Marcus Pinto Aguiar | Path to guaranteeing indigenous rights

What is still missing to adequately guarantee the rights of indigenous people in Brazil? How should we appropriately celebrate Indigenous Day every year?

To understand this issue, knowing the interrelationship between international human rights treaties (conventional standards) and fundamental rights (constitutional standards) in Brazil is essential.

EVOLUTION OF RIGHTS FROM 1992 TO 2015

Decree 678 of 1992, in which the Brazilian State decided to accept the American Convention on Human Rights (PDF — 4 MB), the Pact of São José da Costa Rica, implying the expansion of the list of fundamental rights and guarantees of the Constitution, indicates this as a regional normative framework.

In December 1998, Brazil recognized the contentious jurisdiction of the IACHR (Inter-American Court of Human Rights). In this way, it obliges the Regional Court, by decree 4,463 of 2002, to submit to the decisions of the Court, which is the ultimate interpreter of the Inter-American Convention.

In this context, the majority of qualified doctrine in matters of human rights, such as Cançado Trindade and Flávia Piovesan, understand that international human rights treaties ratified and in force in Brazil have a constitutional hierarchy.

The vote (PDF — 1 MB), by Minister Sepúlveda Pertence, in 2000, in the judgment of RHC 79.785-RJ, introduced the theme of the supralegal nature of the aforementioned treaties, positioning them hierarchically below the Constitution and above other legislative species.

In 2004, in constitutional amendment 45, known as the reform of the Judiciary, paragraph 3 of article 5 was introduced into the Constitution, which attributes constitutional amendment status only to treaties on human rights approved with a quorum for approval of constitutional amendments. It resulted in numerous criticisms, including the section’s unconstitutionality.

The Federal Supreme Court, in the judgment of Extraordinary Appeal 466.343– SP (PDF — 4 MB), in 2008, handed down a paradigmatic decision by attributing human rights treaties to the hierarchical-normative position of supralegal, apparently an evolution of the STF’s understanding —which considered such treaties to be hierarchically equivalent to federal laws.

But the case also revealed a weakness in relation to the thesis most pertinent to the issue of human rights—that of status equally constitutional, and may even be parameters for constitutionality control.

Another relevant milestone was in November 2015. The presidents and representatives of the Brazilian courts, meeting in Brasília, during the 9th National Meeting of the Judiciary, approved a strategic guideline to guide the Judiciary’s performance in 2016, with the following wording:

“It is a strategic guideline of the Judiciary, and a commitment of all Brazilian courts, to give concrete expression to the rights provided for in treaties, conventions and other international instruments on the protection of human rights.”.

CNJ ENTERS THE FIELD

Finally, 30 years after the ratification of the Pact of Saint Joseph of Costa Rica, the CNJ (National Council of Justice), in 2022, issued Recommendation 123, guiding the bodies of the Judiciary to comply with international human rights treaties and conventions. and the use of the jurisprudence of the Inter-American Court of Human Rights.

The proposal is that not only will the STF promote the application of such treaties and other normative-conventional acts of the Inter-American Court and the Inter-American Commission on Human Rights, but also advisory opinions and decisions. Courts and initial judgments must also have the same responsibility.

Thus, the CNJ’s guidance expresses concern about the effectiveness of human (and fundamental) rights within the internal spectrum of this Power, consolidating the use of a “bloc of conventionality” broader, always with the perspective of greater effectiveness of human rights norms and systems.

Given this synthesis, one can observe an apparent evolution of the interaction between internal and international normative systems, and even a greater normative sensitivity on the part of the Judiciary in human rights cases, from 1992 to 2022.

However, when it comes to groups without adequate representation in the Brazilian political space, the application of conventional norms and the jurisprudence of the Inter-American Court is invoked by Brazilian courts. This is the case of indigenous peoples, especially in the demarcation of lands and the protection of the cultural and identity rights of communities.

INDIGENOUS RIGHTS IN THE WORLD

The Inter-American Court itself published, in 2022, the 11th edition of its Jurisprudence Notebook (PDF — 2 MB) with references to several decisions that involve indigenous rights and that could be taken as parameters of validity of judicial, legislative and administrative decisions of the powers public groups in Brazil, at a time when indigenous people are suffering from the slowness of the Brazilian government and the escalation of conflicts due to land demarcation processes.

As an example of an effective normative parameter for internal application in the issue of demarcation of indigenous territories, there is the case “Mayagna Community (Sumo) Awas Tingni vs. Nicaragua”. The sentence of the Regional Court, given on August 31, 2001, states:

“Indigenous people, by virtue of their very existence, have the right to live freely in their own territories; The close relationship that indigenous people maintain with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity and their economic survival. For indigenous communities, the relationship with land is not merely a matter of possession and production, but a material and spiritual element that they must fully enjoy, including to preserve their cultural legacy and transmit it to future generations.”.

In addition to standards, guidelines and recommendations, those who decide for indigenous rights need to understand that life is more valuable than the economy. As Ailton Krenak says:

“If humans are at risk, any human activity ceases to matter. Saying that the economy is more important is like saying that the ship matters more than the crew. Something for those who think life is based on meritocracy and the struggle for power”.

Thus, to appropriately celebrate Indigenous Day, the competent bodies could, initially, expand actions on the implementation of fundamental rights and guarantees, supported by the human rights that the country has already ratified with the spirit (principle) of objective goodwill and international collaboration, uniting what “the head thinks and the heart desires” with works that dignify the human species in each of its representatives, without any discrimination. A Herculean work, but one worth living for.