If a private creditor gives a loan to a private person, knowing that the money is used to
finance a crime, a civil court would declare the credit contract as nil and void. Contract
law provides legal rules such as „void for illegality“ and principles of “good faith“ or
“boni mores” to deal with such odious debts. This level of civilization achieved in
private law has never been reached in international relations. If a sovereign state takes
up an international credit to finance an aggressive war, an apparatus of oppression or
to channel the money into the private coffers of office holders the rule of succession
requires that a subsequent government has to honor the debt. This applies even if the
creditor was aware of how the money was used and no matter what hardship this
implies for the people in the debtor country. There are exceptions to this rule, which
states treat like black boxes. After the Spanish Cuban war of 1898 independent Cuba
was forgiven the debt from Spanish Government bonds, as they were odious as stated
in the peace treaty between the USA and Spain. The same argument applied for
German bonds used in territories, which became part of the new Republic of Poland
after World War I. And after the dethronement of Saddam Hussein in Iraq creditors
forgave most of their debts to Iraq under heavy political pressure from the IMF and the
USA. However, these cases -regardless of how legitimate the outcomes may be- reflect
not so much decisions based on the rule of law but more the distribution of power after
a war. South Africa was not forgiven any of its international debts, even though some
of the money financed apartheid and everybody knew it. South Africa after apartheid
did not want to agonize creditors and a judicial routine to cope with the problem did
not exist. When it comes to odious debts international relations are better
conceptualized by an analysis of the Hobbesian state of nature than by a concept of
law, based on fair rules and principles.
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