A crise sanitária na terra indígena Yanomami sob a ótica do Sistema Interamericano de Direitos Humanos

Abstract

Brazil’s legislative history, when it comes to indigenous people’s rights, has been, through most of it, silent. Only after the promulgation of the Federal Constitution of 1988, the rights of the indigenous people to their beliefs, habits, languages, and social organization were acknowledged, rather than the previous Constitutions policies of assimilation, that intended to integrate these people to the national community. With the universalization of the liberal and social rights, these people became holders of rights not only to their lands, but also to life, personal freedom, and health. In what concerns this last one, many national and international legislative norms guarantee an individualized and specific attention to the indigenous, especially those that were only recently contacted. However, the existence of legal protection does not necessarily implicate, in practice, in effective actions towards the protection of these people, as can be seen in the case of the Yanomami and Ye’kwana people. These, who are inhabitants of the Yanomami Indigenous Land, are as of now going through a sanitary and humanitarian crisis since circa 2019, caused by the assembly of two factors: the lack of functionality of their health system and the invasion of their lands by illegal gold miners. The high number of contamination and deaths caused by diseased brought by the invaders and the lack of a health service to treat them has led, in 2020, to a request of these people to the Inter American Commission of Human Rights, in order to compel the Brazilian State to take precautionary measures to safeguard their then violated rights. The Interamerican System of Human Rights, of which the Commission is a part and Brazil is a signatory, consists of a set of treaties, of which the main one is the American Convention of Human Rights (ACHR), and two monitoring organs – the Commission, of voluntary characteristics, and the Interamerican Court of Human Rights, of contentious characteristics. The Protocol of San Salvador, additional to ACHR, lists the social, cultural, and economical rights, including the right to health, that are to be protected by the State-members. The commission deferred to the request and determined to Brazil the adoption of cautery measures in favor of the beneficiary. Its decision was however breached, which led it to send the case to the Court in May of 2022. The judgment of the Court happened in July of the same year, when Brazil was convicted to comply with the measures determined by the Commission, as well as to take new actions to the protection of the beneficiary. Up until the year of 2023, Brazil has not indicated the compliance of these measures to the Court. This paper utilizes the descriptive-deductive methodology, for coming from a general premise - the breaching of indigenous rights - to a concrete case - the sanitary crisis in the YIL, and for describing the factual situation and the system of protection of these rights in the international scope, in order to understand and raise questions concerning to the instruments utilized by the Inter American System to guarantee the accomplishment of its decisions, and its effectiveness.