Thank you, Mr. Hirsch Ballin. I will follow your instructions, although with a slight bend, but into a neighborhood that you probably agree with. I think we all agree that multilateralism is the arena for the march from bilateralism to community interest, among other fields also with regard to the settlement of disputes and the maintenance of peace—one of the great endeavors and, partly, achievements, of civilization.

The protection of foreign investment by way of treaties and arbitration has recently suffered attacks on its legitimacy. The article turns on human rights concerns in this context and analyses what legal mechanisms and arguments can be employed to ease the tension between investment protection and human rights. Harmonization in this regard finds two key entry points: first, at the inter-State level of investment agreements, and secondly, at the intra-State level of the foreign investment contract. At the first level, human rights considerations, particularly concerning economic and social rights, can be brought to bear by way of their systematic integration qua treaty interpretation. The article subjects this inroad to close scrutiny but concludes that, while it possesses considerable merits and has attracted a certain attention (albeit still more in the academic world than in that of arbitration practice), it remains an approach ex post, possibly leaving excessive discretion to arbitrators. Thus, at the second level, already at the pre-investment stage, efforts should be made to recast investors' “legitimate expectations” under foreign investment contracts by including a “human rights audit” as part of the due diligence to be conducted by the investor and the host State, to survey the host State's human rights treaty commitments and domestic methods for implementing these commitments. The primary objective of this audit would thus be to fully include the prospective host State's international obligations as part of the body of applicable law and thus create a better map of the landscape of an investor's “legitimate expectations”.

When we were invited to contribute a positivist perspective to the present symposium, we did not know whether to regard this invitation as flattering or as an insult: does positivism not represent old-fashioned, conservative, continental European nineteenthcentury views—naive ideas of dead white males on the possibility of objectivity in law and morals? There is little we can do about being male and white, but we have certainly not seen ourselves as positivists of that kind. From the range of methodologies that the editors assembled, we could associate ourselves with several approaches just as much as with positivism. But in reflecting on our day-to-day legal work, we realized that, for better or for worse, we indeed employ the tools developed by the “positivist” tradition.

The first session of the new United Nations Committee on Economic, Social and Cultural Rights was held in Geneva in March 1987. The Committee was established to assist the Economic and Social Council (ECOSOC) in fulfilling its responsibilities for monitoring states parties’ compliance with their obligations under the International Covenant on Economic, Social and Cultural Rights. The Covenant is assuming increasing importance in view of the renewed emphasis by many UN member states on economic, social and cultural rights and because, with a total of 90 ratifications as of March 27, 1987, it now covers well over half of the total UN membership.