	Introduction

The Alien Tort Statute (ATS) states that "district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Codified at 28 U.S.C. Created as part of the Judiciary Act of 1789, the ATS is an opaque statute initially intended to provide foreign nationals redress for violations of the law of nations. This was the first of the ATS "foreign cubed" cases, in which a foreign plaintiff brings a suit against a foreign defendant for torts committed on foreign soil. Soon victims of human rights violations used the ATS as a vehicle for claims against foreign corporations that aided and abetted local foreign governments in committing human rights abuses. In April 2013, the Supreme Court decided a long-awaited case, Kiobel v. Royal Dutch Petroleum Co . In this case, Nigerian nationals sued Royal Dutch Petroleum Co. (Royal Dutch), a Dutch company, and Shell Transport and Trading (Shell), a British company, for aiding and abetting the Nigerian government in committing human rights violations. After oral arguments, the Court then requested supplementary briefs and arguments on a new inquiry that called into question the past 30 years of ATS jurisprudence: "whether and under what circumstances courts may recognize a cause of action under the ATS, for violations of the law of nations occurring within the territory of a foreign sovereign." The Court left a door open for cases that "touch and concern the territory of the United States," but only if those cases do so with enough force to rebut the presumption. The majority declined to comment on the question of corporate liability, resolving the case on the issue of extraterritorial jurisdiction. Instead, the Court turned to the threshold question of whether the ATS provides federal courts with jurisdiction over extraterritorial cases with foreign plaintiffs and defendants. Royal Dutch and Shell are incorporated in the Netherlands and the United Kingdom, respectively. Thus, the court held that Royal Dutch and Shell could not be held responsible under the ATS. As the Court in Morrison v. National Australia Bank Ltd. summarized, "when a statute gives no clear indication of an extraterritorial application, it has none." But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States....
Petitioners argued that the last sentence clearly indicated that 18 th century understanding was that the ATS applied to law of nations violations committed on foreign sovereign territory. "Touch and Concern"

After concluding that the presumption against extraterritorial application applies to the ATS, and that nothing in the text, history, or purposes of the statute rebuts the presumption, the majority barred the petitioners' case seeking relief because the conduct in question took place outside the United States. Finding that the presumption against extraterritoriality was not appropriate for the ATS, Justice Breyer looked to the principles and practices of international law. At least one commentator has read the Court's comment that "mere corporate presence" is insufficient to meet the touch and concern test as an implication that other potential ties to U.S. territory could be enough for corporate liability. With the new test for jurisdiction under the ATS, the Kiobel case has created some uncertainty for foreign cubed human rights cases.
The Alien Tort Statute (ATS) was originally drafted as part of the Judiciary Act of 1789 in order to provide foreign plaintiffs with a forum to remedy violations of customary international law. Now codified at 28 U.S.C. § 1350, the ATS states that "district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." After being raised in only a handful of early cases, the ATS lay dormant for almost 200 years until a 1980 case, Filartiga v. Pena-Irala, signaled a new use for the statute as a vehicle for redressing human rights violations. Post-Filartiga, the ATS was used frequently for "foreign cubed" cases, which involve alien plaintiffs and defendants for torts committed on foreign soil. These cases first prompted debate that most recently has centered on the controversial question of whether corporate defendants can be held liable for aiding and abetting human rights violations under the ATS.
This was the question originally presented to the Supreme Court in the 2012 case, Kiobel v. Royal Dutch Petroleum Co. A foreign cubed case, Kiobel involved Nigerian plaintiffs suing for human rights violations aided and abetted by Royal Dutch Petroleum Co. (Royal Dutch) and Shell Transport and Trading Co. (Shell), incorporated in the Netherlands and United Kingdom, respectively. After the first round of oral arguments, the Court ordered rebriefing and reargument on a new issue: whether federal courts even have jurisdiction over cases occurring on foreign soil.
Asking whether and under what circumstances courts may recognize a cause of action under the ATS, for violations of the law of nations occurring within the territory of a foreign sovereign, the Court held that the presumption against extraterritorial application applied to the ATS. Under Morrison v. National Australia Bank, the presumption against extraterritoriality provides that, "[w]hen a statute gives no clear indication of an extraterritorial application, it has none." The presumption calls for judicial caution in hearing extraterritorial cases over which Congress has not expressly given the courts jurisdiction. The Kiobel court held that nothing in the text, history, or purpose of the ATS overcame the presumption.
The Court left a narrow opening for cases arising under the ATS that "touch and concern the territory of the United States" with "sufficient force" to overcome the presumption. Justice Kennedy's concurrence suggests that there could be an exception for cases involving "serious violations of international law principles," but the only example provided by the Court was that "mere corporate presence" is insufficient to rebut the presumption. Because the question of extraterritoriality was sufficient to resolve the case, the Court declined to address the question of corporate liability.
The decision in Kiobel could reduce the number of human rights cases successfully brought under the ATS. The "touch and concern" test leaves a small crack in the door for extraterritorial application, but the test is vague, and its contours unknown. While it appears the courts will proceed with caution, Congress is free to either explicitly give the courts extraterritorial jurisdiction, or clarify the limits of that jurisdiction at least in respect to human rights violations, as it did with the Torture Victim Protection Act (TVPA).