Litigância estratégica e o direito à demarcação territorial Guarani e Kaiowá: uma análise crítica ao discurso-prática em direitos humanos

Abstract

This research examines the potential and limitations of applying strategic human rights litigation as a means of claiming the demarcation of Guarani and Kaiowá lands, an indigenous people from Mato Grosso do Sul. In light of the dynamics of demands for the demarcation of indigenous lands in the Brazilian context and the obstacles to their realization, we propose to investigate the possibility of using the method of strategic litigation in human rights as a means of promoting justice and social transformation that aims to generate structural impacts on situations of systemic violations. As this is a complex tool, the utilization of this method of litigation necessitates a meticulous examination, given the multifaceted considerations that must be meticulously evaluated before a claim can be initiated. A wide range of predictions will depend on the intent of the action by the representatives, the environment and context in which it will take place, and its possible legal, political, and social consequences for the groups and people involved. In light of these considerations, the study takes a critical stance towards the colonial logic of the hegemonic discourse of human rights. Additionally, the study proposes an analysis of the limitations and potential of strategic litigation in the promotion of claims that seek the effective promotion of social justice. This investigation thus examines the manner in which the judiciary addresses issues of indigenous territoriality and performs a contextual analysis based on the material produced through interviews with the principal litigants in the Guarani and Kaiowá cases. It can be concluded that strategic litigation may be proposed to claim the demarcation of the Guarani and Kaiowá territories, provided that the conditions for guaranteeing the right of access to justice are taken into account, as a perspective that makes it possible to think of alternatives to the discourse-practice.