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Título: THE RECONSTRUCTION OF THE COLLECTIVE SUBJECTIVITY OF INDIGENOUS PEOPLES IN THE INTERNATIONAL LAW OF HUMAN RIGHTS: THE RESCUE OF THE IBERIAN SCHOOL OF PEACE THOUGHT (XVI AND XVII CENTURIES) TOWARDS A NEW JUS GENTIUM FOR THE XXI CENTURY
Autor: SÍLVIA MARIA DA SILVEIRA LOUREIRO
Colaborador(es): BETHANIA DE ALBUQUERQUE ASSY - Orientador
ANTÔNIO AUGUSTO CANÇADO TRINDADE - Coorientador
Catalogação: 06/JUL/2016 Língua(s): PORTUGUESE - BRAZIL
Tipo: TEXT Subtipo: THESIS
Notas: [pt] Todos os dados constantes dos documentos são de inteira responsabilidade de seus autores. Os dados utilizados nas descrições dos documentos estão em conformidade com os sistemas da administração da PUC-Rio.
[en] All data contained in the documents are the sole responsibility of the authors. The data used in the descriptions of the documents are in conformity with the systems of the administration of PUC-Rio.
Referência(s): [pt] https://www.maxwell.vrac.puc-rio.br/projetosEspeciais/ETDs/consultas/conteudo.php?strSecao=resultado&nrSeq=26769&idi=1
[en] https://www.maxwell.vrac.puc-rio.br/projetosEspeciais/ETDs/consultas/conteudo.php?strSecao=resultado&nrSeq=26769&idi=2
DOI: https://doi.org/10.17771/PUCRio.acad.26769
Resumo:
The aim of this thesis is to research the theoretical basis for the recognition of indigenous peoples as true subjects of the international law for human rights, by means of recovering the legal and theological thought of the authors of the Iberian School of Peace. Their written work which dates of the sixteenth and seventeenth centuries discuss the ethical, legal and political basis for the process of conquer and colonization of the New World. Their debates occurred in a privileged moment for the analysis, firstly because of the unprecedented contact of civilizations created by the arrival of the Spanish and Portuguese caravels in America, under patronage of the Iberian kings and the Pope. This contact stimulated the authors of the Renascence in the Iberian Peninsula to adapt the Christian Mediterranean philosophy tradition to a new reality which resulted on reinvention of the natural law and the law of nations under the frame of a cultural reality very different from that of the medieval orbis christianus. Secondly, the historic and geographic context of the Iberian School of Peace allows an analysis of the International Law still as jus gentium, i.e. before the Westphalian model of state sovereignty established in 1648. For complete understanding the research problem, the thesis is divided in three parts. The first part is dedicated to the study of phenomenon of the collectivization of the international law of the human rights. It analyses the sources that provide inspiration for the Universal Declaration of Human Rights and the decision process that divided the International Pacts of the United Nations in two instruments, one for civil and political rights and other for economic, social and cultural rights. The fact that the two instruments have distinct implementation mechanisms resulted on the protection of individual human rights being more widely developed than the protection of the collective dimension of human rights. It is demonstrated that besides the resistance in the tradition of human rights theory, human collectivities currently have locus standi in the international petitioning systems for the systematic violation of human rights. The second part emphasizes the trajectory of indigenous peoples from objects to subjects of international law, and examines their emancipatory process under the New Latin American Constitutionalism. This intermediate part of the work demonstrates the recognition of the condition of collective subjects for the indigenous peoples by means of the study of indigenous case law brought to the Inter-American Court of Human Rights, especially after the paradigmatic case of the people Kichwa de Sarayaku v. Ecuador (2012). As this thesis does not aim to analyze the international law of the indigenous peoples resorting only to legal hermeneutics and normative studies, the third part reveals the role of the Iberian School of Pace of the sixteenth and seventeenth centuries to the protection of indigenous peoples rights in the new world. Due to the perspective of the natural law and the law of nations, the indigenous peoples were considered by the Iberian authors as free and sovereign human communities that, as any other Christian kingdom, had the right of self-government and control of their lands.
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