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

Abstract

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.