Structural reform litigation and the protection of indigenous peoples’ rights in the Covid-19 pandemic: ICCAL contributions

ABSTRACT

Given the risks that the COVID-19 pandemic has generated for the human rights of vulnerable groups, such as indigenous peoples, this article aims to undertake a contextualized critical analysis of the approach of the Brazilian Federal Supreme Court in the adjudication of the structural reform litigation ADPF 709/2020, in order to verify the contributions that can arise from the interaction with the regional jurisdiction and that of other states in the environment of the Ius Constitutionale Commune in Latin America (ICCAL). To this end, using the deductive method and a critical bibliographic review of jurisprudence and doctrine, the investigation is based on the study of the institutes of transformative constitutionalism and structural reform litigation as tools that operationalize inter-American human rights standards, as well as the judicial dialogues that demand cooperation among jurisdictions to fulfill their constitutional commitments. Next, we studied the use of structural reform litigation to protect the rights of indigenous communities by ICCAL member courts in order to identify their contributions. Finally, a detailed study of the decisions adopted in ADPF 709 demonstrated the STF’s openness to the legal parameters of the ICCAL, through the use of a structural process that values institutional dialogue between the court, executive branch agents, and indigenous communities, with attention to their traditional values. The STF seems to be on the way to advancing the realization of transformative constitutionalism in Brazil, and may deepen its dialogue with the Inter-American Court and adopt strategies of interaction and approximation with the affected communities. © 2021 Centro Universitario de Brasilia. All rights reserved.