Programa de Pós-Graduação em Direito - PPGD/ICJ

URI Permanente desta comunidadehttps://repositorio.ufpa.br/handle/2011/3417

O Programa de Pós-Graduação em Direito (PPGD) iniciou suas atividades em 1984 e integra o Instituto de Ciências Jurídicas (ICJ) da Universidade Federal do Pará (UFPA), que, por sua vez, se originou da Faculdade Livre de Direito do Pará, uma das mais antigas do país, fundada em 1902.

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Agora exibindo 1 - 16 de 16

Acesso aberto (Open Access)
Áreas protegidas na Amazônia brasileira como instrumento de gestão ambiental: a situação do município de Oriximiná, estado do Pará
(Universidade Federal do Pará, 2013) FLORES, Maria do Socorro Almeida; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
Creating intervention restricted environments from the expansion of human activities was the model used by industrialized countries to preserve remaining ecosystems of their development process. Brazil adopted this restrictive model through the creation of protected areas, among other instruments. This thesis examines the establishment of protected areas as an instrument of environmental policy in the brazilian Amazon to use as empirical observation units the protected areas in the Calha Norte region, in the State of Pará, which corresponds to a region with low human impact and, as an area located in the endemism guiana region, high concentration of biodiversity, as well as the presence of considerable sociobiodiversity (indigenous civilizations, Quilombola communities and traditional populations). This thesis examines this issue considering the possibility to visualize in environmental management the sustainability of the biodiversity maintaining, which includes respectively the physical basis, the nature resources and the cultural, religious and indigenous peoples ways of life, the Quilombola remaining communities and traditional populations in the region. The primary goal of this thesis is to show that the legal protection of biodiversity and socio-biodiversity is intrinsically related to the concept of bio-responsability, which is based on a set of factors such as legal, political, administrative and economic establish relationships between them to ensure environment sustainability not only as a passive legal good, but as a dynamic allocation process, contributing with the elements to construction of a new meaning for the biodiversity protection, which includes especially the sociobiodiversity by considering the protected areas as one of the instruments for this conceptualization.
Acesso aberto (Open Access)
De direito indigenista a direitos indígenas: desdobramento da arte do enfrentamento
(Universidade Federal do Pará, 2009) MACHADO, Almires Martins; BELTRÃO, Jane Felipe; http://lattes.cnpq.br/6647582671406048; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
This paper addresses the right Guarani, with its principles, nuances in conversation and subsumption of community issues. How to resolve conflicts in various fields of law, in a society Guarani. Discusses the importance that traditional religion has for the native law, which stems from the holistic mind. Discusses the principles of law Guarani: solidarity, reciprocity and prevalence of the collective interest of the individual. While dealing with indigenous law, the focus is on the right to hold property Guarani. The value is the theoretical framework of legal pluralism, to sustain it as a legal system, although thought and legislated differently than national law. In the end, enters on the adverse outcomes of external intervention, without due care anthropological necessary to such actions, departing in this case who is in charge of defending the legal right and interest indigenous. Explains the difficulty that has to work with right of indigenous peoples, to the limited literature that deals with it and because each indigenous people has its own ways of thinking and applying the law.
Acesso aberto (Open Access)
Detenção agrária de terras públicas: implicações jurídicas na regularização fundiária
(Universidade Federal do Pará, 2011-12-16) BARRETO, Andréia Macedo; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
The present paper is about the legal treatment given to occupations of public land in rural areas, called land holding. Based on local observation, literature, cases law and legislation, we found out that the land holding does not confer the land possession or the property to the holder itself but it allows an adjustment of occupation with the government. The given situation deals with public lands, agricultural activity development as well as the importance of working on the referred land. Legal explanation relies on the Constitution interpretations which forbid this mean of property acquisition based on a single act of an individual as well as the legal situations that submit the permission for occupation to the Government acquiescence, through a regular administrative procedure. Besides it is based on agrarian laws which establish the needed requirements to the allocation of rural property in the public domain. Before the formal permission for occupation it may have set the land holding of public lands which has nothing to do with the matter regulated by our Civil Code. Areas occupied by indigenous, “quilombolas”, traditional agroextractive populations as well as the rural workers and their families do not fit this concept. For these ones, the Government assures the territorial and possessory rights. Therefore, we conclude that Brazilian legal system refuses public lands possessions in certain situations but it accepts them in others with both Government acquiescence and without it. Hence, the present work aims to establish distinctive criteria between land owner and holder proposing the stay of both legitimate owner and holder but the incorporation of the illegitimate occupied land to the public property roll.
Acesso aberto (Open Access)
A mão e o martelo: a polícia militar e os conflitos sociais no campo paraense
(Universidade Federal do Pará, 2008) MONTEIRO, Alisson Gomes; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
This study was conducted to identify how the Military Police mediates social conflicts in Para, pointing ways that it can be a tool for reducing social inequalities, and not a mechanism for perpetuating these gaps. It is important to analyze the role of the government, that should be the radiator of social protection, but in fact, leaves the Military Police at the whim of the influence of the economic strength of large landowners, who often use violence as a way to maintain the established structures. It was observed that the Military Police acts essentially as an instrument of force, often being at the service of landowners elites who, through violence, perpetuate a segregational production system and concentrate resources. There is still a need to establish a culture of mediation that transforms the institutional reality, so that the discrediting of the Corporation is overcome, so that the Military Police can come closer to the community as a truly public service.
Acesso aberto (Open Access)
Mineração e compensação de exploração mineral a CFEM como instrumento jurídico econômico de política ambiental
(Universidade Federal do Pará, 2016-03-16) PEGADO, Myrza Tandaya Nylander; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
This work investigates how the municipality uses the property income from the holding of mineral resources, provided for in art. 20, paragraph 1, of the Constitution and defined by ordinary legislation through the Financial Compensation for the holding of Mineral Resources (CFEM). The research method used, due to the nature of the research strategy, was the analysis of specialized bibliography, composed of books and articles that guides the current debate regarding the use of CFEM as an economic legal instrument, their form of incidence, assessment and use of their resource. Also was used the analysis of financial and social concrete data of the micro Parauapebas region, aiming to understand, analyze and interpret the use of the CFEM revenue, in a representative region, once it consists of two of the major mining districts of the country. The results pointed to a failure in the use of resources coming from the CFEM, since we observed that they are not applied to prepare the region for the depletion of the mine.
Acesso aberto (Open Access)
A natureza como sujeito de direitos no sistema interamericano de direitos humanos
(Universidade Federal do Pará, 2023-03-02) TEIXEIRA, Marcos Wagner Alves; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
The present work seeks to demonstrate the evolution of the protection of nature, from the first letters of civil and political rights, reaching the decisions of the Inter-American System of Human Rights, especially of the Inter-American Court of Human Rights (Court IDH), to verify if in the Jurisprudence more of the Inter-American System of Human Rights, Nature is considered a subject of rights. For this purpose, the jurisprudential analysis of 9 (nine) cases judged by the Inter-American Court from 2001 to 2018, related to traditional communities and environmental protection, was used. The methodology used was qualitative-quantitative, through a literature and document review, as well as an empirical study of the IDH Court jurisprudence. Initially, we sought to carry out an analysis of the ethics of Nature, thus contributing to it from an anthropocentric, biocentric and ecocentric perspective, and the points of contact between the various theories. Next, we began to study the evolution of constitutionalism in Latin America, with emphasis on the constitutions of Ecuador and Bolivia, placing Nature on another level by protecting it constitutionally and legally as a subject of law. When investigating the protection of the environment in the international scenario, more specifically in the Inter-American System of Human Rights, we analyzed Advisory Opinion nº 23/2017, since it establishes parameters for the System in environmental protection. We verified that, in a way, the protection of nature is also present in the decisions of the Inter-American Court, not by chance, the environmental preservation, even in a reflexive way, started to have shelter in the System, in the protection of the indigenous territories and of traditional communities. In view of the interrelation of these with tangible and intangible assets, to conclude that despite Advisory Opinion No. 23/2017 it was established that the natural path would be for Nature to recognize the status of subject of rights, the decisions do not conclude from this way, bringing it closer to an anthropocentric vision with socioenvironmental concerns.
Acesso aberto (Open Access)
A natureza jurídica da reserva legal e sua aplicabilidade em áreas habitadas por populações tradicionais
(Universidade Federal do Pará, 2010-12-06) FERREIRA, Dauana Santos; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
This paper has studied the legal reservation area, seeking to analyze the juridical nature of this Institute, by means of a Brazilian forest code historic evaluation. This research shows that the legal reservation area is an environmental protection instrument. Its incidence belongs directly on the property right. So, the legal reservation area is obligatory to all private rural properties and possessions in order to fulfill its socio-environmental function. This shifting also verifies in what areas inhabited by traditional populations (extraction reservation, sustainable development reservation, agro-extraction settlement project and Quilombola territory) the legal reservation area will be compulsory.
Acesso aberto (Open Access)
Ordenamento territorial e planejamento municipal: estudo de caso das limitacões supralocais à aplicação do art. 30, viii da constituição de 1988 pelo município de Parauapebas, Pará
(Universidade Federal do Pará, 2014) FISCHER, Luly Rodrigues da Cunha; ETIEN, Robert; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
It aims to verify how municipalities can apply the Brazilian Legal System’s laws of territorial impact in a hierarchic, integrated and coordinated way to its planning. The scope of this analysis is limited to the Municipality of Parauapebas, in the State of Pará. This municipality fournishes a general overview of the existing legal problems in terms of land use in the Brazilian Amazon. It uses the empirical method and the case study technique. The result os this research is divided in four section. At first, it is analysed the exploitation and development projets in Amazonia since the colonial times, in order to demonstrate the changes operated in the legal system to enable the intervention of the State in the use of the territoiry. In the second part it is analysed the constitutional dispositions regarding the land use, urbanism, agrarian activities, mining and environment in order to identify the legal requirements to be followed by local planners. In the second section it is also analysed federal and State laws that influence the local planning, as well as supralocal instruments of territorial planning. In the third it is verified if the Parauapebas planning meets the supralocal legal requirements analysed in the previous sections. In the last section, it is analysed the European and French land use regulations are applied to the French Guiana in order to understand how the particularities of the Amazon region are regulated, but without the scope to compare the Brazilian and French systems. This analysis led to the conclusion that the Brazilian Legal System limits its land use regulation to the use regionalized planning instruments and sectorial polities of territorial impact, with few differentiations for the Amazon region, but there are not instruments to coordinate the effects of these policies ate the national and regional level. The municipality is the only level of the Federation legally bound to create a land use planning law. The local autonomy is conformed by supralocal laws and policies. The local land use planning and the exercice of the municipal police power are extensible to the whole territory, but they have different effects over it according to the existing land tenure.
Acesso aberto (Open Access)
Pagamento por serviços ambientais: perspectivas para a proteção e uso dos recursos naturais
(Universidade Federal do Pará, 2009-08-31) SÁ, João Daniel Macedo; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
Payment for environmental services (PES) is a collective strategy which incorporates a new model of management for public policies and private instruments for environmental conservation. This work analyses the viability of PES models in the Amazon region, looking at the Latin America experiences. We will demonstrate that it is essential to identify the services provided by the ecosystem to determine supply and demand in the market. We will also show that the viability of the schemes depend on the capacity of the agents for contracting, which demand an accurate analysis about property rights on the selected regions. Under the Brazilian law, so far, there is no explicit recognition of the environmental services to enable a financing system that could be used to recover deforested lands and also guarantee the accomplishment of environmental law.
Acesso aberto (Open Access)
Presença humana em unidades de conservação de proteção integral em área rural e urbana: uma análise principiológica
(Universidade Federal do Pará, 2006) MELO, José Messias Gomes; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
The National System of Units of Conservation (NSUC) instituted by the law 9985/00, provides the creation of five categories of Units of Conservation of Integral Protection (UCIP) and seven of sustainable usage, in the midst of the categories of the group of integral protection there is a category named park category, this category can be estate or natural municipal, according to the institution. Park category can be in rural area and in urban area as well. It is very common to see people in park borders, traditional population in rural areas or disordered occupation in urban areas. The law makes no difference between rural or urban areas, however, provides the relocation of traditional population, whose, the presence would not cause any damage to the protected area. Whereas, people living the parks of urban areas can be very harmful to the protection of the particularly protected area, since they can cause a huge, environmental impact, without worrying with the preservation or conservation as the traditional population that is completely dependent on the natural resources to its subsistence. Taking the hypothesis that the same category (UCIP) in special parks can shelter different groups of people (traditional population in rural areas and trespassers in urban areas), a study was done to analyze the impact in principles that permeate this situation, and also to make an attempt to diminish it. Before axiological dimension in the treatment of traditional population, we can conclude that the permanence of this kind of population is reasonable in UCIP placed in rural areas, however, it is not acceptable the presence of people in urban areas.
Acesso aberto (Open Access)
O processo licitatório como mecanismo de proteção socioambiental
(Universidade Federal do Pará, 2007) MORGADO, Giovanna Corrêa; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
The study deals with biding as a mechanism of social-environmental protection, analyzing how the biding proceeding can work as a materialization of the principle of the environmental prevention on the installation of public enterprises potentially causer of environmental degradation. Initially, it presents the environmental matter, your relevant aspects and your insertion on the Constitutional text, the environmental licensing proceeding. Then, it is done an analysis of the biding proceeding, the jurisdictional principles that instruct it, your finality, your phases and its relation with other instruments of environmental protection. The biding is the way that the Public Administration contracts the execution of public enterprises of infra-structure, potentially causer of environmental impact. Therefore, it presents how the biding is an important mechanism of environmental protection, when the Public Administration accomplishes the legal biding proceeding in force on the country. It was analyzed two exemplificative cases in which the Public administration has not accomplished such proceeding, violating the principle of legality and of the environmental prevention and precaution. The study was made thru case laws and doctrine, as well as thru analysis of decisions issued by the Judiciary Power of Para State and the Public Finance Court, in specific cases of the biding of the “Alça Viária” and the hydro via of Capim-Guamá, Marajó and Teles Pires – Tapajós and the enlargement of the lease of the Santarém port, respectively.
Acesso aberto (Open Access)
Reconhecimento de territórios tradicionais: o contrato de concessão de direito real de uso enquanto instrumento de garantia do direito ao território tradicional
(Universidade Federal do Pará, 2010-12-10) ARAÚJO, Marlon Aurélio Tapajós; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
This dissertation is to study object recognition of traditional territories. Specifically, this was to assess the degree which granted autonomy to the region's traditional communities Juruti Velho, Juruti, Pará, through the Concession of Real Right to Use (CDRU) under Agroextrativista Project (LAP) led by Regional Superintendent of the Institute of Colonization and Agrarian Reform (INCRA) in Santarém. For this analysis was chosen as theoretical notions of legal pluralism, territoriality specific, agroecological possession, all point towards a right to traditional territory. Yet proceeded to a comparison between the model adopted for the regularization and the Extractive Reserves Project Agroextrativista since both draw on the CDRU for purposes and audiences alike, namely to ensure the right people to the territory and traditional communities. It concludes with an analysis of the specific situation of the traditional communities of Old Juruti from the norms to be established in the Management Plan as well as the mineral rights under the law of the territory. This analysis allowed to answer the question the research problem concerning the autonomy of traditional communities in the management of its territory.
Acesso aberto (Open Access)
O sistema interamericano de direitos humanos e a proteção do direito ao território e ao bem viver das populações tradicionais: repercussões nas decisões do Tribunal Regional Federal da 1ª Região, Brasil
(Universidade Federal do Pará, 2021-12-21) LIMA, Tamires da Silva; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
It analyzes the right to the territory of Traditional Populations, which includes Indigenous Peoples, Quilombolas and Traditional Communities, under the perspective of Bem Viver. Thus, in order to better understand the topic mentioned above, we analyzed the decisions of the Inter-American Human Rights System (SIDH), the jurisprudence of the Inter-American Court of Human Rights (CorteIDH) in the application of the concept of recognition of the territorial right of vulnerable groups, specifically indigenous peoples and from traditional communities. Concomitantly, some cases involving the rights of traditional communities were studied within the scope of the Regional Court of the 1st Region (TRF1), especially those contextualized in the Legal Amazon, which deal with sensitive issues such as violation of the right to prior, free and informed consultation, environmental licensing and excessive delay in demarcating traditional territories. The general objective of this research is to analyze the decisions of the SIDH in relation to the protection of the territory of traditional Brazilian populations in the use of their natural resources in order to verify or not whether the Brazilian State adapts its legal system to the standards of international protection of Human Rights. As a theoretical framework to understand the themes of traditional territories and traditional peoples and communities in the context of the Amazon, we carried out a critical analysis of the territory (ARRUDA, 1999; ALMEIDA, 2004; BENATTI, 2003 and 2018; CUNHA and ALMEIDA, 2001; HAESBAERT, 2003; MOREIRA, 2017; SANTILLI, 2005; TRECCANI, 2006 and 2019) and we analyzed the cases judged by the SIDH on the right to the territory of traditional populations (RIBEIRO, 2014). In the jurisprudential research, we used the teachings of the author Eliane MOREIRA (2017) and the authors BENATTI (2003, 2011, 2015 and 2018) and TRECCANI (2006 and 2019), with regard to the SIDH, the lessons of Cristina RIBEIRO (2014), and in relation to the theme of Good Living, understood as an idea still under construction, an alternative to a new model of life, a platform to restructure democratic standards, which helps to find solutions to the problems of humanity, the discussion carried out was used by ACOSTA (2009; 2016), ELBERS (2015), GUDYNAS (1995; 2011), KRENAK (2020), HUANACUNI MAMANI (2010) and QUIJANO (2012). The methodology includes the hypothetical-deductive approach method, indirect documentation research techniques, both bibliographic and documentary, the type of research in relation to descriptive objectives, the approach is qualitative and quantitative, the procedures are documentary, bibliographical, jurisprudence and decision analysis. The analysis brought data that confirm that Bem Viver is an alternative to promote the way of life of traditional peoples and communities, respecting their cultural identity and safeguarding their life project in accordance with their cosmovision, as well as the CorteIDH has advanced in relation to the protection of the traditional territories of indigenous peoples and traditional communities, with the application of an expanded interpretation of the property right provided for in art. 21 of the ACHR (American Convention on Human Rights) and the invocation of other international instruments of protection, in particular Convention 169 of the ILO (International Labor Organization). Despite the efforts of the Inter-American Court, it is noted that within the scope of national States that are subject to its jurisdiction, as is the case in Brazil, there is formally a system for the protection of territorial rights, but it is not effective. The TRF1 data demonstrate that the obstacles to the recognition of the rights of traditional populations are related to problems of excessive delay in the processing of processes, non-compliance with prior, free and informed consultation and authorization for environmental licensing in disagreement with the relevant legislation. Therefore, it is imperative that States comply with the international obligations they have assumed by signing international treaties and conventions.
Acesso aberto (Open Access)
Terras devolutas no pós 1988: repercussões da jurisprudência dos tribunais superiores brasileiros na estrutura fundiária da Amazônia Legal
(Universidade Federal do Pará, 2018-05-22) SILVA, Eymmy Gabrielly Rodrigues da; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
Aims to analyze how the Brazilian Superior Courts’ decision, in the judgments of prescription and discriminatory actions of vacant lands in post-1988 have repercussions on the land structure of the Legal Amazon. It was delimited three specific objectives, which correspond to the sections of this dissertation: to present a history of the origin of vacant lands in Brazil and the discussions about its concepts and legal regime takin into account the public domain and the formation of private property in Brazil, its legislative changes that had repercussions in the identification of these lands, criteria of ownership, functionality, availability, destination for agrarian reform and protection of natural ecosystem, and debates the impossibility of prescription after the Constitution of the Federative Republic of Brazil promulgation; to examine the prescription species in the Brazilian legal system, its requirements, the importance of this institute to those who comply with the social function of property, the burden of proof in these actions and the changes of the institute with Law nº 13.105/2015 and Law n. 13.465/2017, when disposing on the administrative prescription; to analyze the judgments of the Superior Brazilian Courts on prescription and discriminatory nature of vacant lands, and a critical reading based on Rodriguez (2013a) and Streck (2014; 2016), identifying the cases and relating them to the specificities of the land structure of the Legal Amazon. It was used as method of approach the deductive-analytical and method of procedure was monographic. It was concluded that in prescription actions, the application of thesis the lack of transcription in the real state registry does not generate the presumption that there is a vacant land, being the State burden of proof, without further observation on the factual issues of the cases, as it has been carried out by the STJ, based on previous STF judgments, can cause serious damage to the legal heritage of the Legal Amazon, through the legitimization of unproductive states. It was also concluded that discriminatory actions must be promoted in order to identify the residual assets, preferentially earmarked for agrarian reform and environmental protection.
Acesso aberto (Open Access)
Ultrapassando fronteiras: a proteção jurídica dos refugiados ambientais
(Universidade Federal do Pará, 2009) RAIOL, Ivanilson Paulo Corrêa; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
The reader will find in this work an analysis of the institution of refuge, since its historical development in the international scenario up to its reflexions on internal juridical order. The refugee’s issue was studied according to the Globalization process. Also it was examined the situation of people spread around the world due to persecutions for several causes such as nationality, race, religion, political opinions, or just for belonging to a social group. Besides this work defends that the classical causes for recognition of refugee’s condition do not fit in the reality of the new political overview established especially from the effects’ aggravation of a financial and economic model which ruptured with the Nation-State’s old limits. It also proposes to widen the concept of refugee in order to reach other hypothesis not included in Convention Relating to the Status of Refugees adopted in 1951. It defends the inclusion in the refugee’s condition those human beings who are victims of catastrophes, natural or man-provoked, in other words, the environmental refugees. It discusses the category of the internally displaced persons who, according to the Convention of 1951, are not considered as refugees neither to international organizations nor to the countries which belong to the international community. It proposes an unified concept of the term refugee which includes both the refugees of the Convention of 1951 and the commonly called internally displaced persons. Finally, it presents the consequences of the adoption of an unified concept for handling of refugees and internally displaced persons.
Acesso aberto (Open Access)
O verde na selva de pedra: análise jurídica da proteção da vegetação na área urbana do município de Belém
(Universidade Federal do Pará, 2008-10-17) FISCHER, Luly Rodrigues da Cunha; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
The process of urbanization and concentration of most part of the world‘s population in cities imposes new challenges to the organization of human settlements and to the environmental protection, adversely affecting the quality of life of people and the environmental sustainability, in which urban environments are included. Among many variables that interfere in the sustainability of cities is the existence of urban vegetation, but that has no specific legal protection in the Brazilian legal system. In this scenario, this essay has the purpose to define the legal content of the expression “urban vegetation” with the identification and systematization of laws that regulate the urban flora in the Municipality of Belém (PA). We use in this essay the deductive method and documental research. We discuss the definitions of city, urban, sustainability and quality of life. We analyze the constitutional powers to legislate about environmental and land use law since 1988. We also systematize the main legal e non-legal categories used to define and to study the urban vegetation, presenting, as well, a summary of the urban vegetation‘s main functions, emphasizing its differences with the non-urban environment and its dynamics, leading to the conclusion that this protection must be understood as a process. After analyzing the federal, state and local laws in force in the municipality of Belém, we conclude the Brazilian legal system has no definition that encompasses all particularities of the urban vegetation, but there is regulation in all legislative levels for it, which must be interpreted according to the particularities and principles that rule the urban space and in light of the cooperative federalism.

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