International Human Rights Law in the Context of Indigenous Peoples: Moving From Legislation to Implementation

Abstract

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 elite. This study addresses the following questions: Why should/could the IHRL be used to enforce indigenous peoples' constitutional right to lands at the Brazilian Federal Supreme Court? The main topics of the responses found and developed in the dissertation are: a) international human rights law (IHRL) has evolved to protect indigenous peoples' lands as fundamental rights and have created obligations for the States towards indigenous peoples; b) indigenous land rights' issues are properly the concern of domestic and international institutions and States should be willing to resolve those cases as a matter of human rights; c) the Brazilian legal order allows the use of international human rights law to be directly applied and used as a tool of interpretation of the Constitution because these systems are in harmony; and d) indigenous land rights should be enforced as human rights.