O controle de convencionalidade do marco legal da biodiversidade à luz da convenção nº169 da organização internacional do trabalho

Abstract

The Law No. 13,123 of 2015, since its promulgation, has been the target of criticism by indigenous peoples and communities and traditional farmers. They argue that the rule would not have respected their right to be consulted and to give their prior, free and informed consent, in face of which would violate Convention 169 of the International Labor Organization, which protects them. Based on these considerations, and starting from the hypothesis and that the domestic norm would be in dissonance with the provisions of the aforementioned international legislation, the research problem of this dissertation consisted of determining whether the way Law No. 13,123 of 2015 - addresses issues related to consultation and to prior, free and informed consent, to the access to resources exclusively from biodiversity and the knowledge associated to it held by traditional peoples, is sustained in view of the provisions of Convention No. 169, of the International Labor Organization, and also to investigate the legal consequences of any incompatibility. The objective of the work was to investigate the extent to which Law No. 13,123, of 2015, serves- or not - the provisions of Convention No. 169, of the International Labor Organization, both in its training process and in its material aspect, with regard to consultation and prior, free and informed consent and to the access to resources exclusively from biodiversity and the traditional knowledge associated with it. It was also sought to verify to what extent the Law is compatible and complies with the provisions of the International Treaty, under the aspects mentioned; investigate the validity of Convention 169, of the International Labor Organization, within the scope of domestic law, ascertaining its hierarchy, in view of the way in which its internalization process took place; and, finally, in case it is found a normative antinomy between the legal framework of biodiversity and the International Treaty, analyze what are the existing possibilities, with regard to the control of conventionality of the legal framework of biodiversity by the International Treaty. The work was developed using the hypothetical-deductive approach method. The procedure method was the monographic and the research technique was bibliographic. It is concluded that Law No. 13,123, 2015, violates the provisions of Convention 169, of the International Labor Organization in relation to the right to consultation and free, prior and informed consent, being subject to discussions both internationally and internally. In this aspect, under the judicial perspective, the rule can be questioned as to its legal unconventionality, which, if recognized and declared, will have the effect of paralyzing the effects of the Law, in whole or in part, making it inapplicable. [resumo fornecido pelo autor]