How bilateral investment treaty of India with other countries are affecting rights of tribal people of India?

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answered Mar 1 by prashant1984 (20,280 points)

A bilateral investment treaty (BIT) is an agreement establishing the terms and conditions for private investment by nationals and companies of one state in another state.

-These types of investments are called FDIs.

-BITs are established through trade pacts.

-Most BITs grant investments made by an investor of one Contracting State in the territory of the other a number of guarantees, which typically include fair and equitable treatment, protection from expropriation, free transfer of means and full protection and security.

-Criticism- NGOs have spoken against the use of BITs, stating that they are mostly designed to protect the foreign investors and do not take into account obligations and standards to protect the environment, labour rights, social provisions or natural resources.

Protection under law-

  • The United Nations Declaration on the Rights of Indigenous People (UNDRIP), 2007 recognises indigenous peoples’ rights to self-determinationautonomy and their right against forcible displacement and relocation from their lands or territories without free, prior and informed consent, among other things.
  • India has voted for in favour of this Declaration.
  • Also, there is International Labour Organisation (ILO) convention concerning Indigenous and Tribal Peoples, 1989. It is based on the “respect for the cultures and ways of life of indigenous peoples” and recognises their “right to land and natural resources and to define their own priorities for development.”
  • India is not a party to this convention but is a party to the ILO Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 1957. Incidentally, this convention is outdated and closed for ratification.
  • In India, the Constitution provides autonomy to tribal areas in matters of governance under the Fifth and Sixth Schedules.
  • It was further fortified by the Samatha v. State of Andhra Pradesh & Ors (1997) judgment where the Supreme Court declared that the transfer of tribal land to private parties for mining was null and void under the Fifth Schedule.
  • The framework for protection of the rights of tribal and indigenous people is further strengthened by the Recognition of Forest Rights Act, 2006. It protects the individual and community rights of tribal people in forest areas and their right to free and prior informed consent in event of their displacement and resettlement.
  • The framework for protection of the rights of tribal and indigenous people is further strengthened by the Recognition of Forest Rights Act, 2006. It protects the individual and community rights of tribal people in forest areas and their right to free and prior informed consent in event of their displacement and resettlement.
  • The purpose of BITs is to give protection to foreign investors while imposing certain obligations on the host state.
  • For example, if a development project involving a foreign investor in tribal areas leading to acquisition of tribal land is met with protest, there may be two possible scenarios.
  • The State government due to socio-legal and political pressures may yield to the demand of the tribal people to the detriment of the foreign investor, which is what has happened in the case of RAKIA.
  • Or, assuming that the government continues with the project, the judiciary may order the cancellation of permits given to the foreign investor, which is what happened in the case of Vedanta in 2013.
  • In both the cases, foreign investors may drag India to ITA claiming violation of obligations under the BIT, such as fair and equitable treatment or indirect expropriation.
  • This perceived threat of ITA against the state may compel the latter to refrain from implementing tribal rights in the development project area.
  • A recent report of the UN Special Rapporteur on the Rights of Indigenous Peoples recognises three main reasons for serious impact that foreign investments have on the rights of indigenous people:

  • Failure to adequately address human rights issues of tribal people in BITs
  • The perceived threat of ITA for enforcement of investor protection
  • Exclusion of indigenous people from the policymaking process.
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