(Slip Opinion) OCTOBER TERM, 2017 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

JESNER ET AL. v. ARAB BANK, PLC 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SECOND CIRCUIT 

No. 16–499. Argued October 11, 2017—Decided April 24, 2018 

Petitioners filed suits under the Alien Tort Statute (ATS), alleging that 

they, or the persons on whose behalf they assert claims, were injured 

or killed by terrorist acts committed abroad, and that those acts were

in part caused or facilitated by respondent Arab Bank, PLC, a Jordanian financial institution with a branch in New York. They seek to

impose liability on the bank for the conduct of its human agents, including high-ranking bank officials. They claim that the bank used

its New York branch to clear dollar-denominated transactions that 

benefited terrorists through the Clearing House Interbank Payments

System (CHIPS) and to launder money for a Texas-based charity allegedly affiliated with Hamas. While the litigation was pending, this 

Court held, in Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 

that the ATS does not extend to suits against foreign corporations 

when “all the relevant conduct took place outside the United States,” 

id., at 124, but it left unresolved the Second Circuit’s broader holding

in its Kiobel decision: that foreign corporations may not be sued under the ATS. Deeming that broader holding binding precedent, the

District Court dismissed petitioners’ ATS claims and the Second Circuit affirmed. 

Held: The judgment is affirmed. 

808 F. 3d 144, affirmed. 

JUSTICE KENNEDY delivered the opinion of the Court with respect to

Parts I, II–B–1, and II–C, concluding that foreign corporations may

not be defendants in suits brought under the ATS. Pp. 6–11, 18–19, 

and 25–27. 

(a) The Judiciary Act of 1789 included what is now known as the

ATS, which provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in viola-
 

 

2 JESNER v. ARAB BANK, PLC 

Syllabus 

tion of the law of nations or a treaty of the United States.” 28 

U. S. C. §1350. The ATS is “strictly jurisdictional” and does not by its

own terms provide or delineate the definition of a cause of action for 

international-law violations. Sosa v. Alvarez-Machain, 542 U. S. 692, 

713–714. It was enacted against the backdrop of the general common

law, which in 1789 recognized a limited category of “torts in violation 

of the law of nations,” id., at 714; and one of its principal objectives

was to avoid foreign entanglements by ensuring the availability of a

federal forum where the failure to have one might cause another nation to hold the United States responsible for an injury to a foreign

citizen, see id., at 715–719. The ATS was invoked but a few times 

over its first 190 years, but with the evolving recognition—e.g., in the 

Nuremberg trials—that certain crimes against humanity violate 

basic precepts of international law, courts began to give some redress 

for violations of clear and unambiguous international human-rights 

protections. After the Second Circuit first permitted plaintiffs to

bring ATS actions based on modern human-rights laws, Congress enacted the Torture Victim Protection Act of 1991 (TVPA), creating an

express cause of action for victims of torture and extrajudicial killing

in violation of international law. ATS suits became more frequent; 

and modern ATS litigation has the potential to involve groups of foreign plaintiffs suing foreign corporations in the United States for alleged human-rights violations in other nations. In Sosa, the Court 

held that in certain narrow circumstances courts may recognize a 

common-law cause of action for claims based on the present-day law

of nations, 542 U. S., at 732, but it explicitly held that ATS litigation

implicates serious separation-of-powers and foreign-relations concerns, id., at 727–728. The Court subsequently held in Kiobel that 

“the presumption against extraterritoriality applies to [ATS] claims,”

569 U. S., at 124, and that even claims that “touch and concern the 

territory of the United States . . . must do so with sufficient force to 

displace” that presumption, id., at 124–125. Pp. 6–11.

(b) Sosa is consistent with this Court’s general reluctance to extend

judicially created private rights of action. Recent precedents cast

doubt on courts’ authority to extend or create private causes of action,

even in the realm of domestic law, rather than leaving such decisions 

to the Legislature, which is better positioned “to consider if the public

interest would be served by imposing a new substantive legal liability,” Ziglar v. Abbasi, 582 U. S. ___, ___ (internal quotation marks 

omitted). This caution extends to the question whether the courts

should exercise the judicial authority to mandate a rule imposing liability upon artificial entities like corporations. Thus, in Correctional 

Services Corp. v. Malesko, 534 U. S. 61, 72, the Court concluded that 

Congress, not the courts, should decide whether corporate defendants 
 

 

Cite as: 584 U. S. ____ (2018) 3 

Syllabus 

could be held liable in actions under Bivens v. Six Unknown Fed. 

Narcotics Agents, 403 U. S. 388. 

Neither the language of the ATS nor precedent supports an exception to these general principles in this context. Separation-of-powers

concerns that counsel against courts creating private rights of action

apply with particular force in the context of the ATS, which implicates foreign-policy concerns that are the province of the political

branches. And courts must exercise “great caution” before recognizing new forms of liability under the ATS. Sosa, supra, at 728. The 

question whether a proper application of Sosa would preclude courts 

from ever recognizing new ATS causes of action need not be decided

here, for either way it would be inappropriate for courts to extend 

ATS liability to foreign corporations absent further action from Congress. Pp. 18–19.

(c) The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law 

violations when the absence of such a remedy might provoke foreign 

nations to hold the United States accountable. But here, and in similar cases, the opposite is occurring. Petitioners are foreign nationals 

seeking millions of dollars in damages from a major Jordanian financial institution for injuries suffered in attacks by foreign terrorists in

the Middle East. The only alleged connections to the United States 

are the CHIPS transactions in Arab Bank’s New York branch and a 

brief allegation about a charity in Texas. At a minimum, the relatively minor connection between the terrorist attacks and the alleged 

conduct in the United States illustrates the perils of extending the 

scope of ATS liability to foreign multinational corporations like Arab

Bank. 

For 13 years, this litigation has caused considerable diplomatic

tensions with Jordan, a critical ally that considers the litigation an 

affront to its sovereignty. And this is not the first time that a foreign 

sovereign has raised objections to ATS litigation in this Court. See 

Sosa, supra, at 733, n. 21. These are the very foreign-relations tensions the First Congress sought to avoid.

Nor are the courts well suited to make the required policy judgments implicated by foreign corporate liability. Like the presumption 

against extraterritoriality, judicial caution under Sosa “guards 

against our courts triggering . . . serious foreign policy consequences,

and instead defers such decisions, quite appropriately, to the political

branches.” Kiobel, supra, at 124. Accordingly, the Court holds that

foreign corporations may not be defendants in suits brought under

the ATS. Pp. 25–27. 

JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE THOMAS, concluded in Parts II–A, II–B–2, II–B–3, and III: 
 

4 JESNER v. ARAB BANK, PLC 

Syllabus 

(a) Before recognizing an ATS common-law action, federal courts

must apply the two-part test announced in Sosa. The threshold 

question is whether a plaintiff can demonstrate that the alleged violation is “ ‘of a norm that is specific, universal, and obligatory.’ ” 542 

U. S., at 732. Assuming that such a norm can control, it must be determined whether allowing the case to proceed under the ATS is a 

proper exercise of judicial discretion or whether caution requires the 

political branches to grant specific authority before corporate liability

can be imposed. Id., at 732–733, and nn. 20–21. With regard to the 

first Sosa question, the Court need not resolve whether corporate liability is a question governed by international law or whether that law

imposes liability on corporations, because, as shown by the parties’ 

opposing arguments, there is at least sufficient doubt on the point to 

turn to Sosa’s second question: whether the Judiciary must defer to

Congress to determine in the first instance whether that universal

norm has been recognized and, if so, whether it should be enforced in 

ATS suits. Pp. 11–18. 

(b) Especially here, in the realm of international law, it is important to look to analogous statutes for guidance on the appropriate

boundaries of judge-made causes of action. The logical statutory

analogy for an ATS common-law action is the TVPA—the only ATS 

cause of action created by Congress rather than the courts. Drafted 

as “an unambiguous and modern basis for [an ATS] cause of action,” 

H. R. Rep. No. 102–367, p. 3, the TVPA reflects Congress’ considered 

judgment of the proper structure for such an action. Absent a compelling justification, courts should not deviate from that model. Relevant here, the TVPA limits liability to “individuals,” a term which 

unambiguously limits liability to natural persons, Mohamad v. Palestinian Authority, 566 U. S. 449, 453–456. Congress’ decision to exclude liability for corporations in TVPA actions is all but dispositive

in this case. Pp. 19–23. 

(c) Other considerations relevant to the exercise of judicial discretion also counsel against allowing liability under the ATS for foreign 

corporations, absent congressional instructions. Corporate liability

under the ATS has not been shown to be essential to serving that

statute’s goals, the ATS will seldom be the only way for plaintiffs to

hold the perpetrators liable, and plaintiffs still can sue the individual

corporate employees responsible for a violation of international law

under the ATS. That the corporate form can be an instrument for inflicting grave harm and suffering poses serious and complex questions for the international community and for Congress. And this 

complexity makes it all the more important that Congress determine

whether victims of human-rights abuses may sue foreign corporations in federal court. Pp. 23–25. 
 

 

Cite as: 584 U. S. ____ (2018) 5 

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(d) In making its determination, Congress might decide that violations of international law do, or should, impose that liability to ensure that corporations make every effort to deter human-rights violations, and so that compensation for injured persons will be a cost of 

doing business. Or Congress could conclude that neutral judicial 

safeguards may not be ensured in every country and that, as a reciprocal matter, ATS liability for foreign corporations should be subject

to some limitations or preconditions. Finally, Congress might find

that corporate liability should be limited to cases where a corporation’s management was actively complicit in the crime. Pp. 27–29. 

JUSTICE ALITO concluded that the outcome in this case is justified 

not only by “judicial caution” but also by the separation of powers. 

Assuming that Sosa v. Alvarez-Machain, 542 U. S. 692, correctly held 

that federal courts, exercising their authority in limited circumstances to make federal common law, may create causes of action under

the ATS, this Court should not create such causes of action against 

foreign corporate defendants. The objective for courts in any case requiring the creation of federal common law must be “to find the rule 

that will best effectuate the federal policy.” Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 457. The First Congress enacted the 

ATS to help the United States avoid diplomatic friction. Putting that

objective together with the rules governing federal common law generally, the following principle emerges: Federal courts should decline

to create federal common law causes of action whenever doing so 

would not materially advance the ATS’s objective of avoiding diplomatic strife. Applying that principle here, it is clear that courts 

should not create causes of action under the ATS against foreign corporate defendants. Customary international law does not generally 

require corporate liability, so declining to create it under the ATS 

cannot give other nations just cause for complaint against the United

States. To the contrary, creating causes of action against foreign corporations under the ATS may instead provoke exactly the sort of diplomatic strife inimical to the statute’s fundamental purpose. Pp. 1–7.

JUSTICE GORSUCH concluded that there are two more fundamental 

reasons why this lawsuit should be dismissed. Pp. 1–14.

(a) This Court has suggested that Congress originally enacted the

ATS to afford federal courts jurisdiction to hear tort claims related to

three violations of international law that were already embodied in

English common law: violations of safe conducts extended to aliens, 

interference with ambassadors, and piracy. Sosa v. Alvarez-Machain, 

542 U. S. 692, 715. Here, the plaintiffs seek much more. They want

the federal courts to recognize a new cause of action, one that did not 

exist at the time of the statute’s adoption, one that Congress has never authorized. They find support in a passage suggesting that the 
 

 

6 JESNER v. ARAB BANK, PLC 

Syllabus 

ATS may afford federal judges “discretion [to] conside[r] [creating] 

new cause[s] of action” if they “rest on a norm of international character accepted by the civilized world and defined with a specificity

comparable to the features of the [three specified] 18th-century” 

torts. Id., at 725. This is doubtful, for the people’s elected representatives, not judges, make the laws that govern them. But even accepting Sosa’s framework, a proper application of that framework would 

preclude courts from recognizing any new causes of action under the

ATS. When courts are confronted with a request to fashion a new

cause of action, “separation-of-powers principles are or should be central to the analysis.” Ziglar v. Abbasi, 582 U. S. ___, ___. The first 

and most important question is whether Congress or the courts 

should decide, and the right answer “most often will be Congress.” 

Ibid. There is no reason to make a special exception for the ATS,

which was designed as “a jurisdictional statute creating no new causes of action.” Sosa, 542 U. S., at 724. The context in which any Sosa 

discretion would be exercised confirms the wisdom of restraint. The 

“practical consequences” that might follow a decision to create a new

ATS cause of action, see id., at 732–733, would likely involve questions of foreign affairs and national security—matters implicating the

expertise and authority not of the Judiciary but of the political

branches. Pp. 2–5.

(b) Another independent problem is that this suit is by foreigners 

against a foreigner over the meaning of international norms. The 

original understanding of the ATS, which was but one clause in one

section of the Judiciary Act of 1789, likely would have required a domestic defendant in order to comply with the requirements of the Diversity-of-Citizenship Clause of Article III. Precedent interpreting a

neighboring provision of the Judiciary Act confirms that conclusion. 

See Mossman v. Higginson, 4 Dall. 12, 14. In any event, separationof-powers limits on the judicial function and deference to the political

branches should lead federal courts to require a domestic defendant 

before agreeing to exercise any Sosa-generated discretion to entertain 

an ATS suit. Pp. 5–14.

 KENNEDY, J., announced the judgment of the Court and delivered the

opinion of the Court with respect to Parts I, II–B–1, and II–C, in which 

ROBERTS, C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined, and an

opinion with respect to Parts II–A, II–B–2, II–B–3, and III, in which 

ROBERTS, C. J., and THOMAS, J., joined. THOMAS, J., filed a concurring 

opinion. ALITO, J., and GORSUCH, J., filed opinions concurring in part

and concurring in the judgment. SOTOMAYOR, J., filed a dissenting 

opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined. 
 

 

_________________ 

_________________ 

Cite as: 584 U. S. ____ (2018) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 16–499 

JOSEPH JESNER, ET AL., PETITIONERS v.
 

ARAB BANK, PLC
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT
 

[April 24, 2018] 

JUSTICE KENNEDY announced the judgment of the Court 

and delivered the opinion of the Court with respect to

Parts I, II–B–1, and II–C, and an opinion with respect to 

Parts II–A, II–B–2, II–B–3, and III, in which THE CHIEF 

JUSTICE and JUSTICE THOMAS join. 

Petitioners in this case, or the persons on whose behalf

petitioners now assert claims, allegedly were injured or 

killed by terrorist acts committed abroad. Those terrorist 

acts, it is contended, were in part caused or facilitated by a 

foreign corporation. Petitioners now seek to impose liability on the foreign corporation for the conduct of its human

agents, including its then-chairman and other highranking management officials. The suits were filed in a 

United States District Court under the Alien Tort Statute, 

commonly referred to as the ATS. See 28 U. S. C. §1350.

The foreign corporation charged with liability in these

ATS suits is Arab Bank, PLC; and it is respondent here. 

Some of Arab Bank’s officials, it is alleged, allowed the 

Bank to be used to transfer funds to terrorist groups in the 

Middle East, which in turn enabled or facilitated criminal 

acts of terrorism, causing the deaths or injuries for which 
 

2 JESNER v. ARAB BANK, PLC 

Opinion of the Court 

petitioners now seek compensation. Petitioners seek to 

prove Arab Bank helped the terrorists receive the moneys 

in part by means of currency clearances and bank transactions passing through its New York City offices, all by

means of electronic transfers. 

It is assumed here that those individuals who inflicted 

death or injury by terrorism committed crimes in violation

of well-settled, fundamental precepts of international law, 

precepts essential for basic human-rights protections. It is 

assumed as well that individuals who knowingly and 

purposefully facilitated banking transactions to aid, enable, or facilitate the terrorist acts would themselves be 

committing crimes under the same international-law 

prohibitions. 

Petitioners contend that international and domestic 

laws impose responsibility and liability on a corporation if 

its human agents use the corporation to commit crimes in

violation of international laws that protect human rights. 

The question here is whether the Judiciary has the authority, in an ATS action, to make that determination and 

then to enforce that liability in ATS suits, all without any

explicit authorization from Congress to do so. 

The answer turns upon the proper interpretation and 

implementation of the ATS. The statute provides: “The

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.” §1350.

The Court must first ask whether the law of nations imposes liability on corporations for human-rights violations

committed by its employees. The Court must also ask 

whether it has authority and discretion in an ATS suit to

impose liability on a corporation without a specific direction from Congress to do so. 
Cite as: 584 U. S. ____ (2018) 3 

Opinion of the Court 

I 

A 

Petitioners are plaintiffs in five ATS lawsuits filed 

against Arab Bank in the United States District Court for 

the Eastern District of New York. The suits were filed 

between 2004 and 2010. 

A significant majority of the plaintiffs in these lawsuits—about 6,000 of them—are foreign nationals whose 

claims arise under the ATS. These foreign nationals are 

petitioners here. They allege that they or their family 

members were injured by terrorist attacks in the Middle 

East over a 10-year period. Two of the five lawsuits also 

included claims brought by American nationals under the

Anti-Terrorism Act, 18 U. S. C. §2333(a), but those claims

are not at issue. 

Arab Bank is a major Jordanian financial institution 

with branches throughout the world, including in New 

York. According to the Kingdom of Jordan, Arab Bank 

“accounts for between one-fifth and one-third of the total 

market capitalization of the Amman Stock Exchange.” 

Brief for Hashemite Kingdom of Jordan as Amicus Curiae 

2. Petitioners allege that Arab Bank helped finance attacks by Hamas and other terrorist groups. Among other

claims, petitioners allege that Arab Bank maintained 

bank accounts for terrorists and their front groups and

allowed the accounts to be used to pay the families of 

suicide bombers. 

Most of petitioners’ allegations involve conduct that

occurred in the Middle East. Yet petitioners allege as well 

that Arab Bank used its New York branch to clear dollardenominated transactions through the Clearing House

Interbank Payments System. That elaborate system is

commonly referred to as CHIPS. It is alleged that some of 

these CHIPS transactions benefited terrorists. 

Foreign banks often use dollar-clearing transactions to 

facilitate currency exchanges or to make payments in 
 

4 JESNER v. ARAB BANK, PLC 

Opinion of the Court 

dollars from one foreign bank account to another. Arab 

Bank and certain amici point out that CHIPS transactions 

are enormous both in volume and in dollar amounts. The 

transactions occur predominantly in the United States but 

are used by major banks both in the United States and 

abroad. The CHIPS system is used for dollar-denominated

transactions and for transactions where the dollar is used 

as an intermediate currency to facilitate a currency exchange. Brief for Institute of International Bankers as 

Amicus Curiae 12–13, and n. 8. In New York each day, on

average, about 440,000 of these transfers occur, in dollar 

amounts totaling about $1.5 trillion. Id., at 14. The 

“clearance activity is an entirely mechanical function; it 

occurs without human intervention in the proverbial ‘blink 

of an eye.’” Ibid. There seems to be no dispute that the 

speed and volume of these transactions are such that 

individual supervision is simply not a systemic reality. As 

noted below, substantial regulations govern these transactions, both in the United States and in Jordan. 

In addition to the dollar-clearing transactions, petitioners allege that Arab Bank’s New York branch was used to 

launder money for the Holy Land Foundation for Relief

and Development (HLF), a Texas-based charity that petitioners say is affiliated with Hamas. According to petitioners, Arab Bank used its New York branch to facilitate 

the transfer of funds from HLF to the bank accounts of 

terrorist-affiliated charities in the Middle East. 

During the pendency of this litigation, there was an

unrelated case that also implicated the issue whether the 

ATS is applicable to suits in this country against foreign 

corporations. See Kiobel v. Royal Dutch Petroleum Co., 

621 F. 3d 111 (CA2 2010). That suit worked its way 

through the trial court and the Court of Appeals for the

Second Circuit. The Kiobel litigation did not involve banking transactions. Its allegations were that holding companies incorporated in the Netherlands and the United 
 

Cite as: 584 U. S. ____ (2018) 5 

Opinion of the Court 

Kingdom had, through a Nigerian subsidiary, aided and 

abetted the Nigerian Government in human-rights abuses. 

Id., at 123. In Kiobel, the Court of Appeals held that the

ATS does not extend to suits against corporations. Id., at 

120. This Court granted certiorari in Kiobel. 565 U. S. 

961 (2011).

After additional briefing and reargument in Kiobel, this 

Court held that, given all the circumstances, the suit could

not be maintained under the ATS. Kiobel v. Royal Dutch 

Petroleum Co., 569 U. S. 108, 114, 124–125 (2013). The 

rationale of the holding, however, was not that the ATS

does not extend to suits against foreign corporations. That 

question was left unresolved. The Court ruled, instead, 

that “all the relevant conduct took place outside the United

States.” Id., at 124. Dismissal of the action was required 

based on the presumption against extraterritorial application of statutes. 

So while this Court in Kiobel affirmed the ruling that

the action there could not be maintained, it did not address the broader holding of the Court of Appeals that

dismissal was required because corporations may not be

sued under the ATS. Still, the courts of the Second Circuit 

deemed that broader holding to be binding precedent. As 

a consequence, in the instant case the District Court dismissed petitioners’ ATS claims based on the earlier Kiobel 

holding in the Court of Appeals; and on review of the 

dismissal order the Court of Appeals, also adhering to its 

earlier holding, affirmed. In re Arab Bank, PLC Alien Tort 

Statute Litigation, 808 F. 3d 144 (2015). This Court 

granted certiorari in the instant case. 581 U. S. ___ 

(2017).

Since the Court of Appeals relied on its Kiobel holding in 

the instant case, it is instructive to begin with an analysis

of that decision. The majority opinion in Kiobel, written 

by Judge Cabranes, held that the ATS does not apply to 

alleged international-law violations by a corporation. 621 
 

 

6 JESNER v. ARAB BANK, PLC 

Opinion of the Court 

F. 3d, at 120. Judge Cabranes relied in large part on the 

fact that international criminal tribunals have consistently

limited their jurisdiction to natural persons. Id., at 132– 

137. 

Judge Leval filed a separate opinion. He concurred in 

the judgment on other grounds but disagreed with the 

proposition that the foreign corporation was not subject to 

suit under the ATS. Id., at 196. Judge Leval conceded 

that “international law, of its own force, imposes no liabilities on corporations or other private juridical entities.” 

Id., at 186. But he reasoned that corporate liability for

violations of international law is an issue of “civil compensatory liability” that international law leaves to individual 

nations. Ibid. Later decisions in the Courts of Appeals for

the Seventh, Ninth, and District of Columbia Circuits 

agreed with Judge Leval and held that corporations can be

subject to suit under the ATS. See Flomo v. Firestone Nat. 

Rubber Co., 643 F. 3d 1013, 1017–1021 (CA7 2011); Doe I 

v. Nestle USA, Inc., 766 F. 3d 1013, 1020–1022 (CA9 

2014); Doe VIII v. Exxon Mobil Corp., 654 F. 3d 11, 40–55 

(CADC 2011), vacated on other grounds, 527 Fed. Appx. 7

(CADC 2013). The respective opinions by Judges

Cabranes and Leval are scholarly and extensive, providing 

significant guidance for this Court in the case now before 

it. 

With this background, it is now proper to turn to the

history of the ATS and the decisions interpreting it. 

B 

Under the Articles of Confederation, the Continental 

Congress lacked authority to “‘cause infractions of treaties, or of the law of nations to be punished.’” Sosa v. 

Alvarez-Machain, 542 U. S. 692, 716 (2004) (quoting J. 

Madison, Journal of the Constitutional Convention 60 (E.

Scott ed. 1893)). The Continental Congress urged the

States to authorize suits for damages sustained by foreign 
 

 

Cite as: 584 U. S. ____ (2018) 7 

Opinion of the Court 

citizens as a result of violations of international law; 

but the state courts’ vindication of the law of nations 

remained unsatisfactory. Concerns with the consequent 

international-relations tensions “persisted through the 

time of the Constitutional Convention.” 542 U. S., at 717. 

Under the Articles of Confederation, the inability of the 

central government to ensure adequate remedies for foreign citizens caused substantial foreign-relations problems. In 1784, the French Minister lodged a protest with 

the Continental Congress after a French adventurer, the 

Chevalier de Longchamps, assaulted the Secretary of the

French Legation in Philadelphia. See Kiobel, 569 U. S., at 

120. A few years later, a New York constable caused an

international incident when he entered the house of the 

Dutch Ambassador and arrested one of his servants. Ibid. 

Under the Articles of Confederation, there was no national 

forum available to resolve disputes like these under any 

binding laws that were or could be enacted or enforced by

a central government.

The Framers addressed these matters at the 1787 Philadelphia Convention; and, as a result, Article III of the

Constitution extends the federal judicial power to “all 

cases affecting ambassadors, other public ministers and 

consuls,” and “to controversies . . . between a state, or the 

citizens thereof, and foreign states, citizens, or subjects.”

§2. The First Congress passed a statute to implement 

these provisions: The Judiciary Act of 1789 authorized 

federal jurisdiction over suits involving disputes between 

aliens and United States citizens and suits involving 

diplomats. §§9, 11, 1 Stat. 76–79. 

The Judiciary Act also included what is now the statute

known as the ATS. §9, id., at 76. As noted, the ATS is 

central to this case and its brief text bears repeating. Its 

full text is: “The 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 
 

 

8 JESNER v. ARAB BANK, PLC 

Opinion of the Court 

United States.” 28 U. S. C. §1350.

The ATS is “strictly jurisdictional” and does not by its

own terms provide or delineate the definition of a cause of 

action for violations of international law. Sosa, 542 U. S., 

at 713–714. But the statute was not enacted to sit on a 

shelf awaiting further legislation. Id., at 714. Rather, 

Congress enacted it against the backdrop of the general 

common law, which in 1789 recognized a limited category 

of “torts in violation of the law of nations.” Ibid. 

In the 18th century, international law primarily governed relationships between and among nation-states, but 

in a few instances it governed individual conduct occurring

outside national borders (for example, “disputes relating to

prizes, to shipwrecks, to hostages, and ransom bills”). Id., 

at 714–715 (internal quotation marks omitted). There 

was, furthermore, a narrow domain in which “rules binding individuals for the benefit of other individuals overlapped with” the rules governing the relationships between nation-states. Id., at 715. As understood by

Blackstone, this domain included “three specific offenses 

against the law of nations addressed by the criminal law 

of England: violation of safe conducts, infringement of the 

rights of ambassadors, and piracy.” Ibid. (citing 4 W.

Blackstone, Commentaries on the Laws of England 68

(1769)). “It was this narrow set of violations of the law of 

nations, admitting of a judicial remedy and at the same

time threatening serious consequences in international 

affairs, that was probably on the minds of the men who

drafted the ATS.” 542 U. S., at 715. 

This history teaches that Congress drafted the ATS “to

furnish jurisdiction for a relatively modest set of actions 

alleging violations of the law of nations.” Id., at 720. The 

principal objective of the statute, when first enacted, was

to avoid foreign entanglements by ensuring the availability of a federal forum where the failure to provide one

might cause another nation to hold the United States 
Opinion of the Court 

Cite as: 584 U. S. ____ (2018) 9 

Opinion of the Court 

responsible for an injury to a foreign citizen. See id., at 

715–719; Kiobel, 569 U. S., at 123–124. 

Over the first 190 years or so after its enactment, the 

ATS was invoked but a few times. Yet with the evolving

recognition—for instance, in the Nuremberg trials after 

World War II—that certain acts constituting crimes 

against humanity are in violation of basic precepts of 

international law, courts began to give some redress for 

violations of international human-rights protections that 

are clear and unambiguous. In the modern era this began

with the decision of the Court of Appeals for the Second 

Circuit in Filartiga v. Pena-Irala, 630 F. 2d 876 (1980). 

In Filartiga, it was alleged that a young man had been

tortured and murdered by Paraguayan police officers, and

that an officer named Pena-Irala was one of the supervisors and perpetrators. Some members of the victim’s 

family were in the United States on visas. When they

discovered that Pena-Irala himself was living in New 

York, they filed suit against him. The action, seeking

damages for the suffering and death he allegedly had 

caused, was filed in the United States District Court for 

the Eastern District of New York. The Court of Appeals

found that there was jurisdiction under the ATS. For this 

holding it relied upon the universal acknowledgment that

acts of official torture are contrary to the law of nations. 

Id., at 890. This Court did not review that decision. 

In the midst of debates in the courts of appeals over

whether the court in Filartiga was correct in holding that 

plaintiffs could bring ATS actions based on modern humanrights laws absent an express cause of action created 

by an additional statute, Congress enacted the Torture 

Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note 

following 28 U. S. C. §1350. H. R. Rep. No. 102–367, 

pp. 3–4 (1991) (H. R. Rep.) (citing Tel-Oren v. Libyan Arab 

Republic, 726 F. 2d 774 (CADC 1984)); S. Rep. No. 102–

249, pp. 3–5 (1991) (S. Rep.) (same). The TVPA—which is 
 

10 JESNER v. ARAB BANK, PLC 

Opinion of the Court 

codified as a note following the ATS—creates an express

cause of action for victims of torture and extrajudicial

killing in violation of international law. 

After Filartiga and the TVPA, ATS lawsuits became 

more frequent. Modern ATS litigation has the potential to

involve large groups of foreign plaintiffs suing foreign 

corporations in the United States for alleged human-rights

violations in other nations. For example, in Kiobel the 

plaintiffs were Nigerian nationals who sued Dutch, British, and Nigerian corporations for alleged crimes in Nigeria. 569 U. S., at 111–112. The extent and scope of this 

litigation in United States courts have resulted in criticism here and abroad. See id., at 124 (noting objections to

ATS litigation by Canada, Germany, Indonesia, Papua

New Guinea, South Africa, Switzerland, and the United 

Kingdom).

In Sosa, the Court considered the question whether 

courts may recognize new, enforceable international 

norms in ATS lawsuits. 542 U. S., at 730–731. The Sosa 

Court acknowledged the decisions made in Filartiga and 

similar cases; and it held that in certain narrow circumstances courts may recognize a common-law cause of

action for claims based on the present-day law of nations,

in addition to the “historical paradigms familiar when 

§1350 was enacted.” 542 U. S., at 732. The Court was 

quite explicit, however, in holding that ATS litigation 

implicates serious separation-of-powers and foreignrelations concerns. Id., at 727–728. Thus, ATS claims 

must be “subject to vigilant doorkeeping.” Id., at 729. 

This Court next addressed the ATS in Kiobel, the case 

already noted. There, this Court held that “the presumption against extraterritoriality applies to claims under the 

ATS, and that nothing in the statute rebuts the presumption.” 569 U. S., at 124. The Court added that “even 

where the claims touch and concern the territory of the

United States, they must do so with sufficient force to 
Opinion of the Court 

Cite as: 584 U. S. ____ (2018) 11 

Opinion of KENNEDY, J. 

displace the presumption against extraterritorial application.” Id., at 124–125. 

II 

With these principles in mind, this Court now must

decide whether common-law liability under the ATS extends to a foreign corporate defendant. It could be argued,

under the Court’s holding in Kiobel, that even if, under 

accepted principles of international law and federal common law, corporations are subject to ATS liability for 

human-rights crimes committed by their human agents, in 

this case the activities of the defendant corporation and

the alleged actions of its employees have insufficient 

connections to the United States to subject it to jurisdiction under the ATS. Various amici urge this as a rationale

to affirm here, while the Government argues that the 

Court should remand this case so the Court of Appeals can 

address the issue in the first instance. There are substantial arguments on both sides of that question; but it is not 

the question on which this Court granted certiorari, nor is

it the question that has divided the Courts of Appeals.

The question whether foreign corporations are subject to 

liability under the ATS should be addressed; for, if there is 

no liability for Arab Bank, the lengthy and costly litigation

concerning whether corporate contacts like those alleged 

here suffice to impose liability would be pointless. In 

addition, a remand to the Court of Appeals would require

prolonging litigation that already has caused significant 

diplomatic tensions with Jordan for more than a decade.

So it is proper for this Court to decide whether corporations, or at least foreign corporations, are subject to liability in an ATS suit filed in a United States district court.

Before recognizing a common-law action under the ATS,

federal courts must apply the test announced in Sosa. An 

initial, threshold question is whether a plaintiff can 

demonstrate that the alleged violation is “of a norm that is 
 

Opinion of the Court 

12 JESNER v. ARAB BANK, PLC 

Opinion of KENNEDY, J. 

specific, universal, and obligatory.” 542 U. S., at 732 

(internal quotation marks omitted). And even assuming

that, under international law, there is a specific norm that

can be controlling, it must be determined further whether 

allowing this case to proceed under the ATS is a proper 

exercise of judicial discretion, or instead whether caution 

requires the political branches to grant specific authority 

before corporate liability can be imposed. See id., at 732– 

733, and nn. 20–21. “[T]he potential implications for the

foreign relations of the United States of recognizing such 

causes should make courts particularly wary of impinging 

on the discretion of the Legislative and Executive 

Branches in managing foreign affairs.” Id., at 727. 

It must be said that some of the considerations that 

pertain to determining whether there is a specific, universal, and obligatory norm that is established under international law are applicable as well in determining whether 

deference must be given to the political branches. For 

instance, the fact that the charters of some international 

tribunals and the provisions of some congressional statutes addressing international human-rights violations are

specifically limited to individual wrongdoers, and thus

foreclose corporate liability, has significant bearing both 

on the content of the norm being asserted and the question 

whether courts should defer to Congress. The two inquiries inform each other and are, to that extent, not altogether

discrete. 

With that introduction, it is proper now to turn first to

the question whether there is an international-law norm

imposing liability on corporations for acts of their employees that contravene fundamental human rights. 

A 

Petitioners and Arab Bank disagree as to whether corporate liability is a question of international law or only a 

question of judicial authority and discretion under domes- 
Opinion of the Court 

Cite as: 584 U. S. ____ (2018) 13 

Opinion of KENNEDY, J. 

tic law. The dispute centers on a footnote in Sosa. In the 

course of holding that international norms must be “sufficiently definite to support a cause of action,” the Court in 

Sosa noted that a “related consideration is whether international law extends the scope of liability for a violation of 

a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” 

Id., at 732, and n. 20. 

In the Court of Appeals’ decision in Kiobel, the majority

opinion by Judge Cabranes interpreted footnote 20 to

mean that corporate defendants may be held liable under 

the ATS only if there is a specific, universal, and obligatory

norm that corporations are liable for violations of international law. 621 F. 3d, at 127. In Judge Cabranes’ view,

“[i]nternational law is not silent on the question of the 

subjects of international law—that is, those that, to varying extents, have legal status, personality, rights, and 

duties under international law,” “[n]or does international 

law leave to individual States the responsibility of defining those subjects.” Id., at 126 (internal quotation marks

omitted). There is considerable force and weight to the 

position articulated by Judge Cabranes. And, assuming

the Court of Appeals was correct that under Sosa corporate liability is a question of international law, there is an 

equally strong argument that petitioners cannot satisfy 

the high bar of demonstrating a specific, universal, and 

obligatory norm of liability for corporations. Indeed, 

Judge Leval agreed with the conclusion that international 

law does “not provide for any form of liability of corporations.” Kiobel, 621 F. 3d, at 186. 

1 

In modern times, there is no doubt, of course, that “the 

international community has come to recognize the common danger posed by the flagrant disregard of basic human rights,” leading “the nations of the world to recognize 
 

Opinion of the Court 

14 JESNER v. ARAB BANK, PLC 

Opinion of KENNEDY, J. 

that respect for fundamental human rights is in their

individual and collective interest.” Filartiga, 630 F. 2d, at 

890. That principle and commitment support the conclusion that human-rights norms must bind the individual

men and women responsible for committing humanity’s

most terrible crimes, not just nation-states in their interactions with one another. “The singular achievement of 

international law since the Second World War has come in 

the area of human rights,” where international law now 

imposes duties on individuals as well as nation-states. 

Kiobel, 621 F. 3d, at 118. 

It does not follow, however, that current principles of 

international law extend liability—civil or criminal—for 

human-rights violations to corporations or other artificial 

entities. This is confirmed by the fact that the charters of 

respective international criminal tribunals often exclude 

corporations from their jurisdictional reach.

The Charter for the Nuremberg Tribunal, created by the

Allies after World War II, provided that the Tribunal had 

jurisdiction over natural persons only. See Agreement for 

Prosecution and Punishment of Major War Criminals of

the European Axis, Art. 6, Aug. 8, 1945, 59 Stat. 1547, 

E. A. S. 472. Later, a United States Military Tribunal

prosecuted 24 executives of the German corporation IG 

Farben. 7 Trials of War Criminals Before the Nuernberg

Military Tribunals Under Control Council Law No. 10,

pp. 11–60 (1952) (The Farben Case). Among other crimes,

Farben’s employees had operated a slave-labor camp at 

Auschwitz and “knowingly and intentionally manufactured and provided” the poison gas used in the Nazi death 

chambers. Kiobel, 621 F. 3d, at 135. Although the Military Tribunal “used the term ‘Farben’ as descriptive of the 

instrumentality of cohesion in the name of which” the

crimes were committed, the Tribunal noted that “corporations act through individuals.” 8 The Farben Case, at 

1153. Farben itself was not held liable. See ibid. 
Opinion of the Court 

Cite as: 584 U. S. ____ (2018) 15 

Opinion of KENNEDY, J. 

The jurisdictional reach of more recent international 

tribunals also has been limited to “natural persons.” See 

Statute of the International Criminal Tribunal for the 

Former Yugoslavia, S. C. Res. 827 (May 25, 1993), adopting U. N. Secretary-General Rep. Pursuant to Paragraph 2 

of Security Council Resolution 808, Art. 6, U. N. Doc.

S/25704 (May 3, 1993); Statute of the International Tribunal for Rwanda, Art. 5, S. C. Res. 955, Art. 5 (Nov. 8,

1994). The Rome Statute of the International Criminal 

Court, for example, limits that tribunal’s jurisdiction to

“natural persons.” See Rome Statute of the International 

Criminal Court, Art. 25(1), July 17, 1998, 2187 U. N. T. S.

90. The drafters of the Rome Statute considered, but 

rejected, a proposal to give the International Criminal 

Court jurisdiction over corporations. Eser, Individual 

Criminal Responsibility, in 1 Rome Statute of the International Criminal Court 767, 778–779 (A. Cassese et al. eds. 

2002).

The international community’s conscious decision to 

limit the authority of these international tribunals to 

natural persons counsels against a broad holding that 

there is a specific, universal, and obligatory norm of corporate liability under currently prevailing international law. 

2 

In light of the sources just discussed, the sources petitioners rely on to support their contention that liability for 

corporations is well established as a matter of international law lend weak support to their position. 

Petitioners first point to the International Convention

for the Suppression of the Financing of Terrorism. This 

Convention imposes an obligation on “Each State Party”

“to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal 

entity has, in that capacity,” violated the Convention. 
 

Opinion of the Court 

16 JESNER v. ARAB BANK, PLC 

Opinion of KENNEDY, J. 

International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, S. Treaty Doc. No. 

106–49, 2178 U. N. T. S. 232. But by its terms the Convention imposes its obligations only on nation-states “to

enable” corporations to be held liable in certain circumstances under domestic law. The United States and other 

nations, including Jordan, may fulfill their obligations

under the Convention by adopting detailed regulatory

regimes governing financial institutions. See, e.g., 18 

U. S. C. §2333(a) (private right of action under the AntiTerrorism Act); 31 U. S. C. §5311 et seq. (Bank Secrecy

Act); 31 CFR pt. 595 (2017) (Terrorism Sanctions Regulations); Brief for Central Bank of Jordan as Amicus Curiae 

5 (describing Jordan’s “comprehensive approach to preventing money laundering and terrorist financing”). The 

Convention neither requires nor authorizes courts, without congressional authorization, to displace those detailed

regulatory regimes by allowing common-law actions under 

the ATS. And nothing in the Convention’s text requires

signatories to hold corporations liable in common-law tort 

actions raising claims under international law.

In addition, petitioners and their amici cite a few cases 

from other nations and the Special Tribunal for Lebanon

that, according to petitioners, are examples of corporations

being held liable for violations of international law. E.g., 

Brief for Petitioners 50–51. Yet even assuming that these 

cases are relevant examples, at most they demonstrate

that corporate liability might be permissible under international law in some circumstances. That falls far short of 

establishing a specific, universal, and obligatory norm of 

corporate liability.

It must be remembered that international law is distinct 

from domestic law in its domain as well as its objectives. 

International human-rights norms prohibit acts repugnant to all civilized peoples—crimes like genocide, torture, 

and slavery, that make their perpetrators “enem[ies] of all 
Opinion of the Court 

Cite as: 584 U. S. ____ (2018) 17 

Opinion of KENNEDY, J. 

mankind.” Sosa, 542 U. S., at 732 (internal quotation 

marks omitted). In the American legal system, of course,

corporations are often subject to liability for the conduct of 

their human employees, and so it may seem necessary and 

natural that corporate entities are liable for violations of 

international law under the ATS. It is true, furthermore, 

that the enormity of the offenses that can be committed 

against persons in violation of international human-rights 

protections can be cited to show that corporations should 

be subject to liability for the crimes of their human agents. 

But the international community has not yet taken that 

step, at least in the specific, universal, and obligatory 

manner required by Sosa. Indeed, there is precedent to 

the contrary in the statement during the Nuremberg

proceedings that “[c]rimes against international law are

committed by men, not by abstract entities, and only by

punishing individuals who commit such crimes can the

provisions of international law be enforced.” The Nurnberg Trial, 6 F. R. D. 69, 110 (1946). 

Petitioners also contend that international law leaves 

questions of remedies open for determination under domestic law. As they see it, corporate liability is a remedial 

consideration, not a substantive principle that must be

supported by a universal and obligatory norm if it is to be

implemented under the ATS. According to petitioners, 

footnote 20 in Sosa does no more than recognize the distinction in international law between state and private 

actors. But, as just explained, there is a similar distinction in international law between corporations and natural persons. And it is far from obvious why the question

whether corporations may be held liable for the international crimes of their employees is a mere question of 

remedy.

In any event, the Court need not resolve the questions

whether corporate liability is a question that is governed 

by international law, or, if so, whether international law 
 

 

18 JESNER v. ARAB BANK, PLC 

Opinion of the Court 

imposes liability on corporations. There is at least sufficient doubt on the point to turn to Sosa’s second question—whether the Judiciary must defer to Congress,

allowing it to determine in the first instance whether that

universal norm has been recognized and, if so, whether it 

is prudent and necessary to direct its enforcement in suits

under the ATS. 

B 

1 

Sosa is consistent with this Court’s general reluctance 

to extend judicially created private rights of action. The 

Court’s recent precedents cast doubt on the authority of

courts to extend or create private causes of action even in

the realm of domestic law, where this Court has “recently

and repeatedly said that a decision to create a private 

right of action is one better left to legislative judgment in

the great majority of cases.” 542 U. S., at 727 (citing Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001); 

Alexander v. Sandoval, 532 U. S. 275, 286–287 (2001)).

That is because “the Legislature is in the better position to

consider if the public interest would be served by imposing

a new substantive legal liability.” Ziglar v. Abbasi, 582 

U. S. ___, ___ (2017) (slip op., at 12) (internal quotation 

marks omitted). Thus, “if there are sound reasons to think 

Congress might doubt the efficacy or necessity of a damages remedy, . . . courts must refrain from creating the 

remedy in order to respect the role of Congress.” Id., at 

___ (slip op., at 13). 

This caution extends to the question whether the courts

should exercise the judicial authority to mandate a rule 

that imposes liability upon artificial entities like corporations. Thus, in Malesko the Court held that corporate 

defendants may not be held liable in Bivens actions. See 

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 

388 (1971). Allowing corporate liability would have been a 
Opinion of the Court 

Cite as: 584 U. S. ____ (2018) 19 

Opinion of KENNEDY, J. 

“marked extension” of Bivens that was unnecessary to

advance its purpose of holding individual officers responsible for “engaging in unconstitutional wrongdoing.” 

Malesko, 534 U. S., at 74. Whether corporate defendants

should be subject to suit was “a question for Congress, not

us, to decide.” Id., at 72. 

Neither the language of the ATS nor the precedents 

interpreting it support an exception to these general principles in this context. In fact, the separation-of-powers

concerns that counsel against courts creating private

rights of action apply with particular force in the context

of the ATS. See infra, at 25–26. The political branches,

not the Judiciary, have the responsibility and institutional

capacity to weigh foreign-policy concerns. See Kiobel, 569 

U. S., at 116–117. That the ATS implicates foreign relations “is itself a reason for a high bar to new private causes

of action for violating international law.” Sosa, supra, 

at 727. 

In Sosa, the Court emphasized that federal courts must

exercise “great caution” before recognizing new forms of

liability under the ATS. 542 U. S., at 728. In light of the 

foreign-policy and separation-of-powers concerns inherent 

in ATS litigation, there is an argument that a proper

application of Sosa would preclude courts from ever recognizing any new causes of action under the ATS. But the 

Court need not resolve that question in this case. Either 

way, absent further action from Congress it would be

inappropriate for courts to extend ATS liability to foreign

corporations. 

2 

Even in areas less fraught with foreign-policy consequences, the Court looks to analogous statutes for guidance on the appropriate boundaries of judge-made causes

of action. See, e.g., Miles v. Apex Marine Corp., 498 U. S. 

19, 24 (1990); Blue Chip Stamps v. Manor Drug Stores, 
 

Opinion of the Court 

 

20 JESNER v. ARAB BANK, PLC 

Opinion of KENNEDY, J. 

421 U. S. 723, 736 (1975). Doing so is even more important in the realm of international law, where “the 

general practice has been to look for legislative guidance 

before exercising innovative authority over substantive

law.” Sosa, supra, at 726. 

Here, the logical place to look for a statutory analogy to

an ATS common-law action is the TVPA—the only cause 

of action under the ATS created by Congress rather than

the courts. As explained above, Congress drafted the

TVPA to “establish an unambiguous and modern basis for 

a cause of action” under the ATS. H. R. Rep., at 3; S. Rep., 

at 4–5. Congress took care to delineate the TVPA’s

boundaries. In doing so, it could weigh the foreign-policy 

implications of its rule. Among other things, Congress

specified who may be liable, created an exhaustion requirement, and established a limitations period. Kiobel, 

569 U. S., at 117. In Kiobel, the Court recognized that

“[e]ach of these decisions carries with it significant foreign 

policy implications.” Ibid. The TVPA reflects Congress’

considered judgment of the proper structure for a right of

action under the ATS. Absent a compelling justification, 

courts should not deviate from that model. 

The key feature of the TVPA for this case is that it

limits liability to “individuals,” which, the Court has held, 

unambiguously limits liability to natural persons. Mohamad v. Palestinian Authority, 566 U. S. 449, 453–456 

(2012). Congress’ decision to exclude liability for corporations in actions brought under the TVPA is all but dispositive of the present case. That decision illustrates that 

significant foreign-policy implications require the courts to 

draw a careful balance in defining the scope of actions

under the ATS. It would be inconsistent with that balance 

to create a remedy broader than the one created by Congress. Indeed, it “would be remarkable to take a more 

aggressive role in exercising a jurisdiction that remained

largely in shadow for much of the prior two centuries.” 
Opinion of the Court 

Cite as: 584 U. S. ____ (2018) 21 

Opinion of KENNEDY, J. 

Sosa, supra, at 726. 

According to petitioners, the TVPA is not a useful 

guidepost because Congress limited liability under that 

statute to “individuals” out of concern for the sovereign 

immunity of foreign governmental entities, not out of

general hesitation about corporate liability under the ATS. 

The argument seems to run as follows: The TVPA provides 

a right of action to victims of torture and extrajudicial 

killing, and under international law those human-rights 

violations require state action. For a corporation’s employees to violate these norms therefore would require the 

corporation to be an instrumentality of a foreign state or

other sovereign entity. That concern is absent, petitioners

insist, for crimes that lack a state-action requirement—for 

example, genocide, slavery, or, in the present case, the 

financing of terrorists.

At least two flaws inhere in this argument. First, in 

Mohamad the Court unanimously rejected petitioners’ 

account of the TVPA’s legislative history. 566 U. S., at 

453, 458–460. The Court instead read that history to

demonstrate that Congress acted to exclude all corporate 

entities, not just the sovereign ones. Id., at 459–460 (citing Hearing and Markup on H. R. 1417 before the House

Committee on Foreign Affairs and Its Subcommittee on

Human Rights and International Organizations, 100th 

Cong., 2d Sess., 87–88 (1988)); see also 566 U. S., at 461–

462 (BREYER, J., concurring). Second, even for internationallaw norms that do not require state action, plaintiffs

can still use corporations as surrogate defendants to 

challenge the conduct of foreign governments. In Kiobel, 

for example, the plaintiffs sought to hold a corporate

defendant liable for “aiding and abetting the Nigerian 

Government in committing,” among other things, “crimes

against humanity.” 569 U. S., at 114; see also, e.g., Sarei 

v. Rio Tinto, PLC, 671 F. 3d 736, 761–763 (CA9 2011) (en 

banc) (corporate defendant allegedly used Papua New 
 

Opinion of the Court 

 

 

22 JESNER v. ARAB BANK, PLC 

Opinion of KENNEDY, J. 

Guinea’s military to commit genocide), vacated and remanded, 569 U. S. 945 (2013).

Petitioners contend that, instead of the TVPA, the most 

analogous statute here is the Anti-Terrorism Act. That 

Act does permit suits against corporate entities. See 18 

U. S. C. §§ 2331(3), 2333(d)(2). In fact, in these suits some 

of the foreign plaintiffs joined their claims to those of 

United States nationals suing Arab Bank under the AntiTerrorism Act. But the Anti-Terrorism Act provides a

cause of action only to “national[s] of the United States,” 

and their “estate, survivors, or heirs.” §2333(a). In contrast, the ATS is available only for claims brought by “an

alien.” 28 U. S. C. §1350. A statute that excludes foreign 

nationals (with the possible exception of foreign survivors 

or heirs) is an inapt analogy for a common-law cause of 

action that provides a remedy for foreign nationals only.

To the extent, furthermore, that the Anti-Terrorism Act 

is relevant it suggests that there should be no commonlaw action under the ATS for allegations like petitioners’. 

Otherwise, foreign plaintiffs could bypass Congress’ express limitations on liability under the Anti-Terrorism Act 

simply by bringing an ATS lawsuit. The Anti-Terrorism 

Act, as mentioned above, is part of a comprehensive statutory and regulatory regime that prohibits terrorism and

terrorism financing. The detailed regulatory structures

prescribed by Congress and the federal agencies charged 

with oversight of financial institutions reflect the careful 

deliberation of the political branches on when, and how, 

banks should be held liable for the financing of terrorism.

It would be inappropriate for courts to displace this considered statutory and regulatory structure by holding

banks subject to common-law liability in actions filed 

under the ATS. 

In any event, even if the Anti-Terrorism Act were a

suitable model for an ATS suit, Congress’ decision in the 

TVPA to limit liability to individuals still demonstrates 
Opinion of the Court 

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Opinion of KENNEDY, J. 

that there are two reasonable choices. In this area, that is 

dispositive—Congress, not the Judiciary, must decide 

whether to expand the scope of liability under the ATS to 

include foreign corporations. 

3 

Other considerations relevant to the exercise of judicial 

discretion also counsel against allowing liability under the 

ATS for foreign corporations, absent instructions from

Congress to do so. It has not been shown that corporate

liability under the ATS is essential to serve the goals of

the statute. As to the question of adequate remedies, the 

ATS will seldom be the only way for plaintiffs to hold the

perpetrators liable. See, e.g., 18 U. S. C. §1091 (criminal

prohibition on genocide); §1595 (civil remedy for victims of

slavery). And plaintiffs still can sue the individual corporate employees responsible for a violation of international 

law under the ATS. If the Court were to hold that foreign

corporations have liability for international-law violations,

then plaintiffs may well ignore the human perpetrators

and concentrate instead on multinational corporate 

entities. 

As explained above, in the context of criminal tribunals

international law itself generally limits liability to natural 

persons. Although the Court need not decide whether the 

seeming absence of a specific, universal, and obligatory 

norm of corporate liability under international law by 

itself forecloses petitioners’ claims against Arab Bank, or 

whether this is an issue governed by international law,

the lack of a clear and well-established international-law 

rule is of critical relevance in determining whether courts

should extend ATS liability to foreign corporations without 

specific congressional authorization to do so. That is 

especially so in light of the TVPA’s limitation of liability to

natural persons, which parallels the distinction between

corporations and individuals in international law. 
 

Opinion of the Court 

24 JESNER v. ARAB BANK, PLC 

Opinion of KENNEDY, J. 

If, moreover, the Court were to hold that foreign corporations may be held liable under the ATS, that precedentsetting principle “would imply that other nations, also 

applying the law of nations, could hale our [corporations] 

into their courts for alleged violations of the law of nations.” Kiobel, 569 U. S., at 124. This judicially mandated

doctrine, in turn, could subject American corporations to

an immediate, constant risk of claims seeking to impose 

massive liability for the alleged conduct of their employees

and subsidiaries around the world, all as determined in 

foreign courts, thereby “hinder[ing] global investment in

developing economies, where it is most needed.” Brief for 

United States as Amicus Curiae in American Isuzu Motors, Inc. v. Ntsebeza, O. T. 2007, No. 07–919, p. 20 (internal quotation marks omitted).

In other words, allowing plaintiffs to sue foreign corporations under the ATS could establish a precedent that 

discourages American corporations from investing abroad,

including in developing economies where the host government might have a history of alleged human-rights violations, or where judicial systems might lack the safeguards 

of United States courts. And, in consequence, that often

might deter the active corporate investment that contributes to the economic development that so often is an essential foundation for human rights. 

It is also true, of course, that natural persons can and do

use corporations for sinister purposes, including conduct

that violates international law. That the corporate form 

can be an instrument for inflicting grave harm and suffering poses serious and complex questions both for the international community and for Congress. So there are 

strong arguments for permitting the victims to seek relief 

from corporations themselves. Yet the urgency and complexity of this problem make it all the more important that 

Congress determine whether victims of human-rights

abuses may sue foreign corporations in federal courts in 
Cite as: 584 U. S. ____ (2018) 25 

Opinion of the Court 

the United States. Congress, not the Judiciary, is the

branch with “the facilities necessary to make fairly such 

an important policy decision where the possibilities of 

international discord are so evident and retaliative action 

so certain.” Kiobel, 569 U. S., at 116 (internal quotation 

marks omitted). As noted further below, there are many 

delicate and important considerations that Congress is in

a better position to examine in determining whether and

how best to impose corporate liability. And, as the TVPA 

illustrates, Congress is well aware of the necessity of 

clarifying the proper scope of liability under the ATS in a

timely way. 

C 

The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for

international-law violations in circumstances where the 

absence of such a remedy might provoke foreign nations to 

hold the United States accountable. Brief for United 

States as Amicus Curiae 7. But here, and in similar cases, 

the opposite is occurring.

Petitioners are foreign nationals seeking hundreds of 

millions of dollars in damages from a major Jordanian 

financial institution for injuries suffered in attacks by 

foreign terrorists in the Middle East. The only alleged 

connections to the United States are the CHIPS transactions in Arab Bank’s New York branch and a brief allegation regarding a charity in Texas. The Court of Appeals

did not address, and the Court need not now decide, 

whether these allegations are sufficient to “touch and

concern” the United States under Kiobel. See 569 U. S., at 

124–125. 

At a minimum, the relatively minor connection between

the terrorist attacks at issue in this case and the alleged

conduct in the United States well illustrates the perils of 

extending the scope of ATS liability to foreign multina-
 

26 JESNER v. ARAB BANK, PLC 

Opinion of the Court 

tional corporations like Arab Bank. For 13 years, this

litigation has “caused significant diplomatic tensions” with

Jordan, a critical ally in one of the world’s most sensitive

regions. Brief for United States as Amicus Curiae 30. 

“Jordan is a key counterterrorism partner, especially in 

the global campaign to defeat the Islamic State in Iraq

and Syria.” Id., at 31. The United States explains that

Arab Bank itself is “a constructive partner with the 

United States in working to prevent terrorist financing.” Id., 

at 32 (internal quotation marks omitted). Jordan considers the instant litigation to be a “grave affront” to its 

sovereignty. See Brief for Hashemite Kingdom of Jordan 

as Amicus Curiae 3; see ibid. (“By exposing Arab Bank to

massive liability, this suit thus threatens to destabilize 

Jordan’s economy and undermine its cooperation with the 

United States”).

This is not the first time, furthermore, that a foreign

sovereign has appeared in this Court to note its objections

to ATS litigation. Sosa, 542 U. S., at 733, n. 21 (noting 

objections by the European Commission and South Africa);

Brief for the Federal Republic of Germany as Amicus 

Curiae in Kiobel v. Royal Dutch Petroleum Co., O. T. 2012, 

No. 10–1491, p. 1; Brief for the Government of the United 

Kingdom of Great Britain and Northern Ireland and the 

Kingdom of the Netherlands as Amici Curiae in No. 10– 

1491, p. 3. These are the very foreign-relations tensions

the First Congress sought to avoid.

Petitioners insist that whatever the faults of this litigation—for example, its tenuous connections to the United

States and the prolonged diplomatic disruptions it has 

caused—the fact that Arab Bank is a foreign corporate 

entity, as distinct from a natural person, is not one of 

them. That misses the point. As demonstrated by this 

litigation, foreign corporate defendants create unique 

problems. And courts are not well suited to make the 

required policy judgments that are implicated by corporate 
Opinion of the Court 

Cite as: 584 U. S. ____ (2018) 27 

Opinion of KENNEDY, J. 

liability in cases like this one.

Like the presumption against extraterritoriality, judicial caution under Sosa “guards against our courts triggering . . . serious foreign policy consequences, and instead 

defers such decisions, quite appropriately, to the political 

branches.” Kiobel, 569 U. S., at 124. If, in light of all the 

concerns that must be weighed before imposing liability on 

foreign corporations via ATS suits, the Court were to hold

that it has the discretion to make that determination, then 

the cautionary language of Sosa would be little more than 

empty rhetoric. Accordingly, the Court holds that foreign 

corporations may not be defendants in suits brought under

the ATS. 

III 

With the ATS, the First Congress provided a federal

remedy for a narrow category of international-law violations committed by individuals. Whether, more than two 

centuries on, a similar remedy should be available against 

foreign corporations is similarly a decision that Congress

must make. 

The political branches can determine, referring to international law to the extent they deem proper, whether to 

impose liability for human-rights violations upon foreign 

corporations in this Nation’s courts, and, conversely, that

courts in other countries should be able to hold United 

States corporations liable. Congress might determine that 

violations of international law do, or should, impose that 

liability to ensure that corporations make every effort to 

deter human-rights violations, and so that, even when

those efforts cannot be faulted, compensation for injured

persons will be a cost of doing business. If Congress and 

the Executive were to determine that corporations should 

be liable for violations of international law, that decision 

would have special power and force because it would be

made by the branches most immediately responsive to, 
 

Opinion of the Court 

28 JESNER v. ARAB BANK, PLC 

Opinion of KENNEDY, J. 

and accountable to, the electorate. 

It is still another possibility that, in the careful exercise

of its expertise in the field of foreign affairs, Congress 

might conclude that neutral judicial safeguards may not 

be ensured in every country; and so, as a reciprocal matter, it could determine that liability of foreign corporations

under the ATS should be subject to some limitations or 

preconditions. Congress might deem this more careful 

course to be the best way to encourage American corporations to undertake the extensive investments and foreign

operations that can be an important beginning point for 

creating the infrastructures that allow human rights, as 

well as judicial safeguards, to emerge. These delicate 

judgments, involving a balance that it is the prerogative of 

the political branches to make, especially in the field of 

foreign affairs, would, once again, also be entitled to special respect, especially because those careful distinctions 

might themselves advance the Rule of Law. All this underscores the important separation-of-powers concerns

that require the Judiciary to refrain from making these

kinds of decisions under the ATS. The political branches,

moreover, surely are better positioned than the Judiciary 

to determine if corporate liability would, or would not, 

create special risks of disrupting good relations with foreign governments.

Finally, Congress might find that corporate liability 

should be limited to cases where a corporation’s management was actively complicit in the crime. Cf. ALI, Model 

Penal Code §2.07(1)(c) (1985) (a corporation may be held

criminally liable where “the commission of the offense was 

authorized, requested, commanded, performed or recklessly 

tolerated by the board of directors or by a high managerial

agent acting on behalf of the corporation within the scope

of his office or employment”). Again, the political branches

are better equipped to make the preliminary findings 

and consequent conclusions that should inform this 
Opinion of the Court 

Cite as: 584 U. S. ____ (2018) 29 

Opinion of KENNEDY, J. 

determination. 

These and other considerations that must shape and 

instruct the formulation of principles of international and

domestic law are matters that the political branches are in

the better position to define and articulate. For these 

reasons, judicial deference requires that any imposition of 

corporate liability on foreign corporations for violations of 

international law must be determined in the first instance 

by the political branches of the Government.

The judgment of the Court of Appeals is affirmed. 

It is so ordered. 
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Cite as: 584 U. S. ____ (2018) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 16–499 

JOSEPH JESNER, ET AL., PETITIONERS v.
 

ARAB BANK, PLC
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT
 

[April 24, 2018] 

JUSTICE THOMAS, concurring. 

I join the Court’s opinion in full because it correctly

applies our precedents. I also agree with the points raised 

by my concurring colleagues. Courts should not be in the 

business of creating new causes of action under the Alien 

Tort Statute, see post, at 2–5 (GORSUCH, J., concurring in 

part and concurring in judgment), especially when it risks

international strife, see post, at 3–7 (ALITO, J., concurring 

in part and concurring in judgment). And the Alien Tort 

Statute likely does not apply to suits between foreign 

plaintiffs and foreign defendants. See post, at 5–14 (opinion of GORSUCH, J.). 
 

_________________ 

_________________ 


 


 


 

Cite as: 584 U. S. ____ (2018) 1 

Opinion of ALITO, J. 

SUPREME COURT OF THE UNITED STATES 

No. 16–499 

JOSEPH JESNER, ET AL., PETITIONERS v.
 

ARAB BANK, PLC
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT
 

[April 24, 2018] 

JUSTICE ALITO, concurring in part and concurring in the

judgment. 

Creating causes of action under the Alien Tort Statute

against foreign corporate defendants would precipitate 

exactly the sort of diplomatic strife that the law was enacted to prevent. As a result, I agree with the Court that

we should not take that step, and I join Parts I, II–B–1,

and II–C of the opinion of the Court. I write separately to

elaborate on why that outcome is compelled not only by 

“judicial caution,” ante, at 27 (majority opinion), but also

by the separation of powers. 

I 

The ATS is a jurisdictional statute. It provides that

“[t]he 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.” 

28 U. S. C. §1350. By its terms, the ATS does not create

any causes of action.

In Sosa v. Alvarez-Machain, 542 U. S. 692 (2004), however, this Court nevertheless held that federal courts, 

exercising their authority in limited circumstances to

make federal common law, may create causes of action 

that aliens may assert under the ATS. That holding takes 

some explaining. 
 

 

2 JESNER v. ARAB BANK, PLC 

Opinion of ALITO, J. 

 According to Sosa, when the First Congress enacted the

ATS in 1789, it assumed that the statute would “have 

practical effect the moment it became law” because the 

general common law “would provide a cause of action for 

[a] modest number of international law violations.” Id., at 

724. That assumption, however, depended on the continued existence of the general common law. And in 1938—a 

century and a half after Congress enacted the ATS—this 

Court rejected the “fallacy” underlying the general common law, declaring definitively that “[t]here is no federal 

general common law.” Erie R. Co. v. Tompkins, 304 U. S. 

64, 78, 79 (1938). That left the ATS in an awkward spot:

Congress had not created any causes of action for the 

statute on the assumption that litigants would use those 

provided by the general common law, but now the general

common law was no more. 

In Sosa, this Court did its best to resolve that problem.

“[I]t would be unreasonable to assume,” the Court explained, “that the First Congress would have expected 

federal courts to lose all capacity to recognize enforceable 

international norms simply because the [general] common 

law might lose some metaphysical cachet on the road to 

modern realism.” 542 U. S., at 730. Although the general

common law was gone, the Court concluded, federal courts

could still exercise their authority to create so-called “federal common law” for those “‘few and restricted’” areas “in 

which Congress has given the courts the power to develop 

substantive law.” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640 (1981). Sosa interpreted the 

ATS as conferring such authorization. 

 As a result, Sosa held that federal courts, subject to

certain conditions, may “recognize private causes of action 

[under the ATS] for certain torts in violation of the law of

nations.” 542 U. S., at 724. But before doing so, Sosa 

stressed, courts should follow a two-step process. First, 

they should ensure that the contemplated cause of action 
Cite as: 584 U. S. ____ (2018) 3 

Opinion of ALITO, J. 

reflects an international law norm that is “‘specific, universal and obligatory.’ ” Id., at 732. Second, if a suitable 

norm is identified, federal courts should decide whether 

there is any other reason to limit “the availability of relief.” Id., at 733, n. 21. 

II 

For the reasons articulated by Justice Scalia in Sosa 

and by JUSTICE GORSUCH today, I am not certain that 

Sosa was correctly decided. See id., at 739–751 (Scalia, J., 

dissenting); post, at 2–5 (GORSUCH, J., concurring in part 

and concurring in judgment). But even taking that decision on its own terms, this Court should not create causes 

of action under the ATS against foreign corporate defendants. As part of Sosa’s second step, a court should decline 

to create a cause of action as a matter of federal common 

law where the result would be to further, not avoid, diplomatic strife. Properly applied, that rule easily resolves

the question presented by this case.* 

Sosa interpreted the ATS to authorize the federal courts

to create causes of action as a matter of federal common 

law. We have repeatedly emphasized that “in fashioning 

federal [common law] principles to govern areas left open 

by Congress, our function is to effectuate congressional

policy.” United States v. Kimbell Foods, Inc., 440 U. S. 

715, 738 (1979). Fidelity to congressional policy is not 

only prudent but necessary: Going beyond the bounds of

Congress’s authorization would mean unconstitutionally 

usurping part of the “legislative Powers.” U. S. Const., 

Art. I, §1. Accordingly, the objective for courts in every

case requiring the creation of federal common law must be 

—————— 

*Because this case involves a foreign corporation, we have no need to 

reach the question whether an alien may sue a United States corporation under the ATS. And since such a suit may generally be brought in 

federal court based on diversity jurisdiction, 28 U. S. C. §1332(a)(2), it

is unclear why ATS jurisdiction would be needed in that situation. 
 

 

4 JESNER v. ARAB BANK, PLC 

Opinion of ALITO, J. 

“to find the rule that will best effectuate the federal policy.” 

Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 

457 (1957).

The ATS was meant to help the United States avoid 

diplomatic friction. The First Congress enacted the law to

provide a forum for adjudicating that “narrow set of violations of the law of nations” that, if left unaddressed, 

“threaten[ed] serious consequences” for the United States. 

Sosa, 542 U. S., at 715; see also Brief for Professors of 

International Law et al. as Amici Curiae 7–12. Specifically, 

the First Congress was concerned about offenses like 

piracy, violation of safe conducts, and infringement of the

rights of ambassadors, each of which “if not adequately 

redressed could rise to an issue of war.” Sosa, supra, at 

715. That threat was existentially terrifying for the young

Nation. See Kiobel v. Royal Dutch Petroleum Co., 569 

U. S. 108, 123–124 (2013). To minimize the danger, the 

First Congress enacted the ATS, “ensur[ing] that the

United States could provide a forum for adjudicating such

incidents” and thus helping the Nation avoid further 

diplomatic imbroglios. Id., at 124; see ante, at 25 (majority 

opinion).

Putting that objective together with the rules governing

federal common law generally, the following principle

emerges: Federal courts should decline to create federal

common law causes of action under Sosa’s second step 

whenever doing so would not materially advance the 

ATS’s objective of avoiding diplomatic strife. And applying that principle here, it is clear that federal courts

should not create causes of action under the ATS against 

foreign corporate defendants. All parties agree that customary international law does not require corporate liability as a general matter. See Brief for Petitioners 30; Brief 

for Respondent 22; see also ante, at 17 (plurality opinion); 

post, at 3–4 (SOTOMAYOR, J., dissenting). But if customary

international law does not require corporate liability, then 
Cite as: 584 U. S. ____ (2018) 5 

Opinion of ALITO, J. 

declining to create it under the ATS cannot give other 

nations just cause for complaint against the United States. 

To the contrary, ATS suits against foreign corporations

may provoke—and, indeed, frequently have provoked—

exactly the sort of diplomatic strife inimical to the fundamental purpose of the ATS. Some foreign states appear to

interpret international law as foreclosing civil corporate 

liability for violations of the law of nations. See Brief for 

Government of the United Kingdom et al. as Amici Curiae 

in Kiobel v. Royal Dutch Petroleum Co., O. T. 2012, No. 

10–1491, p. 14. Creating ATS causes of action against 

foreign corporate defendants would put the United States

at odds with these nations. Even when states do not 

object to this sort of corporate liability as a legal matter, 

they may be concerned about ATS suits against their 

corporations for political reasons. For example, Jordan 

considers this suit “a direct affront” to its sovereignty and

one that “risks destabilizing Jordan’s economy and undercutting one of the most stable and productive alliances the

United States has in the Middle East.” Brief for Hashemite Kingdom of Jordan as Amicus Curiae 4. Courting

these sorts of problems—which seem endemic to ATS 

litigation—was the opposite of what the First Congress

had in mind. 

In response, the dissent argues merely that any diplomatic friction “can be addressed with a tool more tailored 

to the source of the problem than a blanket ban on corporate liability.” Post, at 19. Even on its own terms, that 

argument is problematic: Many of the “more tailored” tools 

offered by the dissent will still be hotly litigated by ATS 

plaintiffs, and it may be years before incorrect initial 

decisions about their applicability can be reviewed by the 

courts of appeals. See ante, at 11 (plurality opinion).

In any event, the dissent misunderstands the relevant 

standard. The question before us is whether the United

States would be embroiled in fewer international contro-
 

 

 

 

6 JESNER v. ARAB BANK, PLC 

Opinion of ALITO, J. 

versies if we created causes of action under the ATS 

against foreign corporate defendants. Unless corporate

liability would actively decrease diplomatic disputes, we

have no authority to act. On that score, the dissent can 

only speculate that declining to create causes of action

against foreign corporate defendants “might” lead to diplomatic friction. Post, at 30. But the dissent has no realworld examples to support its hunch, and that is not surprising; the ATS already goes further than any other

statute in the world in granting aliens the right to sue 

civilly for violations of international law, especially in 

light of the many other avenues for relief available. See 

ante, at 23 (plurality opinion). It would be rather rich for 

any other nation to complain that the ATS does not go far

enough. Indeed, no country has. 

Finally, the dissent invokes “the considered judgment of 

the Executive Branch and Congress” that ATS suits 

against foreign corporations are “necessary ‘to help the 

United States avoid diplomatic friction.’” Post, at 31, 

n. 13. Tellingly, however, the dissent cannot muster a

single source that actually supports that bold contention.

Instead, the dissent immediately retreats to two far more 

modest assertions. First, the dissent observes that the 

Executive Branch has twice suggested that this Court 

should allow causes of action against corporate defendants

under the ATS. But both times the Executive Branch 

defended that perspective primarily under the first step of 

Sosa; here, however, we are dealing with Sosa’s second 

step, and with the risk of diplomatic friction in particular.

Second, the dissent also notes that the Executive Branch 

and Congress have each taken steps to hold corporations

liable for certain acts like terrorism. Post, at 31, n. 13. 

That is, of course, true, but it is also entirely irrelevant.

Congress and the Executive Branch may be willing to 

trade off the risk of some diplomatic friction in exchange 

for the promotion of other objectives (such as “holding 
Cite as: 584 U. S. ____ (2018) 7 

Opinion of ALITO, J. 

foreign corporations to account for certain egregious conduct,” ibid.). That is their prerogative as the political 

branches. But consistent with the separation of powers,

we have neither the luxury nor the right to make such

policy decisions ourselves.

Creating causes of action under the ATS against foreign

corporate defendants would be a no-win proposition.

Foreign corporate liability would not only fail to meaningfully advance the objectives of the ATS, but it would also

lead to precisely those “serious consequences in international affairs” that the ATS was enacted to avoid. Sosa, 

542 U. S., at 715. Under those circumstances, federal 

courts have a duty to refrain from acting. Although that

may make it more difficult for aliens to hold foreign corporations liable for human rights abuses, we have repeatedly 

rejected the view that the ATS was meant to transform

the federal courts into forums for the litigation of all human rights suits. See ante, at 8–9, 25–27 (majority opinion); Kiobel, 569 U. S., at 123–124; Sosa, supra, at 715– 

718. Declining to extend the ATS to foreign corporate

defendants is thus not about “[i]mmunizing corporations

that violate human rights,” post, at 34, but rather about 

furthering the purpose that the ATS was actually meant

to serve—avoiding diplomatic strife. 
_________________ 

_________________ 

 

 


 


 


 

Cite as: 584 U. S. ____ (2018) 1 

Opinion of GORSUCH, J. 

SUPREME COURT OF THE UNITED STATES 

No. 16–499 

JOSEPH JESNER, ET AL., PETITIONERS v.
 

ARAB BANK, PLC
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT
 

[April 24, 2018] 

JUSTICE GORSUCH, concurring in part and concurring in 

the judgment. 

I am pleased to join the Court’s judgment and Parts I,

II–B–1, and II–C of its opinion. Respectfully, though, I 

believe there are two more fundamental reasons why this 

lawsuit must be dismissed. A group of foreign plaintiffs

wants a federal court to invent a new cause of action so 

they can sue another foreigner for allegedly breaching 

international norms. In any other context, a federal judge 

faced with a request like that would know exactly what to

do with it: dismiss it out of hand. Not because the defendant happens to be a corporation instead of a human being.

But because the job of creating new causes of action and 

navigating foreign policy disputes belongs to the political 

branches. For reasons passing understanding, federal 

courts have sometimes treated the Alien Tort Statute as a 

license to overlook these foundational principles. I would 

end ATS exceptionalism. We should refuse invitations to 

create new forms of legal liability. And we should not 

meddle in disputes between foreign citizens over international norms. I write because I am hopeful that courts in

the future might pause to consider both of these reasons

for restraint before taking up cases like this one. Whatever

powers courts may possess in ATS suits, they are powers

judges should be doubly careful not to abuse. 
 

2 JESNER v. ARAB BANK, PLC 

Opinion of GORSUCH, J. 

I 

First adopted in 1789, the current version of the ATS 

provides that “[t]he 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.” 28 U. S. C. §1350. More than two 

hundred years later, the meaning of this terse provision

has still “proven elusive.” Sosa v. Alvarez-Machain, 542 

U. S. 692, 719 (2004). At the same time, this Court has 

suggested that Congress enacted the statute to afford 

federal courts jurisdiction to hear tort claims related to 

three violations of international law that were already 

embodied in English common law: violations of safe conducts extended to aliens, interference with ambassadors, 

and piracy. Id., at 715; 4 W. Blackstone, Commentaries on 

the Laws of England 68 (1769) (Blackstone); see also

Bellia & Clark, The Alien Tort Statute and the Law of 

Nations, 78 U. Chi. L. Rev. 445 (2011) (arguing that the

ATS meant to supply jurisdiction over a slightly larger set

of claims involving intentional torts by Americans against 

aliens).

In this case, the plaintiffs seek much more. They want

the federal courts to recognize a new cause of action, one 

that did not exist at the time of the statute’s adoption, one 

that Congress has never authorized. While their request

might appear inconsistent with Sosa’s explanation of the

ATS’s modest origin, the plaintiffs say that a caveat later 

in the opinion saves them. They point to a passage where

the Court went on to suggest that the ATS may also afford 

federal judges “discretion [to] conside[r] [creating] new 

cause[s] of action” if they “rest on a norm of international

character accepted by the civilized world and defined with 

a specificity comparable to the features of the [three] 18thcentury” torts the Court already described. 542 U. S., at 

725. 

I harbor serious doubts about Sosa’s suggestion. In our 
 

Cite as: 584 U. S. ____ (2018) 3 

Opinion of GORSUCH, J. 

democracy the people’s elected representatives make the 

laws that govern them. Judges do not. The Constitution’s 

provisions insulating judges from political accountability 

may promote our ability to render impartial judgments 

in disputes between the people, but they do nothing 

to recommend us as policymakers for a large nation.

Recognizing just this, our cases have held that when

confronted with a request to fashion a new cause of action,

“separation-of-powers principles are or should be central 

to the analysis.” Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) 

(slip op., at 12). The first and most important question in

that analysis “is ‘who should decide’ . . . , Congress or the 

courts?” and the right answer “most often will be Congress.” Ibid. Deciding that, henceforth, persons like A

who engage in certain conduct will be liable to persons like 

B is, in every meaningful sense, just like enacting a new 

law. And in our constitutional order the job of writing new 

laws belongs to Congress, not the courts. Adopting new 

causes of action may have been a “proper function for

common-law courts,” but it is not appropriate “for federal

tribunals” mindful of the limits of their constitutional 

authority. Alexander v. Sandoval, 532 U. S. 275, 287 

(2001) (internal quotation marks omitted).

Nor can I see any reason to make a special exception for 

the ATS. As Sosa initially acknowledged, the ATS was

designed as “a jurisdictional statute creating no new 

causes of action.” 542 U. S., at 724; accord, ante, at 8 

(majority opinion). And I would have thought that the end 

of the matter. A statute that creates no new causes of 

action . . . creates no new causes of action. To the extent 

Sosa continued on to claim for federal judges the discretionary power to create new forms of liability on their own, 

it invaded terrain that belongs to the people’s representatives and should be promptly returned to them. 542 U. S., 

at 747 (Scalia, J., concurring in part and concurring in 
 

4 JESNER v. ARAB BANK, PLC 

Opinion of GORSUCH, J. 

judgment).1 

But even accepting Sosa’s framework does not end the 

matter. As the Court acknowledges, there is a strong

argument that “a proper application of Sosa would preclude courts from ever recognizing any new causes of 

action under the ATS.” Ante, at 19. I believe that argument is correct. For the reasons just described, separation 

of powers considerations ordinarily require us to defer to 

Congress in the creation of new forms of liability. This 

Court hasn’t yet used Sosa’s assertion of discretionary

authority to recognize a new cause of action, and I cannot 

imagine a sound reason, hundreds of years after the statute’s passage, to start now. For a court inclined to claim 

the discretion to enter this field, it is a discretion best 

exercised by staying out of it. 

The context in which any Sosa discretion would be 

exercised confirms the wisdom of restraint. Sosa acknowledged that any decision to create a new cause of action 

would “inevitably [involve] an element of judgment about

the practical consequences” that might follow. Id., at 732– 

733. But because the point of such a claim would be to 

vindicate “a norm of international character,” id., at 725, 

those “practical consequences” would likely involve questions of foreign affairs and national security—matters that

implicate neither judicial expertise nor authority. It is for 

Congress to “define and punish . . . Offences against the 

—————— 

1The dissent claims that Congress’s decision to give federal courts

“jurisdiction over claims based on ‘the law of nations,’ ” necessarily

implies the authority to develop that law. Post, at 16. That does not 

follow. Federal courts have jurisdiction over all kinds of cases—for 

example, those arising under the law of torts or contracts. Yet following our decision in Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), federal

courts are generally no longer permitted to promulgate new federal 

common law causes of action in those areas. Id., at 75. I can see no 

reason to treat the law of nations differently. See Sosa v. AlvarezMachain, 542 U. S. 692, 744–746 (2004) (Scalia, J., concurring in part

and concurring in judgment). 
Cite as: 584 U. S. ____ (2018) 5 

Opinion of GORSUCH, J. 

Law of Nations” and to regulate foreign commerce. U. S. 

Const., Art. I., §8. And it is for the President to resolve 

diplomatic disputes and command the armed forces. Art. 

II, §§2–3. Foreign policy and national security decisions

are “delicate, complex, and involve large elements of 

prophecy” for which “the Judiciary has neither aptitude, 

facilities[,] nor responsibility.” Chicago & Southern Air 

Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 

(1948) (Jackson, J.). And I find it difficult to imagine a

case in which a federal court might safely conclude otherwise. Take this very lawsuit by way of example. The 

Kingdom of Jordan considers it to be “a ‘grave affront’ to 

its sovereignty,” and the State Department worries about

its foreign policy implications. Ante, at 26. Whether 

American interests justify the “practical consequence” of 

offending another nation in this way (or in worse ways

yet) is a question that should be addressed “only by those 

directly responsible to the people whose welfare” such 

decisions “advance or imperil.” Waterman S. S. Corp., 

supra, at 111. So while I have no quarrel with the dissent’s observation, post, at 15–16, that lower federal courts 

are not free to overrule Sosa’s framework or treat it as 

optional, I do know that the analysis Sosa requires should

come out the same way in virtually every case. If Sosa is 

right—and I am sure it is—that federal courts must “inevitably” exercise “an element of judgment” about delicate 

questions of foreign affairs when deciding whether to

create a new cause of action, then judges should exercise 

good judgment by declining the project before we create

real trouble. 

II 

Another independent problem lurks here. This is a suit 

by foreigners against a foreigner over the meaning of 

international norms. Respectfully, I do not think the 

original understanding of the ATS or our precedent per-
 

 

 

6 JESNER v. ARAB BANK, PLC 

Opinion of GORSUCH, J. 

mits federal courts to hear cases like this. At a minimum, 

both those considerations and simple common sense about 

the limits of the judicial function should lead federal 

courts to require a domestic defendant before agreeing to

exercise any Sosa-generated discretion to entertain an 

ATS suit. 

Start with the statute. What we call the Alien Tort 

Statute began as just one clause among many in §9 of the 

Judiciary Act of 1789, which specified the jurisdiction of 

the federal courts. 1 Stat. 76–78. The ATS clause gave

the district courts “cognizance, concurrent with the courts

of the several States, or the circuit courts, as the case may

be, of all causes where an alien sues for a tort only in

violation of the law of nations or a treaty of the United

States.”2 Like today’s recodified version, 28 U. S. C. 

—————— 

2 “Sec. 9. And be it further enacted, That the district courts shall 

have, exclusively of the courts of the several States, cognizance of all 

crimes and offences that shall be cognizable under the authority of the

United States, committed within their respective districts, or upon the 

high seas; where no other punishment than whipping, not exceeding

thirty stripes, a fine not exceeding one hundred dollars, or a term of

imprisonment not exceeding six months, is to be inflicted; and shall also

have exclusive original cognizance of all civil causes of admiralty and

maritime jurisdiction, including all seizures under laws of impost, 

navigation or trade of the United States, where the seizures are made, 

on waters which are navigable from the sea by vessels of ten or more 

tons burthen, within their respective districts as well as upon the high 

seas; saving to suitors, in all cases, the right of a common law remedy, 

where the common law is competent to give it; and shall also have

exclusive original cognizance of all seizures on land, or other waters 

than as aforesaid, made, and of all suits for penalties and forfeitures

incurred, under the laws of the United States. And shall also have 

cognizance, concurrent with the courts of the several States, or the 

circuit courts, as the case may be, of all causes where an alien sues for a 

tort only in violation of the law of nations or a treaty of the United 

States. And shall also have cognizance, concurrent as last mentioned,

of all suits at common law where the United States sue, and the matter 

in dispute amounts, exclusive of costs, to the sum or value of one

hundred dollars. And shall also have jurisdiction, exclusively of the 
 

Cite as: 584 U. S. ____ (2018) 7 

Opinion of GORSUCH, J. 

§1350, the original text of the ATS did not expressly call

for a U. S. defendant. But I think it likely would have

been understood to contain such a requirement when

adopted.

That is because the First Congress passed the Judiciary 

Act in the shadow of the Constitution. The Act created the 

federal courts and vested them with statutory authority to

entertain claims consistent with the newly ratified terms

of Article III. Meanwhile, under Article III, Congress 

could not have extended to federal courts the power to

hear just any suit between two aliens (unless, for example,

one was a diplomat). Diversity of citizenship was required. So, because Article III’s diversity-of-citizenship 

clause calls for a U. S. party, and because the ATS clause 

requires an alien plaintiff, it follows that an American

defendant was needed for an ATS suit to proceed. 

Precedent confirms this conclusion. In Mossman v. 

Higginson, 4 Dall. 12, 14 (1800), this Court addressed the 

meaning of a neighboring provision of the Judiciary Act.

Section 11 gave the circuit courts power to hear, among

other things, civil cases where “an alien is a party.” 1 

Stat. 78. As with §9, you might think §11’s language could 

be read to permit a suit between aliens. Yet this Court 

held §11 must instead be construed to refer only to cases

“where, indeed, an alien is one party, but a citizen is the 

other.” Mossman, 4 Dall., at 14 (internal quotation marks 

omitted). That was necessary, Mossman explained, to give

the statute a “constructio[n] consistent” with the diversityjurisdiction clause of Article III. Ibid. And as a matter of 

precedent, I cannot think of a good reason why we would 

now read §9 differently than Mossman read §11. Like 

—————— 

courts of the several States, of all suits against consuls or vice-consuls,

except for offences above the description aforesaid. And the trial of 

issues in fact, in the district courts, in all causes except civil causes of 

admiralty and maritime jurisdiction, shall be by jury.” 1 Stat. 76–77 

(some emphasis added; footnotes omitted). 
 

8 JESNER v. ARAB BANK, PLC 

Opinion of GORSUCH, J. 

cases are, after all, supposed to come out alike. See Sarei 

v. Rio Tinto, PLC, 671 F. 3d 736, 828 (CA9 2011) (Ikuta, 

J., dissenting) (“Mossman’s analysis [of §11] is equally 

applicable to [§9]. . . . ATS does not give federal courts

jurisdiction to hear international law claims between two 

aliens”), vacated and remanded, 569 U. S. 945 (2013).

Nor does it appear the ATS meant to rely on any other 

head of Article III jurisdiction. You might wonder, for

example, if the First Congress considered a “violation of

the law of nations” to be a violation of, and thus “arise 

under,” federal law. But that does not seem likely. At the 

founding, the law of nations was considered a distinct 

“system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world,” 4 Blackstone 66. While this Court has 

called international law “part of our law,” The Paquete 

Habana, 175 U. S. 677, 700 (1900), and a component of the 

“law of the land,” The Nereide, 9 Cranch 388, 423 (1815),

that simply meant international law was no different than

the law of torts or contracts—it was “part of the so-called 

general common law,” but not part of federal law. Sosa, 

542 U. S., at 739–740 (opinion of Scalia, J.). See Bradley & 

Goldsmith, Customary International Law as Federal

Common Law: A Critique of the Modern Position, 110

Harv. L. Rev. 815, 824, 849–850 (1997); see also Young,

Sorting Out the Debate Over Customary International 

Law, 42 Va. J. Int’l L. 365, 374–375 (2002). The text of the 

Constitution appears to recognize just this distinction.

Article I speaks of “Offences against the Law of Nations,” 

while both Article III and Article VI’s Supremacy Clause, 

which defines the scope of pre-emptive federal law, omit

that phrase while referring to the “Laws of the United

States.” Congress may act to bring provisions of international law into federal law, but they cannot find their way 

there on their own. “The law of nations is not embodied in 

any provision of the Constitution, nor in any treaty, act of 
 

 

Cite as: 584 U. S. ____ (2018) 9 

Opinion of GORSUCH, J. 

Congress, or any authority, or commission derived from

the United States.” Caperton v. Bowyer, 14 Wall. 216, 228 

(1872).

Even so, that hardly left the ATS without important

work to perform. At the time of the founding, “[i]f a nation 

failed to redress injuries by its citizens upon the citizens of 

another nation, the perpetrators’ nation violated the ‘perfect rights’ of the other nation,” which “provided the offended nation with just cause for reprisals or war.” Bellia 

& Clark, 78 U. Chi. L. Rev., at 476.3 This reality posed an

existential threat to the new nation. Under the Articles of 

Confederation, States regularly refused to redress injuries

their citizens caused foreigners. British creditors, for 

example, often found their efforts to collect debts from

American debtors thwarted. Id., at 498–501. Seeking to

remedy these and similar problems, the Continental Congress in 1781 passed a resolution encouraging the States, 

among other things, to establish tribunals for vindicating 

“offences against the law of nations” and to “authorise 

suits to be instituted for damages by the party injured.” 

Id., at 495–496. But the States did too little, too late. So 

when the framers gathered to write the Constitution they 

included among their chief priorities endowing the national 

—————— 

3As a leading treatise explained, a sovereign “ought not to suffer his

subjects to molest the subjects of others, or to do them an injury, much 

less should he permit them audaciously to offend foreign powers.” E. de 

Vattel, 1 The Law of Nations, bk. II, §76, p. 145 (1760). Instead, the 

nation “ought to oblige the guilty to repair the damage, if that be

possible, to inflict on him an exemplary punishment, or, in short,

according to the nature of the case, and the circumstances attending it,

to deliver him up to the offended state there to receive justice.” Ibid. A 

sovereign who “refuses to cause a reparation to be made of the damage

caused by his subject, or to punish the guilty, or, in short, to deliver him

up, renders himself in some measure an accomplice in the injury, and

becomes responsible for it.” Id., §77, at 145; see also Bellia & Clark, 

The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 472– 

477 (2011). 
 

 

 

10 JESNER v. ARAB BANK, PLC 

Opinion of GORSUCH, J. 

government with sufficient power to ensure the country’s 

compliance with the law of nations. See 1 Records of the 

Federal Convention of 1787, pp. 24–25 (M. Farrand rev.

1966).

Together with other provisions of the Judiciary Act, the

ATS served that purpose. The law of nations required

countries to ensure foreign citizens could obtain redress 

for wrongs committed by domestic defendants, whether

“through criminal punishment, extradition, or a civil

remedy.” Bellia & Clark, 78 U. Chi. L. Rev., at 509. Yet 

in 1789 this country had no comprehensive criminal code

and no extradition treaty with Great Britain. Id., at 509– 

510. Section 11 achieved a partial solution to the problem

by permitting civil diversity suits in federal court between 

aliens and domestic parties, but that provision required at 

least $500 in controversy. 1 Stat. 78; cf. 28 U. S. C. 

§1332(a) (today’s minimum is $75,000). But, as Professors 

Bellia and Clark have explained, “[h]ad Congress stopped

there, it would have omitted an important category of law

of nations violations that threatened the peace of the 

United States: personal injuries that US citizens inflicted

upon aliens resulting in less than $500 in damages.” 78 U. 

Chi. L. Rev., at 509. So the ATS neatly filled the remaining gap by allowing aliens to sue in federal court for a tort 

in violation of the law of nations regardless of the amount 

in controversy. One obvious advantage of this solution

“was that it was self-executing—it placed the burden on

injured aliens to bring suit and did not require the stillforming US government immediately to marshal the 

resources necessary to prosecute crimes” or aid extraditions. Id., at 510. 

Any attempt to decipher a cryptic old statute is sure to 

meet with challenges. For example, one could object that 

this reading of the Act does not assign to the ATS the 

work of addressing assaults by aliens against foreign 

ambassadors on our soil, even though Sosa suggested the 
 

 

Cite as: 584 U. S. ____ (2018) 11 

Opinion of GORSUCH, J. 

statute was enacted partly in response to precisely such a 

case: the “Marbois incident of May 1784, in which a 

French adventurer, De Longchamps, verbally and physically assaulted the Secretary of the French Legion in 

Philadelphia.” 542 U. S., at 716. Many thought that the 

States’ failure to provide a forum for relief to the foreign 

minister was a scandal and part of what prompted the

framers of the Constitution to strengthen the national 

government. Id., at 717; Bellia & Clark, supra, at 467 

(“The Confederation’s inability to remedy or curtail violations like these was a significant factor precipitating the 

Federal Convention of 1787”). 

But worries along these lines may be misplaced. The 

ATS was never meant to serve as a freestanding statute, 

only as one clause in one section of the Judiciary Act. So 

even if you think something in the Judiciary Act must be 

interpreted to address the Marbois incident, that doesn’t

mean it must be the ATS clause. And, as it happens, a

different provision of the Act did deal expressly with the

problem of ambassadorial assaults: Section 13 conferred 

on this Court “original, but not exclusive jurisdiction of all

suits brought by ambassadors, or other public ministers, 

or in which a consul, or vice consul shall be a party.” 1 

Stat. 80–81. That implemented Article III’s provision 

empowering us to hear suits “affecting Ambassadors, other 

public ministers and Consuls.” §2. And given that §13 

deals with the problem of “ambassadors” so directly, it is 

unclear why we must read §9 to address that same problem. See Lee, The Safe-Conduct Theory of the Alien Tort 

Statute, 106 Colum. L. Rev. 830, 855–858 (2006). 

Along different but similar lines, some might be concerned that requiring a U. S. defendant in ATS suits

would leave the problem of piracy inadequately addressed,

given that Sosa suggested that piracy was one of the three

offenses the ATS may have meant to capture, and many 

pirates were foreigners. See 542 U. S., at 719. But here 
 

12 JESNER v. ARAB BANK, PLC 

Opinion of GORSUCH, J. 

the response is much the same. A separate clause of §9

gave the district courts “exclusive original cognizance of

all civil causes of admiralty and maritime jurisdiction.” 1 

Stat. 77. That statute has long been given a broad construction covering “all maritime contracts, torts and injuries,” DeLovio v. Boit, 7 F. Cas. 418, 442 (No. 3,776) (CC 

Mass. 1815) (Story, J.), along with “prize jurisdiction,

which probably included almost all ‘piracy’ cases after 

1789,” Lee, supra, at 867. So it is not clear why it’s necessary to cram the problem of piracy into the ATS. If anything, it may be necessary not to do so. Structural features of §9 make it at least questionable that both

provisions were meant to address the same subject matter:

Cases falling within §9’s ATS clause could also be brought

in state court or in the circuit courts, 1 Stat. 77, while §9’s 

admiralty jurisdiction was generally exclusive, id., at 76– 

77. See Lee, supra, at 868. And the two provisions also 

called for incompatible procedures: Section 9 required jury

trials “in all causes except civil causes of admiralty and 

maritime jurisdiction.” 1 Stat. 77 (emphasis added). 

If doubt lingers on these historical questions, it is a

doubt that should counsel restraint all the same. Even if 

the ATS might have meant to allow foreign ambassadors 

to sue foreign defendants, or foreign plaintiffs to sue foreign pirates, what would that prove about more mine-run

cases like ours, where none of those special concerns are

implicated? There are at least serious historical arguments suggesting the ATS was not meant to apply to suits

like this one. And to the extent Sosa affords courts discretion to proceed, these arguments should inform any decision whether to exercise that discretion. In Kiobel v. 

Royal Dutch Petroleum Co., 569 U. S. 108, 116–117 (2013), 

the Court invoked Sosa discretion to refuse to hear cases 

involving foreign conduct. I can see no reason why courts

should respond differently when it comes to cases involv-
 

Cite as: 584 U. S. ____ (2018) 13 

Opinion of GORSUCH, J. 

ing foreign defendants.4

 Any consideration of Sosa’s discretion must also account 

for proper limits on the judicial function. As discussed 

above, federal courts generally lack the institutional expertise and constitutional authority to oversee foreign

policy and national security, and should be wary of straying where they do not belong. See supra, at 4–5. Yet 

there are degrees of institutional incompetence and constitutional evil. It is one thing for courts to assume the task

of creating new causes of action to ensure our citizens 

abide by the law of nations and avoid reprisals against 

this country. It is altogether another thing for courts to 

punish foreign parties for conduct that could not be attributed to the United States and thereby risk reprisals 

against this country. If a foreign state or citizen violates 

an “international norm” in a way that offends another 

foreign state or citizen, the Constitution arms the President and Congress with ample means to address it. Or, if 

they think best, the political branches may choose to look 

the other way. But in all events, the decision to impose

sanctions in disputes between foreigners over international 

—————— 

4The dissent is wrong to suggest, post, at 17, that Sosa “forecloses” 

the possibility of recognizing a U. S.-defendant requirement in ATS 

cases. Sosa said nothing about the subject. And were Sosa taken to 

preclude any future limits on ATS suits it did not itself anticipate, then 

Kiobel must have been wrong to apply the canon against extraterritorial application to that statute. But that is not so. The dissent also 

observes that Sosa “involved an ATS suit brought by a citizen of Mexico 

against a citizen of Mexico,” and that certain amici in Sosa filed briefs 

arguing that the Court lacked authority over the ATS claims for that 

reason. See post, at 17. But Sosa did not address those arguments; 

questions that “merely lurk in the record are not resolved, and no 

resolution of them may be inferred.” Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 183 (1979) (citations and internal 

quotation marks omitted); accord, RJR Nabisco, Inc. v. European 

Community, 579 U. S. ___, ___, n. 10 (2016) (slip op., at 23, n. 10) (issue

present but unaddressed by the Court in a previous case was not

implicitly decided). 
 

14 JESNER v. ARAB BANK, PLC 

Opinion of GORSUCH, J. 

norms is not ours to make. It is a decision that belongs to

those answerable to the people and assigned by the Constitution to defend this nation. If they wish our help, they 

are free to enlist it, but we should not ever be in the business of elbowing our way in. 
_________________ 

_________________ 


 


 


 

Cite as: 584 U. S. ____ (2018) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 16–499 

JOSEPH JESNER, ET AL., PETITIONERS v.
 

ARAB BANK, PLC
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT
 

[April 24, 2018] 

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG, 

JUSTICE BREYER, and JUSTICE KAGAN join, dissenting. 

The Court today holds that the Alien Tort Statute

(ATS), 28 U. S. C. §1350, categorically forecloses foreign

corporate liability. In so doing, it absolves corporations

from responsibility under the ATS for conscience-shocking 

behavior. I disagree both with the Court’s conclusion and

its analytic approach. The text, history, and purpose of 

the ATS, as well as the long and consistent history of 

corporate liability in tort, confirm that tort claims for lawof-nations violations may be brought against corporations 

under the ATS. Nothing about the corporate form in itself

raises foreign-policy concerns that require the Court, as a 

matter of common-law discretion, to immunize all foreign

corporations from liability under the ATS, regardless of 

the specific law-of-nations violations alleged. I respectfully 

dissent. 

I 

The plurality assumes without deciding that whether

corporations can be permissible defendants under the ATS 

turns on the first step of the two-part inquiry set out in 

Sosa v. Alvarez-Machain, 542 U. S. 692 (2004). But by

asking whether there is “a specific, universal, and obligatory norm of liability for corporations” in international 
 

 

 

2 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

law, ante, at 13, the plurality fundamentally misconceives

how international law works and so misapplies the first 

step of Sosa. 

A 

In Sosa, the Court considered whether a Mexican citizen 

could recover under the ATS for a claim of arbitrary detention by a Mexican national who had been hired by the 

Drug Enforcement Administration to seize and transport

him to the United States. See 542 U. S., at 697–698. The 

Court held that the ATS permits federal courts to “recognize private causes of action for certain torts in violation of 

the law of nations,” id., at 724, without the need for any 

“further congressional action,” id., at 712. The Court then 

articulated a two-step framework to guide that inquiry.

First, a court must determine whether the particular

international-law norm alleged to have been violated is

“accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms,” i.e., “violation of safe conducts, infringement of the 

rights of ambassadors, and piracy.” Id., at 724–725. Only 

if the norm is “‘specific, universal, and obligatory’” may 

federal courts recognize a cause of action for its violation. 

Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 117 

(2013) (quoting Sosa, 542 U. S., at 732). Second, if that 

threshold hurdle is satisfied, a court should consider 

whether allowing a particular case to proceed is an appropriate exercise of judicial discretion. Sosa, 542 U. S., at 

727–728, 732–733, 738. Applying that framework, Sosa 

held that the alleged arbitrary detention claim at issue 

failed at step one because “a single illegal detention of less

than a day, followed by the transfer of custody to lawful

authorities and a prompt arraignment, violates no norm of 

customary international law so well defined as to support 

the creation of a federal remedy.” Id., at 738. 

Sosa’s norm-specific first step is inapposite to the cate­
Cite as: 584 U. S. ____ (2018) 3 

SOTOMAYOR, J., dissenting 

gorical question whether corporations may be sued under 

the ATS as a general matter. International law imposes

certain obligations that are intended to govern the behavior of states and private actors. See id., at 714–715; 1 

Restatement (Third) of Foreign Relations Law of the

United States, pt. II, Introductory Note, pp. 70–71 (1987) 

(Restatement). Among those obligations are substantive 

prohibitions on certain conduct thought to violate human

rights, such as genocide, slavery, extrajudicial killing, and 

torture. See 2 Restatement §702. Substantive prohibitions like these are the norms at which Sosa’s step-one 

inquiry is aimed and for which Sosa requires that there be

sufficient international consensus. 

Sosa does not, however, demand that there be sufficient 

international consensus with regard to the mechanisms of 

enforcing these norms, for enforcement is not a question

with which customary international law is concerned. 

Although international law determines what substantive

conduct violates the law of nations, it leaves the specific

rules of how to enforce international-law norms and remedy 

their violation to states, which may act to impose liability 

collectively through treaties or independently via their 

domestic legal systems. See, e.g., L. Henkin, Foreign

Affairs and the United States Constitution 245 (2d ed.

1996) (“International law itself . . . does not require

any particular reaction to violations of law”); Denza,

The Relationship Between International and National

Law, in International Law 423 (M. Evans ed. 2006) 

(“[I]nternational law does not itself prescribe how it should 

be applied or enforced at the national level”); 1 Restatement §111, Comment h (“In the absence of special agreement, it is ordinarily for the United States to decide how it 

will carry out its international obligations”); Brief for 

International Law Scholars as Amici Curiae 9–10. 

In keeping with the nature of international law, Sosa 

consistently used the word “norm” to refer to substantive 
 

4 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

conduct. For example, Sosa commands that “federal 

courts should not recognize private claims under federal

common law for violations of any international law norm

with less definite content and acceptance among civilized

nations than the historical paradigms familiar when 

§1350 was enacted.” 542 U. S., at 732. That statement 

would make little sense if “norm” encompassed enforcement mechanisms like “corporate liability.” Unlike “the 

prohibition on genocide,” “corporate liability” cannot be 

violated. Moreover, “the historical paradigms familiar

when §1350 was enacted” are all prohibitions on conduct, 

and Sosa clearly contemplated that courts should compare

the charged conduct with the historical conduct. See ibid. 

(quoting Filartiga v. Pena-Irala, 630 F. 2d 876 (1980),

where the Court of Appeals for the Second Circuit compared a “‘torturer’” to “‘the pirate and slave trader before 

him,’” id., at 890, and Judge Edwards’ concurrence in TelOren v. Libyan Arab Republic, 726 F. 2d 774 (CADC 

1984), which suggested that the “‘limits of section 1350’s

reach’” be defined by “‘a handful of heinous actions—each

of which violates definable, universal and obligatory 

norms,’” id., at 781). There is no indication in Sosa that 

the Court also intended for courts to undertake the applesto-oranges comparison of the conduct proscribed under

customary international law and the forms of liability 

available under domestic law. 

The text of the ATS also reflects this distinction between 

prohibiting conduct and determining enforcement. The 

statute provides: “The 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.” 28 U. S. C. §1350. The phrase “of the 

law of nations” modifies “violation,” not “civil action.” The 

statutory text thus requires only that the alleged conduct 

be specifically and universally condemned under international law, not that the civil action be of a type that the 
 

Cite as: 584 U. S. ____ (2018) 5 

SOTOMAYOR, J., dissenting 

international community specifically and universally

practices or endorses. 

B 

1 

The plurality nonetheless allies itself with the view that 

international law supplies the rule of decision in this case 

based on its reading of footnote 20 in Sosa. That footnote 

sets out “[a] related consideration” to “the determination

whether a norm is sufficiently definite to support a cause 

of action.” 542 U. S., at 732, and n. 20. In full, it states: 

“A related consideration is whether international law 

extends the scope of liability for a violation of a given

norm to the perpetrator being sued, if the defendant is

a private actor such as a corporation or individual.

Compare Tel-Oren v. Libyan Arab Republic, 726 F. 2d 

774, 791–795 (CADC 1984) (Edwards, J., concurring) 

(insufficient consensus in 1984 that torture by private 

actors violates international law), with Kadic v. 

Karadžić, 70 F. 3d 232, 239–241 (CA2 1995) (sufficient consensus in 1995 that genocide by private actors violates international law).” 542 U. S., at 732, 

n. 20. 

In the Second Circuit’s decision in Kiobel v. Royal Dutch 

Petroleum, 621 F. 3d 111 (2010), the majority opinion read

footnote 20 to “requir[e] that [courts] look to international 

law to determine [their] jurisdiction over ATS claims 

against a particular class of defendant, such as corporations.” Id., at 127 (emphasis in original). The plurality

today accords “considerable force and weight to [that]

position,” ante, at 13, and so proceeds to assess whether 

there exists a specific, universal, and obligatory norm of

liability for corporations in international law, ante, at 13– 

17. But the Court of Appeals mistook the meaning of 

footnote 20, which simply draws attention to the fact that, 
 

6 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

under international law, “the distinction between conduct 

that does and conduct that does not violate the law of 

nations can turn on whether the conduct is done by or on 

behalf of a State or by a private actor independently of a 

State.” Kiobel, 621 F. 3d, at 177 (Leval, J., concurring in 

judgment).

The international-law norm against genocide, for example, imposes obligations on all actors. Acts of genocide

thus violate the norm irrespective of whether they are 

committed privately or in concert with the state. See 

Convention on the Prevention and Punishment of the 

Crime of Genocide, Art. II, Dec. 9, 1948, 102 Stat. 3045 

(defining “genocide” as “any of the following acts committed with intent to destroy, in whole or in part, a national,

ethnical, racial or religious group”); see also 18 U. S. C. 

§1091(a) (“Whoever” commits genocide “shall be punished 

as provided in subsection (b)”). In contrast, other norms, 

like the prohibition on torture, require state action. Conduct thus qualifies as torture and violates the norm only

when done “by or at the instigation of or with the consent

or acquiescence of a public official or other person acting

in an official capacity.” Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 1, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 

1465 U. N. T. S. 114 (Torture Convention).1 

Footnote 20 in Sosa flags this distinction and instructs

courts to consider whether there is “sufficient consensus” 

that, with respect to the particular conduct prohibited

under “a given norm,” the type of defendant being sued 

can be alleged to have violated that specific norm. 542 

U. S., at 732, n. 20. Because footnote 20 contemplates a 

—————— 

1This distinction is similar to the state-action doctrine in domestic 

law. The prohibitions in the Bill of Rights, for instance, apply only to

state actors, whereas the Thirteenth Amendment’s prohibition on 

slavery applies to all actors, state and private. See United States v. 

Kozminski, 487 U. S. 931, 942 (1988). 
Cite as: 584 U. S. ____ (2018) 7 

SOTOMAYOR, J., dissenting 

norm-specific inquiry, not a categorical one, it is irrelevant 

to the categorical question presented here. Assuming the 

prohibition against financing of terrorism is sufficiently 

“specific, universal, and obligatory” to satisfy the first step

of Sosa, a question on which I would remand to the Court 

of Appeals, nothing in international law suggests a corporation may not violate it.2 

—————— 

2At present, the norm-specific query contemplated by footnote 20 is

likely resolved simply by considering whether the given internationallaw norm binds only state actors or state and nonstate actors alike, 

because there does not appear to be an international-law norm that

contemplates a finer distinction between types of private actors. See 

Brief for United States as Amicus Curiae in Kiobel v. Royal Dutch 

Petroleum Co., O. T. 2012, No. 10–1491, p. 20 (“At the present time, the

United States is not aware of any international-law norm, accepted by

civilized nations and defined with the degree of specificity required by 

Sosa, that requires, or necessarily contemplates, a distinction between

natural and juridical actors”); Dodge, Corporate Liability Under Customary International Law, 43 Geo. J. Int’l L. 1045, 1050 (2012) (“None

of the norms that are actionable under Sosa distinguish between 

natural and juridical persons”). 

Sosa itself supports the proposition that international law does not 

distinguish between types of private actors, but rather treats natural

persons and corporations alike. Footnote 20 groups corporations and

individuals together under the larger category of “private actor.” Sosa, 

542 U. S., at 732, n. 20 (“if the defendant is a private actor such as a 

corporation or an individual”); see also id., at 760 (BREYER, J., concurring in part and concurring in judgment) (“The norm must extend 

liability to the type of perpetrator (e.g., a private actor) the plaintiff 

seeks to sue” (citing id., at 732, n. 20)). Sosa also describes the two 

Court of Appeals decisions on which it relies as having considered 

whether there was sufficient consensus that particular conduct— 

torture or genocide—“violates international law” when undertaken “by 

private actors.” Id., at 732, n. 20 (discussing Tel-Oren v. Libyan Arab 

Republic, 726 F. 2d 774, 791–795 (CADC 1984) (Edwards, J., concurring), and Kadic v. Karadžić, 70 F. 3d 232, 239–241 (CA2 1995)). Even 

though the defendant in Kadic was a natural person, see id., at 237, 

and the defendants in Tel-Oren were juridical entities, see 726 F. 2d, at 

775–776, Sosa refers to them all as “private actors,” 542 U. S., at 732, 

n. 20. 
 

8 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

2 

The plurality briefly acknowledges this critique of its 

reading of footnote 20, but nonetheless assumes the correctness of its approach because of its view that there

exists a “distinction in international law between corporations and natural persons.” Ante, at 17. The plurality

attempts to substantiate this proposition by pointing to

the charters of certain international criminal tribunals 

and noting that none was given jurisdiction over corporate 

defendants. That argument, however, confuses the substance of international law with how it has been enforced 

in particular contexts.

Again, the question of who must undertake the prohibited conduct for there to be a violation of an internationallaw norm is one of international law, but how a particular

actor is held liable for a given law-of-nations violation

generally is a question of enforcement left up to individual 

states. Sometimes, states act collectively and establish

international tribunals to punish certain international-law

violations. Each such tribunal is individually negotiated,

and the limitations placed on its jurisdiction are typically driven by strategic considerations and resource

constraints. 

For example, the Allies elected not to prosecute corporations at Nuremberg because of pragmatic factors. Those 

factors included scarce judicial resources, a preference of

the occupation governments to swiftly dismantle the most 

culpable German companies without destroying Germany’s postwar economy, and a desire to focus on establishing the principle of nonstate criminal responsibility for 

human-rights violations. See Brief for Nuremberg Scholars as Amici Curiae 4, 11–13. 

More recently, the delegations that negotiated the Rome

Statute of the International Criminal Court in the 1990’s 

elected not to extend that tribunal’s jurisdiction to corporations in part because states had varying domestic prac­
 

Cite as: 584 U. S. ____ (2018) 9 

SOTOMAYOR, J., dissenting 

tices as to whether and how to impose criminal liability on 

corporations. See Frulli, Jurisdiction Ratione Personae, in 

1 Rome Statute of the International Criminal Court 527, 

532–533 (A. Cassese et al. eds. 2002); Brief for Ambassador David J. Scheffer as Amicus Curiae 8–10. 

Taken to its natural conclusion, the plurality’s focus on

the practice of international criminal tribunals would

prove too much. No international tribunal has been created 

and endowed with the jurisdiction to hold natural persons

civilly (as opposed to criminally) liable, yet the majority

and respondent accept that natural persons can be held 

liable under the ATS. See ante, at 26; Tr. of Oral Arg. 62.

It cannot be persuasive evidence for purposes of ascertaining the availability of corporate civil liability under the 

ATS, then, that the jurisdiction of the handful of international criminal tribunals that states have seen fit to 

create in the last 75 years has not extended to corporate 

defendants. 

Ultimately, the evidence on which the plurality relies

does not prove that international law distinguishes between corporations and natural persons as a categorical 

matter. To the contrary, it proves only that states’ collective efforts to enforce various international-law norms 

have, to date, often focused on natural rather than corporate defendants. 

In fact, careful review of states’ collective and individual 

enforcement efforts makes clear that corporations are

subject to certain obligations under international law. For 

instance, the United States Military Tribunal that prosecuted several corporate executives of IG Farben declared

that corporations could violate international law. See 8 

Trials of War Criminals Before the Nuernberg Military 

Tribunals Under Council Control Law No. 10, p. 1132

(1952) (“Where private individuals, including juristic 

persons, proceed to exploit the military occupancy by

acquiring private property against the will and consent of 
 

 

10 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

the former owner, such action . . . is in violation of international law”).3 Similarly, the International Criminal Tribunal for Rwanda found that three nonnatural entities—a 

private radio station, newspaper, and political party—

were responsible for genocide. See Prosecutor v. Nahimana, 

Case No. ICTR–99–52–T, Judgment and Sentence ¶953 

(Dec. 3, 2003). Most recently, the appeals panel of the

Special Tribunal for Lebanon held that corporations may 

be prosecuted for contempt. See Prosecutor v. New TV 

S. A. L., Case No. STL–14–05/PT/AP/AR126.1, Decision on 

Interlocutory Appeal Concerning Personal Jurisdiction in 

Contempt Proceedings ¶74 (Oct. 2, 2014). 

In addition, various international agreements require

signatory states to impose liability on corporations for 

certain conduct.4 Of particular relevance here, the International Convention for the Suppression of the Financing 

of Terrorism provides: “Any person commits an offence

within the meaning of this Convention if that person by

any means, directly or indirectly, unlawfully and wilfully,

provides or collects funds with the intention that they

should be used or in the knowledge that they are to be 

used, in full or in part, in order to carry out” an act of 

—————— 

3The Nuremberg Tribunal also was empowered to adjudicate a form

of criminal organizational liability, pursuant to which an individual

member of a convicted organization would face a rebuttable presumption of guilt in a subsequent proceeding. Brief for Nuremberg Scholars 

as Amici Curiae 4, 20–21 (citing Agreement for the Prosecution and 

Punishment of the Major War Criminals of the European Axis, Aug. 8,

1945, Arts. 9–10, 59 Stat. 1544, E. A. S. No. 472; see also Brief for 

Nuremberg Scholars 21–22 (citing United States v. Goering, 22 Trial of 

the Major War Criminals Before the International Military Tribunal 

171, 505, 511, 516–517 (Int’l Mil. Trib. 1946) (declaring three organiza

tions criminal)). 4See, e.g., United Nations Convention Against Transnational Orga

­

­

nized Crime, Art. 10(1), Nov. 15, 2000, T. I. A. S. No. 13127, S. Treaty

Doc. No. 108–16; Convention on Combating Bribery of Foreign Public 

Officials in International Business Transactions, Art. 2, Dec. 17, 1997, 

2802 U. N. T. S. 230. 
Cite as: 584 U. S. ____ (2018) 11 

SOTOMAYOR, J., dissenting 

terrorism. Dec. 9, 1999, Art. 2, S. Treaty Doc. No. 106–49,

2178 U. N. T. S. 230. It then requires each signatory 

state, “in accordance with its domestic legal principles,” to

“take the necessary measures to enable a legal entity 

located in its territory or organized under its laws to be

held liable when a person responsible for the management 

or control of that legal entity has, in that capacity,” violated

the Convention. Id., Art. 5(1). The Convention provides

that “[s]uch liability may be criminal, civil, or administrative,” ibid., so long as the penalties, which can include

monetary sanctions, are “effective, proportionate and 

dissuasive.” Id., Art. 5(3). The United States is a party to 

the Convention, along with 131 other states.5 

The plurality dismisses the relevance of this Convention 

because it does not require states parties to hold corporations liable in common-law tort actions, but rather permits

them to “fulfill their obligations . . . by adopting detailed 

regulatory regimes governing financial institutions.” Ante, 

at 16. That critique misses the point. The significance of

the Convention is that the international community

agreed that financing terrorism is unacceptable conduct

and that such conduct violates the Convention when undertaken by corporations. That the Convention leaves up 

to each state party how to impose liability on corporations, 

e.g., via erecting a regulatory regime, providing for tort

actions, or imposing criminal sanctions, is unremarkable,6 

and simply reflects that international law sets out stand­

—————— 

5See International Convention for the Suppression of the Financing 

of Terrorism, online at https://treaties.un.org/doc/Publication/MTDSG/

Volume%20II/Chapter%20XVIII/XVIII-11.en.pdf (all Internet materials 

as last visited Apr. 16, 2018). 6The Genocide Convention also does not specifically require that

states parties recognize tort claims for genocide, but federal courts have 

long permitted such actions under the ATS as a matter of federal 

common law. See, e.g., Kadic, 70 F. 3d, at 236. The same is true of the 

Torture Convention. See, e.g., Filartiga v. Pena-Irala, 630 F. 2d 876, 

885 (CA2 1980). 
 

 

 

12 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

ards of conduct and leaves it to individual states to determine how best to enforce those standards. 

Finally, a number of states, acting individually, have 

imposed criminal and civil liability on corporations for 

law-of-nations violations through their domestic legal 

systems. See, e.g., New TV S. A. L., Case No. STL–14– 

05/PT/AP/AR126.1, ¶¶52–55 (listing more than 40 countries that provide for corporate criminal liability); A. Ramasastry & R. Thompson, Commerce, Crime and Conflict:

Legal Remedies for Private Sector Liability for Grave 

Breaches of International Law 22–24 (2006), available at

https://www.biicl.org/files/4364_536.pdf (noting that 15 of 

16 countries surveyed permit civil claims against corporations for human rights violations); Brief for Comparative

Law Scholars and Practitioners as Amici Curiae 15–19 

(detailing provisions creating corporate civil liability for 

international-law violations in England, France, the Netherlands, and Canada). 

C 

Instead of asking whether there exists a specific, universal, and obligatory norm of corporate liability under 

international law, the relevant inquiry in response to the 

question presented here is whether there is any reason—

under either international law or our domestic law—to 

distinguish between a corporation and a natural person

who is alleged to have violated the law of nations under 

the ATS. As explained above, international law provides

no such reason. See Kiobel, 621 F. 3d, at 175 (Leval, J.,

concurring in judgment) (“[T]he answer international law 

furnishes is that it takes no position on the question”).

Nor does domestic law. The text, history, and purpose of

the ATS plainly support the conclusion that corporations

may be held liable.

Beginning “with the language of the statute itself,” 

United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 
Cite as: 584 U. S. ____ (2018) 13 

SOTOMAYOR, J., dissenting 

241 (1989), two aspects of the text of the ATS make clear

that the statute allows corporate liability. First, the text 

confers jurisdiction on federal district courts to hear “civil 

action[s]” for “tort[s].” 28 U. S. C. §1350. Where Congress

uses a term of art like tort, “it presumably knows and

adopts the cluster of ideas that were attached to [the] 

borrowed word in the body of learning from which it was

taken and the meaning its use will convey to the judicial 

mind unless otherwise instructed.” Morissette v. United 

States, 342 U. S. 246, 263 (1952). 

Corporations have long been held liable in tort under

the federal common law. See Philadelphia, W., & B. R. 

Co. v. Quigley, 21 How. 202, 210 (1859) (“At a very early 

period, it was decided in Great Britain, as well as in the

United States, that actions might be maintained against 

corporations for torts; and instances may be found, in the

judicial annals of both countries, of suits for torts arising

from the acts of their agents, of nearly every variety”); 

Chestnut Hill & Spring House Turnpike Co. v. Rutter, 4 

Serg. & Rawle 6, 17 (Pa. 1818) (“[F]rom the earliest times

to the present, corporations have been held liable for

torts”). This Court “has assumed that, when Congress

creates a tort action, it legislates against a legal background of ordinary tort-related . . . rules and consequently 

intends its legislation to incorporate those rules.” Meyer v. 

Holley, 537 U. S. 280, 285 (2003). The presumption, then,

is that, in providing for “tort” liability, the ATS provides 

for corporate liability. 

Second, whereas the ATS expressly limits the class of

permissible plaintiffs to “alien[s],” §1350, it “does not 

distinguish among classes of defendants,” Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 438 

(1989). That silence as to defendants cannot be presumed 

to be inadvertent. That is because in the same section of 

the Judiciary Act of 1789 as what is now the ATS, Congress provided the federal district courts with jurisdiction 
 

14 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

over “all suits against consuls or vice-consuls.” §9, 1 Stat.

76–77. Where Congress wanted to limit the range of 

permissible defendants, then, it clearly knew how to do so. 

Russello v. United States, 464 U. S. 16, 23 (1983) (“[W]here

Congress includes particular language in one section of a 

statute but omits it in another section of the same Act, it 

is generally presumed that Congress acts intentionally 

and purposely in the disparate inclusion or exclusion” 

(internal quotation marks omitted)).

Nothing about the historical background against which

the ATS was enacted rebuts the presumption that the 

statute incorporated the accepted principle of corporate

liability for tortious conduct. Under the Articles of Confederation, the Continental Congress was unable to provide redress to foreign citizens for violations of treaties or 

the law of nations, which threatened to undermine the 

United States’ relationships with other nations. See 

Kiobel, 569 U. S., at 123. The First Congress responded 

with, inter alia, the ATS. Although the two incidents that

highlighted the need to provide foreign citizens with a

federal forum in which to pursue their grievances involved

conflicts between natural persons, see ante, at 7 (majority

opinion) (describing the assault by a French adventurer on

the Secretary of the French Legation and the arrest of one 

of the Dutch Ambassador’s servants by a New York constable), there is “no reason to conclude that the First

Congress was supremely concerned with the risk that

natural persons would cause the United States to be 

drawn into foreign entanglements, but was content to

allow formal legal associations of individuals, i.e., corporations, to do so,” Doe v. Exxon Mobil Corp., 654 F. 3d 11, 47 

(CADC 2011), vacated on other grounds, 527 Fed. Appx. 7

(CADC 2013); see also Brief for United States as Amicus 

Curiae 6 (“The ATS was enacted to ensure a private damages remedy for incidents with the potential for serious 

diplomatic consequences, and Congress had no good rea­
Cite as: 584 U. S. ____ (2018) 15 

SOTOMAYOR, J., dissenting 

son to limit the set of possible defendants in such actions 

to potentially judgment-proof individuals”). Indeed, foreclosing corporations from liability under the ATS would 

have been at odds with the contemporaneous practice of 

imposing liability for piracy on ships, juridical entities. 

See, e.g., Skinner v. East India Co., 6 State Trials 710, 711 

(1666); The Marianna Flora, 11 Wheat. 1, 40–41 (1826); 

Harmony v. United States, 2 How. 210, 233 (1844). 

Finally, the conclusion that corporations may be held

liable under the ATS for violations of the law of nations is 

not of recent vintage. More than a century ago, the Attorney General acknowledged that corporations could be held 

liable under the ATS. See 26 Op. Atty. Gen. 250, 252

(1907) (stating that citizens of Mexico could bring a claim 

under the ATS against a corporation, the American Rio 

Grande Land and Irrigation Company, for violating provisions of a treaty between the United States and Mexico). 

D 

In his concurrence, JUSTICE GORSUCH urges courts to

exercise restraint in recognizing causes of action under the 

ATS. But whether the ATS provides a cause of action for 

violations of the norms against genocide, crimes against 

humanity, and financing of terrorism is not the question

the parties have asked the Court to decide. I therefore see 

no reason why it is necessary to delve into the propriety of

creating new causes of action. Nevertheless, because I 

disagree with the premises on which the concurrence 

relies, I offer two brief observations. 

 First, JUSTICE GORSUCH says it “pass[es] understanding” why federal courts have exercised jurisdiction over

ATS claims raised by foreign plaintiffs against foreign

defendants for breaches of international norms. See ante, 

at 1 (opinion concurring in part and concurring in judgment). Modern ATS cases, however, are not being litigated

against a blank slate. The Court held in Sosa that Con­
 

16 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

gress authorized the federal courts to “recognize private

causes of action for certain torts in violation of the law of 

nations,” 542 U. S., at 724, so long as the underlying norm

had no “less definite content and acceptance among civilized nations than the historical paradigms familiar when 

§1350 was enacted,” id., at 732. That holding was no mere 

“suggestion,” ante, at 2 (opinion of GORSUCH, J.), as this 

Court has made clear. See Kiobel, 569 U. S., at 116–117. 

Given that the First Congress authorized suit for violations based on “the law of nations” and “treat[ies] of the 

United States,” 28 U. S. C. §1350, it is natural to conclude 

that Congress intended the district courts to consider new 

claims under the law of nations as that law and our Nation’s treaty obligations continued to develop. If Congress

intended to limit such cases to violations of safe conduct, 

assaults against ambassadors, piracy, and—as JUSTICE 

GORSUCH suggests may have been the case—“‘personal 

injuries that US citizens inflicted upon aliens resulting in 

less than $500 in damages,’” ante, at 10 (quoting Bellia &

Clark, The Alien Tort Statute and the Law of Nations, 78 

U. Chi. L. Rev. 445, 509 (2011)), it easily could have said 

so. Instead, it granted the federal courts jurisdiction over

claims based on “the law of nations,” a body of law that

Congress did not understand to be static. See United 

States v. The La Jeune Eugenie, 26 F. Cas. 832, 846 (No. 

15,551) (CC Mass. 1822) (Story, J.) (“What, therefore, the 

law of nations is . . . may be considered as modified by

practice, or ascertained by the treaties of nations at different periods. It does not follow . . . that because a principle 

cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at no subsequent period the principle can be considered as incorporated into the public code of nations”). 

The question for courts considering new ATS claims is, 

“Who are today’s pirates?” Kiobel, 569 U. S., at 129 

(BREYER, J., concurring in judgment). Torturers and those 
 

 

Cite as: 584 U. S. ____ (2018) 17 

SOTOMAYOR, J., dissenting 

who commit genocide are now fairly viewed, like pirates, 

as “common enemies of all mankind.” Id., at 131 (internal 

quotation marks omitted). On remand, the Court of Appeals would decide whether the financiers of terrorism are

the same. The fact that few norms have overcome Sosa’s 

high hurdle is strong evidence that the carefully considered standard set forth in that case is generating exactly

the kind of “judicial caution” the Court stressed as necessary. See 542 U. S., at 725. 

Second, the concurrence suggests that federal courts

may lack jurisdiction to entertain suits between aliens

based solely on a violation of the law of nations. It contends that ATS suits between aliens fall under neither the 

federal courts’ diversity jurisdiction nor our federal question jurisdiction. The Court was not unaware of this 

argument when it decided Sosa. As noted, that case involved an ATS suit brought by a citizen of Mexico against

a citizen of Mexico, and various amici argued that the

Court lacked Article III jurisdiction over such suits. See 

Brief for National Foreign Trade Counsel et al. as Amici 

Curiae in Sosa v. Alvarez-Machain, O. T. 2003, No. 03– 

339, pp. 24–25; see also Brief for Washington Legal Foundation et al. as Amici Curiae in No. 03–339, pp. 14–21.

The Court nonetheless proceeded to decide the case, which 

it could not have done had it been concerned about its 

Article III power to do so. See Arbaugh v. Y & H Corp., 

546 U. S. 500, 514 (2006). That decision forecloses the 

argument the concurrence now makes, as Sosa authorized 

courts to “recognize private claims under federal common 

law for violations of ” certain international law norms. 

542 U. S., at 732 (emphasis added); see also id., at 729– 

730 (explaining that, post-Erie R. Co. v. Tompkins, 304 

U. S. 64 (1938), there are “limited enclaves in which federal 

courts may derive from substantive law in a common law 

way,” including the law of nations, and that “it would be 

unreasonable to assume that the First Congress would 
 

18 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

have expected federal courts to lose all capacity to recognize enforceable international norms simply because the

common law might lose some metaphysical cachet on the

road to modern realism”); Sarei v. Rio Tinto, 671 F. 3d 

736, 749–754 (CA9 2011) (en banc) (discussing Sosa and 

concluding that federal courts have Article III jurisdiction

to hear ATS cases between aliens), vacated and remanded, 

569 U. S. 945 (2013) (remanding for further consideration

in light of Kiobel). 

Sosa was correct as a legal matter. Moreover, our Nation has an interest not only in providing a remedy when 

our own citizens commit law of nations violations, but also 

in preventing our Nation from serving as a safe harbor 

for today’s pirates. See Kiobel, 569 U. S., at 133–134 

(BREYER, J., concurring in judgment). To that end, Congress has ratified treaties requiring the United States “to

punish or extradite offenders, even when the offense was 

not committed . . . by a national.” 1 Restatement §404, 

Reporters’ Note 1, at 255–257; see Torture Convention, 

Arts. 5, 7; Convention on the Prevention and Punishment 

of Crimes Against Internationally Protected Persons,

Including Diplomatic Agents, Art. 3, Dec. 14, 1973, 28

U. S. T. 1975, T. I. A. S. No. 8532; Convention for the 

Suppression of Unlawful Acts Against the Safety of Civil 

Aviation, Sept. 23, 1971, 24 U. S. T. 565, T. I. A. S. No.

7570; Convention for the Suppression of Unlawful Seizure

of Aircraft, Art. 4, Dec. 16, 1970, 22 U. S. T. 1641, 

T. I. A. S. No. 7192; Geneva Convention Relative to the 

Treatment of Prisoners of War, Art. 129, Aug. 12, 1949, 6 

U. S. T. 3316, T. I. A. S. No. 3364. To the extent suits 

against foreign defendants may lead to international

friction, that concern is better addressed under the presumption the Court established in Kiobel against extraterritorial application of the ATS, see 569 U. S., at 124–125,

than it is by relitigating settled precedent. 
Cite as: 584 U. S. ____ (2018) 19 

SOTOMAYOR, J., dissenting 

II 

At its second step, Sosa cautions that courts should 

consider whether permitting a case to proceed is an appropriate exercise of judicial discretion in light of potential 

foreign-policy implications. See 542 U. S., at 727–728, 

732–733, 738. The plurality only assumes without deciding that international law does not impose liability on 

corporations, so it necessarily proceeds to Sosa’s second 

step. Here, too, its analysis is flawed. 

A 

Nothing about the corporate form in itself justifies

categorically foreclosing corporate liability in all ATS 

actions. Each source of diplomatic friction that respondent Arab Bank and the plurality identify can be addressed

with a tool more tailored to the source of the problem than

a blanket ban on corporate liability. 

Arab Bank contends that foreign citizens should not be 

able “to sue a Jordanian corporation in New York for

events taking place in the Middle East.” Brief for Respondent 42. The heart of that qualm was already addressed in Kiobel, which held that the presumption

against extraterritoriality applies to the ATS. 569 U. S., 

at 124. Only where the claims “touch and concern the 

territory of the United States . . . with sufficient force” can

the presumption be displaced. Id., at 124–125. “[M]ere

corporate presence” does not suffice. Id., at 125. Thus, 

contrary to the majority’s contention, “the relatively minor 

connection between the terrorist attacks at issue in this 

case and the alleged conduct in the United States” does 

not “well illustrat[e] the perils of extending the scope of 

ATS liability to foreign multinational corporations,” ante, 

at 25, but merely illustrates the risks of extending the

scope of ATS liability extraterritorially absent sufficient 

connection to the United States. 

Arab Bank also bemoans the unfairness of being sued 
 

20 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

when others—namely, the individuals and organizations

that carried out the terrorist attacks—were “the direct 

cause” of the harm petitioners here suffered. Brief for 

Respondent 41. That complaint, though, is a critique of

the imposition of liability for financing terrorism, not an

argument that ATS suits against corporations generally 

necessarily cause diplomatic tensions.

Arab Bank further expresses concern that ATS suits are

being filed against corporations in an effort to recover for

the bad acts of foreign governments or officials. See id., at 

40. But the Bank’s explanation of this problem reveals

that the true source of its grievance is the availability of 

aiding and abetting liability. See ibid. (“[N]umerous ATS 

suits have alleged that a corporation has aided or abetted 

bad acts committed by a foreign government and its officials” (emphasis in original)); id., at 41 (“[A]iding and 

abetting suits under the ATS have given plaintiffs ‘a clear 

means for effectively circumventing’ critical limits on

foreign sovereign immunity” (quoting Brief for United 

States as Amicus Curiae in American Isuzu Motors, Inc. v. 

Ntsebeza, O. T. 2007, No. 07–919, p. 15)). The plurality

too points to an aiding and abetting case to support its 

contention that plaintiffs “use corporations as surrogate

defendants to challenge the conduct of foreign governments.” Ante, at 21 (discussing Kiobel, in which plaintiffs 

sought to hold a corporate defendant liable for “ ‘aiding

and abetting the Nigerian Government in committing’” 

law-of-nations violations (quoting 569 U. S., at 114)). Yet 

not all law-of-nations violations asserted against corporations are premised on aiding and abetting liability; it is 

possible for a corporation to violate international-law

norms independent of a foreign state or foreign state

officials. In this respect, too, the Court’s rule is ill fitted to 

the problem identified.

Notably, even the Hashemite Kingdom of Jordan does 

not argue that there are foreign-policy tensions inherent 
Cite as: 584 U. S. ____ (2018) 21 

SOTOMAYOR, J., dissenting 

in suing a corporation generally. Instead, Jordan contends 

that this particular suit is an affront to its sovereignty

because of its extraterritorial character and because of the 

role that Arab Bank specifically plays in the Jordanian 

economy. See Brief for Hashemite Kingdom of Jordan as 

Amicus Curiae 6–12.7 

The majority also cites to instances in which other 

foreign sovereigns have “appeared in this Court to note

[their] objections to ATS litigation,” ante, at 26, but none 

of those objections was about the availability of corporate 

liability as a general matter. See Sosa, 542 U. S., at 733, 

n. 21 (noting argument of the European Commission that

“basic principles of international law require that before

asserting a claim in a foreign forum, the claimant must 

have exhausted any remedies available in the domestic 

legal system, and perhaps in other forums such as international claims tribunals”); ibid. (noting objections by

South Africa to “several class actions seeking damages 

from various corporations alleged to have participated in,

or abetted, the regime of apartheid” on the basis that the

cases “interfere[d] with the policy embodied by its Truth

and Reconciliation Commission”); Brief for Federal Republic of Germany as Amicus Curiae in Kiobel v. Royal Dutch 

Petroleum Co., O. T. 2012, No. 10–1491, p. 1 (“The Federal

Republic of Germany has consistently maintained its

opposition to overly broad assertions of extraterritorial

civil jurisdiction arising out of aliens’ claims against foreign defendants for alleged foreign activities that caused

injury on foreign soil”); Brief for Government of the United 

—————— 

7 Jordan does argue that corporate liability is unavailable under the 

ATS, but that argument is based on its view that there is no universally

recognized international-law norm of corporate liability, see Brief for

Hashemite Kingdom of Jordan as Amicus Curiae 12–15, not a conten

tion that corporate status alone presents foreign-policy concerns justifying immunity for all corporations in all ATS suits irrespective of 

circumstance. 

­
 

 

22 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

Kingdom of Great Britain and Northern Ireland et al. as 

Amici Curiae in No. 10–1491, p. 3 (“The Governments

remain deeply concerned about . . . suits by foreign plaintiffs against foreign defendants for conduct that entirely

took place in the territory of a foreign sovereign”). 

As the United States urged at oral argument, when 

international friction arises, a court should respond with

the doctrine that speaks directly to the friction’s source. 

See Tr. of Oral. Arg. 28 (acknowledging that “ATS litigation in recent decades has raised international friction” 

and explaining that “the way to deal with that friction is

with a doctrine that speaks directly to the international

entanglement . . . as those questions arise”). In addition to 

the presumption against extraterritoriality, federal courts

have at their disposal a number of tools to address any 

foreign-relations concerns that an ATS case may raise. 

This Court has held that a federal court may exercise 

personal jurisdiction over a foreign corporate defendant 

only if the corporation is incorporated in the United

States, has its principal place of business or is otherwise 

at home here, or if the activities giving rise to the lawsuit 

occurred or had their impact here. See Daimler AG v. 

Bauman, 571 U. S. 117 (2014). Courts also can dismiss 

ATS suits for a plaintiff ’s failure to exhaust the remedies 

available in her domestic forum, on forum non conveniens 

grounds, for reasons of international comity, or when

asked to do so by the State Department. See Kiobel, 569 

U. S., at 133 (BREYER, J., concurring in judgment); Sosa, 

542 U. S., at 733, n. 21. 

Several of these doctrines might be implicated in this

case, and I would remand for the Second Circuit to address them in the first instance.8 The majority, however, 

—————— 

8For instance, the alleged conduct might not sufficiently touch and

concern the United States to displace the presumption against extraterritoriality; the prohibition on terrorism financing might not be a 
Cite as: 584 U. S. ____ (2018) 23 

SOTOMAYOR, J., dissenting 

prefers to use a sledgehammer to crack a nut. I see no 

need for such an ill-fitting and disproportionate response. 

Foreclosing foreign corporate liability in all ATS actions, 

irrespective of circumstance or norm, is simply too broad a 

response to case-specific concerns that can be addressed

via other means.9 

B 

1 

The Court urges that “[t]he political branches, not the

Judiciary, have the responsibility and institutional capacity 

to weigh foreign-policy concerns.” Ante, at 19. I agree

that the political branches are well poised to assess the

foreign-policy concerns attending ATS litigation, which is

why I give significant weight to the fact that the Executive 

Branch, in briefs signed by the Solicitor General and State 

Department Legal Advisor, has twice urged the Court to

reach exactly the opposite conclusion of the one embraced

by the majority. See Brief for United States as Amicus 

Curiae 5 (“This Court should vacate the decision below,

which rests on the mistaken premise that a federal commonlaw claim under the ATS may never be brought against a 

corporation”); Brief for United States as Amicus Curiae in 

Kiobel v. Royal Dutch Petroleum Co., O. T. 2012, No. 10– 

1491, p. 7 (“Courts may recognize corporate liability in

actions under the ATS as a matter of federal common 

—————— 

specific, universal, and obligatory norm warranting recognition under 

the ATS; and petitioners might not be able to prove the requisite mens 

rea. In addition, petitioners have asserted direct, rather than vicarious,

liability against respondent. A suit based on only vicarious liability 

may raise different questions not presented here. 9The majority’s overly blunt rule is also unlikely to resolve any foreignrelations concerns at play in this case. Arab Bank is still being sued

under the Antiterrorism Act of 1990 for the exact same conduct as 

alleged here. It is also hard to imagine that Jordan would have been

perfectly content to see the CEO of Arab Bank and high-level officials

at the New York branch sued under the ATS. 
 

24 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

law. . . . Sosa’s cautionary admonitions provide no reason

to depart from the common law on this issue”). At oral 

argument in this case, the United States told the Court

that it saw no “sound reason to categorically exclude

corporate liability.” Tr. of Oral Arg. 29. It explained that

another country would hold the United States accountable

for not providing a remedy against a corporate defendant 

in a “classic” ATS case, such as one involving a “foreign

officia[l] injured in the United States,” id., at 32–33, and 

suggested that foreclosing the ability to recover from a 

corporation actually would raise “the possibility of friction,” id., at 33. Notably, the Government’s position that 

categorically barring corporate liability under the ATS is

wrong has been consistent across two administrations led 

by Presidents of different political parties.

Likewise, when Members of Congress have weighed in 

on the question whether corporations can be proper defendants in an ATS suit, it has been to advise the Court 

against the rule it now adopts. See Brief for Sen. Sheldon 

Whitehouse et al. as Amici Curiae 7–11; Brief for Former 

Sen. Arlen Specter et al. as Amici Curiae in Kiobel v. 

Royal Dutch Petroleum Co., O. T. 2012, No. 10–1491, 

pp. 17–18. Congress has also never seen it necessary to 

immunize corporations from ATS liability even though 

corporations have been named as defendants in ATS suits

for years. See Monessen Southwestern R. Co. v. Morgan, 

486 U. S. 330, 338 (1988) (“Congress’ failure to disturb

a consistent judicial interpretation of a statute may provide some indication that ‘Congress at least acquiesces in,

and apparently affirms, that [interpretation]’” (quoting 

Cannon v. University of Chicago, 441 U. S. 677, 703 

(1979))).

Given the deference to the political branches that Sosa 

encourages, I find it puzzling that the Court so eagerly 

departs from the express assessment of the Executive 

Branch and Members of Congress that corporations can be 
 

Cite as: 584 U. S. ____ (2018) 25 

SOTOMAYOR, J., dissenting 

defendants in ATS actions. 

2 

The plurality instead purports to defer to Congress by

relying heavily on the Torture Victim Protection Act of

1991 (TVPA), 106 Stat. 73, note following 28 U. S. C.

§1350, to support its categorical bar. See ante, at 20. The 

TVPA makes available to all individuals, not just foreign

citizens, a civil cause of action for torture and extrajudicial

killing that may be brought against natural persons. See 

Mohamad v. Palestinian Authority, 566 U. S. 449, 451– 

452, 454 (2012). The plurality extrapolates from Congress’

decision regarding the scope of liability under the TVPA a 

rule that it contends should govern all ATS suits. See 

ante, at 20. But there is no reason to think that because 

Congress saw fit to permit suits only against natural

persons for two specific law-of-nations violations, Congress 

meant to foreclose corporate liability for all law-of-nations 

violations. The plurality’s contrary conclusion ignores the 

critical textual differences between the ATS and TVPA, as 

well as the TVPA’s legislative history, which emphasizes

Congress’ intent to leave the ATS undisturbed. 

On its face, the TVPA is different from the ATS in several significant ways: It is focused on only two law-ofnations violations, torture and extrajudicial killing; it 

makes a cause of action available to all individuals, not 

just foreign citizens; and it uses the word “individual” to

delineate who may be liable. See 28 U. S. C. §1350 note.

The ATS, by contrast, is concerned with all law-of-nations

violations generally, makes a cause of action available 

only to foreign citizens, and is silent as to who may be 

liable. Because of the textual differences between the two 

statutes, the Court unanimously concluded in Mohamad 

that the ATS “offers no comparative value” in ascertaining

the scope of liability under the TVPA. 566 U. S., at 458. 

It makes little sense, then, to conclude that the TVPA has 
 

 

26 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

dispositive comparative value in discerning the scope of

liability under the ATS. 

Furthermore, Congress repeatedly emphasized in the 

House and Senate Reports on the TVPA that the statute

was meant to supplement the ATS, not replace or cabin it.

See H. R. Rep. No. 102–367, pt. 1, p. 3 (1991) (“Section

1350 has other important uses and should not be replaced. 

There should also, however, be a clear and specific remedy, not limited to aliens, for torture and extrajudicial

killing”); id., at 4 (“The TVPA . . . would also enhance the 

remedy already available under section 1350 in an important respect: While the [ATS] provides a remedy to

aliens only, the TVPA would extend a civil remedy also to

U. S. citizens who may have been tortured abroad”); ibid. 

(“[C]laims based on torture or summary executions do not 

exhaust the list of actions that may appropriately be 

covered b[y] section 1350. That statute should remain 

intact to permit suits based on other norms that already

exist or may ripen in the future into rules of customary

international law”); S. Rep. No. 102–249, pp. 4–5 (1991);

see also Sosa, 542 U. S., at 731 (explaining that the TVPA 

“supplement[ed] the judicial determination” in Filartiga).

Lacking any affirmative evidence that Congress’ decision to limit liability under the TVPA to natural persons 

indicates a legislative judgment about the proper scope of

liability in all ATS suits, the plurality focuses its efforts on

dismissing petitioners’ argument that Congress limited 

TVPA liability to natural persons to harmonize the statute

with the Foreign Sovereign Immunities Act of 1976 

(FSIA), which generally immunizes foreign states from

suit. See ante, at 21.10 Contrary to the plurality’s conten­

—————— 

10The TVPA requires state action to trigger liability. See 28 U. S. C. 

§1350 note (imposing liability on “[a]n individual who, under actual or

apparent authority, or color of law, of any foreign nation” subjects an

individual to torture or extrajudicial killing). Absent a limitation on 

suits against states and state entities, the TVPA arguably would have 
Cite as: 584 U. S. ____ (2018) 27 

SOTOMAYOR, J., dissenting 

tion, however, this Court did not reject petitioners’ account

of the TVPA’s legislative history in Mohamad. In fact, 

that decision agreed that the legislative history “clarifi[es] 

that the Act does not encompass liability against foreign

states.” 566 U. S., at 459. What Mohamad rejected was

the argument that because the TVPA forecloses liability 

against foreign states, it necessarily permits liability 

against corporations. In concluding that the TVPA 

encompasses only natural persons, Mohamad took no 

position on why Congress excluded organizations from its 

reach.11 

To infer from the TVPA that no corporation may ever

be held liable under the ATS for any violation of any 

international-law norm, moreover, ignores that Congress 

has elsewhere imposed liability on corporations for conduct 

prohibited by customary international law. For instance, 

the Antiterrorism Act of 1990 (ATA) created a civil cause 

of action for U. S. nationals injured by an act of international terrorism and expressly provides for corporate 

liability. 18 U. S. C. §2333. That Congress foreclosed 

corporate liability for torture and extrajudicial killing 

claims under the TVPA but permitted corporate liability

for terrorism-related claims under the ATA is strong

evidence that Congress exercises its judgment as to the

appropriateness of corporate liability on a norm-by-norm 

basis, and that courts should do the same when considering whether to permit causes of action against corpora­

—————— 

been in conflict with the FSIA. 11Petitioners may be right that Congress limited liability under the 

TVPA to natural persons to harmonize the statute with the FSIA. That 

Congress thought it necessary to achieve that goal by foreclosing

liability against all organizational defendants, not just those operating

under the authority of a foreign government, might indicate that

Congress thought such line drawing would be difficult, or that an

expansive approach was the cleanest way to avoid the statute becoming

a backdoor to suits against foreign governments. 
 

28 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

tions for law-of-nations violations under the ATS. 

The plurality dismisses the ATA as “an inapt analogy” 

because the ATA “provides a cause of action only to ‘national[s] of the United States,’” whereas the ATS “provides 

a remedy for foreign nationals only.” Ante, at 22 (quoting

18 U. S. C. §2333(a)). But if encompassing different

groups of plaintiffs is what makes two statutes poor comparators for each other, the TVPA, too, is an inapt analogy,

for it permits suits by all individuals, U. S. and foreign 

nationals alike. 

The plurality also posits that the ATA “suggests that

there should be no common-law action under the ATS for 

allegations like petitioners’,” ante, at 22, because permitting such suits would allow foreign plaintiffs to “bypass

Congress’ express limitations on liability under the [ATA] 

simply by bringing an ATS lawsuit,” ibid. Yet an ATS suit 

alleging terrorism-related conduct does not “bypass” or 

“displace” any “statutory and regulatory structure,” ibid., 

any more than an ATA suit does. As this case demonstrates, U. S. nationals and foreign citizens may bring 

ATA and ATS suits in the same court, at the same time, 

for the same underlying conduct. To the extent the plurality is suggesting that Congress, in enacting the ATA,

meant to foreclose ATS suits based on terrorism financing, 

the plurality offers no evidence to support that hypothesis, 

and the legislative history suggests that Congress enacted 

the ATA to provide U. S. citizens with the same remedy

already available to foreign citizens under the ATS. See 

Hearing on S. 2465 before the Subcommittee on Courts

and Administrative Practice of the Senate Committee on 

the Judiciary, 101st Cong., 1st Sess., 90 (1990) (testimony 

of Joseph A. Morris) (noting that ATS actions for terrorism 

“would be preserved”).

At bottom, the ATS and TVPA are related but distinct 

statutes that coexist independently. There is no basis to 

conclude that the considered judgment Congress made 
 

Cite as: 584 U. S. ____ (2018) 29 

SOTOMAYOR, J., dissenting 

about who should be liable under the TVPA for torture 

and extrajudicial killing should restrict who can be held 

liable under the ATS for other law-of-nations violations, 

particularly where Congress made a different judgment

about the scope of liability under the ATA for terrorism. 

C 

Finally, the plurality offers a set of “[o]ther considerations relevant to the exercise of judicial discretion” that it 

concludes “counsel against allowing liability under the 

ATS for foreign corporations.” Ante, at 23. None is 

persuasive.

First, the plurality asserts that “[i]t has not been shown

that corporate liability under the ATS is essential to serve

the goals of the statute” because “the ATS will seldom be 

the only way for plaintiffs to hold the perpetrators liable,” 

and because “plaintiffs still can sue the individual corporate employees responsible for a violation of international 

law under the ATS.” Ibid. This Court has never previously

required that, to maintain an ATS action, a plaintiff must

show that the ATS is the exclusive means by which to hold

the alleged perpetrator liable and that no relief can be had 

from other parties. Such requirements extend far beyond

the inquiry Sosa contemplated and are without any basis

in the statutory text.

Moreover, even if there are other grounds on which a

suit alleging conduct constituting a law-of-nations violation can be brought, such as a state-law tort claim, the

First Congress created the ATS because it wanted foreign

plaintiffs to be able to bring their claims in federal court 

and sue for law-of-nations violations. A suit for state-law 

battery, even if based on the same alleged conduct, is not

the equivalent of a federal suit for torture; the latter contributes to the uptake of international human rights 
 

 

30 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

norms, and the former does not.12

 Furthermore, holding corporations accountable for 

violating the human rights of foreign citizens when those

violations touch and concern the United States may well

be necessary to avoid the international tension with which

the First Congress was concerned. Consider again the 

assault on the Secretary of the French Legation in Philadelphia by a French adventurer. See supra, at 14; ante, at 

7 (majority opinion). Would the diplomatic strife that 

followed really have been any less charged if a corporation

had sent its agent to accost the Secretary? Or, consider 

piracy. If a corporation owned a fleet of vessels and directed them to seize other ships in U. S. waters, there no

doubt would be calls to hold the corporation to account.

See Kiobel, 621 F. 3d, at 156, and n. 10 (observing that

“Somali pirates essentially operate as limited partnerships”). Finally, take, for example, a corporation posing as 

a job-placement agency that actually traffics in persons,

forcibly transporting foreign nationals to the United 

States for exploitation and profiting from their abuse. Not 

only are the individual employees of that business less

likely to be able fully to compensate successful ATS plaintiffs, but holding only individual employees liable does not 

impose accountability for the institution-wide disregard 

for human rights. Absent a corporate sanction, that harm

will persist unremedied. Immunizing the corporation from 

suit under the ATS merely because it is a corporation,

even though the violations stemmed directly from corporate policy and practice, might cause serious diplomatic 

—————— 

12Counsel for Arab Bank acknowledged the symbolic force of ATS 

liability at oral argument. See Tr. of Oral Arg. 60 (“[T]he idea of the 

ATS is . . . not just that you violated a statute, but that you have

violated some specific universal obligatory norm so you are essentially

an enemy of mankind. So, as much as my clients would not like to be

an ATA defendant, they would really, really, really not like to be . . .

labeled an enemy of mankind”). 
 

Cite as: 584 U. S. ____ (2018) 31 

SOTOMAYOR, J., dissenting 

friction.13 

Second, the plurality expresses concern that if foreign

corporations are subject to liability under the ATS, other 

nations could hale American corporations into court and 

subject them “to an immediate, constant risk of claims

seeking to impose massive liability for the alleged conduct 

—————— 

13 JUSTICE ALITO, adopting a more absolutist position than the plurality,

asserts without qualification that “federal courts should not create 

causes of action under the ATS against foreign corporate defendants”

because doing so “would precipitate . . . diplomatic strife.” Ante, at 1, 4 

(opinion concurring in part and concurring in judgment). The conclusion that ATS suits against foreign corporate defendants for law-ofnations and treaty violations always will cause diplomatic friction, and 

that such suits will never be necessary “to help the United States avoid

diplomatic friction,” ante, at 4, however, is at odds with the considered 

judgment of the Executive Branch and Congress regarding the importance of holding foreign corporations to account for certain egregious 

conduct. As noted, see Part II–B–1, supra, the Executive Branch has 

twice urged the Court not to foreclose the ability of foreign nationals to

sue foreign corporate defendants under the ATS. The United States 

also has ratified several international agreements that require it to

impose liability on corporations, both foreign and domestic, for certain 

actions, including the financing of terrorism. See supra, at 10–11. 

Congress, too, has expressly authorized civil suits against corporations

for acts related to terrorism. See 18 U. S. C. §2333. The Executive 

Branch and Congress surely would not have taken these positions,

entered into these obligations, or made available these causes of action

if the result were intolerable diplomatic strife. 

JUSTICE ALITO also faults the lack of “real-world examples” of instances in which diplomatic friction has resulted from a court’s refusal 

to permit an individual to bring an ATS suit against a foreign corporation solely because of the defendant’s status as a foreign juridical 

entity. Ante, at 6. Such refusals, though, have been rare, as no other

Court of Appeals besides the Second Circuit that has considered the

question has imposed a bar on corporate liability. Compare Doe v. 

Drummond Co., 782 F. 3d 576, 584 (CA11 2015); Doe I v. Nestle USA, 

Inc., 766 F. 3d 1013, 1022 (CA9 2014); Doe v. Exxon Mobil Corp., 654 

F. 3d 11, 39–57 (CADC 2011), vacated on other grounds, 527 Fed. Appx. 

7 (CADC 2013); Flomo v. Firestone Nat. Rubber Co., 643 F. 3d 1013, 

1017–1021 (CA7 2011), with Kiobel v. Royal Dutch Petroleum, 621 F. 3d 

111, 120 (CA2 2010). 
 

 

 

32 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

of their employees and subsidiaries around the world,” a 

prospect that will deter American corporations from investing in developing economies. Ante, at 24. The plurality 

offers no empirical evidence to support these alarmist 

conjectures, which is especially telling given that plaintiffs

have been filing ATS suits against foreign corporations in 

United States courts for years. It does cite to an amicus 

brief for the United States in American Isuzu Motors, Inc. 

v. Ntsebeza, see ante, at 24, but that case was concerned 

with the availability of civil aiding and abetting liability,

not corporate liability generally, and the United States 

never contended that permitting corporate liability under

the ATS would undermine global investment. Instead, it 

argued that permitting extraterritorial aiding and abetting cases would interfere with foreign relations and deter 

“the free flow of trade and investment.” See Brief for 

United States as Amicus Curiae, O. T. 2007, No. 07–919, 

pp. 12–16, 20. Driven by hypothetical worry about

besieged American corporations, today’s decision needlessly 

goes much further, encompassing all ATS suits against all

foreign corporations, not just those cases with extraterritorial dimensions premised on an aiding and abetting

theory. 

* * * 

In sum, international law establishes what conduct 

violates the law of nations, and specifies whether, to constitute a law-of-nations violation, the alleged conduct must 

be undertaken by a particular type of actor. But it is 

federal common law that determines whether corporations

may, as a general matter, be held liable in tort for law-ofnations violations. Applying that framework here, I would 

hold that the ATS does not categorically foreclose corporate liability. Tort actions against corporations have long

been available under federal common law. Whatever the 

majority might think of the value of modern-day ATS 
Cite as: 584 U. S. ____ (2018) 33 

SOTOMAYOR, J., dissenting 

litigation, it has identified nothing to support its conclusion that “foreign corporate defendants create unique 

problems” that necessitate a categorical rule barring all

foreign corporate liability. Ante, at 26. 

Absent any reason to believe that the corporate form in

itself raises serious foreign-policy concerns, and given the 

repeated urging from the Executive Branch and Members

of Congress that the Court need not and should not foreclose corporate liability, I would reverse the decision of the 

Court of Appeals for the Second Circuit and remand for

further proceedings, including whether the allegations 

here sufficiently touch and concern the United States, see 

Kiobel, 569 U. S., at 124–125, and whether the internationallaw norms alleged to have been violated by Arab Bank—

the prohibitions on genocide, crimes against humanity,

and financing of terrorism—are of sufficiently definite

content and universal acceptance to give rise to a cause of 

action under the ATS. 

III 

In categorically barring all suits against foreign corporations under the ATS, the Court ensures that foreign corporations—entities capable of wrongdoing under our domestic law—remain immune from liability for human rights

abuses, however egregious they may be.

Corporations can be and often are a force for innovation

and growth. Many of their contributions to society should

be celebrated. But the unique power that corporations 

wield can be used both for good and for bad. Just as corporations can increase the capacity for production, so, too,

some can increase the capacity for suffering. Consider the 

genocide that took upwards of 800,000 lives in Rwanda in

1994, which was fueled by incendiary rhetoric delivered

via a private radio station, the Radio Télévision Libre des 

Mille Collines (RTLM). Men spoke the hateful words, but 
 

 

34 JESNER v. ARAB BANK, PLC 

SOTOMAYOR, J., dissenting 

the RTLM made their widespread influence possible.14 

There can be, and sometimes is, a profit motive for these 

types of abuses. Although the market does not price all 

externalities, the law does. We recognize as much when 

we permit a civil suit to proceed against a paint company 

that long knew its product contained lead yet continued to

sell it to families, or against an oil company that failed to 

undertake the requisite safety checks on a pipeline that

subsequently burst. There is no reason why a different 

approach should obtain in the human rights context.

Immunizing corporations that violate human rights

from liability under the ATS undermines the system of

accountability for law-of-nations violations that the First 

Congress endeavored to impose. It allows these entities to 

take advantage of the significant benefits of the corporate

form and enjoy fundamental rights, see, e.g., Citizens 

United v. Federal Election Comm’n, 558 U. S. 310 (2010); 

Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), 

without having to shoulder attendant fundamental 

responsibilities. 

I respectfully dissent. 

—————— 

14See, e.g., Nahimana v. Prosecutor, Case No. ICTR 99–52–A, Appeals Judgment ¶176 (Nov. 28, 2007) (upholding finding that the RTLM

Collines broadcasts “contributed substantially to the killing of Tutsi”);

G. Prunier, The Rwanda Crisis: History of a Genocide 224 (2d ed. 1999) 

(detailing incitements to murder broadcast on the RTLM, including: 

“ ‘The graves are not yet full. Who is going to do the good work and 

help us fill them completely’ ”); Yanagizawa-Drott, Propaganda and

Conflict: Evidence From the Rwandan Genocide, 129 Q. J. Econ. 1947, 

1950 (2014) (analyzing village-level data from Rwanda to estimate that

the RTLM’s transmissions caused 10 percent of the total participation

in the genocide).