capital acquired by an odious regime functionally serves its odious
purposes. What this definition does, however, is identify those circumstances
under which regimes are most likely to divert government resources that
otherwise might benefit the general population. The objective is distinguishing
between indisputably bad regimes that have no evident incentive to act on
behalf of the governed and the more quotidian human-rights-abusing state (the
latter class comprising, in the view of some scholars and nongovernmental
organizations, the United States, Japan, and most, if not all, members of the
European Union).
Were creditors to become persuaded that this standard would apply, they
presumably would build an "odiousness" risk into the price of loans to
sovereigns. The cost of finance would increase for bad regimes contemplating
bad projects. Presumably, longer-term credit would reflect this risk more than
shorter-term, for the risk of a new regime taking over from the current
borrower would increase over time.35 This interest surcharge would function as a
tax on regimes likely to be declared odious at some later date. Although such a
tax would not replace other sanctions (as the invasion of Iraq suggests), it would
provide some disincentive to regimes inclined toward odiousness. Thus far, the
welfare case for the doctrine seems strong.
VI
THE INSTITUTIONALIST IMPLICATIONS

But what of second-order effects? How would jurisdictions overcome the

collective-action problem posed by the present nonrecognition of the odious
debt doctrine, and what implications would these strategies have for the legal
system generally? For ease of analysis, two different approaches are considered
here, one involving top-down state coordination and the other involving
bottom-up doctrinal innovation by courts invoking customary international law.
A. Top-Down Approach
Imagine an international institution with the capacity to label regimes and
projects as odious and successors as nonodious. To complete the picture,
suppose an international treaty pursuant to which states commit to honor the
determinations of that body by requiring their courts not to enforce the
contractual debts of odious regimes. Some theorists, including Nobel laureate

35. The statement in text assumes that odious regimes cannot invoke the doctrine to discharge
their debts. As noted below, under certain assumptions this actually becomes an undesirable restriction.

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Joseph Stiglitz, argue that this mechanism would provide an ideal solution to
the problem of odious debt. 6
Lest such a proposal seem visionary, recall that some elements of this treaty
regime already exist. The United Nations Security Council has the authority
under the U.N. Charter to impose economic sanctions on regimes that threaten
international order through their abuse of their subjects. It thus could call on all
member states to refuse to recognize debts contracted by such regimes
whenever a lender might be charged with knowledge of the odious use of the
loan proceeds. All that is missing is a mechanism to convert Security Council
resolutions into binding law of the sort that directly invalidates debt contracts.
Although the Charter obligates U.N. members to carry out Security Council
resolutions, it does not provide for direct effect of those resolutions in the
members' domestic legal order. National governments may cite a Security
Council resolution as a basis for adopting a domestic law, but a refusal to carry
out a resolution may result only in another resolution. 7
One might overlook this chink in the Security Council's armor. What
remains interesting is that no proponent of the odious debt doctrine has seen
the Security Council as the proper institutional mechanism for implementing
the doctrine. The Security Council can act only with the consent of the five
great powers, and rarely do they reach a consensus on what constitutes an
odious regime or an objectionable use of loan proceeds. If odious debt were left
only to this body, then, it would have little practical significance. In the case of
Iraq, the Security Council sanctions that were adopted did not bar the Ba'athist
regime from undertaking a wide array of contractual commitments (putting
aside for the moment the administration of the sanctions, which may have
engendered some fraud and corruption, and thus some defenses against
collection under national law).
But how would one go about designing an international mechanism with a
quicker trigger, that is, a greater propensity to characterize regimes as odious?
Unless stringent criteria are used, along the lines described above, severe
agency problems would result. The agency wielding this authority would find
itself mired in ideological wars about what counts as a truly democratic and
representative government and how governments must serve the public good.
Other issues, such as the treatment of ethnic minorities or the production of
greenhouse gases, also could demand attention. The agency also would struggle
36. Jayachandran & Kremer, supra note 2; Stiglitz, supra note 2. As a substantive matter, this
solution departs from the conventional description of the doctrine by making debts contracted by
odious regimes unenforceable, even in the absence of a succession. This extension is necessary to make
bad regimes fully internalize the cost of their misconduct.
37. For an instance of grounding "national" law (here an EC Council Regulation) on a mandate
received from the Security Council, see Case T-315/01, Kadi v. Council, 2005 E.C.R. 11-03649
(upholding freeze of assets as part of antiterror program in response to Security Council Resolution
1333). For a refusal by the German Constitutional Court to regard a Security Council resolution as a
sufficient basis for a national law implementing an E.U. framework decision, see Re Constitutionalityof
German Law Implementing the Framework Decision on a European Arrest Warrant (2 BvR 2236/04),
[2006] 1 C.M.L.R. 16.

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to determine the specific purposes of particular debts against the background of

money's fungibility. Finally, the criteria for determining whether a creditor
should be charged with knowledge of the regime and the project's odious
character could be strict or loose. Under conditions of unstable and evolving
geopolitics, the capacity of the agency to develop conceptions of odiousness
that diverge from initial conceptions would grow over time.38
These problems would be compounded if an institution with other functions
received the authority to label debts as odious. A general concern is that
bureaucracies, international as much as domestic, seek to maximize their
discretionary power. Given this tendency, an agency would be expected to use
its power to declare odiousness for its own ends, rather than to fine-tune the
conception of what constitutes a bad regime.
In earlier work I raised this concern with respect to the IMF.39 That body
often finds itself supervising the restructuring of sovereign debt. One stopgap
tool that a sovereign engaged in restructuring may employ is the issuance of
exchange regulations that limit the export of foreign currency. At least one U.S.
court has ruled that the question whether a state's exchange controls impose an
expropriation in violation of customary international law, or instead constitute a
lawful act of regulation that a foreign court must respect, turns on whether the
IMF has approved of the controls."0 Recognition of this power in turn
strengthens the IMF's hand in its negotiations with debtor states. Some
evidence suggests that the IMF uses this power principally to further the goals
of private creditors, the likely future employers of current IMF staff.4
On balance, then, it seems unlikely that any international agency would gain
the power to declare regimes or projects odious on any broader terms and
subject to any lower procedural hurdles than those applicable to the Security
Council. The great powers, and the United Kingdom and the United States in
particular, are not likely to surrender their capacity to veto these declarations,
and giving the declaratory authority to an international agency with its own
agenda presents additional difficulties that would further diminish the
likelihood of their consent.42 What are the alternatives? Can other bodies,
particularly arbitral tribunals and domestic courts, respond to the collective-

38. See generally Paul B. Stephan, Courts, Tribunals,and Legal Unification-TheAgency Problem,
3 CHI. J. INT'L L. 333 (2002).
39. Paul B. Stephan, Accountability and International Lawmaking: Rules, Rents and Legitimacy, 17
Nw. J. INT'L L. & Bus. 681, 692-93 (1996-97).
40. West v. Multibanco Comermex, S.A., 807 F.2d 820 (9th Cir. 1987), 482 U.S. 906 (1987).
41. Erica R. Gould, Money Talks: Supplementary Financiers and International Monetary Fund
Conditionality,57 INT'L ORG. 551 (2003).
42. Note that a comparable situation is presented by the International Criminal Court (ICC),
which exercises the power otherwise held by the Security Council to decide when to prosecute criminal
violations of international law. Paul Stephan, U.S. Constitutionalism and International Law: What the
MultilateralistMove Leaves Out, 2 J. INT'L CRIM. JUST. 11 (2004). As of this writing, a majority of the
great powers, and four other states that possess nuclear weapons, have refused to accede to the treaty
establishing the ICC.

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action problem with a welfare-enhancing solution that, by virtue of its declared

status as customary international law, binds all relevant actors?
B.

Bottom-Up Approach

If a top-down approach to odious debts seems impracticable, then perhaps a

bottom-up strategy might recommend itself. Hypothetically, the odious debt
doctrine could become part of customary international law if an authoritative
tribunal were to declare it so. Of course, the tribunal would not admit to such a
bold exercise of power. Rather, it would "find" the doctrine within customary
international law by noting the weight of authoritative opinion declaring that
the doctrine had become an international rule and position itself as following
this authority. Once one tribunal makes this move, it could create pressure on
others to do the same. Thus New York might follow London, or London New
York, because of a common acceptance of the obligation to apply customary
international law, an obligation that is stronger than the duty to follow the
national law of other states.
Several objections immediately present themselves. Even if one were to
concede a general obligation to apply customary international law, why would
one tribunal accept another's version? In Benvenisti's example, the disputants
have agreed on a single forum. This move solves the problem of coordinating
among different versions of customary law. But absent such coordination, what
chance is there of any one version's dominating the others? If there exists a risk
that New York and London might chisel when applying nominally identical
national legal standards, is there not a similar risk with regard to the application
of a common international custom?
But resting the odious debt doctrine on customary international law
presents an even deeper problem than the possibility of divergent
interpretations. Whatever the desirability of the odious debt rule in the abstract,
it remains true that the doctrine has played no significant role in the last eighty
years, a time of great regime changes and adjustments in sovereign debt.
Invoking the doctrine now would unambiguously count as a surprise. Yet for it
to have any effect in a judicial or arbitral proceeding, it must apply ex post. The
ex ante effects of a rule applied ex post necessarily include legal instability.
Judicial or arbitral adoption of a surprising new rule, in the context of the
international sovereign debt market, presents two kinds of instability problems.
First, the introduction of new, unanticipated terms into long-established and
widely used contracts increases legal risk generally. Tribunals will have
difficulty reassuring contractors that an odious debt decision is a one-off matter,
and not part of a general skepticism about the enforceability of sovereign debt
contracts. Second, finding an acceptable proxy for odiousness would be no
easier for courts than for an international agency.
As many have noted, claims about the content of customary international
law, especially regarding the human rights that individuals enjoy against states,

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have exploded in the last quarter century." Because these claims rest largely on
the views of politically insulated expert jurists rather than of politically
accountable governments or legislatures, the centrifugal pressure to expand
customary international law's domain (and thus of the experts) is great, and the
centripetal pressures are essentially nonexistent. A judge seeking to consult the
invisible college about the content of human-rights law to determine what
qualifies as odious would find a wealth of opinion but no clear and determinant
core.
The indeterminate nature of customary international law is not just a
general problem, but one that affects the odious debt doctrine specifically. One
can find, for example, reputable authorities that regard repression and murder
as sufficient, but by no means necessary, to label a regime as odious. These
commentators also appear to regard any loan made to such a regime as at least
presumptively odious, no matter what the nominal project.' Many of the
current proponents of the doctrine make arguments that echo those of the New
International Economic Order of the 1970s, which challenged the capacity of
postcolonial regimes ever to enter into binding commitments with powerful
institutions of the developed world. 5 Experts question the economic choices of
any regime, especially in the developing world, that fails to address
environmental concerns, the interests of indigenous peoples, or the rights of
workers. If odiousness is determined in light of these views, then much of
sovereign borrowing, both past and future, carries enforcement risk. Yet
expanding the scope of odiousness-a process that seems inevitable if
customary international law is to do the work-erodes the supposed benefits of
a separating equilibrium that the doctrine hypothetically would create.
The central problem is that once a court puts customary international law in
play, it is difficult to find a midpoint between the divergent positions that the
state-actor and invisible-college conceptions indicate. By focusing on
authoritative official actions that entail real costs, a decisionmaker might
conclude that only regimes and uses subject to Security Council sanctions count
as odious. By focusing on the positions of publicists, a decisionmaker might find
fault with many regimes past and present and all or most of their borrowing.
The first outcome may seem too stringent, while the latter opens up too many

43. Bradley & Goldsmith, supra note 5, at 839-40.

44. E.g., Chris Jochnick, The Legal Case for Debt Repudiation, in SOVEREIGN DEBT AT THE
CROSSROADS, supra note 21, at 133, 147.
45. See A NEW INTERNATIONAL ECONOMIC ORDER: SELECTED DOCUMENTS 1945-1975 (2 vols.)
(Alfred George Moss & Harry N.M. Winton eds., 1977); THE NEW INTERNATIONAL ECONOMIC
ORDER: THE NORTH-SOUTH DEBATE (Jagdish N. Bhagwati ed., 1977); OSWALDO DE RIVERO B.,
NEW ECONOMIC ORDER AND INTERNATIONAL DEVELOPMENT LAW (1980); THE CHALLENGE OF
THE NEW INTERNATIONAL ECONOMIC ORDER (Edwin P. Reubens ed., 1981); FOREIGN TRADE IN
THE PRESENT AND A NEW INTERNATIONAL ECONOMIC ORDER (Detlev Chr. Dicke & Ernst-Ulrich

Petersmann eds., 1988); Seymour J. Rubin, Economic and Social Human Rights and the New
InternationalEconomic Order, 1 AM. U. J. INT'L L. & POL'Y 67 (1986); Burns H. Weston, The Charter
of Economic Rights and Duties of States and the Deprivation of Foreign-Owned Wealth, 75 AM. J. INT'L

L. 437 (1981).

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possibilities. Yet the optimal midpoint lacks support in either conception. Many
murderous and repressive regimes have not faced Security Council sanctions.
And many flawed, but not truly appalling, regimes have been excoriated by the
invisible college. Debates about what kinds of projects further the general
welfare are equally open-ended.
VII
CONCLUSION

Several conclusions result from this analysis. First, legislators hypothetically

could adopt ex ante rules to guide future sovereign debtors. For example, either
the United States or the United Kingdom reasonably might amend its statutory
law of sovereign immunity to block enforcement of sovereign-debt obligations
in cases that satisfy a narrow and clear definition of odiousness. A precedent of
sorts (as a mirror) exists in the 1996 amendment to the U.S. Foreign Sovereign
Immunities Act, which lifted immunity for certain acts of terrorism and other
gross human-rights abuses.46 States might extend immunity to debts incurred by
prior regimes that engage in comparable misconduct. The sanctions regime of
Title III of the Helms-Burton legislation, which provides a cause of action
against persons who "traffick" in property seized by the Cuban government as
part of its revolution but also eliminates this action once the U.S. president
determines that Cuba has enjoyed a democratic restoration, also provides a
model for this hypothetical legislation.47 The adoption of such rules, of course,
would have no bearing on the Iraqi debt, absent a constitutionally dubious
attempt to apply such legislation retroactively. Moreover, that models exist does
not mean that adoption of such a statute, or perhaps the negotiation of a U.K.U.S. treaty that did the same kind of work, is desirable. The difficulties-in
particular, agency issues and potential chiseling-remain.
Second, judicial efforts to achieve this outcome in advance of any legislation
present substantial drawbacks. They could increase the cost of transition away
from authoritarian and repression regimes, for successors regimes would have
difficulty credibly committing either to the honoring of past obligations or to
not backsliding on their own human-rights obligations. A general rise in the cost
of credit to developing-country sovereigns seems a more likely outcome than
either the establishment of a separating equilibrium between good and bad
regimes or increased pressure on lenders not to prop up dictators.
Ultimately, the odious debt issue illustrates the limits of what international
law can do. Not all collective-action problems are soluble through formal legal
intervention at an acceptable cost. The bottom-up, case-by-case, fact-specific
methodology that customary international law employs is a particularly

46. Antiterrorism and Effective Death Penalty Act of 1996, 221(a)(1), Pub. L. No. 104-132, 110
Stat. 1214 (codified at 28 U.S.C. 1605(a)(7)).
47. Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, 302(h)(1)(B), Pub. L. No. 104114, 110 Stat. 788 (codified at 22 U.S.C. 6082(h)(1)(B)).

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unsatisfactory way of attacking this problem. Recognition that international law

does not always supply a solution should not be mistaken for a rejection of its
function or value. There are other ways to attack bad regimes that do bad things
and those who underwrite their misdeeds. For example, the spread over the last
decade of anticorruption regimes, which motivate competition among states to
prosecute each other's multinational companies for inducing governments to
disregard the public interest, points to one promising approach. But undoing
the bounds of contract is not the answer.

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