A TEORIA DA JUSTIÇA DE JOHN RAWLS E OS DIREITOS HUMANOS DOS POVOS ORIGINÁRIOS: CASO LHAKA HONRAT VS ARGENTINA NA CORTE INTERAMERICANA DE DIREITOS HUMANOS E SUA REPERCUSSÃO PERANTE O SUPREMO TRIBUNAL FEDERAL

Abstract

The general objective of this dissertation is to analyze the connection and application of John Rawls' theory of justice and the human rights of original peoples, having as its premise the paradigm decision of the Inter-American Court of Human Rights - Court-IDH when judging the Lhaka Honrat case (Nuestra Tierra) vs Argentina. The aforementioned judgment deals for the first time with the autonomous application of article 26 of the ACHR under the understanding of OC 23/17, which ensures the economic, social and cultural rights of indigenous peoples, recognizing, (1) the protection of a healthy environment; (2) the right to adequate food and the human right to water; (3) fundamental right to cultural identity of indigenous peoples and (5) common right to participation (consultation) in an interrelationship with the right to indigenous property. From this perspective, the specific objectives of this analysis are: a) to enable and apply principles of political justice in structural cases involving fundamental human rights of indigenous populations; b) build and seek the effective emancipation of original peoples through the exercise of their full citizenship; c) establish a dialogue between Courts, especially the Inter-American Court of Human Rights and the Federal Supreme Court; d) encourage an alternative to utilitarianism and the politics of difference when considering indigenous issues; e) carry out an analysis of justice as equity before the Federal Supreme Court – STF, especially on Direct Action of Unconstitutionality (ADI) 5905 – which has as its agenda the constitutionality of free, prior and informed consultation established by the influence of ILO Convention 169, ratifying the idea of multilevel constitutionalism. In light of the massive problems of social inequality and asymmetries of original peoples, especially due to the lack of participatory citizenship, was it possible to achieve their real emancipation and development within contemporary democracy, providing the effective fulfillment of human rights? Procedural justice, which advocates justice as a priority in relation to the good to be achieved within a society marked by the fact of pluralism, instigates and allows the application of rationally chosen principles of justice, to give new meaning to the human rights of original peoples. In this way, In this way, this research has the scope established the theoretical and practical importance of a theory of justice for the implementation of human rights and citizenship. Preliminarily, the possibility of applying principles of political justice in the judicial sphere became evident, especially in the egalitarian construction of John Rawls. To build this approach, the deductive method was used, starting from the chronology of theories of justice from Antiquity to John Rawls, analyzing the international and national normative body on the protection of original populations, arriving at the analysis of the IDH Court's decision in the case Lhaka Honrat (Nuestra Tierra) vs Argentina and its repercussion on domestic law, using ILO Convention 169 as an equality mechanism, implementing the participatory citizenship of original peoples. It should be noted that this research is characterized as bibliographic and qualitative