A proteção internacional dos direitos territoriais indígenas: a análise dos mecanismos de implementação no sistema interamericano de direitos humanos

Abstract

The traditional approach in which the State is structured by the elements people, territory and sovereign government has demanded, in the previous decades, the development of a new philosophical resolution. These new concepts derive from the existence of individuals that do not integrate the homogeneous concept of the term people and do not conceive the territory and sovereign government pillars based on the State's superior acting. Among this social group, indigenous peoples can be inserted, whom have become politicized in the past decades, with the intent to protect, under the optics of the State law, its behaviors, believes, languages and traditions and, essentially, the land they inhabited in a traditional manner. The current study aims at analyzing, foremost, such elements' structuring under a State order that is no longer based on the recognition and validation of rules regarding the differences. The first phase above described encounters, however, a saturation point, due to the fact that the State has monopolized the duty of recognizing indigenous land rights, by means of conceding formal property titles or other institutes under the civil orbit throughout administrative procedures which have been instructed and decided by integrating members of its organization. It is verified, though, that the State's actions, under some circumstances, are not consonant with the normative protective predictions to the Indigenous land rights, either by the rejection of an area demarcation request or even by its inefficiency in speeding up such activities, which are, for decades, without any merits completion. It is analyzed, thereafter, the State's internal jurisdiction's insufficiency before the recognition of such rights, which motivated the utilization of international systems by the indigenous peoples, including for acquisition of sentencing provision for land demarcation. With the emersion of the Human Right Speech as apt to the analysis of a fundamental right violation occurrence, several formal accusations have been presented before the Inter-American Human Rights System and, as a consequence, the Inter-American Human Rights Court pronounced the correspondent sentences, which verified a property right violation occurrence, inscribed on the art. # 21 of the American Human Rights Convention, attributed to the conformity between the individual property fundamentals and the premises inherent to the occupation of indigenous lands. The condemnations have also considered that there's a violation to the right of life, stated on the art. # 4 of the American Human Right Convention, when regarding that the absence of land creates a vulnerability state among the native peoples, which affects such right. Therefore, the present essay investigates the differences between the approaches concerning the indigenous land: the State's view, elucidating land throughout land rights conceptions and; the indigenous view, based on the right of life. Thus, the present research intends to delve into, as from a technical literature, the multiple interpretations of the expression indigenous land through the presentation of the national State's institutional conformation; the study of the protection mechanisms before the Inter-American Human Rights System and; its decisions over this surrounding theme and digressions about life and property values. KEYWORDS: PROPERTY. INDIGENOUS. EARTH. HUMAN RIGHTS. LIFE.