A força jurídica dos protocolos autônomos de consulta dos povos e comunidades tradicionais do Brasil

Abstract

This present dissertation investigates how the Brazilian State has responded to na initiative from the peoples and traditional communities in producing not conventional legal norms, such as the indepent protocols of consultation. The aim is to comprehend how the peoples initiative, as foundation of the Convention 169 from the International Labor Organization (ILO), by the development of the indepent protocols of query it presents as an alternative against the rights violation and guarantees of the peoples and traditional communities. The methodology consisted mainly in theoretical survey and bibliographic review, still, documentary analysis, as well as judicial decisions from the Brazilian courts that recognize the legal validity and the binding power of the protocols. It searched to demonstrate that the rights of the peoples and traditional communities to the participation and prior consultation to the provisions on Convention 169 of the ILO, and they occur directly from the democratic principles of Law, having materially constitutional status. In addition, it writes about the recognition of rights to the prior consultation and the participation as fundamental rights og immediate application. The indepent protocols of consultation revealed a signifcant mechanism of participation of the indegenous peoples, quilombolas and traditional communities in different topics that affect the rights of this group, also revealing a new way of use and meaning. Therefore, it makes a systematic interpretation of the right of consultation, based on the principle parameters of the Convention 169 of the ILO, emphasizing the immediate applicability of that fundamental right, in order to the protocols highlight as the practical implementation of the law to self-determination of peoples and traditional communities.