A CRITIQUE OF THE ODIOUS DEBT DOCTRINE

I INTRODUCTION The western liberal states have practical and humanitarian interests in preventing other states from being taken over by dictators and in encouraging democratic reform in existing dictatorships. Dictatorships often mistreat and impoverish their own citizens and commit atrocities. Dictatorships also produce refugee crises, fight with their neighbors, and provide havens for terrorists. Because dictatorships rarely enjoy the broad support of their own citizens, they are vulnerable to insurgencies and civil war. Yet liberal states have taken an ambivalent attitude toward dictatorships. On the one hand, governments of liberal states make clear that they disapprove of dictatorships and usually subject them to diplomatic pressure. Particularly bad dictatorships may be subject to sanctions of various sorts, including economic sanctions; and some are subverted or attacked. Recent examples include the invasion of Iraq, the intervention in Kosovo, the sanctions imposed on Sudan, and the long-running sanctions on Cuba. Only in rare instances are dictators prosecuted for their crimes. On the other hand, western governments also frequently cooperate with dictatorships. They authorize trade, including the sale of weapons; they authorize private investment; they even give foreign aid to the dictatorships. Indeed, cooperation is the more common practice. China, Russia, Egypt, Saudi Arabia, and many other authoritarian states that routinely abuse their citizens are permitted to join international organizations, enjoy liberal trading relationships with the western powers, and in some cases receive foreign aid. During the Cold War, the United States and its allies supported dictatorships that took a hard line against the Soviet Union. This ambivalence reflects the conflicting interests of western states. They have humanitarian and strategic interests in encouraging democracy and respect for human rights; but they also strong stragetic interests in trading, entering military alliances, and in other ways cooperating with dictatorships, especially powerful dictatorships. Indeed, even humanitarian reasons can be given for such cooperation; it is often argued that engagement is more likely to lead to reform than isolation, and in any event it is often the case that western powers need the assistance of dictatorships in order to perform humanitarian missions. For example, China and Russia wield vetoes on the United Nations Security Council, so any lawful humanitarian military intervention needs their permission, which they are likely to withhold if they believe that western states seek to isolate them. These complexities suggest that liberal states will usually have to take a flexible approach to dictatorships--constantly adjusting the degree of cooperation or isolation in response to events. States need to take account not only of liberalizing tendencies, which they will want to reward; they also have to keep in mind the extent to which a dictatorship may become more or less important for its strategic interests. A government that tries to isolate Syria because of its terrorist ties might end up needing to cooperate with it in order to resolve the conflict in Iraq. (1) States also worry that the sanctions they impose might fail to dislodge the dictator while imposing hardship on the public--the opposite of their purpose. The sanctions on Iraq from 1993 to 2003 had just this effect. (2) It is thus not surprising that empirical studies of sanction regimes suggest that they usually fail to accomplish the ends of the states that imposed the sanctions. (3) Frustrated with the limited success of sanction regimes, some scholars and advocates argue that sanctions should be legalized--that is, sanctions should be required by international law when certain conditions are satisfied, rather than imposed episodically on the basis of political considerations. Current interest focuses on the odious debt doctrine, which provides that a successor regime is not responsible for paying the debts of a prior regime if those debts were incurred by an authoritarian government and used to enrich it officials rather than to benefit the public. …