Apr 18 2025| Nº. 162

Editorial

Whoever wins next year’s presidential election will face a serious budgetary challenge, according to projections this week by the administration of Luiz Inácio Lula da Silva. There is currently a projected shortfall of R$10.9 billion to meet constitutional minimums for health and education spending in 2027. The gap arises from the fact that these mandatory expenditures, which are tied to fixed percentages of government revenue, grow faster than the spending limits set by the new fiscal framework, implemented in 2023. The fiscal pressure is worsened by R$56.5 billion reserved for discretionary congressional amendments and the return of court-ordered debts known as precatórios to the spending cap in 2027, totaling R$115 billion. As a result, the government risks having very little room left for additional investments and day-to-day operations. If fiscal rules remain unchanged, the deficit is expected to worsen sharply in 2028 and 2029. This situation highlights a major governance challenge for Finance Minister Fernando Haddad in the last two years of Lula’s term: balancing fiscal discipline with constitutional obligations, especially as the presidential campaign heats up, without paralyzing essential government functions in the near future.

Politically, Lula continues to grapple with the short-term imperative of resolving negotiations around prosecutions related to the pro-Bolsonaro January 8, 2023 insurrection in Brasília. An alternative to the controversial amnesty bill previously advanced by allies of the former president is gaining traction in Congress and the Supreme Court, with support from Chamber of Deputies President Hugo Motta and apparent openness from Supreme Court Justice Alexandre de Moraes. The proposal under discussion this week would not pardon high-profile figures like Bolsonaro himself or senior military officials accused of orchestrating an attempted coup, but it would instead reduce sentences—by one-sixth to one-third—for individual participants involved in the anti-democratic attacks. This legislative compromise aims to refine existing legislation by distinguishing between leaders and minor offenders, such as individuals who participated but had no command role. Motta and Senate President Davi Alcolumbre are leading talks with the judiciary in hopes of finding a politically viable solution that promotes “pacification” without undermining justice—yet another challenge for the Lula administration in maintaining institutional stability amid legal, fiscal, and political pressures.

Along the same lines, Lula extended his congratulations to Ecuador’s Daniel Noboa following his electoral victory last Sunday. With over 98% of votes counted and Noboa securing 55.6% of the vote, Lula issued a message affirming Brazil’s commitment to working with Ecuador on shared priorities such as multilateralism, South American integration, and sustainable development in the Amazon. In a moment where Lula is navigating fiscal constraints and political tensions at home, this diplomatic outreach to a right-wing regional peer reflects his intent to reinforce Brazilian leadership and collaboration across Latin America.

Highlights

• Bolsonaro hospitalized. Former president Jair Bolsonaro underwent new surgery on his intestine and is hospitalized in an Intensive Care Unit. Doctors unblocked a loop of intestine that had become stuck together, as a result of previous surgeries and the healing of the wound caused by a stab wound he received in the stomach during the 2018 presidential campaign. The former president has gone through several  hospitalizations, and his communications increases with supporters on this subject when he goes through unfavorable political moments. Now, for example, Bolsonaro is pressuring Congress to approve an amnesty law that prevents him from being arrested for the coup attempt.

• Extradition of coup plotters. The Spanish courts have denied for the second time an extradition request made by the Brazilian Supreme Court against Oswaldo Eustáquio, a Brazilian citizen convicted in Brazil for publishing messages on social media with coup-related content, but who has taken refuge in Spain. The Spanish courts understand that the messages were published by Eustáquio in the context of a political dispute and does not constitute a crime. In response, the Brazilian Supreme Court relaxed the prison sentence of a Bulgarian citizen who is in Brazil whom Spain wanted to beextradited.

• American transphobia. Federal congresswoman Erika Hilton had her identity changed to the “male” gender on a visa granted by the United States. The document was granted so that she could give a lecture this month at Harvard University, which has been facing harassment from President Donald Trump to back down on several positions, including on gender issues. The congresswoman says she is preparing an international action to challenge the change and give visibility to cases of transphobia.

• Nazi salute. The Public Prosecutor's Office has opened an investigation into a video showing police officers from the state of São Paulo making Nazi salutes at a graduation ceremony. The recording was posted on the Instagram account of the 9th Special Operations Police Battalion of the city of São José do Rio Preto. The images also show flags, police cars and a burning cross on the floor of the battalion.

• Disappeared politicians. The Special Commission on Political Deaths and Disappeared Politicians announced this week the identification of the remains of two people who disappeared during the military dictatorship (1964-1985) whose bones were in mass graves in the Perus cemetery in São Paulo. Mason Dênis Casemiro and sailor Grenaldo de Jesus da Silva were tortured and had their bodies hidden by agents of the dictatorship.

News from ABO and social organizations and movements:

IACHR Course. The WBO and the Behner Stiefel Center for Brazilian Studies at San Diego State University continued their online course on the functioning of the Inter-American Human Rights System this Thursday. The topic of the third class was: “Institutions of the Inter-American Human Rights System: The Inter-American Commission on Human Rights – Case System, Individual Petitions and Friendly Settlements”, in a class taught by Jorge Meza, deputy executive secretary of the IACHR’s Petitions and Case System.

New McCarthyism. James N. Green's latest column in Agência Pública addresses “Donald Trump's new McCarthyism.” The chairman of the WBO Board of Directors says that “the tide is turning against Trump, and multipolar resistance to the current administration is growing stronger,” and cites the massive protests that took to the streets of 1,400 locations in the United States on April 5 as an example. Read the column at the link.

Disinformation in the suburbs. The report “Technology and Disinformation in the Territory of Good (Vitória-ES)” was released this Thursday, April 17 in booklet format in Portuguese and English by Editora Milfontes, with the participation of WBO associate researcher David Nemer. This is the first report aimed at understanding how favela residents interact with technology and disinformation, in addition to analyzing the consequences of these engagements in everyday life. The project's main focus is to understand the role of technology and disinformation in the daily life of the Território do Bem, valuing participatory research and community engagement as paths to social transformation. Learn more at the link provided by Editora Milfontes.

Strategic minerals. Two events will soon discuss the issue of critical and strategic minerals for Brazil. The first will take place on May 13, promoted by Instituto Escolhas, in partnership with the newspaper Correio Braziliense. Registration is available at the link. The second, on May 28, is being held by the Brazilian Mining Institute with support from the Brazilian Center for International Relations), with registration available at the link.

Feature Article

The Demarcation of Indigenous Lands in the context of the “Time Frame Thesis”

By Eloísa Machado de Almeida*

Between advances and setbacks in recent years, the demarcation of indigenous lands has faced major challenges at the national level due to the “time frame” (marco temporal) thesis. In this context, international bodies have been essential in reminding Brazil of its commitments to Indigenous peoples.

The 1988 Brazilian Constitution recognized Indigenous peoples' original rights to the lands they traditionally occupy and imposed on the federal government the duty to demarcate and protect them. Although the Constitution provided for a five-year deadline for the completion of all indigenous land demarcation processes, thirty-seven years have passed, and hundreds of Indigenous lands await demarcation.

Since the 1988 Constitution, there have been advances and setbacks in the demarcation of Indigenous lands with governments demarcating some lands. However, between 2016 and 2022, the period that includes the governments of Presidents Michel Temer and Jair Bolsonaro, no Indigenous lands were demarcated.

The same movement of advances and setbacks can be seen in the Brazilian judiciary, with periods in which the interpretation of the demarcation of Indigenous lands advanced and retreated. The issue of the time frame thesis exemplifies this movement well.

The time frame thesis states that the original rights to the lands would only be recognized to the Indigenous peoples who were occupying them on the date of the promulgation of the Constitution on October 5, 1988. Although this thesis is legally quite fragile, it is at the heart of the disputes that affect the demarcation of indigenous lands in the Brazilian judiciary.

This argument regarding the time frame thesis appeared for the first time in the judgment that the Brazilian constitutional court, the Supreme Federal Court, made in 2009 on the demarcation of the Raposa Serra do Sol Indigenous land, in Roraima. The decision's mention that the Constitution had worked with “the date of its own promulgation (October 5, 1988) – as an irreplaceable reference for occupation data” [1] that stimulated a wave of litigation challenging lands already demarcated and in the process of demarcation.

One of these cases reached the Brazilian Supreme Court again in 2016, using the time frame thesis to question the traditional territory of the Xokleng people in Santa Catarina. Judged in 2023 and conferring binding effects on the entire judiciary, the court decided that “constitutional protection of original rights over the lands that they traditionally occupy is independent of the existence of the time frame of October 5, 1988”. [2]

Less than a month after the Supreme Court ruled on the case, the Congress approved Law 14,701/2023, directly contradicting the court's decision and providing for a time frame for the demarcation of Indigenous lands.

The law was challenged in the Supreme Court and, despite the recent ruling on the matter, instead of a decision, a forced conciliation was ordered, in which Indigenous peoples are a minority. Within the scope of this conciliation, a bill is being developed that significantly reduces constitutional protection for Indigenous rights.

Although the issue of the time frame has strong constitutional and, therefore, national implications, the dispute over the rules for demarcating indigenous lands was taken to international bodies--the Inter-American system, the global system, and the international criminal jurisdiction--for reasons that included non-compliance with international rules of free, prior and informed consent; the possibility of increased violence against indigenous peoples and their territories due to the legal uncertainty of demarcations; and the climate impact that it may cause.

Within the global system, the UN Special Rapporteurs on the Human Right to a Clean, Healthy and Sustainable Environment, Climate Change, and Toxics and Human Rights expressed “deep concern” about the course of a negotiated agreement in the Supreme Federal Court, urging “Brazilian authorities to suspend these regressive measures, which ultimately prioritize the economic and political interests of a few to the detriment of environmental protection and human rights for the benefit of all.” [3]

In the inter-American system, the inadequacy of the time frame thesis to international standards was the subject of press releases stating that “the application of this thesis contradicts universal and inter-American human rights standards, putting at risk the very existence of Indigenous and tribal peoples in the country.” [4]

The Inter-American Human Rights Court (IACHR) and the UN have jointly condemned violence against indigenous peoples, stating that the “wave of violence is aggravated by the slow progress in the demarcation of Indigenous lands and by the continued legal uncertainty” [5] due to the persistence of the time frame thesis. Cases of violence and threats against Indigenous peoples in Brazil have been the subject of injunctions and provisional measures in recent years, that affect the Munduruku, Ye`kwana, Yanomami, Pataxó Hã-Hã-Hãe and Tapeba.

In communications sent to the Office of the Prosecutor of the International Criminal Court, the time frame thesis is described as a central strategy to weaken Indigenous territories, which is necessary for the implementation of an anti-Indigenous policy that could lead to the extermination of Indigenous peoples in Brazil.

In the current scenario, in which there appears to be an alignment between the legislative and judicial branches in actions that seek to weaken Indigenous rights, international bodies become even more necessary to remind Brazil of its commitments to Indigenous peoples.

[1] STF, Pleno, Pet. 3388, relator Carlos Britto, j. 19.03.2009.

[2] STF, Pleno, RE 1017365, relator Edson Fachin, j. 27.09.2023.

[3] CIDH, comunicado de imprensa 103/2023.

[4] CIDH, comunicado de imprensa 252/2024.

[5] Declaration of the UN Special Rapporteurs on the Human Right to a Clean, Healthy and Sustainable Environment, on Climate Change and on Toxics, and Human Rights in relation to possible setbacks to indigenous and environmental rights in Brazil of 25 February 2025

*Eloísa Machado de Almeida has a master's and doctorate degress, is a human rights lawyer, and a professor at Fundação Getúlio Vargas Law School in São Paulo.  

Feature articles express the opinions of the author and do not necessarily reflect the opinions of the editors or WBO.