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University of Arizona James E. Rogers College of Law Indigenous International Human Rights Law in the Context of Indigenous Peoples: Moving From Legislation to Implementation Item Type text; Dissertation-Reproduction (electronic) Authors Yamada, Erika Magami Publisher The University of Arizona. Rights Copyright © is held by the author. Digital access to this material is made possible by the James E. Rogers College of Law and the University Libraries, University of Arizona. Further transmission, reproduction, presentation (such as public display or performance) of protected items is prohibited except with permission of the author. Download date 30/09/2021 17:03:48 Link to Item http://hdl.handle.net/10150/631496 University of Arizona James E. Rogers College of Law Indigenous Peoples Law & Policy Program Supervisor: Prof. S. James Anaya S.J.D. Dissertation International Human Rights Law in the context of Indigenous Peoples: Moving From Legislation To Implementation Lands rights' cases at the Brazilian Federal Supreme Court November 2008 (revision January 2009) Erika Magami Yamada Contents Contents 1 Acknowledgment 2 Summary 4 I - Introduction 5 II - Definitions 8 Ill - Formal Recognition: securing indigenous peoples' territorial rights in Brazil 13 a. Colonial Era 16 b. Independent State: Brazilian Empire 24 c. Old Republic 28 d. Brazilian Federal Republic (Dictatorship and Democracy) 33 e. Brazilian foreign policy and enforcement of human rights 40 IV - Enforcement of Rights: Cases before the Brazilian Federal Supreme Court 46 a. The Federal Supreme Court and indigenous land rights' cases 48 b. The most used legal actions 54 c. Brazilian Federal Supreme Court recent findings 58 d. NandeRu Marangatu: indigenous people outside the demarcated land. 66 e. Raposa Serra do Sol: reaffirmation or denial of rights? 72 f.And now? 82 V - Insights from international human rights law in the context of indigenous peoples 85 a. Protection of indigenous peoples' lands within the practice of UN bodies 91 i. International Labour Organization 91 ii. Human Rights Committee 95 iii. CERD 96 b. Protection of indigenous peoples' lands within the OAS 101 i. Jurisprudence oflnter-American Court of Human Rights 103 ii. Inter-American Commission on Human Rights 107 c. Protection of Indigenous Peoples' lands under Customary International Law 110 i. UN Declaration on the Rights oflndigenous Peoples 111 VI - Human rights for the protection of indigenous peoples' lands in Brazil114 a. International Human Rights Law and the Brazilian Legal Order 121 i. The problem of justiciability of rights 121 ii. The doctrine of constitutional status and self-execution of international human rights law 124 b. Direct application of international human rights treaties as domestic laws 128 i. The contrary jurisprudence of the Brazilian Federal Supreme Court 130 ii. The Position of the Federal Supreme Court After the 1988 Constitution and Constitutional Amendment 45 132 c. International Human Rights Law as a Tool to Interpret the Constitution 135 i. Interpreting the Constitution 136 ii. Indigenous Rights' Cases in Australia, Belize and Brazil 138 d. New Era of International Human Rights Law's Recognition 146 VII - Conclusion 149 Bibliography 161 Acknowledgment This study was inspired by the lessons of indigenous peoples' organizations in the Raposa Serra do Sol (Roraima) case domestically and internationally. At the time of this dissertation's presentation, the case of the indigenous land Raposa Serra do Sol had not been concluded at the Brazilian Federal Supreme Court. But it is not an unfinished story. The case is still being monitored by international human rights bodies, and the final hearing at the Supreme Court is scheduled and expected to bring important developments in the near future. Since the beginning of this writing, the hopes for fair and non-discriminatory treatment of indigenous peoples and for new and positive response by the legal system has only increased. In 2005 the demarcation of the indigenous land Raposa Serra do Sol was ratified by President Lula. In 2007, the UN Declaration on the Rights of Indigenous Peoples was approved by the General Assembly and Brazil voted in favour of that. In 2008, indigenous peoples' land rights issues received relevance and attention from the Brazilian Federal Supreme Court because of the Raposa Serra do Sol case. Indigenous organizations and human rights lawyers are working closer for the enforcement of constitutional rights as a way to implement international human rights law. Moreover, Brazil seems to be aware of its international human rights obligations and the need to overcome discrimination. With that increasing hope for a just system for all, I would like to thank Professor Anaya for his unforgettable lessons and always positive encouragement. I have found endless inspiration in him. The hope that Professor Anaya has expressed in all his advanced ideas and practice in international law is true. His visionary teaching has allowed me to see similar possibilities for the implementation of human rights in Brazil, and his visit to my country as the UN Special Rapporteur on fundamental rights and freedom of indigenous people in 2008 inspired much of this work and other local initiatives. I would also like to thank Professor Anaya for the orientation time and friendly support during my time in Tucson. I felt part of a family. My thanks also go to Joenia Wapichana, Isabela Figueroa, Christine Halvorsson, Luis Pinero and Luiz Villares who encouraged me to apply for the IPLP program. Thanks to Conselho Indigena de Roraima, COIAB and all the indigenous leaders from Brazil and abroad that I was blessed to meet and who welcomed me in their homes. The openness and trust of indigenous leaders on international mechanisms made me realize the practical application of the lessons on the ground. Each visit to an indigenous land helped me understand the special meaning of lands to indigenous peoples and its importance to the world. The Indigenous Peoples Law and Policy Program of the University of Arizona offered me a scholarship and the Ford Foundation awarded me a fellowship during the past 2 years; without these I could not have undertaken my work. I would like to thank Professor Williams for his energetic and passionate teaching. The insights from using history and my shy attempts to insert post-modem thinking throughout the dissertation are thanks to him. The use of some comparative law is thanks to Professor Hopkins. Kathy Deitering was my full time supporter. My special thanks to Kevin Nguyen, Jackie Hartley and Martin Weber who found the time and energy to review the text. Also to Jennifer, Jackie, Luis, Maia, Seanna, Mattias, Mary who share with me the passion for a just life. Thank you to my Brazilian friends in Tucson for helping me to see the joy in each moment. Finally, to my family and friends in Brazil for their complete support on my choices and understanding with my latest absences. Summary In Brazil, the right of indigenous peoples to lands has been recognized since colonial time. But recognition of rights on paper has not been followed by implementation and enforcement of those rights. Indigenous peoples are still threatened. The object of present study is the position of Brazilian Federal Supreme Court in regard to regarding indigenous peoples' right to lands and the 144 pending cases. Despite existing constitutional and international laws protecting indigenous peoples' lands, the security of those fundamental rights is still pending confirmation in Brazil. Today, the most relevant suits regarding indigenous peoples' lands usually go to the Federal Supreme Court level because of the conflicting interests between the Union and the federation units (states) and federalism issues. Land rights' cases are not treated as an issue of fundamental rights and or as a matter concerning the State's international human rights obligations. Conflicts over indigenous lands have been framed more as disputes involving the social structure, economic and political interests than an issue of human rights. Therefore, the Brazilian Federal Supreme Court shall confirm its position regarding the interpretation of constitutional article 231 in line with human rights standards and Brazil's international obligations by delivering its final decisions on the pending cases. Generally, there is much resistance to the use of foreign or international instruments as law, even after they become part of the domestic legal order such as the ILO Convention no. 169 in Brazil. That is because allied to the positivist tradition, the Brazilian Federal Constitution is considered to be the highest legal instrument and to comprehensively address fundamental rights. Also, there is a strong belief that the use of international human rights law can threaten State sovereignty and that human rights issues are limited to policy. The Supreme Court has dismissed the use of international human rights law for indigenous land rights cases based on inconsistent arguments, sometimes full of misunderstandings. International human rights standards and instruments are in much more harmony with the Brazilian Federal Constitution than it is stated and can be legitimate tools to overcome colonialism and truly protect indigenous peoples and their culhires through the security of their rights to lands and self-determination. The reservations expressed by the Judiciary regarding the application of human rights standards to indigenous peoples land rights' cases are unfounded, but kept as a scapegoat to serve only the special interests of the
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