1 (Slip Opinion) OCTOBER TERM, 2017

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 Jorda

nian financial institution with a br anch in New York. They seek to impose liability on the bank for th e conduct of its human agents, in

cluding 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 al

legedly 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 un

der the ATS. Deeming that broade r holding binding precedent, the District Court dismissed petitioners’ ATS claims and the Second Cir

cuit affirmed.

Held : The judgment is affirmed.

808 F. 3d 144, affirmed.

J USTICE K ENNEDY 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 co urts shall have original jurisdic

tion 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 tr eaty 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 de finition 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 na

tion 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 en

acted 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 for

eign plaintiffs suing foreign corporat ions in the United States for al

leged 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 clai ms based on the present-day law of nations, 542 U. S., at 732, but it explicitly held that ATS litigation implicates serious separation-of-p owers and foreign-relations con

cerns, 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 po sitioned “to consider if the public interest would be served by impo sing a new substantive legal liabil

ity,” Ziglar v. Abbasi , 582 U. S. ___, ___ (internal quotation marks omitted). This caution extends to the question whether the courts should exercise the judi cial authority to mandate a rule imposing lia

bility 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 defendants3 Cite as: 584 U. S. ____ (2018)

Syllabus

could be held liable in actions under Bivens v. Six Unknown Fed. Narcotics Agents , 403 U. S. 388.

Neither the language of the AT S nor precedent supports an excep

tion 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 th e context of the ATS, which impli

cates foreign-policy concerns that are the province of the political

branches. And courts must exercise “great caution” before recogniz

ing 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 Con

gress. Pp. 18–19.

(c) The ATS was intended to prom ote harmony in international re

lations by ensuring foreign plaintif fs a remedy for international-law
violations when the absence of su ch a remedy might provoke foreign
nations to hold the United States accountable. But here, and in simi

lar cases, the opposite is occurring. Petitioners are foreign nationals seeking millions of dollars in dama ges from a major Jordanian finan

cial 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 rela

tively minor connection between the terrorist attacks and the alleged
conduct in the United States illust rates the perils of extending the scope of ATS liability to foreign mu ltinational 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 AT S litigation in this Court. See
Sosa

, supra, at 733, n. 21. These are the very foreign-relations ten

sions the First Congress sought to avoid.

Nor are the courts well suited to make the required policy judg

ments implicated by foreign corporat e liability. Like the presumption against extraterritoriality, judicial caution under Sosa “guards against our courts triggering . . . serious foreign policy consequences, and instead defers such decisions, qu ite 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.

J USTICE K ENNEDY , joined by T HE C HIEF J USTICE and J USTICE T HOM

AS , 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 ca n demonstrate that the alleged vio

lation 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 de

termined whether allowing the case to proceed under the ATS is a proper exercise of judicial discreti on 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 lia

bility is a question governed by in ternational law or whether that law imposes liability on corporations, because, as shown by the parties’ opposing arguments, there is at le ast 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 im

portant 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 fo r such an action. Absent a com

pelling justification, courts should not deviate from that model. Rel

evant here, the TVPA limits liability to “individuals,” a term which unambiguously limits liability to natural persons, Mohamad v. Pales

tinian Authority , 566 U. S. 449, 453–456. Congress’ decision to ex

clude 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 discre

tion 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 plai ntiffs 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 in

flicting grave harm and suffering poses serious and complex ques

tions for the international communi ty and for Congress. And this complexity makes it all the more important that Congress determine whether victims of human-rights abuses may sue foreign corpora

tions in federal court. Pp. 23–25.5 Cite as: 584 U. S. ____ (2018)

Syllabus

(d) In making its determination, Congress might decide that viola

tions of international law do, or sh ould, impose that liability to en

sure that corporations make every effort to deter human-rights viola

tions, 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 recip

rocal 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 corpora

tion’s management was actively complicit in the crime. Pp. 27–29.

J USTICE A LITO concluded that the outcome in this case is justified not only by “judicial caution” but al so 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 circumstanc

es to make federal common law, may create causes of action under the ATS, this Court should not creat e such causes of action against foreign corporate defendants. The objective for courts in any case re

quiring the creation of federal commo n law must be “to find the rule that will best effectuate the federal policy.” Textile Workers v. Lin

coln 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 gen

erally, the following principle emerge s: Federal courts should decline
to create federal common law causes of action whenever doing so would not materially advance the AT S’s objective of avoiding diplo

matic strife. Applying that princi ple here, it is clear that courts
should not create causes of action under the ATS against foreign cor

porate defendants. Customary inte rnational law does not generally require corporate liability, so dec lining 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 cor

porations under the ATS may instead provoke exactly the sort of dip

lomatic strife inimical to the statute’s fundamental purpose. Pp. 1–7.

J USTICE G ORSUCH concluded that there ar e 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 ne w cause of action, one that did not
exist at the time of the statute’s adoption, one that Congress has nev

er authorized. They find support in a passage suggesting that the6 JESNER v. ARAB BANK, PLC

Syllabus

ATS may afford federal judges “discretion [to] conside[r] [creating] new cause[s] of action” if they “res t on a norm of international char

acter accepted by the civilized wo rld and defined with a specificity comparable to the features of th e [three specified] 18th-century”

torts. Id., at 725. This is doubtful, for the people’s elected represent

atives, not judges, make the laws th at govern them. But even accept

ing Sosa ’s framework, a proper applic ation of that framework would preclude courts from recognizing an y new causes of action under the ATS. When courts are confronted with a request to fashion a new cause of action, “separation-of-power s principles are or should be cen

tral 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 caus

es 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 ques

tions of foreign affairs and national security—matters implicating the expertise and authority not of th e 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 do

mestic defendant in order to comply with the requirements of the Di

versity-of-Citizenship Clause of Article III. Precedent interpreting a neighboring provision of the Judiciar y Act confirms that conclusion.
See Mossman v. Higginson , 4 Dall. 12, 14. In any event, separationof-powers limits on the judicial func tion 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.

K ENNEDY , 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

R OBERTS , C. J., and T HOMAS , A LITO , and G ORSUCH , JJ., joined, and an opinion with respect to Parts II–A , II–B–2, II–B–3, and III, in which

R OBERTS , C. J., and T HOMAS , J., joined. T HOMAS , J., filed a concurring opinion. A LITO , J., and G ORSUCH , J., filed opinions concurring in part and concurring in the judgment. S OTOMAYOR , J., filed a dissenting opinion, in which G INSBURG , B REYER , and K AGAN , JJ., joined._________________

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

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, Wash

ington, 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]

J USTICE K ENNEDY 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 T HE C HIEF J USTICE and J USTICE T HOMAS join.
Petitioners in this case, or the persons on whose behalf petitioners now assert claims, allegedly were injured or killed by terrorist acts commi tted abroad. Those terrorist acts, it is contended, were in part caused or fa cilitated by a foreign corporation. Petition ers now seek to impose liabil

ity on the foreign corporation for the conduct of its humanagents, 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 which2 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 transac

tions 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 co mmitted 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, en

able, 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 au

thority, 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 origi nal 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 im

poses 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 direc

tion from Congress to do so.3 Cite as: 584 U. S. ____ (2018)

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 at

tacks 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 in4 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 ex

change. 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 transac

tions, both in the United States and in Jordan. In addition to the dollar-clearing transactions, petition

ers 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 peti

tioners say is affiliated with Hamas. According to peti

tioners, 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 bank

ing transactions. Its allegations were that holding compa

nies incorporated in the Netherlands and the United5 Cite as: 584 U. S. ____ (2018)

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 agai nst extraterritorial applica

tion of statutes.
So while this Court in Kiobel affirmed the ruling that the action there could not be maintained, it did not ad

dress 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 dis

missed petitioners’ ATS claims based on the earlier Kiobel holding in the Court of Appeals; and on review of the dismissal order the Court of Appe als, 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. 6216 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 liabili

ties 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 compen

satory 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 trea

ties, 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 foreign7 Cite as: 584 U. S. ____ (2018)

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 for

eign citizens caused substantial foreign-relations prob

lems. 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 Phil

adelphia Convention; and, as a result, Article III of the
Constitution extends the fede ral 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 jurisdic

tion of any civil action by an alien for a tort only, commit

ted in violation of the law of nations or a treaty of the8 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 gov

erned 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 bind

ing individuals for the benefit of other individuals over

lapped with” the rules governing the relationships be

tween 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 availabil

ity of a federal forum where the failure to provide one might cause another nation to hold the United StatesOpinion of the Court 9 Cite as: 584 U. S. ____ (2018)

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 time s. 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 beg an 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 Cou rt 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 supervi

sors and perpetrators. So me 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 co ntrary 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 thatplaintiffs 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 is10 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, Brit

ish, and Nigerian corporations for alleged crimes in Nige

ria. 569 U. S., at 111–112. The extent and scope of this litigation in United States co urts have resulted in criti

cism 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 circum

stances 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 litigationimplicates 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 presump

tion against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts the presump

tion.” 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 toOpinion of the Court 11 Cite as: 584 U. S. ____ (2018)

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, J.

displace the presumption against extraterritorial applica

tion.” Id. , at 124–125.

II
With these principles in mind, this Court now must decide whether common-law liability under the ATS ex

tends to a foreign corporate defendant. It could be argued, under the Court’s holding in Kiobel , that even if, under accepted principles of inte rnational law and federal com

mon 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 jurisdic

tion 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 substan

tial 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 liabilit y would be pointless. In addition, a remand to the Court of Appeals would require prolonging litigation that al ready has caused significant diplomatic tensions with Jordan for more than a decade. So it is proper for this Court to decide whether corpora

tions, or at least foreign corporations, are subject to liabil

ity 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 isOpinion of the Court 12 JESNER v. ARAB BANK, PLC

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, 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, univer

sal, and obligatory norm that is established under interna

tional 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 stat

utes addressing international human-rights violations are specifically limited to indi vidual 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 inquir

ies 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 employ

ees that contravene fundamental human rights.

A
Petitioners and Arab Bank disagree as to whether cor

porate liability is a question of international law or only a question of judicial authority and discretion under domes-Opinion of the Court 13 Cite as: 584 U. S. ____ (2018)

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, J.

tic law. The dispute centers on a footnote in Sosa . In the course of holding that international norms must be “suffi

ciently definite to support a cause of action,” the Court in
Sosa noted that a “related consideration is whether inter

national law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defend

ant 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 interna

tional 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 vary

ing extents, have legal status, personality, rights, and
duties under international law,” “[n]or does international law leave to individual States the responsibility of defin

ing 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 corpo

rate 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 corpora

tions.” 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 com

mon danger posed by the flag rant disregard of basic hu

man rights,” leading “the nations of the world to recognizeOpinion of the Court 14 JESNER v. ARAB BANK, PLC

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, 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 conclu

sion 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 inter

actions with one another. “The singular achievement of
international law since the Se cond 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 corp orations or other artificial entities. This is confirmed by the fact that the charters of respective international cri minal tribunals often exclude corporations from their jurisdictional reach. The Charter for the Nuremberg Tribunal, created by the Allies after World War II, prov ided that the Tribunal had jurisdiction over natural pers ons 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 manufac

tured and provided” the poison gas used in the Nazi death

chambers. Kiobel , 621 F. 3d, at 135. Although the Mili

tary 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 “corpora

tions act through individuals.” 8 The Farben Case , at
1153. Farben itself was not held liable. See ibid.Opinion of the Court 15 Cite as: 584 U. S. ____ (2018)

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, 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), adopt

ing 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 Tribu

nal 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 Interna

tional 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 corpo

rate liability under currently prevailing international law.

2
In light of the sources just discussed, the sources peti

tioners rely on to support their contention that liability for corporations is well established as a matter of interna

tional law lend weak su pport to their position. Petitioners first point to the International Convention for the Suppression of the Financing of Terrorism. This Convention imposes an obligat ion on “Each State Party” “to enable a legal entity located in its territory or orga

nized under its laws to be held liable when a person re

sponsible 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

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, J.

International Convention for the Suppression of the Fi

nancing of Terrorism, Dec. 9, 1999, S. Treaty Doc. No. 106–49, 2178 U. N. T. S. 232. But by its terms the Con

vention imposes its obligations only on nation-states “to enable” corporations to be held liable in certain circum

stances 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 Regula

tions); Brief for Central Bank of Jordan as Amicus Curiae 5 (describing Jordan’s “comprehensive approach to pre

venting money laundering and terrorist financing”). The Convention neither requires nor authorizes courts, with

out 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 corporatio ns 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 migh t be permissible under inter

national 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 repug

nant to all civilized peoples—crimes like genocide, torture, and slavery, that make their perpetrators “enem[ies] of allOpinion of the Court 17 Cite as: 584 U. S. ____ (2018)

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, 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 o ffenses that can be committed against persons in violation of international human-rights protections can be cited to sh ow that corporations should be subject to liability for the crimes of their human agents.

But the international communi ty has not yet taken that step, at least in the specif ic, 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 Nurn

berg Trial , 6 F. R. D. 69, 110 (1946).

Petitioners also contend that international law leaves questions of remedies open for determination under do

mestic 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 dis

tinction in international law between state and private actors. But, as just explained, there is a similar distinc

tion in international law between corporations and natu

ral persons. And it is far from obvious why the question whether corporations may be held liable for the interna

tional 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 law18 JESNER v. ARAB BANK, PLC

Opinion of the Court

imposes liability on corporations. There is at least suffi

cient doubt on the point to turn to Sosa ’s second ques

tion—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 di rect 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 Cor

rectional 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 dam

ages 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 corpora

tions. 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 aOpinion of the Court 19 Cite as: 584 U. S. ____ (2018)

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, J.

“marked extension” of Bivens that was unnecessary to advance its purpose of holding individual officers respon

sible 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 prin

ciples 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 rela

tions “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” befo re 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 recog

nizing 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 ex tend ATS liability to foreign corporations.

2
Even in areas less fraught with foreign-policy conse

quences, the Court looks to analogous statutes for guid

ance 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

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, J.

421 U. S. 723, 736 (1975). Doing so is even more im

portant 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 re

quirement, 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. Mo

hamad v. Palestinian Authority , 566 U. S. 449, 453–456 (2012). Congress’ decision to exclude liability for corpora

tions in actions brought under the TVPA is all but disposi

tive 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 Con

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

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, 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 governme ntal 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 em

ployees 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 (cit

ing 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 (B REYER , 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 NewOpinion of the Court 22 JESNER v. ARAB BANK, PLC

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, J.

Guinea’s military to commit genocide), vacated and re

manded, 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 join ed their claims to those ofUnited States nationals suing Arab Bank under the AntiTerrorism Act. But the Anti-Terrorism Act provides a cause of action only to “natio nal[s] of the United States,” and their “estate, survivors, or heirs.” §2333(a). In con

trast, 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 reme dy for foreign nationals only. To the extent, furthermore, that the Anti-Terrorism Actis relevant it suggests that there should be no commonlaw action under the ATS for allegations like petitioners’. Otherwise, foreign plaintiffs could bypass Congress’ ex

press 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 statu

tory 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 con

sidered 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 demonstratesOpinion of the Court 23 Cite as: 584 U. S. ____ (2018)

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, 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 agains t 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 corpo

rate 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

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, J.

If, moreover, the Court were to hold that foreign corpo

rations 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 na

tions.” 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 Mo

tors, Inc. v. Ntsebeza , O. T. 2007, No. 07–919, p. 20 (inter

nal quotation marks omitted). In other words, allowing pl aintiffs to sue foreign corpo

rations under the ATS could establish a precedent that discourages American corporations from investing abroad, including in developing economies where the host govern

ment might have a history of alleged human-rights viola

tions, or where judicial systems might lack the safeguards of United States courts. And, in consequence, that often might deter the active corpor ate investment that contrib

utes to the economic development that so often is an es

sential 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 suffer

ing poses serious and complex questions both for the in

ternational community and for Congress. So there are strong arguments for permitting the victims to seek relief from corporations themselves. Yet the urgency and com

plexity 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 in25 Cite as: 584 U. S. ____ (2018)

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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 ev ident 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 interna

tional 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 transac

tions in Arab Bank’s New York branch and a brief allega

tion 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

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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 counterterrori sm 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 consid

ers 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 whatev er the faults of this litiga

tion—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 corpor ate defendants create unique problems. And courts are not well suited to make the required policy judgments that are implicated by corporateOpinion of the Court 27 Cite as: 584 U. S. ____ (2018)

Opinion of K ENNEDY

, J.

liability in cases like this one. Like the presumption against extraterritoriality, judi

cial caution under Sosa “guards against our courts trigger

ing . . . 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 su its, 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 viola

tions committed by individuals. Whether, more than two centuries on, a similar remedy should be available against foreign corporations is simila rly a decision that Congress

must make. The political branches can determine, referring to inter

national 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 corpor ations 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 K ENNEDY

, 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 mat

ter, 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 corpora

tions to undertake the extens ive 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 t hat it is the prerogative of the political branches to make, especially in the field of foreign affairs, would, once again, also be entitled to spe

cial respect, especially because those careful distinctions might themselves advance the Rule of Law. All this un

derscores 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 po sitioned than the Judiciary to determine if corporate liability would, or would not, create special risks of disrupting good relations with for

eign governments. Finally, Congress might find that corporate liability

should be limited to cases where a corporation’s manage

ment 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 thisOpinion of the Court 29 Cite as: 584 U. S. ____ (2018)

Opinion of K ENNEDY

, 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 co rporations 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._________________

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

T HOMAS

, 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]

J USTICE T HOMAS , 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 (G ORSUCH , J., concurring in part and concurring in judgment), especially when it risks international strife, see post, at 3–7 (A LITO

, 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 (opin

ion of G ORSUCH , J.)._________________

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

Opinion of A LITO

, 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]

J USTICE A LITO , concurring in part and concurring in the judgment.
Creating causes of action under the Alien Tort Statute against foreign corporate de fendants would precipitate exactly the sort of diplomatic strife that the law was en

acted 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 viola

tion 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), how

ever, 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 A LITO

, 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 contin

ued 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 com

mon 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 ex

plained, “that the First Co ngress would have expected federal courts to lose all capa city to recognize enforceable international norms simply be cause 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 Cou rt concluded, federal courts

could still exercise their authori ty to create so-called “fed

eral 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 Mate

rials, 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 action3 Cite as: 584 U. S. ____ (2018)

Opinion of A LITO

, J.

reflects an international law norm that is “ ‘specific, uni

versal 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 re

lief.” Id. , at 733, n. 21.

II
For the reasons articulated by Justice Scalia in Sosa and by J USTICE G ORSUCH today, I am not certain that
Sosa was correctly decided. See id. , at 739–751 (Scalia, J., dissenting); post , at 2–5 (G ORSUCH

, J., concurring in part and concurring in judgment). But even taking that deci

sion on its own terms, this Court should not create causes of action under the ATS against foreign corporate defend

ants. 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, dip

lomatic strife. Properly applie d, 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 alie n may sue a United States corpora

tion 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 woul d be needed in that situation.4 JESNER v. ARAB BANK, PLC

Opinion of A LITO

, 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 viola

tions 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 concer ned 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 di plomatic strife. And apply

ing 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 cus

tomary international law does not require corporate liabil

ity as a general matter. See Brief for Petitioners 30; Brief for Respondent 22; see also ante , at 17 (plurality opinion);

post

, at 3–4 (S OTOMAYOR

, J., dissenting). But if customary international law does not require corporate liability, then5 Cite as: 584 U. S. ____ (2018)

Opinion of A LITO

, 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 funda

mental 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 under

cutting one of the most stable and productive alliances the
United States has in the Middle East.” Brief for Hashe

mite 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 diplo

matic friction “can be addresse d with a tool more tailored to the source of the problem than a blanket ban on corpo

rate liability.” Post

, at 19. Even on its own terms, that argument is problematic: Many of the “more tailored” tools offered by the dissent will st ill 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

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Opinion of A LITO

, 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 dip

lomatic friction. Post , at 30. But the dissent has no realworld examples to support its hunch, and that is not sur

prising; 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 “holding7 Cite as: 584 U. S. ____ (2018)

Opinion of A LITO

, J.

foreign corporations to acco unt for certain egregious con

duct,” 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 woul d not only fail to meaning

fully advance the objectives of the ATS, but it would also lead to precisely those “serio us consequences in interna

tional 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 corpo

rations 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 hu

man rights suits. See ante , at 8–9, 25–27 (majority opin

ion); Kiobel , 569 U. S., at 123–124; Sosa

, supra , at 715–

718. Declining to extend th e 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._________________

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

Opinion of G ORSUCH

, 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]

J USTICE G ORSUCH , 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 defend

ant happens to be a corporation instead of a human being. But because the job of creating new causes of action and navigating foreign policy disput es 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 interna

tional 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 G ORSUCH

, 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 con

ducts 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 civ ilized world and defined with a specificity comparable to the features of the [three] 18th

century” torts the Court alread y described. 542 U. S., at

725.
I harbor serious doubts about Sosa ’s suggestion. In our3 Cite as: 584 U. S. ____ (2018)

Opinion of G ORSUCH

, 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 Con

gress.” 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 discre

tionary power to create new forms of liability on their own, it invaded terrain that belongs to the people’s representa

tives and should be promptly returned to them. 542 U. S., at 747 (Scalia, J., concurring in part and concurring in4 JESNER v. ARAB BANK, PLC

Opinion of G ORSUCH

, 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 pre

clude courts from ever recognizing any new causes of
action under the ATS.” Ante, at 19. I believe that argu

ment is correct. For the reason s just described, separation of powers considerations ordi narily 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 stat

ute’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 acknowl

edged 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 ques

tions 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

——————

1 The 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 follow

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

Opinion of G ORSUCH

, 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 other

wise. 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 dis

sent’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 “inev

itably” 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 fore igner 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 G ORSUCH

, 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 th e several States, cognizance of all
crimes and offences that shall be co gnizable under the authority of the United States, committed within their respective districts, or upon the high seas; where no other punishme nt than whipping, not exceeding thirty stripes, a fine not exceedin g 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 a ll 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 co sts, to the sum or value of one hundred dollars. And shall also have jurisdiction, exclusively of the7 Cite as: 584 U. S. ____ (2018)

Opinion of G ORSUCH

, 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 wi th the newly ratified terms of Article III. Meanwhile, under Article III, Congress
could not have extended to fe deral courts the power to hear just any suit between two aliens (unless, for example, one was a diplomat). Diversity of citizenship was re

quired. 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 co urts 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 cons trued 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 givethe 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 descri ption 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 G ORSUCH

, 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 internat ional 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 estab

lished by universal consent among the civilized inhabit

ants 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 interna

tional 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 of9 Cite as: 584 U. S. ____ (2018)

Opinion of G ORSUCH

, 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 ‘per

fect rights’ of the other nation,” which “provided the of

fended 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 regularl y refused to redress injuries their citizens caused foreig ners. 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 Con

gress 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

——————

3 As a leading treatise explained, a sovereign “ought not to suffer his subjects to molest the subjects of ot hers, 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 ex emplary 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 re ceive justice.” Ibid . A sovereign who “refuses to cause a repa ration to be made of the damage caused by his subject, or to punish th e 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

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, J.

government with sufficient po wer 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 do mestic 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 remain

ing 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 oninjured aliens to bring suit and did not require the stillforming US government i mmediately to marshal the resources necessary to prosecute crimes” or aid extradi

tions. 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 theCite as: 584 U. S. ____ (2018) 11

Opinion of G ORSUCH

, 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 physi

cally 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 viola

tions 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 implemen ted 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 prob

lem. 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 con

cerned 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 here12 JESNER v. ARAB BANK, PLC

Opinion of G ORSUCH

, 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 con

struction covering “all maritime contracts, torts and inju

ries,” 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 neces

sary to cram the problem of piracy into the ATS. If any

thing, it may be necessary not to do so. Structural fea

tures of §9 make it at least questionable that both provisions were meant to addr ess 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 for

eign pirates , what would that prove about more mine-run cases like ours, where none of those special concerns are implicated? There are at le ast serious historical argu

ments suggesting the ATS was not meant to apply to suits
like this one. And to the extent Sosa affords courts discre

tion to proceed, these arguments should inform any deci

sion 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

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

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, 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 ex

pertise and constitutional aut hority to oversee foreign policy and national security, and should be wary of stray

ing where they do not belong. See supra, at 4–5. Yet there are degrees of institutio nal incompetence and consti

tutional 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 at

tributed 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 Presi

dent 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 ev ents, the decision to impose sanctions in disputes between foreigners over international

——————

4 The 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 extraterrito

rial application to that statute. But that is not so. The dissent also

observes that Sosa “involved an ATS suit brough t by a citizen of Mexico against a citizen of Mexico,” and that certain amici in Sosa filed briefs arguing that the Court lacked author ity 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. Social

ist 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

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, J.

norms is not ours to make. It is a decision that belongs to those answerable to the people and assigned by the Con

stitution to defend this nation. If they wish our help, they are free to enlist it, but we should not ever be in the busi

ness of elbowing our way in._________________

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

S OTOMAYOR

, 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]

J USTICE S OTOMAYOR , with whom J USTICE G INSBURG

, J USTICE B REYER

, and J USTICE K AGAN join, dissenting.
The Court today holds that the Alien Tort Statute (ATS), 28 U. S. C. §1350, cate gorically 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 ofcorporate 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 byasking whether there is “a specific, universal, and obligatory norm of liability for co rporations” in international2 JESNER v. ARAB BANK, PLC

S OTOMAYOR

, 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 citizencould 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 perm its 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 considerwhether 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 cate­3 Cite as: 584 U. S. ____ (2018)

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, J., dissenting

gorical question whether corporations may be sued under the ATS as a general matter. International law imposes certain obligations that are in tended 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, slav ery, extrajudicial killing, andtorture. 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 it self prescribe how it shouldbe applied or enforced at the national level”); 1 Restatement §111, Comment h (“In the absence of special agreement, it is ordinarily for the Un ited 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 substantive4 JESNER v. ARAB BANK, PLC

S OTOMAYOR

, 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 statementwould 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 co urts 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 on ly that the alleged conduct be specifically and universa lly condemned under international law, not that the civil action be of a type that the5 Cite as: 584 U. S. ____ (2018)

S OTOMAYOR

, J., dissenting

international community spec ifically 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 consider ation” 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. Karadži ć , 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 claimsagainst 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

S OTOMAYOR

, 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 ge nocide “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.” Co nvention Against Torture andOther 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 ty pe 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

——————

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

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, J., dissenting

norm-specific inquiry, not a catego rical 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 Courtof Appeals, nothing in international law suggests a corporation may not violate it. 2

——————

2 At present, the norm-specific quer y contemplated by footnote 20 is likely resolved simply by consider ing 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 betw een 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 th e degree of specificity required by
Sosa , that requires, or necessarily contemplates, a distinction betweennatural 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. F ootnote 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 (B REYER , 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 whic h it relies as having considered
whether there was sufficient cons ensus that particular conduct— torture or genocide—“violates inte rnational 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. Karadži ć , 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

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, J., dissenting

2
The plurality briefly acknowledges this critique of itsreading of footnote 20, but nonetheless assumes the correctness of its approach because of its view that thereexists 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 corporatedefendants. 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 mostculpable German companies without destroying Germany’s postwar economy, and a desire to focus on establishing the principle of nonstate criminal responsibility forhuman-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 tri bunal’s jurisdiction to corporations in part because states had varying domestic prac­9 Cite as: 584 U. S. ____ (2018)

S OTOMAYOR

, 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 jurisdicti on 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 theATS, 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 reliesdoes not prove that international law distinguishes between corporations and natural persons as a categoricalmatter. To the contrary, it proves only that states’ collective efforts to enforce vari ous international-law normshave, to date, often focused on natural rather than corporate defendants. In fact, careful review of states’ collective and individual
enforcement efforts makes cl ear that corporations are subject to certain obligations under international law. Forinstance, 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 ag ainst the will and consent of10 JESNER v. ARAB BANK, PLC

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, 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 Concerni ng 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 kn owledge that they are to be used, in full or in part, in order to carry out” an act of

——————

3 The 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 presump

tion of guilt in a subsequent proceed ing. Brief for Nuremberg Scholars

as Amici Curiae 4, 20–21 (citing Agreemen t 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)).

4 See, 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 Tr ansactions, Art. 2, Dec. 17, 1997,
2802 U. N. T. S. 230.11 Cite as: 584 U. S. ____ (2018)

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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 providesthat “[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 Conventionbecause 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

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5 See 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).

6 The 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

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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 of16 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 forinternational-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 languag e of the statute itself,”
United States v. Ron Pair Enterprises, Inc. , 489 U. S. 235,13 Cite as: 584 U. S. ____ (2018)

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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 Congresscreates 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 Re

public 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 ofthe Judiciary Act of 1789 as what is now the ATS, Congress provided the federal distri ct courts with jurisdiction14 JESNER v. ARAB BANK, PLC

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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 acce pted 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 oneof 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 wi th the potential for serious diplomatic consequences, and Congress had no good rea­15 Cite as: 584 U. S. ____ (2018)

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son to limit the set of possible defendants in such actionsto 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 isnot 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 RioGrande Land and Irrigation Company, for violating provisions of a treaty between the United States and Mexico).

D

In his concurrence, J USTICE G ORSUCH 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, J USTICE G ORSUCH 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 judg

ment). Modern ATS cases, however, are not being litigated against a blank slate. The Court held in Sosa that Con­16 JESNER v. ARAB BANK, PLC

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, 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 conten t 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 G ORSUCH

, 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 nat ions” 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 continue d to develop. If Congress

intended to limit such cases to violations of safe conduct, assaults against ambassadors, piracy, and—as J USTICE G ORSUCH suggests may have been the case—“ ‘personal injuries that US citizens inf licted 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 bypractice, or ascertained by the treaties of nations at different periods. It does not follow . . . that because a principlecannot 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 (B REYER , J., concurring in judgment). Torturers and those17 Cite as: 584 U. S. ____ (2018)

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who commit genocide are now fairly viewed, like pirates,
as “common enemies of all mankind.” Id., at 131 (internalquotation marks omitted). On remand, the Court of Appeals would decide whether th e financiers of terrorism are
the same. The fact that few norms have overcome Sosa ’shigh hurdle is strong evidence that the carefully considered standard set forth in that case is generating exactlythe 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 aliensbased solely on a violation of the law of nations. It contends that ATS suits between aliens fall under neither the federal courts’ diversity juri sdiction 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 “limit ed 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 would18 JESNER v. ARAB BANK, PLC

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, 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 (B REYER , 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 internationalfriction, 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.19 Cite as: 584 U. S. ____ (2018)

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II
At its second step, Sosa cautions that courts shouldconsider 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 ATSactions. 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 forevents 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 co ntention, “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 sued20 JESNER v. ARAB BANK, PLC

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, 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 gr ievance 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 offi

cials ” (emphasis in original)); id., at 41 (“[A]iding and abetting suits under the ATS have given plaintiffs ‘a clear means for effectively circumv enting’ 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 “u se corporations as surrogatedefendants 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 violat ions asserted against corpora

tions 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 fore ign-policy tensions inherent21 Cite as: 584 U. S. ____ (2018)

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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 specific ally 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 domesticlegal 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 Truthand 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 extraterritorialcivil jurisdiction arising out of aliens’ claims against foreign defendants for alleged fore ign 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 pres ents foreign-policy concerns justifying immunity for all corporations in all ATS suits irrespective of

circumstance. ­22 JESNER v. ARAB BANK, PLC

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, J., dissenting

Kingdom of Great Britain and Northern Ireland et al. as
Amici Curiae in No. 10–1491, p. 3 (“The Governmentsremain deeply concerned about . . . suits by foreign plaintiffs against foreign defendant s 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 directl y to the friction’s source. See Tr. of Oral. Arg. 28 (ack nowledging 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 questio ns 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 (B REYER

, J., concurring in judgment); Sosa

, 542 U. S., at 733, n. 21. Several of these doctrines might be implicated in thiscase, and I would remand for the Second Circuit to address them in the first instance. 8 The majority, however,

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8 For instance, the alleged conduct might not sufficiently touch andconcern the United States to displace the presumption against extraterritoriality; the prohibition on terrorism financing might not be a23 Cite as: 584 U. S. ____ (2018)

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, 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 responsibili ty 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 asse rted direct, rather than vicarious, liability against respondent. A suit based on only vicarious liability may raise different questions not presented here.

9 The 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

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, 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 th e ability to recover from acorporation 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 inon 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 disturba 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 be25 Cite as: 584 U. S. ____ (2018)

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, J., dissenting

defendants in ATS actions.

2
The plurality instead purpo rts 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 re ason 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 has26 JESNER v. ARAB BANK, PLC

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, 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 theremedy 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’ argu ment 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

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10 The 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 have27 Cite as: 584 U. S. ____ (2018)

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, 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, mor eover, 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 causeof 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-normbasis, and that courts should do the same when considering whether to permit causes of action against corpora­

—————— been in conflict with the FSIA.

11 Petitioners may be right that Congress limited liability under the TVPA to natural persons to harmoniz e the statute with the FSIA. That Congress thought it necessary to achieve that goal by foreclosing liability against all organizational de fendants, 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

S OTOMAYOR

, 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 made29 Cite as: 584 U. S. ____ (2018)

S OTOMAYOR

, 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 ar e other grounds on which asuit 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 su it for torture; the latter contributes to the uptake of international human rights30 JESNER v. ARAB BANK, PLC

S OTOMAYOR

, 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 inte rnational tension with which the First Congress was concerned. Consider again theassault 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, considerpiracy. If a corporation owned a fleet of vessels and directed them to seize other ship s 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 lesslikely 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

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12 Counsel for Arab Bank acknowledg ed 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 obli gatory 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”).31 Cite as: 584 U. S. ____ (2018)

S OTOMAYOR

, 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

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13 J USTICE A LITO , adopting a more absolutist position than the plurality, asserts without qualification that “f ederal courts should not create causes of action under the ATS against foreign corporate defendants” because doing so “would precipit ate . . . 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-of

nations and treaty violations always will cause diplomat ic 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 corporatio ns 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 und er the ATS. The United States
also has ratified several internatio nal 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 authoriz ed 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.

J USTICE A LITO 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 corpora

tion solely because of the defendan t’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), vacate d 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

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, J., dissenting

of their employees and subsidiaries around the world,” aprospect 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 extra territorial 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 allforeign corporations, not just those cases with extraterritorial dimensions premised on an aiding and abetting theory.

* * *

In sum, international law establishes what conductviolates 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 dete rmines whether corporationsmay, as a general matter, be held liable in tort for law-ofnations violations. Applying that framework here, I wouldhold 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 ATS33 Cite as: 584 U. S. ____ (2018)

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, 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 Membersof 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 corpora

tions 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 corporationswield 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, but34 JESNER v. ARAB BANK, PLC

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, 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.

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14 See, e.g., Nahimana v. Prosecutor , Case No. ICTR 99–52–A, Appeals Judgment ¶176 (Nov. 28, 2007) (upholding finding that the RTLM
Collines broadcasts “contr ibuted 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 da ta from Rwanda to estimate that
the RTLM’s transmissions caused 10 percent of the total participation in the genocide).