Recently, an investment treaty arbitration (ITA) claim was initiated against India under the India-UAE Bilateral Investment Treaty (BIT) by Ras Al Khaimah Investment Authority (RAKIA), an Emirati investor, seeking compensation of $44.71 million. This happened after the cancellation of memorandum of understanding (MoU) between RAKIA and Andhra Pradesh to supply bauxite to Anrak Aluminum Limited, in which RAKIA has 13% shareholding, due to the concerns of the tribal population in the area. A similar issue arose in 2014 under Canada-Peru Free Trade Agreement wherein Bear Creek Mining Corporation initiated an ITA against Peru for violation of the investment obligations because mining concessions were withdrwan due to protests by indigenous peoples. Besides imposing certain obligations on the host state, the BITs purpose is togive protection to foreign investors. Let us examine the impact of the obligations under Bilateral Investment Treaties on the rights of the tribal people.
While at international level, India 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.At national level, the Constitution has provided for specialprovisions for development and governance of schedule and tribal areas under the Fifth and Sixth Schedules. The Forest Rights Act, 2006 also provides for protection of the rights of tribal and indigenous people and their right to free and prior informed consent in event of their displacement and resettlement. But these provisions are regularly flouted as highlighted by the Xaxa Committee report of 2014. This indicates teh preference of state to fulfill contractual obligations towards the private investors while trampling over the rights of tribals. These foreign investments have adverse impact on human rights issues of tribal people in BITs and theer is exclusion of indigenous people from the policymaking process.
India should renegotiate the existing BITs and take adequate measures for protecting the rights of tribal people. The tribals ahould not be seen as impediments in the development process. And last but not the least, tribal people should be made a part of investment policymaking.