Teses em Direito (Doutorado) - PPGD/ICJ

URI Permanente para esta coleçãohttps://repositorio.ufpa.br/handle/2011/6401

O Doutorado Acadêmico em Direito pertence ao Programa de Pós-Graduação em Direito (PPGD) do Instituto de Ciências Jurídicas (ICJ) da Universidade Federal do Pará (UFPA). O curso de Doutorado foi aprovado e implantado em 2003. Para a elaboração da proposta, buscou-se identificar temas comuns desenvolvidos pelas duas Áreas de Concentração, para fundi-las em uma única, o que resultou na criação da Área “Direitos Fundamentais e Relações Sociais”. Atualmente, o Programa oferta cursos de Mestrado Acadêmico e Doutorado (único da área de Direito na Amazônia), e se estrutura em torno de uma única Área de Concentração: Direitos Humanos. Possui cinco Linhas de Pesquisa: Constitucionalismo, Políticas Públicas e Direitos Humanos; Direitos fundamentais: concretização e garantias; Direitos Fundamentais e Meio Ambiente; Estudos Críticos do Direito; Sistema penal e Direitos Humanos. Sua missão é formar profissionais que, compreendendo a realidade local, rica em recursos, mas ainda com baixos índices de desenvolvimento econômico e social, trabalhem para transformá-la. Para isso, objetiva ofertar sólida formação teórica, aliada à competência política e social.

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Agora exibindo 1 - 11 de 11

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A atuação do sistema interamericano de proteção dos Direitos Humanos na defesa dos direitos econômicos, sociais e culturais
(Universidade Federal do Pará, 2011) TEREZO, Cristina Figueiredo; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
This following doctoral thesis aims to study the performance of the organs of the Inter-American Human Rights System regarding the protection and promotion of the economic, social and cultural rights. For this, the research starts with considerations about what would be such rights, analyzing and refuting theories and concepts that have tried to refuse them as Human Rights norms, which would have motivated the development of vague normative provisions and the absence of monitoring mechanisms as well, as had been planned for the scroll of the Human Rights group, called civil and political rights. In order to demonstrate that economic, social and cultural rights are part of a fully justiciable rights group, the thesis also examines elements that are commonly attributed to them, such as: such as progressive achievement, prohibition of retrogressive measures, maximum available resources and minimum core content, from what is developed by the United Nations Committee on Economic, Social and Cultural Rights, to thereafter present how the organs of the Inter-American System deal with such issues. Of the study of international norms and of the monitoring international system, that were specially built for the economic, social and cultural rights, are verified several levels of legal obligation, of which proposes a classification for the different mechanisms to the access of the regional Human Rights Protection System, which can be directed to the supervision of a jurisdictional organ or quasi-judicial, or by other means that also promote those rights and allow redress in case of violation. The different mechanisms are used by organs of the Inter-American System to protect the economic, social and cultural rights. Due to its importance, the Commission and the Inter-American Court of Human Rights have been studied by this following research, attributing focus on its performance to the rights protection concerned, as well as recent modifications in their functions and procedural rites.
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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.
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Direito internacional em movimento: mecanismos de responsabilização de empresas transnacionais por violações de direitos humanos
(Universidade Federal do Pará, 2021-12-06) VIEIRA, Flávia do Amaral; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
In this thesis, I investigated how transnational corporations operate - especially in the Global South - and are regulated, through international law, coloniality, and neoliberalism, and the dynamics of human rights movements that strain these power relations. I explore the conflict between two languages of human rights, based on two types of proposals for accountability of these companies in relation to human rights violations, those based on soft law instruments and those based on a binding treaty. Analyzing these languages in depth, I investigated the challenges and limits of the production of human rights in an international dimension, based on the observation of the operational nuances of global civil society in the impact on the construction of effective mechanisms of corporate accountability for human rights violations. The focus is on advocacy movements at the United Nations in the struggle for a binding Treaty on the subject, as well as on the political resistance of the Global North to the project. In this sense, the thesis explores the tension in the production of human rights in a world under corporate governance. I found that the search for these normative resources created what is now generically called the “Business and Human Rights” agenda, a term by which a new area of technical, practical and theoretical action in Law has been recognized. I highlight the approval of resolution 26/9, now known as the “treaty resolution”, and analyze the successive drafts of the treaty, identifying that the proposals do not necessarily consider international geopolitics and the historical relations of imperialism, dependence and coloniality between the North and Global South States. When confronting - or adapting to - the capitalist mode of production, the debate on the draft Treaty on Business and Human Rights becomes a key point of this historical time, given the announcement of climate changes considered irreversible connected to human impact, and with the deepening of extreme poverty on the planet. In this sense, the research sought to contribute to the relevant ongoing discussions, allowing a deeper understanding of the connotations and implications of different approaches in favor of imposing human rights obligations on corporations.
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Direitos humanos, alteridade e filosofia da libertação: a outra América Latina
(Universidade Federal do Pará, 2021-05-05) LOBO, Lívia Teixeira Moura; COSTA, Paulo Sérgio Weyl Albuquerque; http://lattes.cnpq.br/4135075517359609
The basic idea of the thesis is to persist in the study of otherness as an ethical foundation of human rights, but now reflecting how normativity based on otherness can contribute fundamentally to human rights. In introduction the fragility of human rights is presented, either because they are a field of veiled ethical disputes that forge violence, as because they are a field in which conflict generates debate and, consequently, critical thinking. Latin America, as the Other, acts in this debate claiming an alterity that the law tends to cover up. The otherness makes demands that the law does not know. The first chapter is dedicated to a literature review about human rights, indicating the porosity of this language to a new criticism. The modern origin and the subject's promise of emancipation contrast with the oppression carried out through the liberal morality that permeates these rights. At the same time, it is a language so widespread that it seems wasteful to direct efforts to another area, where the means to act, to claim morally and politically are not known. The second chapter will confront Levinas' otherness, in which the Other is absolutely Other in its metaphysical exteriority that impels the freedom of the passive Self. Dussel presents an interpellant Other, which suggests, attacks, provokes, becomes aware of his neglected alterity and goes on to the praxis of liberation. There is an independent performance in the Other of the philosophy of liberation, he does not need approval, his helplessness is fruitful, criticism develops from the negativity of the current totality. The positive and critical-negative ethical principles are presented as that which requires, in the abstract, a normativity based on otherness. The last chapter proposes to consolidate the reach of the general objective, addressing the basic distinction of the philosophy of Dussel and Levinas, and the emergence of that of the analytical method so the Other leaps into critical reflection as the source of all ethical transformation - it is about a metaphysical moment and the return to totality. The Politics, which houses the law as an institution, subsumes the ethical principles in a similar way, informing human rights primarily about its formal aspect of legitimacy, about its role as a claim language in the face of system corruption and about the constitutive intersubjectivity of the system. subject that holds them back, making the predicate consensus of the symmetrical discursive participation of those who form the political community more solid.
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A ilusão do controle das drogas: guerra às drogas e economia política do controle social
(Universidade Federal do Pará, 2021-10-29) SILVA, Adrian Barbosa e; GOMES, Marcus Alan de Melo; http://lattes.cnpq.br/0371519214729478
This present thesis confronts the theme of social control in the war on drugs. In its methodological path, which combines bibliographic and documental techniques with dialecticity anchored in the empirical (general method), it retakes the discussion around the concept of social control to evaluate its heuristic potential for analyzing the researched object (social control of drugs). When carrying out a national diagnosis based on the literature review (penalism and criminology), and noting the absence of a consolidated debate, it proposes a problematizing approach, in a negative (deconstruction or criticism of social control) and positive (reinvention or revisited social control) dimension in the face of particularities of the situated context. In this way, it seeks to boost the sociological oxygenation of critical criminology (referent), from an interactionist-materialist perspective (specific methodology) open to interdisciplinarity, forging a conceptual approach based on power relations (intersectional social control), from Mead to Marx & Foucault (and Mbembe), from contributions of gender, race and class and, consequently, on hierarchies of neoliberal capitalism and on the bonds of global dependence. Prohibitionism is taken as a case of study, given the need to cut and its unique relevance for understanding criminal and social issues. When questioning the impact of the production relations of the Brazilian social structure on the articulation of strategies for the social control of drugs (problem), tests the hypothesis – which, in light of the political economy of punishment, leads to believe that they are consistent with the transformations of the hegemonic mode of production –, and indicates its developments (objective general), dividing the investigation into four moments (specific objectives): initially (1st chapter), the limits of the legal field for understanding the phenomenon and the role of the hegemonic vision built in research on drug consumption, production and trade in Brazil for the maintenance of a security and defensive “academic collaborationism” are questioned, drawing up, in reaction, the guidelines for a (critical) sociocriminology on drugs and social control; then (2nd chapter), the debate around social control is reconstructed, proposing an updated reading on the subject, for then (3rd chapter) to situate social control in the scope of the critique of political economy, historicizing it in the Brazilian social structure and in its mode of production and, finally, the development of Brazilian-style prohibitionism, in both aspects, as much internationally as domestically, from the colony to democracy; and, finally, but not least (4th chapter), the microphysics and macrophysics of the war on drugs are unveiled, as a way of understanding the dimensions of the power relations that underlie (and which) strategies for the social control of drugs in the current stage of capital accumulation in the country and, as a background issue, the very meaning of “failure” (and the “alternatives” proposed to it) of war on drugs. It is intended, in the final analysis, to build criticism advocating the horizon of a political economy of social control of drugs, proposing a re-discussion of the metaphor or war in the light of the sovereignty of capital. It is a possible intellective effort for an emancipatory understanding and transformation of the social reality of the peripheral crowd that is the priority target of bio and necropolitical strategies in the social order.
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Os media, direito e decisão judicial: observação de suas operações a partir da teoria dos sistemas de Niklas Luhmann
(Universidade Federal do Pará, 2020-08-11) PEREIRA, Debora Simões; GRAES, Isabel Maria Santos; VAZ, Celso Antônio Coelho; http://lattes.cnpq.br/0547983721448176
This thesis discusses the operations carried out between the media and the judicial system, based on Luhmann's theory of systems, seeking to understand how the judiciary reacts to external noises coming from the media. In carrying out this study, we sought to bring a new perspective on the subject, given its relevance to the social environment and recognizing that it has already been the subject of other research. The conception that is aimed to be achieved is to deconstruct a negative idea, erroneously disseminated in society, especially regarding the role of the media, in which their real importance is not recognized, identifying them as an obstacle to the correct application of the law by the courts. With this in mind, each system was studied in isolation, distinguishing its binary codes, its elements and the operations that occur internally. And, only from this, we investigated the irritations coming from the media system on the judicial system, verifying how this affects the decisions of the courts and the production of certainty. Thus, it was up to this work to verify whether, in the face of these interferences, there is a structural coupling between the two systems or an intrassystemic corruption of the media system over the judicial system.
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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.
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Pluralismo constitucional interamericano: a leitura plural da constituição de 1988 e o diálogo entre o supremo tribunal federal e a corte interamericana de direitos humanos
(Universidade Federal do Pará, 2015-10-19) MAGALHÃES, Breno Baía; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The thesis argues for the Constitutional Pluralism as a theory better suited to describe and explain the interactions between the 1988 Federal Constitution and the American Convention on Human Rights. Said interactions present themselves through the precedents of both the Supreme Court and the Inter-American Court of Human Rights. The thesis posits the theoretical fragility and the contextual mismatch of approaches based upon the monism/dualism dichotomy. Constitutional Pluralism, in turn, suggests the heterarchical interaction between constitutional orders through reciprocal influences. The supralegalty of international human rights treaties and the deference to regional constitutional interpretations enables the 1988 Constitution and the American Convention on Human Rights, respectively, to influence the substantive content of the fundamental and human rights through the deliberative dialogue between precedents and by having the construction of the pro homine principle as an ideal interpretive guide shared by both. Although Constitutional Pluralism is to be considered the theory that justifies the plural reading of the Brazilian constitutional provisions, the Supreme Court, despite the citations of the Inter-American Court of Human Rights precedents, does not dialogue with them.
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A plurifuncionalidade da segurança alimentar no meio ambiente como dever de solidariedade agroambiental
(Universidade Federal do Pará, 2013) BASTOS, Ronald Corecha; GOMES, Carla Maria Amado; MATTOS NETO, Antonio José de; http://lattes.cnpq.br/4719479439779242
This paper addresses the theoretical analysis of the multifunction in the Food Nutritional Security in the environment, which sustains itself as a duty of agri-environment solidarity. The paper was divided into three parts, each with two chapters, which were initially developed with the establishment of the context in which they are the subject in discussion, and finalized with comments on the main ideas studied until the preparation of final remarks, which shows the results achieved by it. Uses the theoretical methodology and inductive critical reasoning, because the study was part of an individualized phenomenon, the Food Nutritional Security, to display hypotheses that consider their effects and interactions with the natural environment, then to the end seek to generalize the solutions found, remarkably solidarity in its dimension of legal duty. Seeks to support the argumentation with bibliographic references and other scientific domestic production and foreign entities. Firstly, it discusses some reasons that led to the realization of the thesis, what are the major problems involving human ingestion in contemporary, displays the nearness to human rights, especially with the principle of solidarity and their multidisciplinary methodological characteristics that necessarily generates effects in various other fields of knowledge. Concepts executed by the United Nations Food and Agriculture Organization, especially regarding the right to food, right to be fed, food sovereignty, Food Security and innutrition, under nutrition and malnutrition are critically reviewed. Food Nutritional Security is considered in its multifunctional dimension because it necessarily involves ethical and legal implications related to human rights, from the theoretical idea of solidarity, which is studied from its old training, when united with virtue, to modernity and the closeness to politics and the law, understood in this principle that supports the legal duty bound to rational management of environmental goods geared to food, particularly in agri-enviroment law, perceiving solidarity as the foundation of rights, upper value qualified fraternity, while under relevant international human rights documents and in several constitutions. The diffuse interests are necessarily examined, because the Food Nutritional Security is a general interest of human society, and implies the preservation of food environmental goods, considered inseparable solidarity in view, which should be integrated into freedom and equality values, making more human principle interpretations, limiting its complete exercise and even justifying them. The idea of solidarity makes it possible to get the rights from agri-environment duty in the presence of the various theoretical approaches that deal with the legal duty, it is considered to be autonomous in relation to the subjective right, but translating duties linked to social purposes of public interest, that manifested in a democratic environment, and the agri-environment could be considered a phenomenon with public ethics background, with high environmental values, decisive in its legal dimension of obligations and responsibilities of all in relation to all, also national objective standards and international protection of agro-environmental goods. It is discussed that the public ethics allied to environmental ethics can be crucial in compliance with the law, merely beyond the outward persuasion, but likewise as internal manifestation ethics, which carries the sense of solidary legal duty connected to the multifunction of Food Nutritional Security. There are traditional arguments critiques about the future generation rights, for its vagueness and uncertainty that scientific gird up, and puts away from the possibility of appearing as an object of law are also prepared to settle the rights of spoken are accurately translated as present generation duties, these duties being the legal relationship between successive generations. Therefore, intergenerational solidarity is starting to have a continual legal bond, studied through the theory of fundamental rights, which gives it the fluidity characteristic between generations, and consequently requires the rational utilization of natural environmental resources, supported the principles and the precautionary information, the ethics of responsibility towards all generations, who demands the incorporation of long time in human actions, which enables the wide environmental education, and the development of unselfish thought, which considers the environmental boundary problems and limited natural environment assets, being indispensable the awareness of this generation and its political class to the statement of solidarity. Studying further that the duty of rational management of natural food environmental goods is the duty of solidarity, because it is considered that each individual uses an immaterial portion of this undivided collective good, which may be public or private, but that is submitted to solidarity. In this framework only prevails property rights in relation to their traditional qualities, the common goal of preserving food environmental goods does not provide a satisfactory basis for striking readjustment of activity, abstention from conduct, or even punitive accountability measures under objective justification. Finally, as a scientific contribution, this work presents an essay for the construction characteristics of the agri-environment solidarity duty, what are they, its object and subject, its structure, covering the nature of the obligations hereunder, and principal rules. The general conclusion is presented that the agri-environment solidarity duty shown by its occurrence Food Nutritional Security corresponds to the idea of justice and political morality, a phenomenon in which it is alleged a powerful connection between law and environmental ethics, relevant for understanding human conflicts and involving the use of natural environmental goods.
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Sloterdijk e o antropoceno: micropolíticas para a agenda civilizatória
(Universidade Federal do Pará, 2022-08-10) RODRIGUES, Bráulio Marques; MATOS, Saulo Monteiro M. de; http://lattes.cnpq.br/1755999011402142; COSTA, Paulo Sérgio Weyl Albuquerque; http://lattes.cnpq.br/4135075517359609
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“Tem que mover uma ação”: mobilização, participação e resistência indígena no processo de licenciamento ambiental da usina hidrelétrica Belo Monte
(Universidade Federal do Pará, 2021-02-22) SOUZA, Estella Libardi de; BELTRÃO, Jane Felipe; http://lattes.cnpq.br/6647582671406048; https://orcid.org/0000-0003-2113-043X
In this thesis, I analyze the mobilization, participation and resistance of the indigenous peoples of the Middle Xingu in the course of the implantation process of the Belo Monte Hydroelectric Plant (HPP), located on the Xingu River, in the municipalities of Altamira, Vitória do Xingu and Brasil Novo, in the state of Pará. I discuss the political action and the resistance of the indigenous peoples to the actions for the implantation of the plant, with the purpose of understanding: how do indigenous peoples act and react in the face of damages and losses to their territories and ways of life, caused by the implantation of Belo Monte HPP? How do they act to deal with violations and violence? What rights are enunciated and claimed in your political struggle? For the development of the thesis, I used qualitative research methods, such as participant observation and interviews, through fieldwork in Altamira/PA, Brasília/DF and in indigenous lands, between July 2015 and February 2017. In the first chapter, I address the historical trajectories of the indigenous peoples of the Middle Xingu, in an attempt to understand the specificities of the different social and historical situations experienced by them. In the second chapter, I examine the political and legal context in which the hydroelectric project on the Xingu River, which gave rise to the Belo Monte HPP, was created, and explore the project's chronology and history. In the third chapter, I discuss the implementation of the Belo Monte HPP, focusing on the environmental licensing of the project and the (im) possibility of participation of indigenous peoples, having as main sources the documents of the process of the indigenous component of environmental licensing, which is being processed at Funai, and that build a state narrative about the implantation of the hydroelectric plant. Finally, in the last chapter, using the narratives of Juruna/Yudjá and Arara people from Volta Grande do Xingu as main sources, I analyze the mobilization and strategies of struggle and resistance of indigenous peoples in the course of the environmental licensing process of the project, whether to do recognize the losses suffered, to “negotiate” with the Brazilian State and Norte Energia the mitigation and compensation measures for impacts, to pressure for the implementation of other measures established as conditions for environmental licenses or to demand actions that guarantee the improvement of their conditions of life, even if not provided for in environmental licenses.

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