The development of the jus cogens norms and the recognition of the right to the property of the indigenous peoples in the light of the case of the Indigenous People Xucuru and its members versus Brazil

Abstract

The purpose of this article is to demonstrate the jus cogens character of the collective property rights of indigenous peoples and their implications in the Brazilian legal system for the jurisprudential construction of the Inter-American Court of Human Rights. In order to do so, the work points out – through bibliographical research – the theory of Francisco de Vitória and the historical contact of the relations between the European and indigenous peoples as initial milestones in the face of the consequences lived by native Americans. The jurisprudence of the Court is used, qualitatively selected, asserting the progressive development of article 21 of the American Convention on Human Rights to evaluate the contribution of the ruling of the case Xucuru Indigenous People and their members vs. Brazil to the Brazilian legal system. It is concluded that the use of land by indigenous peoples is not a privilege that can be annulled by the State or overcome by the rights of third parties, constituting a right of these peoples to obtain the title of their territory, guaranteeing their permanent use without external interference from third parties.