Global Human Rights Defence


The Xokleng indigenous peoples are habitants of the Santa Catarina state in Brazil. Their history is characterized by brutal violence. First, the colonization of territories that we now regard as Brazil caused the Xokleng to be close to extinction. Up until this day, the relationship between the Xokleng and other groups of people has been rough, mainly because of a struggle for natural resources and land ownership (Wiik, 2018).

Now, the Xokleng are involved in an important case. This case, Extraordinary Appeal 1.017.365, decides on the destiny of the Xokleng’s land occupation. The history of the Xokleng tells a story about struggle and violence, where indigenous peoples are eliminated from the land they have been living on for thousands of years. If the Xokleng lose this case, the fate of many other indigenous land claims will fall in favour of agricultural and industrial interests, serving as a precedent for several other cases throughout Brazil and the Amazon (Al Jazeera, 2021).
President Bolsonaro has exclaimed several times in the media that no lands will be demarcated anymore, which means that no indigenous land will be restituted to indigenous groups. Bolsonaro favours the economic purpose that the land can have, such as mining and logging. The impact of these economic activities is great on the people living on indigenous land, for example through contaminated drinking water (Avila, 2021).
This article examines what legal foundation is relevant for the outcome of the Xokleng case. Therefore, the legal situation in Brazil and the international legal context is discussed.

Legal Situation: the Extraordinary Appeal 1.017.365 and its impact on other communities                                                                                                                    The Brazilian Supreme Court has released the judgement of a landmark case regarding indigenous and other traditional community´s rights. In the Extraordinary Appeal 1.017.365, the Court will decide if there is a time frame for Indigenous communities to claim their traditional lands.[1] One thesis suggests that to be entitled to the right to their traditional lands, indigenous communities must have occupied the claimed locations by 1988 (when the Constitution was promulgated) (Bourscheit, 2021). On the other hand, the National Indian Foundation – FUNAI[2] (the Brazilian agency for the promotion of indigenous peoples´ interests), and several NGOs and entities sustain that the Supreme Court must uphold the “indigenato” thesis, according to which indigenous peoples have ancestral rights to their lands, preceding the State itself (Conectas, 2021; STF, 2021).

In this particular Xokleng case, FUNAI has appealed a decision from the 4th Regional Federal Appellate Court which granted the eviction of approximately 100 Indigenous persons from the Biological Reserve of Sassafrás in the State of Santa Catarina. The Santa Catarina Environment Institute (IMA)[3] claimed that the Xokleng indigenous peoples had invaded the reserve in January 2009 and that they had cut trees with chainsaws for selling (Gregg, 2021). The 1st Federal Court of Mafra granted the eviction in 2010, which was upheld by the Appellate Court in July 2013. Parts of disputed lands had been administratively recognized as the Inbirama-la Klãnõ Indigenous Land in 2003, which is a 37.000-hectare area, but were not yet demarcated during the proceedings (STF, 2021)[4], (Gregg, 2021).[5]

In 2019, the Supreme Court decided that this case has general repercussions, which, due to legal and social relevance, entitles it to be analysed by the Court, whose decision must serve as a guideline for analogous cases (STF, 2021).[6] According to the human rights organization Conectas Direitos Humanos (2021), there are 310 indigenous lands in some stage of demarcation proceedings, which may be resolved if the Court rejects the time-frame argument. On the other hand, should the Court accept this thesis, it will unleash and/or escalate various land conflicts and give rise to demarcation annulments.

Article 231 of the Brazilian Constitution is very clear for the Xokleng case: 

Article 231[7]

Indians shall have their social organization, customs, languages, creeds and traditions recognized, as well as their original rights to the lands they traditionally occupy, it is incumbent upon the Union to demarcate them, protect and ensure respect for all of their property.

Paragraph 1. Lands traditionally occupied by Indians are those on which they live on a permanent basis, those used for their productive activities, those indispensable to the preservation of the environmental resources necessary for their well-being and for their physical and cultural reproduction, according to their uses, customs and traditions.

Paragraph 2. The lands traditionally occupied by Indians are intended for their permanent possession and they shall have the exclusive usufruct of the riches of the soil, the rivers and the lakes existing therein.

It states that indigenous peoples have original rights to their traditional lands, which has been sustained not only by FUNAI but also by many of the entities that addressed the court as amici curiae and by the Office of the Prosecutor General (STF, 2021)[8]. On the other hand, the alternative thesis is supported by the rural lobby (Conectas, 2021).Even though the Brazilian National Indian Foundation, FUNAI, is an entity of the Federal Government, the Attorney General’s Office[9] released a legal opinion in 2017 adopting the time-frame thesis[10]. Based on this document, the Ministry of Justice ordered, in 2020, 17 land demarcation proceedings to return to their initial phases (Fuhr & Araujo, 2020). Therefore, it is of utmost importance that the Brazilian Supreme Court rejects the time-frame argument, to protect and fulfil indigenous peoples’ rights in accordance with the literal text of the Constitution.

International Legal Frameworks – Possible Human Rights Violations                    The Supreme Court will decide on what the right interpretation of the 1988 Brazilian constitution is and will guide as a preceding case for many other land demarcation cases. As has been discussed, the time-frame thesis cannot be adopted because it violates the Brazilian constitution. This is because article 231 of the constitution states that land that has been owned traditionally by indigenous peoples must be considered as their possession. 

The general question of this case is whether the time-frame thesis is legal to be adopted in cases where indigenous communities are claiming traditional lands occupation. This question must also be answered in the context of international legal frameworks because there are several that indicate what rights indigenous peoples have in respect to land claiming, and what obligations the Brazilian state has to guarantee these rights. These international legal frameworks are the American Convention on Human Rights, the International Labour Organisation Convention n० 169, and the United Nations Declaration on the Rights of Indigenous Peoples. This article discusses their relevance in light of the Xokleng case and argues if Brazil is complying with its international obligations if the time-frame thesis is adopted.

American Convention on Human Rights

Firstly, the 1969 American Convention on Human Rights, also known as the pact of San Jose, is the main human rights convention of South and North America. Its purpose is to form a framework for the personal liberty and justice of all people living on these continents[11]. Brazil ratified the convention in 1992 and is therefore bound by the terms of this convention. The most relevant article in the convention for the Xokleng case is Article 21, which provides the property right. 

Article 21. Right to Property[12]

1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society.

2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.

3. Usury and any other form of exploitation of man by man shall be prohibited by law.

If the Xokleng case falls in favour of the time-frame thesis, the consequences will be violating the terms of Article 21. The fact that the Supreme Court has decided that this case will be a case of general repercussion, means that, if the time-frame thesis is applied in all analogous cases, the Brazilian state is acting against their obligations described in Article 21. According to subparagraph 2, the state is obligated to prevent citizens from being deprived of their property, which in the Xokleng case means that the land demarcation is illegal because there is no compensation or public utility to the land. 

This is because the reason that the indigenous property would be demarcated is for the rural lobby, who would use the land for agriculture or mining. Furthermore, the reason that Xokleng peoples were not occupying their property in 1988, which is key to the time-frame argument, is because of violence from other citizens who eliminated Xokleng from their land (Conectas, 2021). This means that the time-frame thesis is also in contrast with Article 21 of the Convention. Therefore, the time-frame thesis cannot be upheld when considering that depriving property of citizens is not legal, because the circumstances of this case do not meet the requirements of this law. 

1989 Indigenous and Tribal Peoples Convention                                          Secondly, the International Labour Organization Convention n० 169, also known as the 1989 Indigenous and Tribal Peoples Convention, is an international treaty that concerns the rights of indigenous peoples around the world. Most of the countries that have signed this convention are South-American, yet there are also countries from other parts of the world, for example, The Netherlands and Denmark[13]. The convention states different rights for indigenous peoples and describes what the obligations of the government are to guarantee these rights. The most relevant article of this convention, concerning the Xokleng case, is Article 14. 

Article 14[14]

1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.

2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.

3. Adequate procedures shall be established within the national legal system to resolve land claims by the people concerned.

The most important element of this article is subparagraph 2, which states that governments shall take steps to identify which lands are traditionally occupied by the indigenous peoples. In the Xokleng case, it is clear that their land has not been protected by the Brazilian government in the past, especially before 1988. “Effective protection” has not been guaranteed by the government and has resulted in the Xokleng not being able to occupy their traditional territory. According to these factors, ownership of the land based on traditional ownership must be guaranteed by the state. This means that the time-frame thesis is not a valid reason to repeal the ownership of traditional territory. 

2007 United Nations Declaration on the Rights of Indigenous Peoples            Lastly, the 2007 United Nations Declaration on the Rights of Indigenous Peoples, also known as the UNDRIP, is the most comprehensive treaty on the rights of indigenous peoples worldwide. The UNDRIP formulates multiple articles that are relevant to the Xokleng case. UNDRIP Article 8[15] defines that states shall provide effective protection to indigenous peoples, in particular to actions that have the aim of dispossessing indigenous peoples from their land. As has been discussed, this was not the case for the Xokleng, because they were evicted from their property in the past (Conectas, 2021). Furthermore, Article 10[16] formulates that no relocation of indigenous peoples shall take place without consent and agreement by them. This means that the Xokleng cannot be deprived of their land without consent and agreement, yet this is exactly what happens when the time-frame thesis is acknowledged. The ancestral rights to their land are removed without consent or agreement. Article 26[17] of the UNDRIP defines exactly that wrongfulness because it formulates that indigenous peoples have ownership of the land they traditionally use. 

In conclusion, the Xokleng case is, because of its general repercussions, of great importance for the future of indigenous peoples in South America. The obligations of the Brazilian state under international law contradict every aspect of the time-frame thesis, which means that the rights of the indigenous peoples must be respected by acknowledging their land rights. Therefore, the need for refusing to recognize the time-frame thesis by the Supreme Court of Brazil is of the highest importance.

Authors: Thomas Kraan, Mateus Thomas, Luma Nascimento Vieira and Alekandra Kostova


Al Jazeera (2021) ‘How Brazil’s Indigenous rights hinge on one tribe’s legal battle’ 

Avila, C. (2021) ‘Time frame judgment is suspended’ WWF. 

Bourscheit, A. (2021) ‘Ending the “time Limit” Thesis Will Protect the Climate’ Infoamazonia. 

Brazilian Supreme Court (STF), Extraordinary Appeal 1.017.365. Can be found at: 

Conectas (2021) ‘Time Frame: understand why the case in the Supreme Court can define the future of indigenous lands’ 

Fuhr, G. & R. Araujo (2020) ‘O processo de demarcação de Terras Indígenas sob ataque do neocolonialismo estatal’ Jornal da Universidade.  

Gregg, E. (2021) ‘How Brazil’s Xokleng Case Impacts the Future of Climate Responsiblity’ Interzine.

Wiik, F.B. (2018) ‘Xokleng’ Povos Indigenas No Brasil. 

 Brazilian Supreme Court, Extraordinary Appeal 1.017.365. Can be found at:

Find information over the FUNAI at: 

The IMA is an environmental institute for the region Santa Catarina that aims to protect the (local) environment. Information can be found at: 





The Attorney General’s Office reports to the Executive Power at Federal and State levels.

The American Convention on Human Rights. Can be found at:

The American Convention on Human Rights. Can be found at:

ILO Ratification of the convention overview. Can be found at:

 International Labour Organization Convention n० 169. Can be found at:



Share on facebook
Share on twitter
Share on linkedin


Leave a Comment

Your email address will not be published.


Coordinator - Tibet Team

Mandakini graduated with honours from the Geneva Academy of International Humanitarian Law and Human Rights. Her team analyses the human rights violations faced by Tibetans through a legal lens.

Kenza Mena
Team Coordinator -China

Kenza Mena has expertise in international criminal law since she is currently pursuing a last-year Master’s degree in International Criminal Justice at Paris II Panthéon-Assas and obtained with honors cum laude an LLM in International and Transnational Criminal Law from the University of Amsterdam. She also holds a Bachelor’s degree in French and Anglo-American law. 

Since September 2021, she has been the coordinator of Team China at GHRD, a country where violations of human rights, even international crimes, are frequently perpetrated by representatives of the State. Within Team China, awareness is also raised on discrimination that Chinese women and minorities in the country and, more generally, Chinese people around the world are facing.

Kenza believes that the primary key step to tackle atrocities perpetrated around the world is advocacy and promotion of human rights.

Aimilina Sarafi
Pakistan Coordinator

Aimilina Sarafi holds a Bachelor’s degree cum laude in International Relations and Organisations from Leiden University and is currently pursuing a Double Legal Master’s degree (LLM) in Public International Law and International Criminal Law at the University of Amsterdam.
She is an active advocate for the human rights of all peoples in her community and is passionate about creating a better world for future generations. Aimilina is the coordinator for the GHRD team of Pakistan, in which human rights violations of minority communities in Pakistan are investigated and legally evaluated based on international human rights legal standards.
Her team is working on raising awareness on the plight of minority communities such as women, children, religious and ethnic minorities within Pakistan.

Lukas Mitidieri
Coordinator & Head Researcher- Bangladesh

Lucas Mitidieri is currently pursuing his bachelor’s degree in International Relations at the Federal University of Rio de Janeiro (UFRJ). As the GHRD Bangladesh Team Coordinator, he advocates for human rights and monitors violations across all minorities and marginalized groups in Bangladesh. Lucas believes that the fight for International Human Rights is the key to a world with better social justice and greater equality.

Nicole Hutchinson
Editorial Team Lead

Nicole has an MSc in International Development Studies with a focus on migration. She is passionate about promoting human rights and fighting poverty through advocacy and empowering human choice. Nicole believes that even the simplest social justice efforts, when properly nurtured, can bring about radical and positive change worldwide.

Gabriela Johannen
Coordinator & Head Researcher – India

Gabriela Johannen is a lawyer admitted to the German bar and holds extensive knowledge in the fields of human rights, refugee law, and international law. After working for various courts and law firms in her home country, she decided to obtain an LL.M. degree from Utrecht University where she studied Public International Law with a special focus on Human Rights. Additionally, while working as a pro-bono legal advisor for refugees, she expanded her knowledge in the fields of refugee law and migration.

Gabriela is the coordinator and head researcher for GHRD India, a country, she has had a personal connection with since childhood. Her primary focus is to raise awareness for the severe human rights violations against minorities and marginalized groups that continue to occur on a daily basis in India. By emphasizing the happenings and educating the general public, she hopes to create a better world for future generations.

João Victor
Coordinator & Head Researcher – International Justice

João Victor is a young Brazilian lawyer who leads our team of International Justice and Human Rights. He holds a Bachelor’s degree in Law from the Federal University of Rio de Janeiro, Brazil and possesses over 5 years of experience in dealing with Human Rights and International Law issues both in Brazil and internationally, including the protection of refugees’ rights and the strengthening of accountability measures against torture crimes.

João has an extensive research engagement with subjects related to International Justice in general, and more specifically with the study of the jurisprudence of Human Rights Courts regarding the rise of populist and anti-terrorist measures taken by national governments. He is also interested in the different impacts that new technologies may provoke on the maintenance of Human Rights online, and how enforcing the due diligence rules among private technology companies might secure these rights against gross Human Rights violations.

Célinne Bodinger
Environment and Human Rights Coordinator

As the Environment and Human Rights Coordinator, Célinne is passionate about the health of our planet and every life on it.

Angela Roncetti
Team Coordinator and Head Researcher- South America

Angela holds a Bachelor of Laws (LL.B) from Vitória Law School (FDV) in Brazil. Her research combines more than five years of experience conducting debates and studies on the rights of homeless people, the elderly, children, and refugees. Besides that, she also volunteers in a social project called Sou Diferente (I am Different in English), where she coordinates and takes part in actions aimed at the assistance and the emancipation of vulnerable groups in the cities of the metropolitan area of Espírito Santo state (Brazil).

Lina Borchardt
Team Head (Promotions)

She is currently heading the Promotions Team and University Chapter of Global Human Rights Defence. Her background is the one of European and International Law, which I am studying in The Hague. She has previously gained experience at Women´s Rights organizations in Germany, the Netherlands and Turkey over the past years.
She has been working for Global Human Rights Defence in the Netherlands since 2020. Her focus now is concentrated on the Human Rights and Minorities Film Festival and the cooperation of GHRD with students across the country.

Pedro Ivo Oliveira
Team Coordinator and Researcher

Pedro holds an extensive background in Human Rights, especially in Global Health, LGBTQ+ issues, and HIV and AIDS. He is currently finishing his Bachelor’s Degree in International Relations and Affairs at the Pontifical Catholic University of Minas Gerais, Brazil. Moreover, he successfully attended the Bilingual Summer School in Human Rights Education promoted by the Federal University of Minas Gerais and the Association of Universities of the Montevideo Group. Besides, Pedro Ivo has a diversified professional background, collecting experiences in many NGOs and projects.

With outstanding leadership abilities, in 2021, Pedro Ivo was the Secretary-General of the 22nd edition of the biggest UN Model in Latin America: the MINIONU. Fluent in Portuguese, English, and Spanish, Pedro Ivo is the Team Coordinator and Head Researcher of the Team Africa at Global Human Rights Defence. Hence, his focus is to empower his team from many parts of the world about the Human Rights Situation in the African continent, meanwhile having a humanized approach.

Alessandro Cosmo
GHRD Youth Ambassador
(European Union)

Alessandro Cosmo obtained his B.A. with Honors from Leiden University College where he studied International Law with a minor in Social and Business Entrepreneurship. He is currently pursuing an LL.M. in Public International Law at Utrecht University with a specialization in Conflict and Security. 
As GHRD’s E.U. Youth Ambassador, Alessandro’s two main focuses are to broaden the Defence’s reach within E.U. institutions and political parties, as well as mediate relations between human rights organizations abroad seeking European funding. 
Alessandro believes that human rights advocacy requires grass-roots initiatives where victims’ voices are amplified and not paraphrased or spoken for. He will therefore act on this agenda when representing Global Human Rights Defence domestically and abroad

Veronica Delgado
Team Coordinator and Researcher- Japan, Sri Lanka & Tibet

Veronica is a Colombian lawyer who leads our team of Japan, Sri Lanka and Tibet. She holds a master’s degree in Public International Law from Utrecht University. She has experience in Colombian law firms. Here she represented clients before constitutional courts. She also outlined legal concepts to state entities such as the Ministry of Foreign Affairs and the Ombudsman’s Office on international law issues.

Veronica has an extensive research background with subjects related to public international law. She worked as an assistant researcher for more than two years for the Externado University of Colombia. Here she undertook in-depth research on constitutional, business, and human rights law issues. She was involved with consultancy services with the Colombian Army regarding transitional justice. 

Wiktoria Walczyk
Coordinator & Head Researcher (Nepal & Indonesia)

Wiktoria Walczyk has joined GHRD in June 2020 as a legal intern. She is currently coordinator and head researcher of Team Nepal and Indonesia. She has an extensive legal knowledge concerning international human rights and is passionate about children’s and minorities’ rights. Wiktoria has obtained her LL.B. in International & European Law and she specialised in Public International Law & Human Rights at The Hague University of Applied Sciences in the Netherlands. Moreover, she is pursuing her LL.M. in International & European Law and focusing on Modern Human Rights Law specialisation at the University of Wroclaw in Poland. In order to gain an essential legal experience, Wiktoria has also joined Credit Suisse’s 2021 General Counsel Graduate First Program where she is conducting her legal training and discovering the banking world. She would like to make a significant impact when it comes to the protection of fundamental human rights around the world, especially with regard to child labour. 

Fairuz Sewbaks
Coordinator and Head Researcher

Fairuz Sewbaks holds extensive legal knowledge regarding international human rights, with a specific focus on human rights dealings taking place in continental Africa. She holds a bachelor’s degree from The Hague University in public international law and international human rights and successfully followed advanced human rights courses at the Centre for Human Rights, University of Pretoria. She furthermore participated in the Istanbul Summer School where she was educated about the role of epidemics and pandemics in light of human rights.


Fairuz is the coordinator and head researcher for GHRD Africa. Her primary focus is to establish and coordinate long-term research projects regarding the differentiating human rights dealings of vulnerable and marginalized groups in continental Africa, as well as conducting individual research projects.

Priya Lachmansingh
Coordinator and Head Researcher, Political Advisor
(Asia & America)

Priya Lachmansingh is currently pursuing her bachelor’s degree in International & European
Law at the Hague University of Applied Science.
As GHRD’s Asia & America human rights coordinator and GHRD Political Advisor, Priya’s
prominent focus is to highlight human rights violations targeted against minority and
marginalized groups in Asia and America and to broaden GHRD reach within Dutch political
parties and as well seek domestic funding.

Jasmann Chatwal
Team Coordinator & Head Coordinator: North America

Jasmann is a political science student at Leiden University who joined GHRD in May 2021 as an intern in team Pakistan. Now, she is the team coordinator for North America and is responsible for coordinating the documentation of human rights violations in USA, Canada, and America.