Transnational Human Rights Litigations. Kiobel's Touch and Concern: a Test Under Construction
Maria Chiara Marullo, Ph.D. University of Jaume I
Francisco Javier Zamora Cabot, Chair Professor of Private International Law, University of Jaume I
Papeles el Tiempo de los Derechos, núm. 1 (2016)
HURI-AGE, Consolider-Ingenio 2010
In recent years the international debate on Transnational Human Rights Litigation has mainly focused, although not exclusively, on the role of the Alien Tort Claims Act as a way of redress for serious Human Rights violations. This Act has given the possibility of granting a restorative response to victims, in a Country, such as the United States of America, that assumes the defense of an interest of the International Community as a whole: to guarantee the access to justice to the aforesaid victims. The purpose of this article is to analyze the recent and restrictive position on this Act of the Supreme Court of the United States, in the Kiobel case, and especially when, as a means of modulating the limitative doctrine affirmed there, the Touch and Concern test was introduced. It has generated from its very inception a strong discussion amongst international legal scholars and also great repercussions concerning the practice of the U.S. District and Circuit Courts.
Summary: I. Introduction. II. A brief overview of the Alien Tort Claims Act. III. The imbroglio of Kiobel. IV. Federal Court’s Debates about the Test. V. Post-Kiobel Consequences. 1.-The future application of the ATCA ratione personae. 2.- Implications for the TVPA. 3.- On the creation of a Universal Jurisdiction Norm in civil matters. 4.- Consequences in other areas. VI. Final Reflections. Table.