ias-toppers-rights-of-tribals
Editorial Notes

Protecting the rights of Tribals

The strengthening of BITs must go hand in hand with the implementation of domestic legislations for the protection of the rights of tribals, where the state does not consider tribals as impediments in the development process.
By IT's Editorial Board
February 27, 2017

 

GS (M) Paper-2: “Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and bodies constituted for the protection and betterment of these vulnerable sections”

 

Protecting the rights of Tribals

What is BIT?

  • 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.
  • This type of investment is called foreign direct investment (FDI). BITs are established through trade pacts.

Why it is in news?

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  • Ras Al Khaimah Investment Authority (RAKIA), an Emirati investor, initiated an Investment treaty arbitration (ITA) claim against India under the India-UAE Bilateral Investment Treaty (BIT), seeking compensation of $44.71 million.
  • This claim arose after a memorandum of understanding (MoU) between Andhra Pradesh and RAKIA to supply bauxite to Anrak Aluminum Limited was cancelled, allegedly due to the concerns of the tribal population in those areas.
  • But this threat of ITA against the state may compel it to refrain from implementing tribal rights in the development project area.

Main reasons:

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  • A recent report of the UN Special Rapporteur on the Rights of Indigenous Peoples recognizes three main reasons for the serious impact that foreign investments have on the rights of indigenous people:
  1. Failure to adequately address human rights issues of tribal people in BITs;
  2. The perceived threat of ITA for enforcement of investor protection; and
  3. Exclusion of indigenous people from the policymaking process.

Legal and Constitutional provisions for Tribal rights

  • The United Nations Declaration on the Rights of Indigenous People (UNDRIP), adopted in 2007, for which India voted, recognizes among other things indigenous peoples’ rights to self-determination, autonomy or self-governance, and their right against forcible displacement and relocation from their lands or territories without free, prior and informed consent.
  • International Labor Organization (ILO) Convention concerns Indigenous and Tribal Peoples is based on the “respect for the cultures and ways of life of indigenous peoples” and recognizes their “right to land and natural resources and to define their own priorities for development.”
  • Also, Constitution provides autonomy to tribal areas in matters of governance under the Fifth and Sixth Schedules. Supreme Court opined that the transfer of tribal land to private parties for mining was null and void under the Fifth Schedule.
  • Recognition of Forest Rights Act, 2006 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.
  • But Xaxa Committee report of 2014 highlighted that these legislations are regularly disregarded. Instead of ensuring that tribals are not ousted from the land to which they are historically and culturally connected, the state becomes more concerned about fulfilling contractual obligations towards the private investor.

Way forward:

  • Include provisions relating to the protection of indigenous people in BITs.
  • Implementation of domestic legislations for the protection of the rights of tribals, where the state does not consider tribals as impediments in the development process.
  • Tribal people should be given representation even in investment policymaking.
[Ref: The Hindu]

 

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