On the surface, the two books under review seem to have little in common. The Bonnitcha/Poulsen/Waibel (BPW) book, written by two legal academics and a political scientist, provides a balanced, fact-grounded account of international investment agreements (IIAs) and investor-state dispute settlement (ISDS). This is the “international treaty regime” in that book's title which the authors argue needs to be distinguished from the broader “international regime complex” that their book explicitly does not address, namely the number of other international instruments that at least incidentally also protect foreign investments (including, for example, political risk insurance, tax treaties, certain World Trade Organization agreements, and certain human rights treaties like the European Convention on Human Rights (ECHR)) (p. 7 and Figure 1.2). As one of the encomiums on its back cover page suggests, the BPW book seeks to answer the fraught competing contentions of defenders and critics of the regime that all too frequently generate “more heat than light.” Their book dispassionately synthesizes the available legal, economic, and political literature relevant to understanding the investment treaty regime's oft-proclaimed “legitimacy crisis.” It seeks to supply lawyers needing political context and political scientists needing legal knowledge with the unfiltered facts required to assess whether such a “crisis” exists and, if so, what the ways forward might be.
Frank Upham's book, written by a law professor and sometime World Bank consultant, is, by contrast, a passionate, personal cri de coeur based on the author's own observations about the missteps committed by those who seek to advance economic development by advancing property rights. Unlike BPW, Upham has a decided point of view to advance. Upham challenges the widely accepted “fallacy” in his title, namely the contention by experts at places like the World Bank that economic development can only or best be secured by securing and enforcing (preferably in formal courts of law) stable property rights that resemble those in Western developed countries like the United States. Upham advances this argument not by surveying the wreckage of failed development efforts or by reassessing, as BPW might, the vast literature on property, development, or the interaction between the two to see which generalizable propositions are most likely correct. Instead, he uses five case studies on how property rights evolve in extremely different circumstances to demonstrate the flaws of believing that a single set of optimum property rules can plausibly apply to all states.
As suggested above, the two books address different subjects. BPW do not mention the development advice rendered by international financial institutions that Upham addresses; indeed, they relegate debt instruments issued by such institutions (a frequent vehicle for exporting property-cum-development advice) to the broader investment “complex” that their book explicitly does not study. For his part, Upham does not mention IIAs or ISDS or the abundant scholarly work addressing either. His focus is on how the work of certain scholars has been misinterpreted or simplified into the nostrum that formal rights to private property are simple straightforward engines of economic progress and desirable social change.
The two books also differ in their analytical approaches. Upham is the “splitter.”Footnote 1 As mentioned above, his book uses five case studies—in the UK, the United States, Japan, China, and Cambodia—to wage war on “lumpers” like Hernando de Soto whose influential The Other Path sought to justify a generally applicable recipe for development based on the recognition of formal property rights.Footnote 2 By his own account, Upham uses “the comparative and historical data of the case studies to deepen our real-life understanding of the role of property and property rights in changing societies” (p. 9). Upham resists the temptation to propound generalizable truths about the interplay between property rights and economic development. His approach, defiantly anecdotal, resists “general but abstract insight into social structure” (id.). His point is that there are no off-the-shelf best practices when it comes to protecting property. Upham's crucial insight is that property rights differ from place to place, culture to culture, and can be protected or destroyed by legislatures, courts, or the executive in order to promote rapid growth. Property rights are, he suggests, local and ought to remain so. Generalizations about what property should be protected—about which of its “bundles of sticks” ought to be preserved to the rightful owner—and about how and when that property should be protected—by legislative or executive action, judicial or other less formal process—are dangerous or misleading. He argues that “fetishizing property rights … mistakes ideology for reality,” that “the search for precision substitutes ordinal lists for local knowledge,” and that the ostensible need for “clear and secure property rights ignores history” (pp. 32–33). Upham argues that the property “fallacy” emerges from “physics envy” (p. 32), namely the erroneous premise that culturally contingent property rights evince replicable connections to development that can be found through rigorous economic analysis.
Bonnitcha and his coauthors aspire precisely to the scientific precision—the “physics envy”—that Upham disparages. The BPW book generally eschews reliance on subjective or select anecdotes on the premise that these have been weaponized by partisan critics and defenders of the investment treaty regime and have obscured serious inquiry. As compared to Upham, BPW are “lumpers” looking for eternal truths behind the welter of false facts. The questions their book addresses are lumpers’ questions; specific instances surrounding the conclusion of an IIA or particular ISDS rulings are used only to support those general propositions about the investment treaty regime that, in their view, any fair-minded observer would accept. BPW are less interested in whether, for example, an outlier case like Yukos v. Russia cost Yukos $80 million to arbitrate (p. 88), and more interested in the average or median costs of ISDS disputes (pp. 84–89 and Table 3.2 at p. 88) since the latter numbers are what should matter to an impartial assessment of whether ISDS is, as critics charge, too costly. Similarly, they are less interested in knowing whether the North American Free Trade Agreement (NAFTA) was a success story in terms of producing greater flows of foreign direct investment (FDI) into Mexico than in what is known about whether IIAs in general stimulate incoming FDI as defenders of the regime assert, and if so why.
The BPW book is all about comparing general premises against known fact, about connecting cause and effect to produce generalizable causal pathways. The book seeks to address, for example, whether developed states promoted IIAs for one of four core reasons (to promote business interests, to depoliticize investment disputes, to build customary international law, or for “diplomatic” or other “symbolic” reasons); whether developing states, for their part, accepted IIAs for any of three reasons (for investment promotion, to promote or tie in domestic reforms, or for their own “diplomatic” or “symbolic” reasons); and, most broadly, whether critiques of the investment treaty regime (e.g., whether IIAs undermine democracy or promote regulatory chill) are empirically verifiable and can be rationally explained. BPW seek to separate proven, preferably empirically based fact—based on studies that can, like the best scientific work, be replicated by fellow “lumpers”—from mere conjecture. They are careful to identify which propositions about the investment treaty regime are, given what is known, most likely true, false, or (in perhaps the greatest number of instances) thus far unproven—and therefore require further research.
The two books do not fall into rival “splitters”/“lumpers” camps by accident. Bonnitcha and his coauthors and Upham for his part each sees this analytical choice as critical to their respective enterprises—and to the credibility of what each book is trying to say.
Despite these differences in subject matter and analytical approach, both books achieve their respective purposes. Each is an extraordinary achievement that is a worthy contribution to the respective literatures on the investment treaty regime and the role of property rights in economic development. Moreover, perhaps because of their differences in choice of subject and approach, the books complement one another in unexpected ways. The next sections address the merits of each book, suggest what they have in common, and raise some broader questions.
I. The Merits of “Lumper” Generalizations
Despite an abundance of legal scholarship on the investment treaty regime, Bonnitcha and his coauthors manage the rare feat of providing relatively succinct descriptions that are not only helpful to non-lawyers seeking to understand the regime but useful reminders even to those familiar with IIAs and ISDS. Their book usefully surveys common assumptions that IIAs appear to share (namely that international investment flows increase prosperity, that enshrining property rights promotes them, and that treaty protections were critical to both) (pp. 8–11), while also providing a succinct compendium of the norms and rules IIAs contain (pp. 11–18, 93–121). The authors do a remarkable job of distilling from the formidable literature crucial distinctions between direct and indirect takings of property (pp. 104–08), along with the various interpretations given to fair and equitable treatment (FET) (pp. 108–13), umbrella clauses (pp. 113–15), and respondent state defenses (pp. 118–19). The book goes beyond most existing treatises and casebooks that focus only on the arbitral jurisprudence to provide valuable political context.
BPW look beyond what ISDS rulings say to document which investor rights in IIAs get the most traction (Tables 4.1 and 4.2 at p. 94) and to enumerate just how often MFN clauses have been used to import a substantive or procedural provision from another IIA (Table 4.3 at p. 99). The book provides data on which states are the most frequent respondents in ISDS (Table 1.2 at p. 27) and who are the most frequently appointed arbitrators (Table 1.4 at p. 29). The numbers on International Centre for Settlement of Investment Disputes (ICSID annulments (pp. 77–78), suggest that annulment is a relatively rare occurrence while known settlements after ICSID proceedings have been initiated are considerably more frequent than many probably assume (p. 79). These data points provide a solid basis to begin to compare the efficiency (and relative costs) of engaging in ISDS as opposed to resorting to civil actions in national courts (pp. 84–89 and Table 3.2 at p. 88). As this last point suggests, unlike a great number of specialized texts on investment law, the BPW book addresses ISDS in the context of other mechanisms to resolve investment disputes (from mediation to national courts to other specialized judicial bodies like the European Court of Human Rights (ECtHR)).
Despite the brevity with which BPW deal with the vast amount of data and theoretical speculation that the investment treaty regime has generated, their book evinces admirable nuance. Their discussion of the relative costs and duration of ISDS disputes and civil actions in national courts, for example, does not shortchange the complexity of either mode of dispute settlement but recognizes the hazards of such comparisons as well as the substantial differences among different types of disputes and among national courts (see, e.g., Table 3.4 at p. 91, enumerating the average length of civil litigation in a number of countries). When Bonnitcha and his coauthors reach outside ISDS for other comparisons, they are similarly aware of the hazards. Thus, even the authors’ brief mention of the possibility of property claims in the ECtHR breaks down the frequency of such claims among European states, thereby suggesting that property claims differ widely even when considered a “human” and not just an “investor” right (see, e.g., Figure 3.2 at p. 85). The book's five-page summary of what we know about the “economic impact of foreign direct investment” acknowledges the “large and heterogeneous” literature, refuses to draw easy conclusions, accepts that the positive spillovers of FDI vary considerably depending on host country characteristics and the industry involved, and cautions against the negative spillovers that are likely to emerge in the wake of investments in the extractive sector (pp. 46–49).
Nor is the BPW book merely a solid survey of existing scholarship and data. True to their aspiration to seek not only to “synthesize” the existing literature but to “push [it] forward” (p. 2), Bonnitcha and his coauthors go beyond the existing scholarship by casting doubt on a number of widely accepted theories. The book shines in providing an exceedingly careful but critical look at what many consider to be the core purpose of IIAs, namely the premise that these treaties are needed to readdress the “obsoleting bargain” struck between foreign investor and host state. BPW examine whether the available data supports the premise that foreign investors lose their leverage once they invest and are subject to being “held up” by their host states. They suggest many reasons why such “hold ups” are not prevalent in practice, point out that to the extent the problem exists at all, its seriousness varies among states and industries, and contend that, in any case, existing IIAs are not particularly well designed to address the problem (pp. 128–37). For those who want to expose their students to a critical analysis of IIAs, this section alone merits assigning this book to supplement more traditional texts.
The authors do an equally good job of debunking Andrew Guzman's widely cited view that developing states individually entered into IIAs at the same time that they were attempting to negotiate as a group the New International Economic Order (NIEO) at the UN, thereby casting doubt on the assumption that the rise of IIAs was largely the product of a “prisoner's dilemma” (pp. 210–15).Footnote 3 They also poke holes in Stephan Schill's widely cited proposition that the effect of, among other things, MFN clauses and forum shopping among IIAs, has been the multilateralization of the investment regime (pp. 55–56).Footnote 4 The authors also credibly survey what we know about whether the conclusion of IIAs leads to increases in the flows of FDI. They provide an impressive enumeration of the (thirty-five!) quantitative studies purporting to examine that question and provide a bracing (if short) synthesis regarding what these studies may mean (Table A.6.1 at pp. 179–80). BPW contend that those who assert that IIAs promote incoming FDI flows rely essentially on two causal mechanisms, namely that IIAs enable their state parties to provide more solid commitments to foreign investors or that IIAs serve as a welcome signal to them (pp. 155–80). Unlike many critics of the regime who conclude, based on only some of the studies on point, that IIAs do not promote FDI in most or all circumstances, Bonnitcha and his coauthors are more meticulous in examining the underlying empirical basis for that contention. After surveying the abundant methodological problems (including endogeneity) that undermine the persuasiveness of many if not most of these studies, they nonetheless conclude that IIAs “do have some positive effects on FDI” (p. 178). BPW provide equally fine analyses of the possible reasons businesses engage in FDI (pp. 34–46). Their book also painstakingly covers the principal features of ISDS (pp. 60–81), the ways it leads to compensation and damages (pp. 121–25), and the differences in securing enforcement of an arbitral award issued under ICSID versus the United Nations Commission on International Trade Law (UNCITRAL) (pp. 77–81)
As befits the title of their book, Bonnitcha and his coauthors enumerate the likely, unlikely, and unprovable generalizations about the “microeconomics” of investment treaties or particular provisions (pp. 127–54; 174–78), the possible impact of IIAs on development (pp. 155–66), the impact of IIAs on government decision-making (pp. 167–74), the reasons why developed countries enter into IIAs (pp. 181-206), the reasons developing countries enter into IIAs (pp. 207–32), and finally the legitimacy and governance challenges faced by the treaty regime (pp. 233–60).
A work of this scope and ambition is bound to dissatisfy some readers with special interests. Practitioners seeking a useful compendium on the deployment of compensation standards are not likely to find it in BPW's overly succinct consideration of this topic (pp. 121–25), for example. Others may be frustrated that the learned authors of this volume do not deploy their own considerable expertise more often to fill some of the ostensible gaps in the literature that they identify. Some readers may find that BPW are overly circumspect in suggesting that we do not really know a great number of things, namely whether: foreign investors generally face discrimination in host states or whether IIAs deter the “liability of foreignness” (p. 150); IIAs confer substantive rights that are more generous than under national law (p. 153); the availability of ISDS has made the home governments of investors less likely to intervene in investment disputes (p. 196); IIAs or the resulting ISDS case law has shaped customary law (pp. 199–200); the rise of resort to ISDS has shaped the subsequent response of governments to the content of their IIAs (pp. 204–05; the resort to IIAs and ISDS has resulted in regulatory chill (p. 241) or whether the threat of bringing an investment claim leads states to modify or abandon a proposed regulatory measure (pp. 242–43); or arbitral interpretations of distinct IIA clauses over time promote greater consistency in their interpretation (p. 250)—to mention only some of the many knowledge “gaps” that the BPW book identifies. On the other hand, some may find a few of BPW's more speculative generalizations or conclusions questionable. Not all readers will agree with their suggestion that investment jurisprudence supports the notion of a general crosscutting standard of review as opposed to distinct deference determinations depending on the IIA right being addressed (pp. 119–21). Some may find that the authors are overly dismissive of the real or potential value of informal modes of dispute settlement such as mediation.Footnote 5
Notwithstanding these qualms, the BPW book—and its fourteen tables and twenty-two figures of data—achieves what its authors intend. It provides a much needed and even-handed antidote to more strident views of the investment treaty regime.
II. The Merits of “Anecdotal” Case Studies
Upham's shorter book on the role of property law in development argues that formal property rights do not invariably contribute to economic growth. His case studies spanning five nations and distinct time periods (from England circa 1550 to contemporary Cambodia) illustrate that economic growth can occur without such property rights and indeed that the “creative destruction” of property rights has often been key to enabling such growth.
Upham's book begins with a short introduction arguing how faith in legal property rights emerged from misreadings of the work of Ronald Coase, Harold Demsetz, and Douglass North.Footnote 6 Upham contends that while those scholars wisely assumed that property could be protected by a variety of institutional arrangements (including custom and community norms), the “seductive elegance of Demsetzian transactions costs and Coasian bargaining” led to resistance to such complexity (p. 2).Footnote 7 He contends that the erroneous conclusion that “best practices” exist and can be exported from the West to the rest with little attention to such preexisting arrangements ignores the fact that property rules are predictably used to benefit those who have property at the expense of long term growth for the greatest number (pp. 2–3).
This introduction is followed by a chapter outlining, in broad strokes, the emergence of neo-institutional economics—particularly the lasting impact of Walter W. Rostow's stages of growth model of development, which incorporated “a linear conception of development with faith in a mechanical connection between capital investment and growth,” (p. 12) its subsequent displacement by the more laissez-faire Washington Consensus (p. 14), and the apotheosis in faith in formal property rights and the “rule of law” propounded by advocates such as Ibrahim Shihata at the World Bank, Hernando de Soto, and the drafters of indicators (such as the International Property Rights Index or the World Bank's Development Indicators) (pp. 27–32).
Upham's chapters 3, 5, and 6 thereafter examine four instances in which the destruction of property rights played, in his view, a key role in encouraging or promoting rapid economic growth: the incremental elimination of sixteenth century English villagers’ rights to enter and forage on their lord's land, thereby enabling the commercialization and transformation of English agriculture; the nineteenth century narrowing of U.S. farmers’ rights to clean water in order to accommodate mining and industrialization; the elimination, in the late twentieth century, of Chinese villagers’ share of communal production; and the contemporary dispossession of Cambodian subsistence farmers and small entrepreneurs to enable commercially productive, large-scale development.
Upham clearly enjoys upending the expectations of those who see impartial courts as the bulwark for protecting the legitimate expectations of property holders. His description of how U.S. judges gradually came around to defending the rights of the Pennsylvania Coal Company to mine coal, even if it destroyed the rights to clean water of the Sandersons who lived downstream from the company's mines, provides Upham with a solid demonstration of how even ostensibly impartial judges operating in a “rule of law” nation can, through “judicial sophistry,” destroy property for the sake of achieving desirable social change (pp. 45–57). Upham uses these instances to illustrate that property entitlements have often given way to allow “society to respond to opportunities for new wealth” (p. 57)—whether this means de facto dispossession of the less powerful (e.g., the Sandersons) or the use of legal institutions to “steal from the strong” (discussing the case of agricultural land in post-World War II Japan) (pp. 61–82).
But if the message of some of Upham's case studies is that formal law—whether by legislatures or courts—can sometimes shift, for good reason, legal rights away from those who have legitimate expectations to them, the message of Upham's chapter 5 on China is that explosive economic growth can occur in the absence of legislative or judicial action to protect formal property rights. Upham bases his argument that growth “without law” is possible based on the success of township and village enterprises (TVEs) which, in his view, provided the “growth engine” for China in the legal vacuum of the 1970s and 1980s (p. 83, pp. 89–91); the improvised structures devised by foreign investors and their local Chinese partners (pp. 91–93); the rarely legal and often corrupt expropriation of farmers’ collective land to permit the expansion of cities (p. 83, pp. 93–95); and the emergence of formally illegal but sustainable real estate markets in “small property rights” in large Chinese cities (pp. 95–98).
Upham is careful to avoid drawing his own general lessons—whether consistent with or in contrast to existing development nostrums—from his limited case studies. His point is not that, for example, there is a rival “Beijing Consensus” or that other countries can successfully adapt what the English did in the sixteenth century or the Cambodians are now doing with respect to property. Nor does he suggest that countries can thrive without any attention to ensuring some form of property protections; indeed, he suggests that his case studies demonstrate that once the fruits of the destruction of property rights were harvested, “there was a rebuilding of property rights” (p. 105). But he clearly is arguing that property can be protected by something other than formal rules promulgated by a legislature or rulings issued in the course of formal adjudication.
Upham is not seeking the relatively precise answers sought by BPW. To the contrary, he claims that “[h]uman society is simply too complex for either abstract theory or a series of case studies to create the detailed roadmap that many understandably wish for …” (p. 131). At the same time, Upham does make at least one general claim when he warns those interested in improving the conditions of the global poor not to be concerned about maintaining the continuous status quo protections accorded by formal property rights; to Upham, such rights tend to be in the best interests of propertied elites in wealthy countries like the United States (p. 124). Of course, Upham's refusal to draw broader lessons from his case studies is bound to frustrate those engaged in development assistance as well as governments who want to get the best advice. Being told that “context matters” is a terrific caveat to keep in mind in the course of offering development assistance, but it is not, without more, a terribly helpful guide for those trying to figure out precisely what kind of property rights are best suited to achieving long-term rapid economic growth for the greatest number.
III. Broader Lessons and Questions
As noted at the outset, the differences between these books loom large. BPW adopt an explicitly neutral scientific stance; Upham resists it. BPW aspire for generalizable theory; Upham is deeply skeptical of global accounts applicable to all. BPW focus on one specific international legal regime while Upham, to the extent he addresses law, considers only the impact of national property laws. Upham addresses the economic impact on lesser developed states; BPW address this only in passing. At the same time, both books share some common ground. Both are directed, at least in part, at policymakers and not only international lawyers. Both implicitly cast doubt on the idea that the protection of property is identical to or indispensable to the “rule of law.” Both, directly or indirectly, undermine certain key assumptions of the international treaty regime. And both suggest that protecting property has deep connections to the social makeup, political context, and cultures of each country (or even regions within them) and is not just a functional tool to advance indisputable economic truths.
At a fundamental level, both books are skeptical about whether the protection of property rights under international law helps to bring, in Upham's words, “the world's poorest people out of poverty” (p. 1). Upham is openly skeptical that global top-down rules to protect property rights enforced through formally binding adjudication are a good idea. His skepticism seems equally apt whether those rules are best promoted through an IIA or through the vehicle of expert development advice and whether the formal property rules are enforced by courts or investment arbitrations. For their part, while BPW do not challenge the premise that global rules to protect the property of aliens are desirable, they seem agnostic about many of the asserted benefits of such rules. They hedge on whether transfers of capital, even assuming that these are promoted by the investment treaty regime, invariably generate positive externalities, encourage governments (democratic or not) to behave responsibly, or lessen economic inequalities. In the end, BPW do not conclude that IIAs improve the lot of the majority population of a country—and they therefore have little to say about the potential (and increasingly real) populist backlash should this not be seen to occur. That both books—deploying radically different tools of analysis—do not come to a more robust defense of the property rights embedded in IIAs does not bode well for the long-term well-being of the increasingly beleaguered investment treaty regime.
Bonnitcha and his coauthors rely on precisely the kind of “ordinal lists” (relating to causal pathways and much else) that Upham disparages. Those impressed by BPW's rational demand for generalizable and replicable empirical verification may be impatient with Upham's idiosyncratic approach and his steadfast refusal to attempt to generate alternatives to the property fallacy he persuasively criticizes. But the lessons of these books go both ways: those emerging from Upham's case studies may question the “scientific” bona fides of BPW's efforts. Some of BPW's conclusions are grounded in only anecdotal evidence. Bonnitcha and his coauthors cite evidence comparable to Upham's case studies for their conclusions that IIAs lock in existing liberalization efforts but probably do not lead to additional efforts (pp. 217–19), that developing countries generally entered into IIAs without careful negotiation or deliberation (p. 223), and that these countries did not approach the negotiation of IIAs “strategic[ally] or careful[ly]” (pp. 215–16). In other instances, such as their suggestion that IIAs are concluded for diplomatic reasons or because of the individual motivations of government bureaucrats, the supporting evidence cited is simply (and vaguely) the “political science literature” (pp. 220–23). Bonnitcha and his coauthors do not explain when their general conclusions (intuitions?) about the investment treaty regime require empirical verification as opposed to other “less scientific” support.
Under the circumstances, it would seem that even these authors would acknowledge that conclusions about the investment treaty regime need to go beyond what Upham calls “physics envy.” Readers of both books are likely to emerge convinced that those seeking to understand (and perhaps remedy) the legitimacy concerns facing the investment treaty regime need to draw on a variety of skills—inductive and deductive—including competent parsing of the publicly available case law as well as common sense. Those who absorb Upham's lessons are likely to believe that some things cannot be subject to empirical testing and that setting up the ideal situations for such testing, even when feasible and desirable, can take too long. Readers of both books are also more likely to think that even unverified mere “perceptions” about the investment treaty regime can generate concerns that require immediate action.
There is, however, an interesting omission from both books. At bottom, both are about how international law protects property—and yet, ironically, neither book addresses this directly. Upham does not address whether or how international law supports the development advice that he is criticizing, even though he mentions global “rule of law” indices that emerge from the assumption that IIAs enable states to offer the minimum guarantees that international law, globalized markets, and economic development require.Footnote 8 BPW focus on how IIAs and ISDS protect foreign investment; they do not address how international or national law addresses property rights generally, even though they mention briefly property rights in the ECtHR and some of the other parts of the investment regime “complex” (p. 7 and Figure 1.2).
Neither book mentions that for centuries, international law has prioritized the protection of property and associated it with sovereignty itself.Footnote 9 Neither book addresses how either the development advice offered by the World Bank or IIAs intersect with the human rights revolution (which today has generated some twenty human rights instruments (from the Universal Declaration on Human Rights to the Committee on the Elimination of Discrimination Against Women (CEDAW)) that include property rights within their protections)Footnote 10 or with a number of other significant treaties that protect other forms of property apart from that owned by foreign traders or investors.Footnote 11 Indeed, some would assert that a right to property protection for both a state's own nationals as well as alien investors exists as a matter of customary international law.Footnote 12 Neither book addresses, in short, the international law of property or the possible connections between its rules and the fact that, at least since the end of the Cold War, nearly every nation has opted for the formal protection of property rights under their own national laws (most frequently in their national constitutions).Footnote 13 Neither book says much about why, despite the many reasons for doubting the wisdom of such acts, most countries have now chosen to formally submit themselves to some international legal limits (including but not only through IIAs) on how and when they can “destroy” certain property rights consistent with those limits. Moreover, neither book says much about what it means if countries ignore such formal rules—national or international—when they choose, in Upham's words, to “creatively destroy” property or when they weaken property protections by exiting from IIAs or severely limiting their protections. Neither book addresses what today's internationalization-cum-treatification of property rights entails for the rights and options available to states. Perhaps a new work is needed. Such a book could address the “political economy” of the international law of property and the great international law property “fallacy.” Ideally, unlike the two estimable books under review here, that effort would deal with both.
