Committee for the Abolition of Illegitimate Debt

Defects of consent

The 1969 Vienna Convention on the law of treaties and the 1989 Vienna Convention on the law of treaties between States and International Organizations point to various defects of consent that can result in the loan agreement being void, among which are included:

 absence of competence in a contracting party [3]. For instance, this violation was the legal motivation for Paraguay repudiating a debt amounting to USD 85 million in 2005. Indeed the Consul of Paraguay in Geneva who had signed the loan in the name of its government had no legal power to contract a loan with the private bank Overland Trust Bank [4] ;

 direct or indirect corruption of a contracting party during negotiations [5]. An example could be contracts signed between Greece and the TNC Siemens, which has been charged by the German and Greek justice with paying Greek political, military and administrative officers commissions and bribes amounting to about one billion euro ;

 coercion [6] through acts or threats of a contracting party. Coercion was used by the French in 1824 to force Haiti to pay a colossal ransom for the recognition of its independence. To this end thirteen French vessels with 494 cannons surrounded the island’s coasts with clear instructions: in case of refusal ports were to be closed by force. Coercion also raises the issue of a political balance Balance End of year statement of a company’s assets (what the company possesses) and liabilities (what it owes). In other words, the assets provide information about how the funds collected by the company have been used; and the liabilities, about the origins of those funds. of power that is favourable to creditors. Indeed when there is a lack of balance beteween the contracting parties, debtors’ freedom to negotiate is restrained, while creditors can have their way. This is how in 2010 the Greek government was under the pressure of the French and German authorities that wanted to guarantee their arms exports. The military-industria lobby Lobby
Lobbies A lobby is an entity organized to represent and defend the interests of a specific group by exerting pressure or influence on persons or institutions that hold power. Lobbying consists in conducting actions aimed at influencing, directly or indirectly, the drafting, application or interpretation of legislative measures, standards, regulations and more generally any intervention or decision by the Public Authorities. managed to maintain an almost intact defence budget while the PASOK government agreed to major cuts in social expenditure ;

 fraud [7]. If a State was led to contract a loan through the fraudulent conduct of another State or of an international organization that participated in the negotiations, it can point to fraud as invalidating its consent to be bound by the said contract. We can describe as fraudulent the acts of the IMF IMF
International Monetary Fund Along with the World Bank, the IMF was founded on the day the Bretton Woods Agreements were signed. Its first mission was to support the new system of standard exchange rates.

When the Bretton Wood fixed rates system came to an end in 1971, the main function of the IMF became that of being both policeman and fireman for global capital: it acts as policeman when it enforces its Structural Adjustment Policies and as fireman when it steps in to help out governments in risk of defaulting on debt repayments.

As for the World Bank, a weighted voting system operates: depending on the amount paid as contribution by each member state. 85% of the votes is required to modify the IMF Charter (which means that the USA with 17,68% % of the votes has a de facto veto on any change).

The institution is dominated by five countries: the United States (16,74%), Japan (6,23%), Germany (5,81%), France (4,29%) and the UK (4,29%).
The other 183 member countries are divided into groups led by one country. The most important one (6,57% of the votes) is led by Belgium. The least important group of countries (1,55% of the votes) is led by Gabon and brings together African countries.

http://imf.org and of the World Bank World Bank
WB The World Bank was founded as part of the new international monetary system set up at Bretton Woods in 1944. Its capital is provided by member states’ contributions and loans on the international money markets. It financed public and private projects in Third World and East European countries.

It consists of several closely associated institutions, among which :

1. The International Bank for Reconstruction and Development (IBRD, 189 members in 2017), which provides loans in productive sectors such as farming or energy ;

2. The International Development Association (IDA, 159 members in 1997), which provides less advanced countries with long-term loans (35-40 years) at very low interest (1%) ;

3. The International Finance Corporation (IFC), which provides both loan and equity finance for business ventures in developing countries.

As Third World Debt gets worse, the World Bank (along with the IMF) tends to adopt a macro-economic perspective. For instance, it enforces adjustment policies that are intended to balance heavily indebted countries’ payments. The World Bank advises those countries that have to undergo the IMF’s therapy on such matters as how to reduce budget deficits, round up savings, enduce foreign investors to settle within their borders, or free prices and exchange rates.

considering the abyssal gap between their discourse and reality. Indeed in article 1 of its statutes the IMF defines one of its main purposes as to facilitate the expansion and balanced growth of international trade, and to contribute thereby to the promotion and maintenance of high levels of employment and real income and to the development of the productive resources of all members as primary objectives of economic policy [8]. In fact this institution, in coordination with the WB, does exactly the opposite and thus violates its own statutes. Unemployment steadily increases as a consequence of implementing measures that were recommended by the IMF and/or the WB. We can also notice a frequent diminution in the incomes of wage earners, small producers and the lower middle class. Not to mention widening social discrepencies in most countries where these institutions have been active [9].

Illicit or immoral cause of the contract

This legal ground can be found in the civil or commercial national law of several countries. Among the illicit or immoral causes invalidating a loan contract we find:

 the acquisition of military equipment. Article 26 of the 1945 Charter of the United Nations specifies that States have to regulate arms trade and limit to a minimum the resources they dedicate to military expenditure. Now we know that military expenditure increases globally year after year in violation of the UN Charter;

 tied aid. Confronted as they were with massive recession and unemployment in the 1970s, rich countries decided to give purchasing power to the countries of the South so as to prompt them to buy goods produced in the North by granting them state to state loans, often in the form of export credits: this is called tied aid. For the borrowing countries it results in a significant increase in the cost of purchased goods and services and higher levels of indebtedness. According to a survey by the WB, from 1962 to 1987 African countries paid more for imported steel products than industrialized countries (up to 23 % more in the case of France ). This practice is all the more illegitimate as in most cases those tied loans do not meet the actual needs of the country but the commercial interests of the creditor. This motivated Norway to unilaterally and unconditionally cancel the debts of five countries, namely Ecuador, Egypt, Jamaica, Peru, and Sierra Leone in 2006 ;

 financing conditioned to structural adjustment Structural Adjustment Economic policies imposed by the IMF in exchange of new loans or the rescheduling of old loans.

Structural Adjustments policies were enforced in the early 1980 to qualify countries for new loans or for debt rescheduling by the IMF and the World Bank. The requested kind of adjustment aims at ensuring that the country can again service its external debt. Structural adjustment usually combines the following elements : devaluation of the national currency (in order to bring down the prices of exported goods and attract strong currencies), rise in interest rates (in order to attract international capital), reduction of public expenditure (’streamlining’ of public services staff, reduction of budgets devoted to education and the health sector, etc.), massive privatisations, reduction of public subsidies to some companies or products, freezing of salaries (to avoid inflation as a consequence of deflation). These SAPs have not only substantially contributed to higher and higher levels of indebtedness in the affected countries ; they have simultaneously led to higher prices (because of a high VAT rate and of the free market prices) and to a dramatic fall in the income of local populations (as a consequence of rising unemployment and of the dismantling of public services, among other factors).

IMF : http://www.worldbank.org/ . As claimed by special rapporteur Mohammed Bedjaoui in his draft article on succession in respect of State debts for the 1983 Vienna Convention: From the standpoint of the international community, an odious debt Odious Debt According to the doctrine, for a debt to be odious it must meet two conditions:
1) It must have been contracted against the interests of the Nation, or against the interests of the People, or against the interests of the State.
2) Creditors cannot prove they they were unaware of how the borrowed money would be used.

We must underline that according to the doctrine of odious debt, the nature of the borrowing regime or government does not signify, since what matters is what the debt is used for. If a democratic government gets into debt against the interests of its population, the contracted debt can be called odious if it also meets the second condition. Consequently, contrary to a misleading version of the doctrine, odious debt is not only about dictatorial regimes.

(See Éric Toussaint, The Doctrine of Odious Debt : from Alexander Sack to the CADTM).

The father of the odious debt doctrine, Alexander Nahum Sack, clearly says that odious debts can be contracted by any regular government. Sack considers that a debt that is regularly incurred by a regular government can be branded as odious if the two above-mentioned conditions are met.
He adds, “once these two points are established, the burden of proof that the funds were used for the general or special needs of the State and were not of an odious character, would be upon the creditors.”

Sack defines a regular government as follows: “By a regular government is to be understood the supreme power that effectively exists within the limits of a given territory. Whether that government be monarchical (absolute or limited) or republican; whether it functions by “the grace of God” or “the will of the people”; whether it express “the will of the people” or not, of all the people or only of some; whether it be legally established or not, etc., none of that is relevant to the problem we are concerned with.”

So clearly for Sack, all regular governments, whether despotic or democratic, in one guise or another, can incur odious debts. could be taken to mean any debt contracted for purposes that are not in conformity with contemporary international law and, in particular, the principles of international law embodied in the Charter of the United Nations [12]. In this respect multilateral debts contracted in the context of structural adjustments are odious and therefore illicit debts since the damaging nature of such policies has been abundantly shown, notably by UN bodies. Conditionalities atached to these debts manifestly violate various texts on protection of human rights. Surrender of the sovereignty of States is further aggravated by dispositions in most international loan contracts that stipulate that jurisdictions in the North are competent and that rules favourable to creditors have to be applied in case of dispute among contracting parties. In Ecuador the Commission of integral audit of public debt (CAIC) highlighted that the enforcement of policies by the World Bank and other multilateral institutions via programmes they have financed and conditionalities attached to loans means denying state soveneighty and interfering into its internal affairs. Many multilateral loans also violate economic, social and cultural rights. In its recommendations the CAIC proposes to stop paying several debts cliamed by multilateral institutions ;

 projects that are either unprofitable or detrimental to populations or to the environment. Included amongst these projects are « white elephants », such as the Inga dam in the DRC (ex-Zaïre) which has been of no benefit to the population whatsoever: to date, less than 10 % of the Congolese population has access to electricity. Examples of debt generating projects are equally common in the north. We can cite the scandal of the 2004 Olympic games in Greece, to name but one. Although the Hellenic authorities foresaw expenditure in the range of 1.3 billion dollars, the cost of these games in fact exceeded 20 billion dollars ;

 private debt transformed into public debt. The financial crises which occured during the 90s in south east Asia, Equador, Argentina, Brazil and Russia originated from measures extolled by the World Bank and the IMF, who impose the deregulation of the financial system and the prohibition of State control of the movement of capital. The result is that as a consequence of the reduction in the profits perspective, foreign capital has fled from these countries, causing a chain reaction of bankruptcy of banks. The debts of these private banks then became the public debts of States under the impetus of those responsible for these crises: the World Bank and the IMF. The world crisis, which erupted in 2007, aggravated the situation with regard to public finances and accrued the level of public debt (mainly in the north), so that banks in the north intervened in order to save the banks that had gone into bankruptcy. The cause of this public indebtedness in the south and in the north (linked to the nationalisation of debts in the financial sector) is, at the very least, immoral, given that those directly responsible for these crises are international financial institutions and private banks. The staggering increase of this public debt is also the result of neoliberal politics practiced during the 80s and 90s, the main characteristics of which were to reduce the taxes of the rich and of large companies. The State revenue was no longer sufficient and it was necessary to resort to public debt in order to finance the State’s expenditure. In Equador the CAIC condemned the transfer of private debts to the State, which occured in 1983 and 1984 under pressure from the IMF and the World Bank, while the country was crippled by a severe financial crisis. After this operation, which was extremely damaging to the nation, was made public, the new Constitution of Equador, adopted in September 2008, expressly forbade the transformation of private debts into State debts ;

 the repayment of old illegal loans. According to the judicial argument regarding continuity of an offence, an illicit debt does not cease to be illegal following a renegotiation or restructuration process. To this effect, it retains its original vice and the offence lasts through time. Consequently, all public loans aimed at repaying old illegal debts are themselves illicit. The debt audit will allow light to be shed on the original illegal debt. For example, the argument of continuity of an offence has been used by the Audit commission in Equador (CAIC) to denounce the numerous irregularities (since the socialisation of private debts, of the Brady Plan [13] and of the restructuration of debts… [14]) which has led to the issuing of bonds for the commercial debt. Based on the audit results, the Equadorian authorities refused to pay this commercial debt to private international banks (« Global 2012 and 2030 » bonds). In June 2009, after a showdown with the bankers who held the titles of the Equadorian debt, the holders of 91% of the bonds in question accepted their repurchase by Equador at a reduction of 65% of the nominal value;

 the repayment of debts already paid. The obligation of a state to honor its debts is notably limited by broad legal principles, such as equity Equity The capital put into an enterprise by the shareholders. Not to be confused with ’hard capital’ or ’unsecured debt’. , good faith, abuse of rights or the accumulation of wealth without cause. Yet the debts of developing countries have been repaid several times over: according to the statistics provided by the World Bank, the governments of developing countries have already repaid the equivalent of 98 times of what they owed in 1970, but in the meantime their debt has been multiplied 32 times. This implies that developing countries have the right to repudiate their debt and reclaim what has been unduly taken by their debtors, on the basis that they have been accumulating wealth without cause. This is also the stance taken by several national civil codes: the Argentinian civil code in articles 784 and those following, the Spanish civil code in articles 1895 and those following, the French civil code in articles 1376 and those following. Developing countries, but also countries in the north, are trapped in a vicious circle in which they borrow each year in order to be able to meet their repayments. This situation is namely the consequence of the brutal and unilateral increase in interest rates Interest rates When A lends money to B, B repays the amount lent by A (the capital) as well as a supplementary sum known as interest, so that A has an interest in agreeing to this financial operation. The interest is determined by the interest rate, which may be high or low. To take a very simple example: if A borrows 100 million dollars for 10 years at a fixed interest rate of 5%, the first year he will repay a tenth of the capital initially borrowed (10 million dollars) plus 5% of the capital owed, i.e. 5 million dollars, that is a total of 15 million dollars. In the second year, he will again repay 10% of the capital borrowed, but the 5% now only applies to the remaining 90 million dollars still due, i.e. 4.5 million dollars, or a total of 14.5 million dollars. And so on, until the tenth year when he will repay the last 10 million dollars, plus 5% of that remaining 10 million dollars, i.e. 0.5 million dollars, giving a total of 10.5 million dollars. Over 10 years, the total amount repaid will come to 127.5 million dollars. The repayment of the capital is not usually made in equal instalments. In the initial years, the repayment concerns mainly the interest, and the proportion of capital repaid increases over the years. In this case, if repayments are stopped, the capital still due is higher…

The nominal interest rate is the rate at which the loan is contracted. The real interest rate is the nominal rate reduced by the rate of inflation. by the United States in 1979, the application of usurious interest Interest An amount paid in remuneration of an investment or received by a lender. Interest is calculated on the amount of the capital invested or borrowed, the duration of the operation and the rate that has been set. rates or of the capitalisation of interest (anatocism), which is moreover prohibited or strictly controlled in several national judicial orders, for example in Équador, France, Italy, Germany…

Illicit use of lent money

The destination of borrowed funds is a determining factor when it comes to deciding on the legality of a debt. For this it is necessary to examine the nature of the lending regime, its behavior in terms of human rights, as well as the actual allocation of these funds. To this effect the following cases are deemed to be illegal:

 debt born of colonialisation. During the 50s and 60s the World Bank granted several loans to colonial metropolis nations, such as Belgium, France, Portugal and Great Britain, for projects that permitted them to maximize the exploitation of their colonies. The majority of these debts of colonial power issued by the World Bank were subsequently transferred to the ex colonies at the moment of their independence in the 60s, without their consent. Yet these debts arising from colonialization are void in the eyes of international public law. The Treaty of Versailles of 1919 states in article 255 that Poland is exonerated from paying « the fraction of the debt of which the Reparation Commission attributes the origin to measures taken by the German and Prussian governments for German colonialization of Poland ». A similar stance was taken in the 1947 peace treaty between Italy and France, which declares « inconceivable that Ethiopia should take on the burden of debts contracted by Italy in order to assure her domination of the Ethiopian territory ». Article 16 of the Vienna Convention of 1978 which governs the law of the Treaties does not say anything different : « A newly independent state is not under obligation to maintain a valid treaty nor to be party to it merely because on the date of succession of States the treaty was valid with regard to territory referred to in the succession of States» ;

 loans granted to dictatorships. The dictatorial nature of a regime under which a debt has been contracted allows its repayment to be challenged, even if the State representative who has concluded the loan had the competence to do so, by virtue of internal state law. In effect, in international law, debts contracted under dictatorships take on the qualification « odious debt », according to the doctrine of the same name written by Alexander Sack in 1927 : « If a despotic power contracts a debt not for the needs and in the interests of the State, but in order to strengthen his despotic regime, to repress the population combatting it, etc, that debt is odious for the population of the entire state […]. This debt is not obligatory for the nation, it is a regime debt, a personal debt of the power that has contracted it, consequently it falls along with the fall of this power ». Alexander Sack adds that when the creditors of such debts are aware of the cause they are lending for, they « have committed a hostile act towards the people ; they cannot therefore assume that a nation liberated from a despotic power will take on the « odious » debts that are the personal debts of this power [15] ». The doctrine of the odious debt therefore gives scope for invalidating several loans such as those contracted by dictatorships in Latin America from the 60s to the 80s, in Africa, with the emblematic case of Mobuto’s Zaire (1965-1997), by former Soviet bloc regimes such as the dictatorship of Nicolae Ceaucescu in Roumania, the dictatorships of South East Asia and the Far East (Ferdinand Marcos from 1972 to 1986 in the Philippines, Mohamed Suharto from 1965 to 1998 in Indonesia, dictatorial regimes in South Korea between 1961 and 1981, in Thailand between 1966 and 1988), the military junta in Greece from 1967 to 1974, the dictatorships in North Africa which fell at the beginning of 2011, such as that of Zine el-Abidine Ben Ali in Tunisia (1987-2011) and Hosni Moubarak in Egypt (1981-2011). Commenting on this doctrine of odious debt, legal counsellors of the First National Bank of Chicago point out that « the consequences for the loan agreements of a change of sovereignty partly depend on the use of the funds by the former State. If the predecessor’s debt has been qualified as « odious », in other words, if the funds have been used against the population, the successor cannot be made responsible for the debt » and adds that « commercial banks have to be on their guard about this doctrine [...] because succeeding governments have invoked doctrines based on the « odious » or « hostile » use of funds. The lenders should describe in detail the use to which the lent funds shall be put and, as far as possible, involve the beneficiary in the representation, guarantee and surveillance of the use of said funds [16] » ;

 loans to supposedly “democratic” regimes which violate jus cogens . All debt contracted by governments violating the imperative norms of international law as per jus cogens are also null and void, without it being necessary to prove that the creditors intended to become complicit in the exactions of these regimes. This assertion is upheld by the Vienna Convention on the 1969 Law of Treaties, which, in its Article 53, provides for the nullity of acts contravening jus cogens, bringing together, amongst others, the following norms: the prohibition of waging aggressive war, the prohibition of practicing torture, the prohibition of committing crimes against humanity, and the right of peoples to self-determination. As such, any loan granted to a regime that does not respect the fundamental principles of international law, whether democratically elected or not, is null. For example, we can cite the regime of Apartheid in South Africa or the Israeli Government. In this case, the destination of the loan is not requisite in classifying the debt;

 loans misused with the complicity of the creditors. The Odious Debt Doctrine also touches on this category: “loans incurred by members of the government or by persons or groups associated with the government to serve interests manifestly personal — interests that are unrelated to the interests of the State.” Indeed, “debts must be contracted and the ensuing funds must be used for the needs and in the interests of the State.” In order to illustrate this aspect of the doctrine, we can cite the arbitral award handed down in 1923 in a case between the United Kingdom and Costa Rica. In 1922, Costa Rica enacted a law annulling all contracts passed by the former dictator Federico Tinoco between 1917 and 1919, and thus refused to honor the debt that it had contracted from the Royal Bank of Canada. This was therefore a case in which the doctrine was applied to a commercial debt. The ensuing dispute between the UK and Costa Rica was arbitrated by the President of the Supreme Court of the United States, Justice William Howard Taft, who declared that the decision of the Government of Costa Rica was valid, highlighting: “The case of the Royal Bank depends not on the mere form of the transaction but upon the good faith of the bank in the payment of money for the real use of the Costa Rican Government under the Tinoco regime. It must make out its case of actual furnishing of money to the government for its legitimate use. It has not done so. More recently, the CAIC in Ecuador demonstrated that certain loans had been deviated from their original “development” aims. Indeed, three loans from the Inter-American Development Bank (IDB), which were supposedly intended to benefit the agricultural, financial and transport sectors, were partially used to purchase Brady Bonds.

For unilateral action against illegitimate debt

There is no absolute obligation to repay debts under international law. By contrast, international law does require state authorities to protect human rights as a priority. Given the burden of sovereign debt Sovereign debt Government debts or debts guaranteed by the government. and the impact of austerity measures on the populations of the Global North and South, governments must use their right to unilaterally suspend the repayment of their national debt, following the example of Argentina (in 2001), and Ecuador (in 2008); the latter having done so partially. During this period of debt-payment suspension (with a freeze on interest rates), it would be in the interest of these governments to audit their sovereign debt, both internally and externally, in order to identify any irregularities tarnishing loan contracts. They can then call upon the provisions of public international law (amongst others) in order to unilaterally declare the nullity of any illicit debts, as Paraguay did recently, in 2005. This example is not an isolated case. Throughout history, many governments have refused to repay debts inherited from preceding regimes, arguing that this debt was only bound to the regime in question, and not to the State [17].

These unilateral actions do not contravene international law, as the sovereign decision to annul/repudiate debt does, indeed, come under the category of unilateral actions, which are sources of international law and can be used against creditors [18]. The CADTM is, of course, in favour of this type of unilateral action to protect human rights.

In this respect, initiating international arbitration on debt is not desirable. Indeed, this mechanism can only be fair and effective if human rights take precedent over creditors and if the people are not confined to the simple role of “witness”. However, the current political balance of power in favour of creditors threatens being detrimental to the peoples of the Global South and North. The rules of procedure underpinning arbitration and subsequent rulings are the result of negotiations between creditors and debtors. In this context, the legal notions that we have put forward would certainly not be accepted by the majority of creditors. We will, of course, recall the hostility of the World Bank toward the Odious Debt Doctrine in its report published in September 2007, entitled “Odious Debt: Some Considerations [19].” The same is true for other legal arguments such as the unfounded accumulation of wealth, wilful misrepresentation, the misuse of powers, equity, good faith, etc.

Beyond the controversy over the notions of “odious debt” and “illegitimate debt,” the quasi-general hostility of creditors toward establishing a link between debt and human rights should be noted. Here we can refer to an interview with the current UN Independent Expert on Foreign Sovereign Debt, held in 2009: “the States of the North believe that the debt problem is in no way related to human rights, that it is purely economic, and that it should therefore be dealt with outside of the Human Rights Council and the UN General Assembly […] The opinions of the officials of the World Bank with whom I have consulted differ on this matter. Some categorically refute a human-rights-based approach in order to only consider the economic aspects of debt [20].”

Therefore, if an arbitration action were to be initiated, the people would certainly be the losing party. This is because, on the one hand, the ensuing ruling would risk legitimising debts classified as “odious” and “illegitimate” by the social movements or governments that had identified them as such via an audit. The government of the indebted country would then be bound by the ruling and thus have to repay these debts to the detriment of the fundamental needs of its population. On the other hand, these rulings would constitute international jurisprudence, which would serve as a source of inspiration when ruling on future actions. When applied in this way, to the benefit of creditors owing to the current political balance of power, these rules would not favour “responsible” lending policies.

For all of these reasons, it would therefore be in the interest of these governments to take immediate, unilateral action on debt. This aligns with the example of the jurists in attendance at the 1^st International Conference of Jurists held in Quito in 2008: “We support the sovereign actions of States which, on legal grounds, declare the nullity of illicit and illegal national debt instruments and with it the suspension of payments. [21]” The classification used (“illicit debt” or “illegitimate debt”) is of little relevance, we call on all borrowing governments, and also lending governments, to repudiate/annul all debts and austerity policies that are not in the interests of the population.

This is why the CADTM is also encouraging legislative initiatives and referendums against laws, regulations or agreements that are contrary to popular sovereignty or the respect of fundamental rights, whether these are currently in force or under negotiation. Public consultations on the non-repayment of a debt, similar to the referendum held in Iceland on the “Icesave” Act , are another example of the mechanisms that must be promoted and of which the results must be heeded by state authorities [22].