05 Jesner v. Arab Bank PLC

No.
16-499
SUPREME COURT OF THE UNITED STATES
Jesner v. Arab Bank, PLC

138 S. Ct. 1386 (2018) • 200 L. Ed. 2d 612
Decided Apr 24, 2018
No. 16–499.
04-24-2018
Joseph JESNER, et al., Petitioners v. ARAB BANK, PLC.
Jeffrey L. Fisher, Stanford, CA, for Petitioners. Brian H. Fletcher, for the United States as amicus curiae, by
special leave of the Court, supporting neither party. Paul D. Clement, Washington, DC, for Respondent.
Michael E. Elsner, John M. Eubanks, Jodi Westbrook Flowers, Motley Rice LLC, Mt. Pleasant, SC, Mark
Werbner, Sayles Werbner P.C., Dallas, TX, Jeffrey L. Fisher, David T. Goldberg, Pamela S. Karlan, Jenny S.
Martinez, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, for Petitioners. Jonathan
Siegfried, Kevin Walsh, Douglas W. Mateyaschuk, DLA Piper LLP (US), New York, NY, Paul D. Clement,
Erin E. Murphy, Edmund G. LaCour Jr., Andrew C. Lawrence, Kirkland & Ellis LLP, Washington, DC, for
Respondent.
Jeffrey L. Fisher, Stanford, CA, for Petitioners.
Brian H. Fletcher, for the United States as amicus curiae, by special leave of the Court, supporting neither
party.
Paul D. Clement, Washington, DC, for Respondent.
Michael E. Elsner, John M. Eubanks, Jodi Westbrook Flowers, Motley Rice LLC, Mt. Pleasant, SC, Mark
Werbner, Sayles Werbner P.C., Dallas, TX, Jeffrey L. Fisher, David T. Goldberg, Pamela S. Karlan, Jenny S.
Martinez, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, for Petitioners.
Jonathan Siegfried, Kevin Walsh, Douglas W. Mateyaschuk, DLA Piper LLP (US), New York, NY, Paul D.
Clement, Erin E. Murphy, Edmund G. LaCour Jr., Andrew C. Lawrence, Kirkland & Ellis LLP, Washington,
DC, for Respondent.
Justice KENNEDY announced the judgment of the Court and delivered the opinion of the Court with respect to
Parts I, II–B–1, and II–C, and an opinion with respect to Parts II–A, II–B–2, II–B–3, and III, in which THE
CHIEF JUSTICE and Justice THOMAS join.
Petitioners in this case, or the persons on whose behalf petitioners now assert claims, allegedly were injured or
killed by terrorist acts committed abroad. Those terrorist acts, it is contended, were in part caused or facilitated
by a foreign corporation. Petitioners now seek to impose liability on the foreign corporation for the conduct of
1
Jesner v. Arab Bank, PLC 138 S. Ct. 1386 (2018)
its human agents, including its then-chairman and other high-ranking management officials. The suits were
filed in a United States District Court under the Alien Tort Statute, commonly referred to as the ATS. See 28
U.S.C. § 1350.
The foreign corporation charged with liability in these ATS suits is Arab Bank, PLC; and it is respondent here.
Some of Arab Bank's officials, it is alleged, allowed the Bank to be used to transfer funds to terrorist groups in
the Middle East, which in turn enabled or facilitated criminal acts of terrorism, causing the deaths or injuries
for which petitioners now seek compensation. Petitioners seek to prove Arab Bank helped the terrorists receive
the moneys in part by means of currency clearances and bank transactions passing through its New York City
offices, all by means of electronic transfers.
1394 It is assumed here that those individuals who inflicted death or injury by terrorism *1394 committed crimes in
violation of well-settled, fundamental precepts of international law, precepts essential for basic human-rights
protections. It is assumed as well that individuals who knowingly and purposefully facilitated banking
transactions to aid, enable, or facilitate the terrorist acts would themselves be committing crimes under the
same international-law prohibitions.
Petitioners contend that international and domestic laws impose responsibility and liability on a corporation if
its human agents use the corporation to commit crimes in violation of international laws that protect human
rights. The question here is whether the Judiciary has the authority, in an ATS action, to make that
determination and then to enforce that liability in ATS suits, all without any explicit authorization from
Congress to do so.
The answer turns upon the proper interpretation and implementation of the ATS. The statute provides: "The
district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United States." § 1350. The Court must first ask whether the
law of nations imposes liability on corporations for human-rights violations committed by its employees. The
Court must also ask whether it has authority and discretion in an ATS suit to impose liability on a corporation
without a specific direction from Congress to do so.
Petitioners are plaintiffs in five ATS lawsuits filed against Arab Bank in the United States District Court for the
Eastern District of New York. The suits were filed between 2004 and 2010.
A significant majority of the plaintiffs in these lawsuits—about 6,000 of them—are foreign nationals whose
claims arise under the ATS. These foreign nationals are petitioners here. They allege that they or their family
members were injured by terrorist attacks in the Middle East over a 10–year period. Two of the five lawsuits
also included claims brought by American nationals under the Anti–Terrorism Act, 18 U.S.C. § 2333(a), but
those claims are not at issue.
Arab Bank is a major Jordanian financial institution with branches throughout the world, including in New
York. According to the Kingdom of Jordan, Arab Bank "accounts for between one-fifth and one-third of the
total market capitalization of the Amman Stock Exchange." Brief for Hashemite Kingdom of Jordan as Amicus
Curiae 2. Petitioners allege that Arab Bank helped finance attacks by Hamas and other terrorist groups. Among
other claims, petitioners allege that Arab Bank maintained bank accounts for terrorists and their front groups
and allowed the accounts to be used to pay the families of suicide bombers.
2
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 dollar-denominated transactions through the Clearing House
Interbank Payments System. That elaborate system is commonly referred to as CHIPS. It is alleged that some
of these CHIPS transactions benefited terrorists.
Foreign banks often use dollar-clearing transactions to facilitate currency exchanges or to make payments in
dollars from one foreign bank account to another. Arab Bank and certain amici point out that CHIPS
1395 transactions are enormous both in volume and in dollar amounts. The transactions occur predominantly in *1395
the United States but are used by major banks both in the United States and abroad. The CHIPS system is used
for dollar-denominated transactions and for transactions where the dollar is used as an intermediate currency to
facilitate a currency exchange. Brief for Institute of International Bankers as Amicus Curiae 12–13, and n. 8. In
New York each day, on average, about 440,000 of these transfers occur, in dollar amounts totaling about $1.5
trillion. Id., at 14. The "clearance activity is an entirely mechanical function; it occurs without human
intervention in the proverbial 'blink of an eye.' " Ibid. There seems to be no dispute that the speed and volume
of these transactions are such that individual supervision is simply not a systemic reality. As noted below,
substantial regulations govern these transactions, both in the United States and in Jordan.
In addition to the dollar-clearing transactions, petitioners allege that Arab Bank's New York branch was used to
launder money for the Holy Land Foundation for Relief and Development (HLF), a Texas-based charity that
petitioners say is affiliated with Hamas. According to petitioners, Arab Bank used its New York branch to
facilitate the transfer of funds from HLF to the bank accounts of terrorist-affiliated charities in the Middle East.
During the pendency of this litigation, there was an unrelated case that also implicated the issue whether the
ATS is applicable to suits in this country against foreign corporations. See Kiobel v. Royal Dutch Petroleum
Co., 621 F.3d 111 (C.A.2 2010). That suit worked its way through the trial court and the Court of Appeals for
the Second Circuit. The Kiobel litigation did not involve banking transactions. Its allegations were that holding
companies incorporated in the Netherlands and the United 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, 132 S.Ct. 472, 181 L.Ed.2d 292 (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, 133
S.Ct. 1659, 185 L.Ed.2d 671 (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, 133 S.Ct. 1659. Dismissal of the
action was required based on the presumption against extraterritorial application of statutes.
So while this Court in Kiobel affirmed the ruling that the action there could not be maintained, it did not
address the broader holding of the Court of Appeals that dismissal was required because corporations may not
be sued under the ATS. Still, the courts of the Second Circuit deemed that broader holding to be binding
precedent. As a consequence, in the instant case the District Court dismissed petitioners' ATS claims based on
the earlier Kiobel holding in the Court of Appeals; and on review of the dismissal order the Court of Appeals,
also adhering to its earlier holding, affirmed. In re Arab Bank, PLC Alien Tort Statute Litigation, 808 F.3d 144
(2015). This Court granted certiorari in the instant case. 581 U.S. ––––, 137 S.Ct. 1432, 197 L.Ed.2d 646
(2017).
3
Since the Court of Appeals relied on its Kiobel holding in the instant case, it is instructive to begin with an
1396 analysis of that decision. The majority opinion in *1396 Kiobel, written by Judge Cabranes, held that the ATS
does not apply to alleged international-law violations by a corporation. 621 F.3d, at 120. Judge Cabranes relied
in large part on the fact that international criminal tribunals have consistently limited their jurisdiction to
natural persons. Id., at 132–137.
Judge Leval filed a separate opinion. He concurred in the judgment on other grounds but disagreed with the
proposition that the foreign corporation was not subject to suit under the ATS. Id., at 196. Judge Leval
conceded that "international law, of its own force, imposes no liabilities on corporations or other private
juridical entities." Id., at 186. But he reasoned that corporate liability for violations of international law is an
issue of "civil compensatory liability" that international law leaves to individual nations. Ibid. Later decisions
in the Courts of Appeals for the Seventh, Ninth, and District of Columbia Circuits agreed with Judge Leval and
held that corporations can be subject to suit under the ATS. See Flomo v. Firestone Nat. Rubber Co., 643 F.3d
1013, 1017–1021 (C.A.7 2011) ; Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1020–1022 (C.A.9 2014) ; Doe VIII
v. Exxon Mobil Corp., 654 F.3d 11, 40–55 (C.A.D.C.2011), vacated on other grounds, 527 Fed.Appx. 7
(C.A.D.C.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.
Under the Articles of Confederation, the Continental Congress lacked authority to " 'cause infractions of
treaties, or of the law of nations to be punished.' " Sosa v. Alvarez–Machain, 542 U.S. 692, 716, 124 S.Ct. 2739,
159 L.Ed.2d 718 (2004) (quoting J. Madison, Journal of the Constitutional Convention 60 (E. Scott ed. 1893)).
The Continental Congress urged the States to authorize suits for damages sustained by foreign 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, 124 S.Ct. 2739.
Under the Articles of Confederation, the inability of the central government to ensure adequate remedies for
foreign citizens caused substantial foreign-relations problems. In 1784, the French Minister lodged a protest
with the Continental Congress after a French adventurer, the Chevalier de Longchamps, assaulted the Secretary
of the French Legation in Philadelphia. See Kiobel, 569 U.S., at 120, 133 S.Ct. 1659. A few years later, a New
York constable caused an international incident when he entered the house of the Dutch Ambassador and
arrested one of his servants. Ibid. Under the Articles of Confederation, there was no national forum available to
resolve disputes like these under any binding laws that were or could be enacted or enforced by a central
government.
The Framers addressed these matters at the 1787 Philadelphia Convention; and, as a result, Article III of the
Constitution extends the federal judicial power to "all cases affecting ambassadors, other public ministers and
consuls," and "to controversies ... between a state, or the citizens thereof, and foreign states, citizens, or
subjects." § 2. The First Congress passed a statute to implement these provisions: The Judiciary Act of 1789
1397 authorized federal jurisdiction over suits involving disputes between aliens and United States *1397 citizens and
suits involving diplomats. §§ 9, 11, 1 Stat. 76–79.
4
The Judiciary Act also included what is now the statute known as the ATS. § 9, id., at 76. As noted, the ATS is
central to this case and its brief text bears repeating. Its full text is: "The district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a
treaty of the 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, 124 S.Ct. 2739. But the statute was not
enacted to sit on a shelf awaiting further legislation. Id., at 714, 124 S.Ct. 2739. Rather, Congress enacted it
against the backdrop of the general common law, which in 1789 recognized a limited category of "torts in
violation of the law of nations." Ibid.
In the 18th century, international law primarily governed relationships between and among nation-states, but in
a few instances it governed individual conduct occurring outside national borders (for example, "disputes
relating to prizes, to shipwrecks, to hostages, and ransom bills"). Id ., at 714–715, 124 S.Ct. 2739 (internal
quotation marks omitted). There was, furthermore, a narrow domain in which "rules binding individuals for the
benefit of other individuals overlapped with" the rules governing the relationships between nation-states. Id., at
715, 124 S.Ct. 2739. 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, 124 S.Ct. 2739.
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, 124 S.Ct. 2739. The principal objective of the statute,
when first enacted, was to avoid foreign entanglements by ensuring the availability of a federal forum where
the failure to provide one might cause another nation to hold the United States responsible for an injury to a
foreign citizen. See id., at 715–719, 124 S.Ct. 2739 ; Kiobel, 569 U.S., at 123–124, 133 S.Ct. 1659.
Over the first 190 years or so after its enactment, the ATS was invoked but a few times. Yet with the evolving
recognition—for instance, in the Nuremberg trials after World War II—that certain acts constituting crimes
against humanity are in violation of basic precepts of international law, courts began to give some redress for
violations of international human-rights protections that are clear and unambiguous. In the modern era this
began with the decision of the Court of Appeals for the Second Circuit in Filartiga v. Pena–Irala, 630 F.2d 876
(1980).
In Filartiga, it was alleged that a young man had been tortured and murdered by Paraguayan police officers,
and that an officer named Pena–Irala was one of the supervisors and perpetrators. Some members of the
victim's family were in the United States on visas. When they discovered that Pena–Irala himself was living in
New York, they filed suit against him. The action, seeking damages for the suffering and death he allegedly had
1398 caused, *1398 was filed in the United States District Court for the Eastern District of New York. The Court of
Appeals found that there was jurisdiction under the ATS. For this holding it relied upon the universal
acknowledgment that acts of official torture are contrary to the law of nations. Id., at 890. This Court did not
review that decision.
In the midst of debates in the courts of appeals over whether the court in Filartiga was correct in holding that
plaintiffs could bring ATS actions based on modern human-rights laws absent an express cause of action
created by an additional statute, Congress enacted the Torture Victim Protection Act of 1991 (TVPA), 106 Stat.
5
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 (C.A.D.C.1984) ); S. Rep. No. 102–249, pp. 3–5 (1991) (S. Rep.) (same).
The TVPA—which is codified as a note following the ATS—creates an express cause of action for victims of
torture and extrajudicial killing in violation of international law.
After Filartiga and the TVPA, ATS lawsuits became more frequent. Modern ATS litigation has the potential to
involve large groups of foreign plaintiffs suing foreign corporations in the United States for alleged human-
rights violations in other nations. For example, in Kiobel the plaintiffs were Nigerian nationals who sued
Dutch, British, and Nigerian corporations for alleged crimes in Nigeria. 569 U.S., at 111–112, 133 S.Ct. 1659.
The extent and scope of this litigation in United States courts have resulted in criticism here and abroad. See
id., at 124, 133 S.Ct. 1659 (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, 124 S.Ct. 2739. The Sosa Court acknowledged the decisions made in
Filartiga and similar cases; and it held that in certain narrow circumstances courts may recognize a common-
law cause of action for claims based on the present-day law of nations, in addition to the "historical paradigms
familiar when § 1350 was enacted." 542 U.S., at 732, 124 S.Ct. 2739. The Court was quite explicit, however, in
holding that ATS litigation implicates serious separation-of-powers and foreign-relations concerns. Id., at 727–
728, 124 S.Ct. 2739. Thus, ATS claims must be "subject to vigilant doorkeeping." Id., at 729, 124 S.Ct. 2739.
This Court next addressed the ATS in Kiobel, the case already noted. There, this Court held that "the
presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts the
presumption." 569 U.S., at 124, 133 S.Ct. 1659. The Court added that "even where the claims touch and
concern the territory of the United States, they must do so with sufficient force to displace the presumption
against extraterritorial application." Id., at 124–125, 133 S.Ct. 1659.
II
With these principles in mind, this Court now must decide whether common-law liability under the ATS
extends to a foreign corporate defendant. It could be argued, under the Court's holding in Kiobel, that even if,
under accepted principles of international law and federal common law, corporations are subject to ATS
liability for human-rights crimes committed by their human agents, in this case the activities of the defendant
corporation and the alleged actions of its employees have insufficient connections to the United States to
1399 subject it to jurisdiction under the ATS. Various *1399 amici urge this as a rationale to affirm here, while the
Government argues that the Court should remand this case so the Court of Appeals can address the issue in the
first instance. There are substantial arguments on both sides of that question; but it is not the question on which
this Court granted certiorari, nor is it the question that has divided the Courts of Appeals.
The question whether foreign corporations are subject to liability under the ATS should be addressed; for, if
there is no liability for Arab Bank, the lengthy and costly litigation concerning whether corporate contacts like
those alleged here suffice to impose liability would be pointless. In addition, a remand to the Court of Appeals
would require prolonging litigation that already has caused significant diplomatic tensions with Jordan for more
than a decade. So it is proper for this Court to decide whether corporations, or at least foreign corporations, are
subject to liability in an ATS suit filed in a United States district court.
6
Before recognizing a common-law action under the ATS, federal courts must apply the test announced in Sosa .
An initial, threshold question is whether a plaintiff can demonstrate that the alleged violation is "of a norm that
is specific, universal, and obligatory." 542 U.S., at 732, 124 S.Ct. 2739 (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, 124 S.Ct. 2739. "[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,
124 S.Ct. 2739.
It must be said that some of the considerations that pertain to determining whether there is a specific, universal,
and obligatory norm that is established under international law are applicable as well in determining whether
deference must be given to the political branches. For instance, the fact that the charters of some international
tribunals and the provisions of some congressional statutes addressing international human-rights violations are
specifically limited to individual wrongdoers, and thus foreclose corporate liability, has significant bearing both
on the content of the norm being asserted and the question whether courts should defer to Congress. The two
inquiries inform each other and are, to that extent, not altogether discrete.
With that introduction, it is proper now to turn first to the question whether there is an international-law norm
imposing liability on corporations for acts of their employees that contravene fundamental human rights.
Petitioners and Arab Bank disagree as to whether corporate liability is a question of international law or only a
question of judicial authority and discretion under domestic law. The dispute centers on a footnote in Sosa . In
the course of holding that international norms must be "sufficiently definite to support a cause of action," the
Court in Sosa noted that a "related consideration is whether international law extends the scope of liability for a
1400 violation of a given norm to the perpetrator being sued, if the defendant is a private actor *1400 such as a
corporation or individual." Id ., at 732, and n. 20, 124 S.Ct. 2739.
In the Court of Appeals' decision in Kiobel, the majority opinion by Judge Cabranes interpreted footnote 20 to
mean that corporate defendants may be held liable under the ATS only if there is a specific, universal, and
obligatory norm that corporations are liable for violations of international law. 621 F.3d, at 127. In Judge
Cabranes' view, "[i]nternational law is not silent on the question of the subjects of international law—that is,
those that, to varying extents, have legal status, personality, rights, and duties under international law," "[n]or
does international law leave to individual States the responsibility of defining those subjects." Id., at 126
(internal quotation marks omitted). There is considerable force and weight to the position articulated by Judge
Cabranes. And, assuming the Court of Appeals was correct that under Sosa corporate liability is a question of
international law, there is an equally strong argument that petitioners cannot satisfy the high bar of
demonstrating a specific, universal, and obligatory norm of liability for corporations. Indeed, Judge Leval
agreed with the conclusion that international law does "not provide for any form of liability of corporations."
Kiobel, 621 F.3d, at 186.
7
In modern times, there is no doubt, of course, that "the international community has come to recognize the
common danger posed by the flagrant disregard of basic human rights," leading "the nations of the world to
recognize that respect for fundamental human rights is in their individual and collective interest." Filartiga, 630
F.2d, at 890. That principle and commitment support the conclusion that human-rights norms must bind the
individual men and women responsible for committing humanity's most terrible crimes, not just nation-states in
their interactions with one another. "The singular achievement of international law since the Second World War
has come in the area of human rights," where international law now imposes duties on individuals as well as
nation-states. Kiobel, 621 F.3d, at 118.
It does not follow, however, that current principles of international law extend liability—civil or criminal—for
human-rights violations to corporations or other artificial entities. This is confirmed by the fact that the charters
of respective international criminal tribunals often exclude corporations from their jurisdictional reach.
The Charter for the Nuremberg Tribunal, created by the Allies after World War II, provided that the Tribunal
had jurisdiction over natural persons only. See Agreement for Prosecution and Punishment of Major War
Criminals of the European Axis, Art. 6, Aug. 8, 1945, 59 Stat. 1547, E.A.S. 472. Later, a United States Military
Tribunal prosecuted 24 executives of the German corporation IG Farben. 7 Trials of War Criminals Before the
Nuernberg Military Tribunals Under Control Council Law No. 10, pp. 11–60 (1952) (The Farben Case ).
Among other crimes, Farben's employees had operated a slave-labor camp at Auschwitz and "knowingly and
intentionally manufactured and provided" the poison gas used in the Nazi death chambers. Kiobel, 621 F.3d, at
135. Although the Military Tribunal "used the term 'Farben' as descriptive of the instrumentality of cohesion in
the name of which" the crimes were committed, the Tribunal noted that "corporations act through individuals."
8 The Farben Case, at 1153. Farben itself was not held liable. See ibid.
The jurisdictional reach of more recent international tribunals also has been limited to "natural persons." See
1401 Statute of the International Criminal Tribunal for the *1401 Former Yugoslavia, S.C. Res. 827 (May 25, 1993),
adopting U.N. Secretary–General Rep. Pursuant to Paragraph 2 of Security Council Resolution 808, Art. 6,
U.N. Doc. S/25704 (May 3, 1993); Statute of the International Tribunal for Rwanda, Art. 5, S.C. Res. 955, Art.
5 (Nov. 8, 1994). The Rome Statute of the International Criminal Court, for example, limits that tribunal's
jurisdiction to "natural persons." See Rome Statute of the International Criminal Court, Art. 25(1), July 17,
1998, 2187 U.N.T.S. 90. The drafters of the Rome Statute considered, but rejected, a proposal to give the
International Criminal Court jurisdiction over corporations. Eser, Individual Criminal Responsibility, in 1
Rome Statute of the International Criminal Court 767, 778–779 (A. Cassese et al. eds. 2002).
The international community's conscious decision to limit the authority of these international tribunals to
natural persons counsels against a broad holding that there is a specific, universal, and obligatory norm of
corporate liability under currently prevailing international law.
In light of the sources just discussed, the sources petitioners rely on to support their contention that liability for
corporations is well established as a matter of international law lend weak support to their position.
Petitioners first point to the International Convention for the Suppression of the Financing of Terrorism. This
Convention imposes an obligation on "Each State Party" "to enable a legal entity located in its territory or
organized under its laws to be held liable when a person responsible for the management or control of that legal
entity has, in that capacity," violated the Convention. International Convention for the Suppression of the
Financing of Terrorism, Dec. 9, 1999, S. Treaty Doc. No. 106–49, 2178 U.N.T.S. 232. But by its terms the
8
Convention imposes its obligations only on nation-states "to enable" corporations to be held liable in certain
circumstances under domestic law. The United States and other nations, including Jordan, may fulfill their
obligations under the Convention by adopting detailed regulatory regimes governing financial institutions. See,
e.g., 18 U.S.C. § 2333(a) (private right of action under the Anti–Terrorism Act); 31 U.S.C. § 5311 et seq. (Bank
Secrecy Act); 31 C.F.R. pt. 595 (2017) (Terrorism Sanctions Regulations); Brief for Central Bank of Jordan as
Amicus Curiae 5 (describing Jordan's "comprehensive approach to preventing money laundering and terrorist
financing"). The Convention neither requires nor authorizes courts, without congressional authorization, to
displace those detailed regulatory regimes by allowing common-law actions under the ATS. And nothing in the
Convention's text requires signatories to hold corporations liable in common-law tort actions raising claims
under international law.
In addition, petitioners and their amici cite a few cases from other nations and the Special Tribunal for Lebanon
that, according to petitioners, are examples of corporations being held liable for violations of international law.
E.g., Brief for Petitioners 50–51. Yet even assuming that these cases are relevant examples, at most they
demonstrate that corporate liability might be permissible under international law in some circumstances. That
falls far short of establishing a specific, universal, and obligatory norm of corporate liability.
It must be remembered that international law is distinct from domestic law in its domain as well as its
objectives. International human-rights norms prohibit acts repugnant to all civilized peoples—crimes like
1402 genocide, torture, and slavery, *1402 that make their perpetrators "enem[ies] of all mankind." Sosa, 542 U.S., at
732, 124 S.Ct. 2739 (internal quotation marks omitted). In the American legal system, of course, corporations
are often subject to liability for the conduct of their human employees, and so it may seem necessary and
natural that corporate entities are liable for violations of international law under the ATS. It is true, furthermore,
that the enormity of the offenses that can be committed against persons in violation of international human-
rights protections can be cited to show that corporations should be subject to liability for the crimes of their
human agents. But the international community has not yet taken that step, at least in the specific, universal,
and obligatory manner required by Sosa . Indeed, there is precedent to the contrary in the statement during the
Nuremberg proceedings that "[c]rimes against international law are committed by men, not by abstract entities,
and only by punishing individuals who commit such crimes can the provisions of international law be
enforced." The Nurnberg Trial, 6 F.R.D. 69, 110 (1946).
Petitioners also contend that international law leaves questions of remedies open for determination under
domestic law. As they see it, corporate liability is a remedial consideration, not a substantive principle that must
be supported by a universal and obligatory norm if it is to be implemented under the ATS. According to
petitioners, footnote 20 in Sosa does no more than recognize the distinction in international law between state
and private actors. But, as just explained, there is a similar distinction in international law between corporations
and natural persons. And it is far from obvious why the question whether corporations may be held liable for
the international crimes of their employees is a mere question of remedy.
In any event, the Court need not resolve the questions whether corporate liability is a question that is governed
by international law, or, if so, whether international law imposes liability on corporations. There is at least
sufficient doubt on the point to turn to Sosa 's second question—whether the Judiciary must defer to Congress,
allowing it to determine in the first instance whether that universal norm has been recognized and, if so,
whether it is prudent and necessary to direct its enforcement in suits under the ATS.
9
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,
124 S.Ct. 2739 (citing Correctional Services Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d
456 (2001) ; Alexander v. Sandoval, 532 U.S. 275, 286–287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (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. ––––, ––––, 137 S.Ct. 1843, 1857, 198 L.Ed.2d
290 (2017) (internal quotation marks omitted). Thus, "if there are sound reasons to think Congress might doubt
the efficacy or necessity of a damages remedy, ... courts must refrain from creating the remedy in order to
respect the role of Congress." Id., at ––––, 137 S.Ct., at 1858.
1403 This caution extends to the question whether the courts should exercise the *1403 judicial authority to mandate a
rule that imposes liability upon artificial entities like corporations. Thus, in Malesko the Court held that
corporate defendants may not be held liable in Bivens actions. See Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Allowing corporate liability would have been a
"marked extension" of Bivens that was unnecessary to advance its purpose of holding individual officers
responsible for "engaging in unconstitutional wrongdoing." Malesko, 534 U.S., at 74, 122 S.Ct. 515. Whether
corporate defendants should be subject to suit was "a question for Congress, not us, to decide." Id., at 72, 122
S.Ct. 515.
Neither the language of the ATS nor the precedents interpreting it support an exception to these general
principles in this context. In fact, the separation-of-powers concerns that counsel against courts creating private
rights of action apply with particular force in the context of the ATS. See infra, at 1406 – 1407. 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, 133 S.Ct. 1659. That the ATS implicates foreign relations "is itself a reason
for a high bar to new private causes of action for violating international law." Sosa, supra, at 727, 124 S.Ct.
2739.
In Sosa, the Court emphasized that federal courts must exercise "great caution" before recognizing new forms
of liability under the ATS. 542 U.S., at 728, 124 S.Ct. 2739. In light of the foreign-policy and separation-of-
powers concerns inherent in ATS litigation, there is an argument that a proper application of Sosa would
preclude courts from ever recognizing any new causes of action under the ATS. But the Court need not resolve
that question in this case. Either way, absent further action from Congress it would be inappropriate for courts
to extend ATS liability to foreign corporations.
Even in areas less fraught with foreign-policy consequences, the Court looks to analogous statutes for guidance
on the appropriate boundaries of judge-made causes of action. See, e.g., Miles v. Apex Marine Corp., 498 U.S.
19, 24, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) ; Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 736, 95
S.Ct. 1917, 44 L.Ed.2d 539 (1975). Doing so is even more important in the realm of international law, where
"the general practice has been to look for legislative guidance before exercising innovative authority over
substantive law." Sosa, supra, at 726, 124 S.Ct. 2739.
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.
10
Rep., at 3; S. Rep., at 4–5. Congress took care to delineate the TVPA's boundaries. In doing so, it could weigh
the foreign-policy implications of its rule. Among other things, Congress specified who may be liable, created
an exhaustion requirement, and established a limitations period. Kiobel, 569 U.S., at 117, 133 S.Ct. 1659. 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
1404 action under the ATS. Absent a compelling justification, courts should not deviate from that model.*1404 The
key feature of the TVPA for this case is that it limits liability to "individuals," which, the Court has held,
unambiguously limits liability to natural persons. Mohamad v. Palestinian Authority, 566 U.S. 449, 453–456,
132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). Congress' decision to exclude liability for corporations in actions
brought under the TVPA is all but dispositive of the present case. That decision illustrates that significant
foreign-policy implications require the courts to draw a careful balance in defining the scope of actions under
the ATS. It would be inconsistent with that balance to create a remedy broader than the one created by
Congress. Indeed, it "would be remarkable to take a more aggressive role in exercising a jurisdiction that
remained largely in shadow for much of the prior two centuries." Sosa, supra, at 726, 124 S.Ct. 2739.
According to petitioners, the TVPA is not a useful guidepost because Congress limited liability under that
statute to "individuals" out of concern for the sovereign immunity of foreign governmental entities, not out of
general hesitation about corporate liability under the ATS. The argument seems to run as follows: The TVPA
provides a right of action to victims of torture and extrajudicial killing, and under international law those
human-rights violations require state action. For a corporation's employees to violate these norms therefore
would require the corporation to be an instrumentality of a foreign state or other sovereign entity. That concern
is absent, petitioners insist, for crimes that lack a state-action requirement—for example, genocide, slavery, or,
in the present case, the financing of terrorists.
At least two flaws inhere in this argument. First, in Mohamad the Court unanimously rejected petitioners'
account of the TVPA's legislative history. 566 U.S., at 453, 458–460, 132 S.Ct. 1702. 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, 132 S.Ct. 1702 (citing Hearing and Markup on H.R. 1417 before the House Committee on
Foreign Affairs and Its Subcommittee on Human Rights and International Organizations, 100th Cong., 2d
Sess., 87–88 (1988)); see also 566 U.S., at 461–462, 132 S.Ct. 1702 (BREYER, J., concurring). Second, even
for international-law 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, 133 S.Ct. 1659 ; see also, e.g., Sarei v. Rio Tinto,
PLC, 671 F.3d 736, 761–763 (C.A.9 2011) (en banc) (corporate defendant allegedly used Papua New Guinea's
military to commit genocide), vacated and remanded, 569 U.S. 945, 133 S.Ct. 1995, 185 L.Ed.2d 863 (2013).
Petitioners contend that, instead of the TVPA, the most analogous statute here is the Anti–Terrorism Act. That
Act does permit suits against corporate entities. See 18 U.S.C. §§ 2331(3), 2333(d)(2). In fact, in these suits
some of the foreign plaintiffs joined their claims to those of United States nationals suing Arab Bank under the
Anti–Terrorism Act. But the Anti–Terrorism Act provides a cause of action only to "national[s] of the United
States," and their "estate, survivors, or heirs." § 2333(a). In contrast, the ATS is available only for claims
brought by "an alien." 28 U.S.C. § 1350. A statute that excludes foreign nationals (with the possible exception
of foreign survivors or heirs) is an inapt analogy for a common-law cause of action that provides a remedy for
1405 foreign nationals only.*1405 To the extent, furthermore, that the Anti–Terrorism Act is relevant it suggests that
there should be no common-law action under the ATS for allegations like petitioners'. Otherwise, foreign
11
plaintiffs could bypass Congress' express limitations on liability under the Anti–Terrorism Act simply by
bringing an ATS lawsuit. The Anti–Terrorism Act, as mentioned above, is part of a comprehensive statutory
and regulatory regime that prohibits terrorism and terrorism financing. The detailed regulatory structures
prescribed by Congress and the federal agencies charged with oversight of financial institutions reflect the
careful deliberation of the political branches on when, and how, banks should be held liable for the financing of
terrorism. It would be inappropriate for courts to displace this considered statutory and regulatory structure by
holding banks subject to common-law liability in actions filed under the ATS.
In any event, even if the Anti–Terrorism Act were a suitable model for an ATS suit, Congress' decision in the
TVPA to limit liability to individuals still demonstrates 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.
Other considerations relevant to the exercise of judicial discretion also counsel against allowing liability under
the ATS for foreign corporations, absent instructions from Congress to do so. It has not been shown that
corporate liability under the ATS is essential to serve the goals of the statute. As to the question of adequate
remedies, the ATS will seldom be the only way for plaintiffs to hold the perpetrators liable. See, e.g., 18 U.S.C.
§ 1091 (criminal prohibition on genocide); § 1595 (civil remedy for victims of slavery). And plaintiffs still can
sue the individual corporate employees responsible for a violation of international law under the ATS. If the
Court were to hold that foreign corporations have liability for international-law violations, then plaintiffs may
well ignore the human perpetrators and concentrate instead on multinational corporate entities.
As explained above, in the context of criminal tribunals international law itself generally limits liability to
natural persons. Although the Court need not decide whether the seeming absence of a specific, universal, and
obligatory norm of corporate liability under international law by itself forecloses petitioners' claims against
Arab Bank, or whether this is an issue governed by international law, the lack of a clear and well-established
international-law rule is of critical relevance in determining whether courts should extend ATS liability to
foreign corporations without specific congressional authorization to do so. That is especially so in light of the
TVPA's limitation of liability to natural persons, which parallels the distinction between corporations and
individuals in international law.
If, moreover, the Court were to hold that foreign corporations may be held liable under the ATS, that precedent-
setting principle "would imply that other nations, also applying the law of nations, could hale our
[corporations] into their courts for alleged violations of the law of nations." Kiobel, 569 U.S., at 124, 133 S.Ct.
1659. 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
1406 developing economies, where it is most needed." Brief for United *1406 States as Amicus Curiae in American
Isuzu Motors, Inc. v. Ntsebeza, O.T. 2007, No. 07–919, p. 20 (internal quotation marks omitted).
In other words, allowing plaintiffs to sue foreign corporations under the ATS could establish a precedent that
discourages American corporations from investing abroad, including in developing economies where the host
government might have a history of alleged human-rights violations, or where judicial systems might lack the
safeguards of United States courts. And, in consequence, that often might deter the active corporate investment
that contributes to the economic development that so often is an essential foundation for human rights.
12
It is also true, of course, that natural persons can and do use corporations for sinister purposes, including
conduct that violates international law. That the corporate form can be an instrument for inflicting grave harm
and suffering poses serious and complex questions both for the international community and for Congress. So
there are strong arguments for permitting the victims to seek relief from corporations themselves. Yet the
urgency and complexity of this problem make it all the more important that Congress determine whether
victims of human-rights abuses may sue foreign corporations in federal courts in the United States. Congress,
not the Judiciary, is the branch with "the facilities necessary to make fairly such an important policy decision
where the possibilities of international discord are so evident and retaliative action so certain." Kiobel, 569
U.S., at 116, 133 S.Ct. 1659 (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.
The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy
for international-law violations in circumstances where the absence of such a remedy might provoke foreign
nations to hold the United States accountable. Brief for United States as Amicus Curiae 7. But here, and in
similar cases, the opposite is occurring.
Petitioners are foreign nationals seeking hundreds of millions of dollars in damages from a major Jordanian
financial institution for injuries suffered in attacks by foreign terrorists in the Middle East. The only alleged
connections to the United States are the CHIPS transactions in Arab Bank's New York branch and a brief
allegation regarding a charity in Texas. The Court of Appeals did not address, and the Court need not now
decide, whether these allegations are sufficient to "touch and concern" the United States under Kiobel . See 569
U.S., at 124–125, 133 S.Ct. 1659.
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
multinational corporations like Arab Bank. For 13 years, this litigation has "caused significant diplomatic
tensions" with Jordan, a critical ally in one of the world's most sensitive regions. Brief for United States as
Amicus Curiae 30. "Jordan is a key counterterrorism partner, especially in the global campaign to defeat the
Islamic State in Iraq and Syria." Id., at 31. The United States explains that Arab Bank itself is "a constructive
1407 partner with the United States in working to prevent terrorist financing." Id., at 32 (internal *1407 quotation
marks omitted). Jordan considers the instant litigation to be a "grave affront" to its sovereignty. See Brief for
Hashemite Kingdom of Jordan as Amicus Curiae 3; see ibid. ("By exposing Arab Bank to massive liability, this
suit thus threatens to destabilize Jordan's economy and undermine its cooperation with the United States").
This is not the first time, furthermore, that a foreign sovereign has appeared in this Court to note its objections
to ATS litigation. Sosa, 542 U.S., at 733, n. 21, 124 S.Ct. 2739 (noting objections by the European Commission
and South Africa); Brief for the Federal Republic of Germany as Amicus Curiae in Kiobel v. Royal Dutch
Petroleum Co., O.T. 2012, No. 10–1491, p. 1; Brief for the Government of the United Kingdom of Great
Britain and Northern Ireland and the Kingdom of the Netherlands as Amici Curiae in No. 10–1491, p. 3. These
are the very foreign-relations tensions the First Congress sought to avoid.
Petitioners insist that whatever the faults of this litigation—for example, its tenuous connections to the United
States and the prolonged diplomatic disruptions it has caused—the fact that Arab Bank is a foreign corporate
entity, as distinct from a natural person, is not one of them. That misses the point. As demonstrated by this
13
litigation, foreign corporate defendants create unique problems. And courts are not well suited to make the
required policy judgments that are implicated by corporate liability in cases like this one.
Like the presumption against extraterritoriality, judicial caution under Sosa "guards against our courts
triggering ... serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the
political branches." Kiobel, 569 U.S., at 124, 133 S.Ct. 1659. If, in light of all the concerns that must be
weighed before imposing liability on foreign corporations via ATS suits, the Court were to hold that it has the
discretion to make that determination, then the cautionary language of Sosa would be little more than empty
rhetoric. Accordingly, the Court holds that foreign corporations may not be defendants in suits brought under
the ATS.
III
With the ATS, the First Congress provided a federal remedy for a narrow category of international-law
violations committed by individuals. Whether, more than two centuries on, a similar remedy should be
available against foreign corporations is similarly a decision that Congress must make.
The political branches can determine, referring to international law to the extent they deem proper, whether to
impose liability for human-rights violations upon foreign corporations in this Nation's courts, and, conversely,
that courts in other countries should be able to hold United States corporations liable. Congress might
determine that violations of international law do, or should, impose that liability to ensure that corporations
make every effort to deter human-rights violations, and so that, even when those efforts cannot be faulted,
compensation for injured persons will be a cost of doing business. If Congress and the Executive were to
determine that corporations should be liable for violations of international law, that decision would have special
power and force because it would be made by the branches most immediately responsive to, 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
1408 might conclude that neutral judicial safeguards may not be ensured in every country; and so, as a *1408
reciprocal matter, it could determine that liability of foreign corporations under the ATS should be subject to
some limitations or preconditions. Congress might deem this more careful course to be the best way to
encourage American corporations to undertake the extensive investments and foreign operations that can be an
important beginning point for creating the infrastructures that allow human rights, as well as judicial
safeguards, to emerge. These delicate judgments, involving a balance that it is the prerogative of the political
branches to make, especially in the field of foreign affairs, would, once again, also be entitled to special
respect, especially because those careful distinctions might themselves advance the Rule of Law. All this
underscores the important separation-of-powers concerns that require the Judiciary to refrain from making
these kinds of decisions under the ATS. The political branches, moreover, surely are better positioned than the
Judiciary to determine if corporate liability would, or would not, create special risks of disrupting good
relations with foreign governments.
Finally, Congress might find that corporate liability should be limited to cases where a corporation's
management was actively complicit in the crime. Cf. ALI, Model Penal Code § 2.07(1)(c) (1985) (a
corporation may be held criminally liable where "the commission of the offense was authorized, requested,
commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting
on behalf of the corporation within the scope of his office or employment"). Again, the political branches are
better equipped to make the preliminary findings and consequent conclusions that should inform this
determination.
14
These and other considerations that must shape and instruct the formulation of principles of international and
domestic law are matters that the political branches are in the better position to define and articulate. For these
reasons, judicial deference requires that any imposition of corporate liability on foreign corporations for
violations of international law must be determined in the first instance by the political branches of the
Government.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice THOMAS, concurring.
I join the Court's opinion in full because it correctly applies our precedents. I also agree with the points raised
by my concurring colleagues. Courts should not be in the business of creating new causes of action under the
Alien Tort Statute, see post, at 1412 – 1414 (GORSUCH, J., concurring in part and concurring in judgment),
especially when it risks international strife, see post, at 1408 (ALITO, J., concurring in part and concurring in
judgment). And the Alien Tort Statute likely does not apply to suits between foreign plaintiffs and foreign
defendants. See post, at 1414 – 1419 (opinion of GORSUCH, J.).
Justice ALITO, concurring in part and concurring in the judgment.
Creating causes of action under the Alien Tort Statute against foreign corporate defendants would precipitate
exactly the sort of diplomatic strife that the law was enacted to prevent. As a result, I agree with the Court that
we should not take that step, and I join Parts I, II–B–1, and II–C of the opinion of the Court. I write separately
to elaborate on why that outcome is compelled not only by "judicial caution," ante, at 1407 (majority opinion),
1409 but also by the separation of powers.*1409 I
The ATS is a jurisdictional statute. It provides that "[t]he district courts shall have original jurisdiction of any
civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United
States." 28 U.S.C. § 1350. By its terms, the ATS does not create any causes of action.
In Sosa v. Alvarez–Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), however, this Court
nevertheless held that federal courts, exercising their authority in limited circumstances to make federal
common law, may create causes of action that aliens may assert under the ATS. That holding takes some
explaining.
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, 124 S.Ct. 2739. That assumption, however,
depended on the continued existence of the general common law. And in 1938—a century and a half after
Congress enacted the ATS—this Court rejected the "fallacy" underlying the general common law, declaring
definitively that "[t]here is no federal general common law." Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 79, 58
S.Ct. 817, 82 L.Ed. 1188 (1938). That left the ATS in an awkward spot: Congress had not created any causes of
action for the statute on the assumption that litigants would use those provided by the general common law, but
now the general common law was no more.
In Sosa, this Court did its best to resolve that problem. "[I]t would be unreasonable to assume," the Court
explained, "that the First Congress would have expected federal courts to lose all capacity to recognize
enforceable international norms simply because the [general] common law might lose some metaphysical
cachet on the road to modern realism." 542 U.S., at 730, 124 S.Ct. 2739. Although the general common law
15
was gone, the Court concluded, federal courts could still exercise their authority to create so-called "federal
common law" for those " 'few and restricted' " areas "in which Congress has given the courts the power to
develop substantive law." Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640, 101 S.Ct. 2061,
68 L.Ed.2d 500 (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, 124 S.Ct. 2739. But
before doing so, Sosa stressed, courts should follow a two-step process. First, they should ensure that the
contemplated cause of action reflects an international law norm that is " 'specific, universal and obligatory.' "
Id., at 732, 124 S.Ct. 2739. Second, if a suitable norm is identified, federal courts should decide whether there
is any other reason to limit "the availability of relief." Id., at 733, n. 21, 124 S.Ct. 2739.
II
For the reasons articulated by Justice Scalia in Sosa and by Justice GORSUCH today, I am not certain that Sosa
was correctly decided. See id., at 739–751, 124 S.Ct. 2739 (Scalia, J., dissenting); post, at 1412 – 1414
(GORSUCH, J., concurring in part and concurring in judgment). But even taking that decision on its own
terms, this Court should not create causes of action under the ATS against foreign corporate defendants. As part
1410 of Sosa 's second step, a court should decline to create a cause of action as a matter of federal *1410 common
law where the result would be to further, not avoid, diplomatic strife. Properly applied, that rule easily resolves
the question presented by this case.*
* Because this case involves a foreign corporation, we have no need to reach the question whether an alien may sue a
United States corporation under the ATS. And since such a suit may generally be brought in federal court based on
diversity jurisdiction, 28 U.S.C. § 1332(a)(2), it is unclear why ATS jurisdiction would be needed in that situation.
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, 99 S.Ct. 1448, 59 L.Ed.2d 711 (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 "to find the rule that will best effectuate the federal
policy." Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 457, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).
The ATS was meant to help the United States avoid diplomatic friction. The First Congress enacted the law to
provide a forum for adjudicating that "narrow set of violations of the law of nations" that, if left unaddressed,
"threaten[ed] serious consequences" for the United States. Sosa, 542 U.S., at 715, 124 S.Ct. 2739 ; see also
Brief for Professors of International Law et al. as Amici Curiae 7–12. Specifically, the First Congress was
concerned about offenses like piracy, violation of safe conducts, and infringement of the rights of ambassadors,
each of which "if not adequately redressed could rise to an issue of war." Sosa, supra, at 715, 124 S.Ct. 2739.
That threat was existentially terrifying for the young Nation. See Kiobel v. Royal Dutch Petroleum Co., 569
U.S. 108, 123–124, 133 S.Ct. 1659, 185 L.Ed.2d 671 (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, 133 S.Ct. 1659 ; see ante, at 1406
(majority opinion).
16
Putting that objective together with the rules governing federal common law generally, the following principle
emerges: Federal courts should decline to create federal common law causes of action under Sosa 's second step
whenever doing so would not materially advance the ATS's objective of avoiding diplomatic strife. And
applying that principle here, it is clear that federal courts should not create causes of action under the ATS
against foreign corporate defendants. All parties agree that customary international law does not require
corporate liability as a general matter. See Brief for Petitioners 30; Brief for Respondent 22; see also ante, at
1427 (plurality opinion); post, at 1420 – 1421 (SOTOMAYOR, J., dissenting). But if customary international
law does not require corporate liability, then declining to create it under the ATS cannot give other nations just
cause for complaint against the United States.
To the contrary, ATS suits against foreign corporations may provoke—and, indeed, frequently have provoked—
exactly the sort of diplomatic strife inimical to the fundamental purpose of the ATS. Some foreign states appear
1411 to interpret international law as foreclosing civil corporate liability for violations of the law of nations. *1411
See Brief for Government of the United Kingdom et al. as Amici Curiae in Kiobel v. Royal Dutch Petroleum
Co., O.T. 2012, No. 10–1491, p. 14. Creating ATS causes of action against foreign corporate defendants would
put the United States at odds with these nations. Even when states do not object to this sort of corporate
liability as a legal matter, they may be concerned about ATS suits against their corporations for political
reasons. For example, Jordan considers this suit "a direct affront" to its sovereignty and one that "risks
destabilizing Jordan's economy and undercutting one of the most stable and productive alliances the United
States has in the Middle East." Brief for Hashemite Kingdom of Jordan as Amicus Curiae 4. Courting these
sorts of problems—which seem endemic to ATS litigation—was the opposite of what the First Congress had in
mind.
In response, the dissent argues merely that any diplomatic friction "can be addressed with a tool more tailored
to the source of the problem than a blanket ban on corporate liability." Post, at 1429. Even on its own terms,
that argument is problematic: Many of the "more tailored" tools offered by the dissent will still be hotly
litigated by ATS plaintiffs, and it may be years before incorrect initial decisions about their applicability can be
reviewed by the courts of appeals. See ante, at 1398 (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 controversies if we created causes of action under the ATS
against foreign corporate defendants. Unless corporate liability would actively decrease diplomatic disputes,
we have no authority to act. On that score, the dissent can only speculate that declining to create causes of
action against foreign corporate defendants "might" lead to diplomatic friction. Post, at 1435. But the dissent
has no real-world examples to support its hunch, and that is not surprising; the ATS already goes further than
any other statute in the world in granting aliens the right to sue civilly for violations of international law,
especially in light of the many other avenues for relief available. See ante, at 1405 (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 1435,
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
17
steps to hold corporations liable for certain acts like terrorism. Post, at 1436, n. 13. That is, of course, true, but
it is also entirely irrelevant. Congress and the Executive Branch may be willing to trade off the risk of some
diplomatic friction in exchange for the promotion of other objectives (such as "holding foreign corporations to
account for certain egregious conduct," ibid. ). That is their prerogative as the political branches. But consistent
1412 with the separation of powers, we have neither the luxury nor the *1412 right to make such policy decisions
ourselves.
Creating causes of action under the ATS against foreign corporate defendants would be a no-win proposition.
Foreign corporate liability would not only fail to meaningfully advance the objectives of the ATS, but it would
also lead to precisely those "serious consequences in international affairs" that the ATS was enacted to avoid.
Sosa, 542 U.S., at 715, 124 S.Ct. 2739. Under those circumstances, federal courts have a duty to refrain from
acting. Although that may make it more difficult for aliens to hold foreign corporations liable for human rights
abuses, we have repeatedly rejected the view that the ATS was meant to transform the federal courts into
forums for the litigation of all human rights suits. See ante, at 1422 – 1424, 1432 – 1433 (majority opinion);
Kiobel, 569 U.S., at 123–124, 133 S.Ct. 1659 ; Sosa, supra, at 715–718, 124 S.Ct. 2739. Declining to extend
the ATS to foreign corporate defendants is thus not about "[i]mmunizing corporations that violate human
rights," post, at 1437, but rather about furthering the purpose that the ATS was actually meant to serve—
avoiding diplomatic strife.
Justice GORSUCH, concurring in part and concurring in the judgment.
I am pleased to join the Court's judgment and Parts I, II–B–1, and II–C of its opinion. Respectfully, though, I
believe there are two more fundamental reasons why this lawsuit must be dismissed. A group of foreign
plaintiffs wants a federal court to invent a new cause of action so they can sue another foreigner for allegedly
breaching international norms. In any other context, a federal judge faced with a request like that would know
exactly what to do with it: dismiss it out of hand. Not because the defendant happens to be a corporation
instead of a human being. But because the job of creating new causes of action and navigating foreign policy
disputes belongs to the political branches. For reasons passing understanding, federal courts have sometimes
treated the Alien Tort Statute as a license to overlook these foundational principles. I would end ATS
exceptionalism. We should refuse invitations to create new forms of legal liability. And we should not meddle
in disputes between foreign citizens over international norms. I write because I am hopeful that courts in the
future might pause to consider both of these reasons for restraint before taking up cases like this one. Whatever
powers courts may possess in ATS suits, they are powers judges should be doubly careful not to abuse.
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, 124 S.Ct. 2739, 159 L.Ed.2d
718 (2004). At the same time, this Court has suggested that Congress enacted the statute to afford federal courts
jurisdiction to hear tort claims related to three violations of international law that were already embodied in
English common law: violations of safe conducts extended to aliens, interference with ambassadors, and piracy.
Id., at 715, 124 S.Ct. 2739 ; 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
1413 that the ATS meant to supply jurisdiction over a slightly larger set of claims involving *1413 intentional torts by
Americans against aliens).
18
In this case, the plaintiffs seek much more. They want the federal courts to recognize a new cause of action,
one that did not exist at the time of the statute's adoption, one that Congress has never authorized. While their
request might appear inconsistent with Sosa 's explanation of the ATS's modest origin, the plaintiffs say that a
caveat later in the opinion saves them. They point to a passage where the Court went on to suggest that the ATS
may also afford federal judges "discretion [to] conside[r] [creating] new cause [s] of action" if they "rest on a
norm of international character accepted by the civilized world and defined with a specificity comparable to the
features of the [three] 18th-century" torts the Court already described. 542 U.S., at 725, 124 S.Ct. 2739.
I harbor serious doubts about Sosa 's suggestion. In our 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. ––––, ––––, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290
(2017). The first and most important question in that analysis "is 'who should decide' ..., Congress or the
courts?" and the right answer "most often will be Congress." Ibid. Deciding that, henceforth, persons like A
who engage in certain conduct will be liable to persons like B is, in every meaningful sense, just like enacting a
new law. And in our constitutional order the job of writing new laws belongs to Congress, not the courts.
Adopting new causes of action may have been a "proper function for common-law courts," but it is not
appropriate "for federal tribunals" mindful of the limits of their constitutional authority. Alexander v. Sandoval,
532 U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (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, 124 S.Ct. 2739 ;
accord, ante, at 1392 (majority opinion). And I would have thought that the end of the matter. A statute that
creates no new causes of action ... creates no new causes of action. To the extent Sosa continued on to claim for
federal judges the discretionary power to create new forms of liability on their own, it invaded terrain that
belongs to the people's representatives and should be promptly returned to them. 542 U.S., at 747, 124 S.Ct.
2739 (Scalia, J., concurring in part and concurring in judgment).1
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 1427. That does not follow. Federal courts have
jurisdiction over all kinds of cases—for example, those arising under the law of torts or contracts. Yet following our
decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), federal courts are generally no
longer permitted to promulgate new federal common law causes of action in those areas. Id., at 75, 58 S.Ct. 817. I can
see no reason to treat the law of nations differently. See Sosa v. Alvarez–Machain, 542 U.S. 692, 744–746, 124 S.Ct.
2739, 159 L.Ed.2d 718 (2004) (Scalia, J., concurring in part and concurring in judgment).
1414 But even accepting Sosa 's framework does not end the matter. As the Court *1414 acknowledges, there is a
strong argument that "a proper application of Sosa would preclude courts from ever recognizing any new
causes of action under the ATS."Ante, at 1403. I believe that argument is correct. For the reasons just described,
separation of powers considerations ordinarily require us to defer to Congress in the creation of new forms of
liability. This Court hasn't yet used Sosa 's assertion of discretionary authority to recognize a new cause of
action, and I cannot imagine a sound reason, hundreds of years after the statute's passage, to start now. For a
court inclined to claim the discretion to enter this field, it is a discretion best exercised by staying out of it.
19
The context in which any Sosa discretion would be exercised confirms the wisdom of restraint. Sosa
acknowledged that any decision to create a new cause of action would "inevitably [involve] an element of
judgment about the practical consequences" that might follow. Id., at 732–733, 124 S.Ct. 2739. But because the
point of such a claim would be to vindicate "a norm of international character," id., at 725, 124 S.Ct. 2739 those
"practical consequences" would likely involve questions of foreign affairs and national security—matters that
implicate neither judicial expertise nor authority. It is for Congress to "define and punish ... Offences against
the 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, 68 S.Ct. 431, 92 L.Ed. 568 (1948) (Jackson, J.). And I find it difficult to imagine a case in
which a federal court might safely conclude otherwise. Take this very lawsuit by way of example. The
Kingdom of Jordan considers it to be "a 'grave affront' to its sovereignty," and the State Department worries
about its foreign policy implications. Ante, at 1432. 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, 68 S.Ct. 431. So while I have no quarrel with the dissent's
observation, post, at 1426 – 1427, that lower federal courts are not free to overrule Sosa 's framework or treat it
as optional, I do know that the analysis Sosa requires should come out the same way in virtually every case. If
Sosa is right—and I am sure it is—that federal courts must "inevitably" exercise "an element of judgment"
about delicate questions of foreign affairs when deciding whether to create a new cause of action, then judges
should exercise good judgment by declining the project before we create real trouble.
II
Another independent problem lurks here. This is a suit by foreigners against a foreigner over the meaning of
international norms. Respectfully, I do not think the original understanding of the ATS or our precedent permits
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
1415 Judiciary Act of *1415 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. § 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.
2 "Sec. 9. And be it further enacted, That the district courts shall have, exclusively of the courts of the several States,
cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed
within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty
stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be
inflicted; and shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction,
including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on
waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well
as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is
20
competent to give it; and shall also have exclusive original cognizance of all seizures on land, or other waters than as
aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States. And shall
also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all
causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. And shall
also have cognizance, concurrent as last mentioned, of all suits at common law where the United States sue, and the
matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars. And shall also have
jurisdiction, exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for
offences above the description aforesaid. And the trial of issues in fact, in the district courts, in all causes except civil
causes of admiralty and maritime jurisdiction, shall be by jury." 1 Stat. 76–77 (some emphasis added; footnotes
omitted).
That is because the First Congress passed the Judiciary Act in the shadow of the Constitution. The Act created
the federal courts and vested them with statutory authority to entertain claims consistent with the newly ratified
terms of Article III. Meanwhile, under Article III, Congress could not have extended to federal courts the
power to hear just any suit between two aliens (unless, for example, one was a diplomat). Diversity of
citizenship was required. So, because Article III's diversity-of-citizenship clause calls for a U.S. party, and
because the ATS clause requires an alien plaintiff, it follows that an American defendant was needed for an
ATS suit to proceed.
Precedent confirms this conclusion. In Mossman v. Higginson, 4 Dall. 12, 14, 1 L.Ed. 720 (1800), this Court
addressed the meaning of a neighboring provision of the Judiciary Act. Section 11 gave the circuit courts power
to hear, among other things, civil cases where "an alien is a party." 1 Stat. 78. As with § 9, you might think §
11's language could be read to permit a suit between aliens. Yet this Court held § 11 must instead be construed
to refer only to cases "where, indeed, an alien is one party, but a citizen is the other." Mossman, 4 Dall., at 14
(internal quotation marks omitted). That was necessary, Mossman explained, to give the statute a
"constructio[n] consistent" with the diversity-jurisdiction 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 cases are, after all, supposed to come out alike. See Sarei v. Rio Tinto,
1416 *1416
PLC, 671 F.3d 736, 828 (C.A.9 2011) (Ikuta, J., dissenting) ("Mossman 's analysis [of § 11] is equally
applicable to [§ 9].... ATS does not give federal courts jurisdiction to hear international law claims between two
aliens"), vacated and remanded, 569 U.S. 945, 133 S.Ct. 1995, 185 L.Ed.2d 863 (2013).
Nor does it appear the ATS meant to rely on any other head of Article III jurisdiction. You might wonder, for
example, if the First Congress considered a "violation of the law of nations" to be a violation of, and thus "arise
under," federal law. But that does not seem likely. At the founding, the law of nations was considered a distinct
"system of rules, deducible by natural reason, and established by universal consent among the civilized
inhabitants of the world," 4 Blackstone 66. While this Court has called international law "part of our law," The
Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320 (1900), and a component of the "law of the
land," The Nereide, 9 Cranch 388, 423, 3 L.Ed. 769 (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, 124 S.Ct. 2739 (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,
21
which defines the scope of pre-emptive federal law, omit that phrase while referring to the "Laws of the United
States." Congress may act to bring provisions of international law into federal law, but they cannot find their
way there on their own. "The law of nations is not embodied in any provision of the Constitution, nor in any
treaty, act of Congress, or any authority, or commission derived from the United States." Caperton v. Bowyer,
14 Wall. 216, 228, 20 L.Ed. 882 (1872).
Even so, that hardly left the ATS without important work to perform. At the time of the founding, "[i]f a nation
failed to redress injuries by its citizens upon the citizens of another nation, the perpetrators' nation violated the
'perfect rights' of the other nation," which "provided the offended nation with just cause for reprisals or war."
Bellia & Clark, 78 U. Chi. L. Rev., at 476.3 This reality posed an existential threat to the new nation. Under the
Articles of Confederation, States regularly refused to redress injuries their citizens caused foreigners. British
creditors, for example, often found their efforts to collect debts from American debtors thwarted. Id., at 498–
1417 501. Seeking to remedy these and similar problems, the Continental Congress in 1781 passed a resolution *1417
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 government with sufficient power to ensure the country's compliance
with the law of nations. See 1 Records of the Federal Convention of 1787, pp. 24–25 (M. Farrand rev. 1966).
3 As a leading treatise explained, a sovereign "ought not to suffer his subjects to molest the subjects of others, or to do
them an injury, much less should he permit them audaciously to offend foreign powers." E. de Vattel, 1 The Law of
Nations, bk. II, § 76, p. 145 (1760). Instead, the nation "ought to oblige the guilty to repair the damage, if that be
possible, to inflict on him an exemplary punishment, or, in short, according to the nature of the case, and the
circumstances attending it, to deliver him up to the offended state there to receive justice." Ibid . A sovereign who
"refuses to cause a reparation to be made of the damage caused by his subject, or to punish the guilty, or, in short, to
deliver him up, renders himself in some measure an accomplice in the injury, and becomes responsible for it."Id ., § 77,
at 145; see also Bellia & Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 472–477 (2011).
Together with other provisions of the Judiciary Act, the ATS served that purpose. The law of nations required
countries to ensure foreign citizens could obtain redress for wrongs committed by domestic defendants,
whether "through criminal punishment, extradition, or a civil remedy." Bellia & Clark, 78 U. Chi. L. Rev., at
509. Yet in 1789 this country had no comprehensive criminal code and no extradition treaty with Great Britain.
Id., at 509–510. Section 11 achieved a partial solution to the problem by permitting civil diversity suits in
federal court between aliens and domestic parties, but that provision required at least $500 in controversy. 1
Stat. 78; cf. 28 U.S.C. § 1332(a) (today's minimum is $75,000). But, as Professors Bellia and Clark have
explained, "[h]ad Congress stopped there, it would have omitted an important category of law of nations
violations that threatened the peace of the United States: personal injuries that U.S. citizens inflicted upon
aliens resulting in less than $500 in damages." 78 U. Chi. L. Rev., at 509. So the ATS neatly filled the
remaining gap by allowing aliens to sue in federal court for a tort in violation of the law of nations regardless of
the amount in controversy. One obvious advantage of this solution "was that it was self-executing—it placed
the burden on injured aliens to bring suit and did not require the still-forming U.S. government immediately to
marshal the resources necessary to prosecute crimes" or aid extraditions. Id., at 510.
Any attempt to decipher a cryptic old statute is sure to meet with challenges. For example, one could object that
this reading of the Act does not assign to the ATS the work of addressing assaults by aliens against foreign
ambassadors on our soil, even though Sosa suggested the 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
22
physically assaulted the Secretary of the French Legion in Philadelphia." 542 U.S., at 716, 124 S.Ct. 2739.
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, 124 S.Ct.
2739 ; Bellia & Clark, supra, at 467 ("The Confederation's inability to remedy or curtail violations like these
was a significant factor precipitating the Federal Convention of 1787").
But worries along these lines may be misplaced. The ATS was never meant to serve as a freestanding statute,
only as one clause in one section of the Judiciary Act. So even if you think something in the Judiciary Act must
be interpreted to address the Marbois incident, that doesn't mean it must be the ATS clause. And, as it happens,
a different provision of the Act did deal expressly with the problem of ambassadorial assaults: Section 13
conferred on this Court "original, but not exclusive jurisdiction of all suits brought by ambassadors, or other
public ministers, or in which a consul, or vice consul shall be a party." 1 Stat. 80–81. That implemented Article
1418 III's provision empowering us to hear suits "affecting Ambassadors, other *1418 public ministers and Consuls."
§ 2. And given that § 13 deals with the problem of "ambassadors" so directly, it is unclear why we must read §
9 to address that same problem. See Lee, The Safe–Conduct Theory of the Alien Tort Statute, 106 Colum. L.
Rev. 830, 855–858 (2006).
Along different but similar lines, some might be concerned that requiring a U.S. defendant in ATS suits would
leave the problem of piracy inadequately addressed, given that Sosa suggested that piracy was one of the three
offenses the ATS may have meant to capture, and many pirates were foreigners. See 542 U.S., at 719, 124 S.Ct.
2739. But here the response is much the same. A separate clause of § 9 gave the district courts "exclusive
original cognizance of all civil causes of admiralty and maritime jurisdiction." 1 Stat. 77. That statute has long
been given a broad construction covering "all maritime contracts, torts and injuries," DeLovio v. Boit, 7 F.Cas.
418, 442 (No. 3,776) (C.C.D.Mass. 1815) (Story, J.), along with "prize jurisdiction, which probably included
almost all 'piracy' cases after 1789," Lee, supra, at 867. So it is not clear why it's necessary to cram the problem
of piracy into the ATS. If anything, it may be necessary not to do so. Structural features of § 9 make it at least
questionable that both provisions were meant to address the same subject matter: Cases falling within § 9's ATS
clause could also be brought in state court or in the circuit courts, 1 Stat. 77, while § 9's admiralty jurisdiction
was generally exclusive, id., at 76–77. See Lee, supra, at 868. And the two provisions also called for
incompatible procedures: Section 9 required jury trials "in all causes except civil causes of admiralty and
maritime jurisdiction." 1 Stat. 77 (emphasis added).
If doubt lingers on these historical questions, it is a doubt that should counsel restraint all the same. Even if the
ATS might have meant to allow foreign ambassadors to sue foreign defendants, or foreign plaintiffs to sue
foreign pirates, what would that prove about more mine-run cases like ours, where none of those special
concerns are implicated? There are at least serious historical arguments suggesting the ATS was not meant to
apply to suits like this one. And to the extent Sosa affords courts discretion to proceed, these arguments should
inform any decision whether to exercise that discretion. In Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108,
116–117, 133 S.Ct. 1659, 185 L.Ed.2d 671 (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
involving foreign defendants.4
4 The dissent is wrong to suggest, post, at 1427, that Sosa "forecloses" the possibility of recognizing a U.S.-defendant
requirement in ATS cases. Sosa said nothing about the subject. And were Sosa taken to preclude any future limits on
ATS suits it did not itself anticipate, then Kiobel must have been wrong to apply the canon against extraterritorial
application to that statute. But that is not so. The dissent also observes that Sosa "involved an ATS suit brought by a
citizen of Mexico against a citizen of Mexico," and that certain amici in Sosa filed briefs arguing that the Court lacked
23
authority over the ATS claims for that reason. See post, at 1427 – 1428. But Sosa did not address those arguments;
questions that "merely lurk in the record are not resolved, and no resolution of them may be inferred." Illinois Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 183, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citations and internal
quotation marks omitted); accord, RJR Nabisco, Inc. v. European Community, 579 U.S. ––––, ––––, n. 10, 136 S.Ct.
2090, 2108, n. 10, 195 L.Ed.2d 476 (2016) (issue present but unaddressed by the Court in a previous case was not
implicitly decided).
1419 Any consideration of Sosa 's discretion must also account for proper limits on the *1419 judicial function. As
discussed above, federal courts generally lack the institutional expertise and constitutional authority to oversee
foreign policy and national security, and should be wary of straying where they do not belong. See supra, at
1394 – 1396. Yet there are degrees of institutional incompetence and constitutional evil. It is one thing for
courts to assume the task of creating new causes of action to ensure our citizens abide by the law of nations and
avoid reprisals against this country. It is altogether another thing for courts to punish foreign parties for conduct
that could not be attributed to the United States and thereby risk reprisals against this country. If a foreign state
or citizen violates an "international norm" in a way that offends another foreign state or citizen, the
Constitution arms the President and Congress with ample means to address it. Or, if they think best, the
political branches may choose to look the other way. But in all events, the decision to impose sanctions in
disputes between foreigners over international norms is not ours to make. It is a decision that belongs to those
answerable to the people and assigned by the Constitution to defend this nation. If they wish our help, they are
free to enlist it, but we should not ever be in the business of elbowing our way in.
Justice SOTOMAYOR, with whom Justice GINSBURG, Justice BREYER, and Justice KAGAN join,
dissenting.
The Court today holds that the Alien Tort Statute (ATS), 28 U.S.C. § 1350, categorically forecloses foreign
corporate liability. In so doing, it absolves corporations from responsibility under the ATS for conscience-
shocking behavior. I disagree both with the Court's conclusion and its analytic approach. The text, history, and
purpose of the ATS, as well as the long and consistent history of corporate liability in tort, confirm that tort
claims for law-of-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.
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, 124 S.Ct. 2739,
159 L.Ed.2d 718 (2004). But by asking whether there is "a specific, universal, and obligatory norm of liability
for corporations" in international law, ante, at 1400, the plurality fundamentally misconceives how
international law works and so misapplies the first step of Sosa.
In Sosa, the Court considered whether a Mexican citizen could recover under the ATS for a claim of arbitrary
detention by a Mexican national who had been hired by the Drug Enforcement Administration to seize and
transport him to the United States. See 542 U.S., at 697–698, 124 S.Ct. 2739. The Court held that the ATS
permits federal courts to "recognize private causes of action for certain torts in violation of the law of nations,"
id., at 724, 124 S.Ct. 2739 without the need for any "further congressional action," id., at 712, 124 S.Ct. 2739.
The Court then articulated a two-step framework to guide that inquiry. First, a court must determine whether
24
the particular international-law norm alleged to have been violated is "accepted by the civilized world and
1420 defined with a specificity comparable to the features of the 18th-century paradigms," i.e., *1420 "violation of
safe conducts, infringement of the rights of ambassadors, and piracy." Id., at 724–725, 124 S.Ct. 2739. 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, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013)
(quoting Sosa, 542 U.S., at 732, 124 S.Ct. 2739 ). Second, if that threshold hurdle is satisfied, a court should
consider whether allowing a particular case to proceed is an appropriate exercise of judicial discretion. Sosa,
542 U.S., at 727–728, 732–733, 738, 124 S.Ct. 2739. 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, 124
S.Ct. 2739.
Sosa 's norm-specific first step is inapposite to the categorical question whether corporations may be sued
under the ATS as a general matter. International law imposes certain obligations that are intended to govern the
behavior of states and private actors. See id., at 714–715, 124 S.Ct. 2739 ; 1 Restatement (Third) of Foreign
Relations Law of the United States, pt. II, Introductory Note, pp. 70–71 (1987) (Restatement). Among those
obligations are substantive prohibitions on certain conduct thought to violate human rights, such as genocide,
slavery, extrajudicial killing, and torture. See 2 Restatement § 702. Substantive prohibitions like these are the
norms at which Sosa 's step-one inquiry is aimed and for which Sosa requires that there be sufficient
international consensus.
Sosa does not, however, demand that there be sufficient international consensus with regard to the mechanisms
of enforcing these norms, for enforcement is not a question with which customary international law is
concerned. Although international law determines what substantive conduct violates the law of nations, it
leaves the specific rules of how to enforce international-law norms and remedy their violation to states, which
may act to impose liability collectively through treaties or independently via their domestic legal systems. See,
e.g., L. Henkin, Foreign Affairs and the United States Constitution 245 (2d ed. 1996) ("International law itself
... does not require any particular reaction to violations of law"); Denza, The Relationship Between
International and National Law, in International Law 423 (M. Evans ed. 2006) ("[I]nternational law does not
itself prescribe how it should be applied or enforced at the national level"); 1 Restatement § 111, Comment h
("In the absence of special agreement, it is ordinarily for the United States to decide how it will carry out its
international obligations"); Brief for International Law Scholars as Amici Curiae 9–10.
In keeping with the nature of international law, Sosa consistently used the word "norm" to refer to substantive
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, 124 S.Ct.
2739. That statement would make little sense if "norm" encompassed enforcement mechanisms like "corporate
liability." Unlike "the prohibition on genocide," "corporate liability" cannot be violated. Moreover, "the
historical paradigms familiar when § 1350 was enacted" are all prohibitions on conduct, and Sosa clearly
1421 contemplated that courts should compare the charged conduct with *1421 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 Tel–Oren v. Libyan Arab Republic, 726 F.2d 774 (C.A.D.C.1984), which suggested that the "
'limits of section 1350's reach' " be defined by " 'a handful of heinous actions—each of which violates
25
definable, universal and obligatory norms,' " id., at 781 ). There is no indication in Sosa that the Court also
intended for courts to undertake the apples-to-oranges comparison of the conduct proscribed under customary
international law and the forms of liability available under domestic law.
The text of the ATS also reflects this distinction between prohibiting conduct and determining enforcement.
The statute provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. The
phrase "of the law of nations" modifies "violation," not "civil action." The statutory text thus requires only that
the alleged conduct be specifically and universally condemned under international law, not that the civil action
be of a type that the international community specifically and universally practices or endorses.
The plurality nonetheless allies itself with the view that international law supplies the rule of decision in this
case based on its reading of footnote 20 in Sosa . That footnote sets out "[a] related consideration" to "the
determination whether a norm is sufficiently definite to support a cause of action." 542 U.S., at 732, and n. 20,
124 S.Ct. 2739. 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 (C.A.D.C.1984)
(Edwards, J., concurring) (insufficient consensus in 1984 that torture by private actors violates
international law), with Kadic v. Karadz?ic, 70 F.3d 232, 239–241 (C.A.2 1995) (sufficient consensus
in 1995 that genocide by private actors violates international law)." 542 U.S., at 732, n. 20, 124 S.Ct.
2739.
In the Second Circuit's decision in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2010), the majority opinion
read footnote 20 to "requir[e] that [courts] look to international law to determine [their] jurisdiction over ATS
claims against a particular class of defendant, such as corporations." Id., at 127 (emphasis in original). The
plurality today accords "considerable force and weight to [that] position," ante, at 1400, and so proceeds to
assess whether there exists a specific, universal, and obligatory norm of liability for corporations in
international law, ante, at 1425 – 1428. But the Court of Appeals mistook the meaning of footnote 20, which
simply draws attention to the fact that, 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
1422 thus violate the norm irrespective of whether they are committed privately or in concert with the *1422 state. See
Convention on the Prevention and Punishment of the Crime of Genocide, Art. II, Dec. 9, 1948, 102 Stat. 3045
(defining "genocide" as "any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group"); see also 18 U.S.C. § 1091(a) ("Whoever" commits genocide
"shall be punished as provided in subsection (b)"). In contrast, other norms, like the prohibition on torture,
require state action. Conduct thus qualifies as torture and violates the norm only when done "by or at the
26
instigation of or with the consent or acquiescence of a public official or other person acting in an official
capacity." Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art.
1, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 114 (Torture Convention).1
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, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988).
Footnote 20 in Sosa flags this distinction and instructs courts to consider whether there is "sufficient
consensus" that, with respect to the particular conduct prohibited under "a given norm," the type of defendant
being sued can be alleged to have violated that specific norm. 542 U.S., at 732, n. 20, 124 S.Ct. 2739. Because
footnote 20 contemplates a norm-specific inquiry, not a categorical one, it is irrelevant to the categorical
question presented here. Assuming the prohibition against financing of terrorism is sufficiently "specific,
universal, and obligatory" to satisfy the first step of Sosa, a question on which I would remand to the Court of
Appeals, nothing in international law suggests a corporation may not violate it.2
2 At present, the norm-specific query contemplated by footnote 20 is likely resolved simply by considering whether the
given international-law norm binds only state actors or state and nonstate actors alike, because there does not appear to
be an international-law norm that contemplates a finer distinction between types of private actors. See Brief for United
States as Amicus Curiae in Kiobel v. Royal Dutch Petroleum Co., O.T. 2012, No. 10–1491, p. 20 ("At the present time,
the United States is not aware of any international-law norm, accepted by civilized nations and defined with the degree
of specificity required by Sosa, that requires, or necessarily contemplates, a distinction between natural and juridical
actors"); Dodge, Corporate Liability Under Customary International Law, 43 Geo. J. Int'l L. 1045, 1050 (2012) ("None
of the norms that are actionable under Sosa distinguish between natural and juridical persons").
Sosa itself supports the proposition that international law does not distinguish between types of private actors, but
rather treats natural persons and corporations alike. Footnote 20 groups corporations and individuals together under the
larger category of "private actor." Sosa, 542 U.S., at 732, n. 20, 124 S.Ct. 2739 ("if the defendant is a private actor such
as a corporation or an individual"); see also id., at 760, 124 S.Ct. 2739 (BREYER, J., concurring in part and concurring
in judgment) ("The norm must extend liability to the type of perpetrator (e.g., a private actor) the plaintiff seeks to sue"
(citing id ., at 732, n. 20, 124 S.Ct. 2739 )). Sosa also describes the two Court of Appeals decisions on which it relies as
having considered whether there was sufficient consensus that particular conduct—torture or genocide—"violates
international law" when undertaken "by private actors." Id ., at 732, n. 20, 124 S.Ct. 2739 (discussing Tel–Oren v.
Libyan Arab Republic, 726 F.2d 774, 791–795 (C.A.D.C.1984) (Edwards, J., concurring), and Kadic v. Karadz?ic, 70
F.3d 232, 239–241 (C.A.2 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, 124 S.Ct. 2739.
1423 Theplurality briefly acknowledges this critique of its reading of footnote 20, but *1423 nonetheless assumes the
correctness of its approach because of its view that there exists a "distinction in international law between
corporations and natural persons." Ante, at 1402. The plurality attempts to substantiate this proposition by
pointing to the charters of certain international criminal tribunals and noting that none was given jurisdiction
over corporate defendants. That argument, however, confuses the substance of international law with how it has
been enforced in particular contexts.
Again, the question of who must undertake the prohibited conduct for there to be a violation of an
international-law 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
27
collectively and establish international tribunals to punish certain international-law violations. Each such
tribunal is individually negotiated, and the limitations placed on its jurisdiction are typically driven by strategic
considerations and resource constraints.
For example, the Allies elected not to prosecute corporations at Nuremberg because of pragmatic factors.
Those factors included scarce judicial resources, a preference of the occupation governments to swiftly
dismantle the most culpable German companies without destroying Germany's postwar economy, and a desire
to focus on establishing the principle of nonstate criminal responsibility for human-rights violations. See Brief
for Nuremberg Scholars as Amici Curiae 4, 11–13.
More recently, the delegations that negotiated the Rome Statute of the International Criminal Court in the
1990's elected not to extend that tribunal's jurisdiction to corporations in part because states had varying
domestic practices as to whether and how to impose criminal liability on corporations. See Frulli, Jurisdiction
Ratione Personae, in 1 Rome Statute of the International Criminal Court 527, 532–533 (A. Cassese et al. eds.
2002); Brief for Ambassador David J. Scheffer as Amicus Curiae 8–10.
Taken to its natural conclusion, the plurality's focus on the practice of international criminal tribunals would
prove too much. No international tribunal has been created and endowed with the jurisdiction to hold natural
persons civilly (as opposed to criminally) liable, yet the majority and respondent accept that natural persons can
be held liable under the ATS. See ante, at 1432 – 1433; Tr. of Oral Arg. 62. It cannot be persuasive evidence for
purposes of ascertaining the availability of corporate civil liability under the ATS, then, that the jurisdiction of
the handful of international criminal tribunals that states have seen fit to create in the last 75 years has not
extended to corporate defendants.
Ultimately, the evidence on which the plurality relies does not prove that international law distinguishes
between corporations and natural persons as a categorical matter. To the contrary, it proves only that states'
collective efforts to enforce various international-law norms have, to date, often focused on natural rather than
corporate defendants.
In fact, careful review of states' collective and individual enforcement efforts makes clear that corporations are
subject to certain obligations under international law. For instance, the United States Military Tribunal that
prosecuted several corporate executives of IG Farben declared that corporations could violate international law.
See 8 Trials of War Criminals Before the Nuernberg Military Tribunals Under Council Control Law No. 10, p.
1132 (1952) ( "Where private individuals, including juristic persons, proceed to exploit the military occupancy
1424 by acquiring *1424 private property against the will and consent of the former owner, such action ... is in
violation of international law").3 Similarly, the International Criminal Tribunal for Rwanda found that three
nonnatural entities—a private radio station, newspaper, and political party—were responsible for genocide. See
Prosecutor v. Nahimana, Case No. ICTR–99–52–T, Judgment and Sentence ¶ 953 (Dec. 3, 2003). Most
recently, the appeals panel of the Special Tribunal for Lebanon held that corporations may be prosecuted for
contempt. See Prosecutor v. New TV S.A.L., Case No. STL–14–05/PT/AP/AR126.1, Decision on Interlocutory
Appeal Concerning Personal Jurisdiction in Contempt Proceedings ¶ 74 (Oct. 2, 2014).
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 presumption of guilt in a subsequent
proceeding. Brief for Nuremberg Scholars as Amici Curiae 4, 20–21 (citing Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, Arts. 9–10, 59 Stat. 1544, E.A.S. No. 472;
28
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 organizations
criminal)).
In addition, various international agreements require signatory states to impose liability on corporations for
certain conduct.4 Of particular relevance here, the International Convention for the Suppression of the
Financing of Terrorism provides: "Any person commits an offence within the meaning of this Convention if
that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the
intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to
carry out" an act of terrorism. Dec. 9, 1999, Art. 2, S. Treaty Doc. No. 106–49, 2178 U.N.T.S. 230. It then
requires each signatory state, "in accordance with its domestic legal principles," to "take the necessary
measures to enable a legal entity located in its territory or organized under its laws to be held liable when a
person responsible for the management or control of that legal entity has, in that capacity," violated the
Convention. Id., Art. 5(1). The Convention provides that "[s]uch liability may be criminal, civil, or
administrative," ibid., so long as the penalties, which can include monetary sanctions, are "effective,
proportionate and dissuasive." Id., Art. 5(3). The United States is a party to the Convention, along with 131
other states.5
4 See, e.g., United Nations Convention Against Transnational Organized Crime, Art. 10(1), Nov. 15, 2000, T.I.A.S. No.
13127, S. Treaty Doc. No. 108–16; Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions, Art. 2, Dec. 17, 1997, 2802 U.N.T.S. 230.
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).
The plurality dismisses the relevance of this Convention because it does not require states parties to hold
corporations liable in common-law tort actions, but rather permits them to "fulfill their obligations ... by
adopting detailed regulatory regimes governing financial institutions." Ante, at 1401. 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
1425 Convention leaves up to *1425 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 standards of conduct and leaves it to individual states to determine how
best to enforce those standards.
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 (C.A.2
1980).
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
29
(noting that 15 of 16 countries surveyed permit civil claims against corporations for human rights violations);
Brief for Comparative Law Scholars and Practitioners as Amici Curiae 15–19 (detailing provisions creating
corporate civil liability for international-law violations in England, France, the Netherlands, and Canada).
Instead of asking whether there exists a specific, universal, and obligatory norm of corporate liability under
international law, the relevant inquiry in response to the question presented here is whether there is any reason
—under either international law or our domestic law—to distinguish between a corporation and a natural
person who is alleged to have violated the law of nations under the ATS. As explained above, international law
provides no such reason. See Kiobel, 621 F.3d, at 175 (Leval, J., concurring in judgment) ("[T]he answer
international law furnishes is that it takes no position on the question"). Nor does domestic law. The text,
history, and purpose of the ATS plainly support the conclusion that corporations may be held liable.
Beginning "with the language of the statute itself," United States v. Ron Pair Enterprises, Inc., 489 U.S. 235,
241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (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, 72 S.Ct. 240, 96 L.Ed. 288 (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, 16 L.Ed. 73 (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)
1426 ("[F]rom the earliest times to the present, corporations have been held liable for torts"). This *1426 Court "has
assumed that, when Congress creates a tort action, it legislates against a legal background of ordinary tort-
related ... rules and consequently intends its legislation to incorporate those rules." Meyer v. Holley, 537 U.S.
280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003). The presumption, then, is that, in providing for "tort"
liability, the ATS provides for corporate liability.
Second, whereas the ATS expressly limits the class of permissible plaintiffs to "alien[s]," § 1350, it "does not
distinguish among classes of defendants," Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,
438, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). That silence as to defendants cannot be presumed to be
inadvertent. That is because in the same section of the Judiciary Act of 1789 as what is now the ATS, Congress
provided the federal district courts with jurisdiction 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, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("[W]here Congress includes
particular language in one section of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (internal
quotation marks omitted)).
Nothing about the historical background against which the ATS was enacted rebuts the presumption that the
statute incorporated the accepted principle of corporate liability for tortious conduct. Under the Articles of
Confederation, the Continental Congress was unable to provide redress to foreign citizens for violations of
treaties or the law of nations, which threatened to undermine the United States' relationships with other nations.
30
See Kiobel, 569 U.S., at 123, 133 S.Ct. 1659. 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 ––– – (majority opinion) (describing
the assault by a French adventurer on the Secretary of the French Legation and the arrest of one of the Dutch
Ambassador's servants by a New York constable), there is "no reason to conclude that the First Congress was
supremely concerned with the risk that natural persons would cause the United States to be drawn into foreign
entanglements, but was content to allow formal legal associations of individuals, i.e., corporations, to do so,"
Doe v. Exxon Mobil Corp., 654 F.3d 11, 47 (C.A.D.C.2011), vacated on other grounds, 527 Fed.Appx. 7
(C.A.D.C.2013) ; see also Brief for United States as Amicus Curiae 6 ("The ATS was enacted to ensure a
private damages remedy for incidents with the potential for serious diplomatic consequences, and Congress had
no good reason to limit the set of possible defendants in such actions to potentially judgment-proof
individuals"). Indeed, foreclosing corporations from liability under the ATS would have been at odds with the
contemporaneous practice of imposing liability for piracy on ships, juridical entities. See, e.g., Skinner v. East
India Co., 6 State Trials 710, 711 (1666); The Marianna Flora, 11 Wheat. 1, 40–41, 6 L.Ed. 405 (1826) ;
Harmony v. United States, 2 How. 210, 233, 11 L.Ed. 239 (1844).
Finally, the conclusion that corporations may be held liable under the ATS for violations of the law of nations is
not of recent vintage. More than a century ago, the Attorney General acknowledged that corporations could be
held liable under the ATS. See 26 Op. Atty. Gen. 250, 252 (1907) (stating that citizens of Mexico could bring
1427 *1427 a claim under the ATS against a corporation, the American Rio Grande Land and Irrigation Company, for
violating provisions of a treaty between the United States and Mexico).
In his concurrence, Justice GORSUCH urges courts to exercise restraint in recognizing causes of action under
the ATS. But whether the ATS provides a cause of action for violations of the norms against genocide, crimes
against humanity, and financing of terrorism is not the question the parties have asked the Court to decide. I
therefore see no reason why it is necessary to delve into the propriety of creating new causes of action.
Nevertheless, because I disagree with the premises on which the concurrence relies, I offer two brief
observations.
First, Justice GORSUCH says it "pass[es] understanding" why federal courts have exercised jurisdiction over
ATS claims raised by foreign plaintiffs against foreign defendants for breaches of international norms. See
ante, at 1412 (opinion concurring in part and concurring in judgment). Modern ATS cases, however, are not
being litigated against a blank slate. The Court held in Sosa that Congress 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, 124
S.Ct. 2739 so long as the underlying norm had no "less definite content and acceptance among civilized nations
than the historical paradigms familiar when § 1350 was enacted," id., at 732, 124 S.Ct. 2739. That holding was
no mere "suggestion," ante, at 1420 (opinion of GORSUCH, J.), as this Court has made clear. See Kiobel, 569
U.S., at 116–117, 133 S.Ct. 1659.
Given that the First Congress authorized suit for violations based on "the law of nations" and "treat[ies] of the
United States," 28 U.S.C. § 1350, it is natural to conclude that Congress intended the district courts to consider
new claims under the law of nations as that law and our Nation's treaty obligations continued to develop. If
Congress intended to limit such cases to violations of safe conduct, assaults against ambassadors, piracy, and—
as Justice GORSUCH suggests may have been the case—" 'personal injuries that U.S. citizens inflicted upon
aliens resulting in less than $500 in damages,' " ante, at 1417 (quoting Bellia & Clark, The Alien Tort Statute
31
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)
(C.C.D.Mass. 1822) (Story, J.) ("What, therefore, the law of nations is ... may be considered as modified by
practice, or ascertained by the treaties of nations at different periods. It does not follow ... that because a
principle cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at
no subsequent period the principle can be considered as incorporated into the public code of nations").
The question for courts considering new ATS claims is, "Who are today's pirates?" Kiobel, 569 U.S., at 129,
133 S.Ct. 1659 (BREYER, J., concurring in judgment). Torturers and those who commit genocide are now
fairly viewed, like pirates, as "common enemies of all mankind." Id., at 131, 133 S.Ct. 1659 (internal quotation
marks omitted). On remand, the Court of Appeals would decide whether the financiers of terrorism are the
1428 same. The fact that few norms have overcome Sosa 's high hurdle is strong evidence that the carefully *1428
considered standard set forth in that case is generating exactly the kind of "judicial caution" the Court stressed
as necessary. See 542 U.S., at 725, 124 S.Ct. 2739.
Second, the concurrence suggests that federal courts may lack jurisdiction to entertain suits between aliens
based solely on a violation of the law of nations. It contends that ATS suits between aliens fall under neither the
federal courts' diversity jurisdiction nor our federal question jurisdiction. The Court was not unaware of this
argument when it decided Sosa . As noted, that case involved an ATS suit brought by a citizen of Mexico
against a citizen of Mexico, and various amici argued that the Court lacked Article III jurisdiction over such
suits. See Brief for National Foreign Trade Counsel et al. as Amici Curiae in Sosa v. Alvarez–Machain, O.T.
2003, No. 03–339, pp. 24–25; see also Brief for Washington Legal Foundation et al. as Amici Curiae in No.
03–339, pp. 14–21. The Court nonetheless proceeded to decide the case, which it could not have done had it
been concerned about its Article III power to do so. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct.
1235, 163 L.Ed.2d 1097 (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, 124 S.Ct. 2739 (emphasis added); see also id., at 729–730, 124 S.Ct. 2739
(explaining that, post- Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), there are
"limited enclaves in which federal courts may derive from substantive law in a common law way," including
the law of nations, and that "it would be unreasonable to assume that the First Congress would 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 (C.A.9 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, 133 S.Ct. 1995, 185 L.Ed.2d 863 (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, 133 S.Ct. 1659 (BREYER, J., concurring in
judgment). To that end, Congress has ratified treaties requiring the United States "to punish or extradite
offenders, even when the offense was not committed ... by a national." 1 Restatement § 404, Reporters' Note 1,
at 255–257; see Torture Convention, Arts. 5, 7; Convention on the Prevention and Punishment of Crimes
Against Internationally Protected Persons, Including Diplomatic Agents, Art. 3, Dec. 14, 1973, 28 U.S.T. 1975,
T.I.A.S. No. 8532 ; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,
Sept. 23, 1971, 24 U.S.T. 565, T.I.A.S. No. 7570 ; Convention for the Suppression of Unlawful Seizure of
32
Aircraft, Art. 4, Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192 ; Geneva Convention Relative to the
Treatment of Prisoners of War, Art. 129, Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364. To the extent suits
against foreign defendants may lead to international friction, that concern is better addressed under the
presumption the Court established in Kiobel against extraterritorial application of the ATS, see 569 U.S., at
1429 124–125, 133 S.Ct. 1659 than it is by relitigating settled precedent.*1429 II
At its second step, Sosa cautions that courts should consider whether permitting a case to proceed is an
appropriate exercise of judicial discretion in light of potential foreign-policy implications. See 542 U.S., at
727–728, 732–733, 738, 124 S.Ct. 2739. 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.
Nothing about the corporate form in itself justifies categorically foreclosing corporate liability in all ATS
actions. Each source of diplomatic friction that respondent Arab Bank and the plurality identify can be
addressed with a tool more tailored to the source of the problem than a blanket ban on corporate liability.
Arab Bank contends that foreign citizens should not be able "to sue a Jordanian corporation in New York for
events taking place in the Middle East." Brief for Respondent 42. The heart of that qualm was already
addressed in Kiobel, which held that the presumption against extraterritoriality applies to the ATS. 569 U.S., at
124, 133 S.Ct. 1659. 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, 133 S.Ct. 1659. "[M]ere corporate
presence" does not suffice. Id., at 125, 133 S.Ct. 1659. Thus, contrary to the majority's contention, "the
relatively minor connection between the terrorist attacks at issue in this case and the alleged conduct in the
United States" does not "well illustrat[e] the perils of extending the scope of ATS liability to foreign
multinational corporations," ante, at 1406, but merely illustrates the risks of extending the scope of ATS
liability extraterritorially absent sufficient connection to the United States.
Arab Bank also bemoans the unfairness of being sued when others—namely, the individuals and organizations
that carried out the terrorist attacks—were "the direct cause" of the harm petitioners here suffered. Brief for
Respondent 41. That complaint, though, is a critique of the imposition of liability for financing terrorism, not
an argument that ATS suits against corporations generally necessarily cause diplomatic tensions.
Arab Bank further expresses concern that ATS suits are being filed against corporations in an effort to recover
for the bad acts of foreign governments or officials. See id., at 40. But the Bank's explanation of this problem
reveals that the true source of its grievance is the availability of aiding and abetting liability. See ibid. ("
[N]umerous ATS suits have alleged that a corporation has aided or abetted bad acts committed by a foreign
government and its officials " (emphasis in original)); id., at 41 ("[A]iding and abetting suits under the ATS
have given plaintiffs 'a clear means for effectively circumventing' critical limits on foreign sovereign
immunity" (quoting Brief for United States as Amicus Curiae in American Isuzu Motors, Inc. v. Ntsebeza, O.T.
2007, No. 07–919, p. 15)). The plurality too points to an aiding and abetting case to support its contention that
plaintiffs "use corporations as surrogate defendants to challenge the conduct of foreign governments." Ante, at
1404 (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, 133
S.Ct. 1659 )). Yet not all law-of-nations violations asserted against corporations are premised on aiding and
1430 abetting liability; it is possible for *1430 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.
33
Notably, even the Hashemite Kingdom of Jordan does not argue that there are foreign-policy tensions inherent
in suing a corporation generally. Instead, Jordan contends that this particular suit is an affront to its sovereignty
because of its extraterritorial character and because of the role that Arab Bank specifically plays in the
Jordanian economy. See Brief for Hashemite Kingdom of Jordan as Amicus Curiae 6–12.7
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 contention that corporate status alone presents foreign-policy concerns justifying
immunity for all corporations in all ATS suits irrespective of circumstance.
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 1407, 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, 124 S.Ct. 2739 (noting argument of the
European Commission that "basic principles of international law require that before asserting a claim in a
foreign forum, the claimant must have exhausted any remedies available in the domestic legal system, and
perhaps in other forums such as international claims tribunals"); ibid. (noting objections by South Africa to
"several class actions seeking damages from various corporations alleged to have participated in, or abetted, the
regime of apartheid" on the basis that the cases "interfere[d] with the policy embodied by its Truth and
Reconciliation Commission"); Brief for Federal Republic of Germany as Amicus Curiae in Kiobel v. Royal
Dutch Petroleum Co., O.T. 2012, No. 10–1491, p. 1 ("The Federal Republic of Germany has consistently
maintained its opposition to overly broad assertions of extraterritorial civil jurisdiction arising out of aliens'
claims against foreign defendants for alleged foreign activities that caused injury on foreign soil"); Brief for
Government of the United Kingdom of Great Britain and Northern Ireland et al. as Amici Curiae in No. 10–
1491, p. 3 ("The Governments remain deeply concerned about ... suits by foreign plaintiffs against foreign
defendants for conduct that entirely took place in the territory of a foreign sovereign").
As the United States urged at oral argument, when international friction arises, a court should respond with the
doctrine that speaks directly to the friction's source. See Tr. of Oral. Arg. 28 (acknowledging that "ATS
litigation in recent decades has raised international friction" and explaining that "the way to deal with that
friction is with a doctrine that speaks directly to the international entanglement ... as those questions arise"). In
addition to the presumption against extraterritoriality, federal courts have at their disposal a number of tools to
address any foreign-relations concerns that an ATS case may raise. This Court has held that a federal court may
exercise personal jurisdiction over a foreign corporate defendant only if the corporation is incorporated in the
United States, has its principal place of business or is otherwise at home here, or if the activities giving rise to
the lawsuit occurred or had their impact here. See Daimler AG v. Bauman, 571 U.S. 117, 134 S.Ct. 746, 187
L.Ed.2d 624 (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
1431 *1431
grounds, for reasons of international comity, or when asked to do so by the State Department. See Kiobel, 569
U.S., at 133, 133 S.Ct. 1659 (BREYER, J., concurring in judgment); Sosa, 542 U.S., at 733, n. 21, 124 S.Ct.
2739.
Several of these doctrines might be implicated in this case, and I would remand for the Second Circuit to
address them in the first instance.8 The majority, however, 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
34
actions, irrespective of circumstance or norm, is simply too broad a response to case-specific concerns that can
be addressed via other means.9
8 For instance, the alleged conduct might not sufficiently touch and concern the United States to displace the
presumption against extraterritoriality; the prohibition on terrorism financing might not be a specific, universal, and
obligatory norm warranting recognition under the ATS; and petitioners might not be able to prove the requisite mens
rea . In addition, petitioners have asserted direct, rather than vicarious, liability against respondent. A suit based on
only vicarious liability may raise different questions not presented here.
9 The majority's overly blunt rule is also unlikely to resolve any foreign-relations 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.
The Court urges that "[t]he political branches, not the Judiciary, have the responsibility and institutional
capacity to weigh foreign-policy concerns." Ante, at 1403. 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 common-law 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 law.... Sosa 's cautionary admonitions provide no reason to depart from the common law on this
issue"). At oral argument in this case, the United States told the Court that it saw no "sound reason to
categorically exclude corporate liability." Tr. of Oral Arg. 29. It explained that another country would hold the
United States accountable for not providing a remedy against a corporate defendant in a "classic" ATS case,
such as one involving a "foreign officia[l] injured in the United States," id., at 32–33, and suggested that
foreclosing the ability to recover from a corporation actually would raise "the possibility of friction," id., at 33.
Notably, the Government's position that categorically barring corporate liability under the ATS is wrong has
been consistent across two administrations led by Presidents of different political parties.
Likewise, when Members of Congress have weighed in on the question whether corporations can be proper
1432 defendants in *1432 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, 108 S.Ct.
1837, 100 L.Ed.2d 349 (1988) ("Congress' failure to disturb a consistent judicial interpretation of a statute may
provide some indication that 'Congress at least acquiesces in, and apparently affirms, that [interpretation]' "
(quoting Cannon v. University of Chicago, 441 U.S. 677, 703, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) )).
Given the deference to the political branches that Sosa encourages, I find it puzzling that the Court so eagerly
departs from the express assessment of the Executive Branch and Members of Congress that corporations can
be defendants in ATS actions.
35
The plurality instead purports to defer to Congress by relying heavily on the Torture Victim Protection Act of
1991 (TVPA), 106 Stat. 73, note following 28 U.S.C. § 1350, to support its categorical bar. See ante, at 1429 –
1430. 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, 132 S.Ct. 1702, 182 L.Ed.2d 720 (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 1429 – 1430. But there is no reason to think that because Congress saw fit to permit
suits only against natural persons for two specific law-of-nations violations, Congress meant to foreclose
corporate liability for all law-of-nations violations. The plurality's contrary conclusion ignores the critical
textual differences between the ATS and TVPA, as well as the TVPA's legislative history, which emphasizes
Congress' intent to leave the ATS undisturbed.
On its face, the TVPA is different from the ATS in several significant ways: It is focused on only two law-of-
nations 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, 132 S.Ct. 1702. It makes little
sense, then, to conclude that the TVPA has dispositive comparative value in discerning the scope of liability
under the ATS.
Furthermore, Congress repeatedly emphasized in the House and Senate Reports on the TVPA that the statute
was meant to supplement the ATS, not replace or cabin it. See H.R. Rep. No. 102–367, pt. 1, p. 3 (1991) ("
Section 1350 has other important uses and should not be replaced. There should also, however, be a clear and
specific remedy, not limited to aliens, for torture and extrajudicial killing"); id., at 4 ("The TVPA ... would also
enhance the remedy already available under section 1350 in an important respect: While the [ATS] provides a
1433 remedy to aliens only, the TVPA *1433 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, 124 S.Ct. 2739 (explaining that the TVPA
"supplement[ed] the judicial determination" in Filartiga ).
Lacking any affirmative evidence that Congress' decision to limit liability under the TVPA to natural persons
indicates a legislative judgment about the proper scope of liability in all ATS suits, the plurality focuses its
efforts on dismissing petitioners' argument that Congress limited TVPA liability to natural persons to
harmonize the statute with the Foreign Sovereign Immunities Act of 1976 (FSIA), which generally immunizes
foreign states from suit. See ante, at 1430.10 Contrary to the plurality's contention, 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,
132 S.Ct. 1702. 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
36
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 have been
in conflict with the FSIA.
11 Petitioners may be right that Congress limited liability under the TVPA to natural persons to harmonize the statute with
the FSIA. That Congress thought it necessary to achieve that goal by foreclosing liability against all organizational
defendants, not just those operating under the authority of a foreign government, might indicate that Congress thought
such line drawing would be difficult, or that an expansive approach was the cleanest way to avoid the statute becoming
a backdoor to suits against foreign governments.
To infer from the TVPA that no corporation may ever be held liable under the ATS for any violation of any
international-law norm, moreover, ignores that Congress has elsewhere imposed liability on corporations for
conduct prohibited by customary international law. For instance, the Antiterrorism Act of 1990 (ATA) created a
civil cause of action for U.S. nationals injured by an act of international terrorism and expressly provides for
corporate liability. 18 U.S.C. § 2333. That Congress foreclosed corporate liability for torture and extrajudicial
killing claims under the TVPA but permitted corporate liability for terrorism-related claims under the ATA is
strong evidence that Congress exercises its judgment as to the appropriateness of corporate liability on a norm-
by-norm basis, and that courts should do the same when considering whether to permit causes of action against
corporations 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
1434 1404 (quoting 18 U.S.C. § 2333(a) ). But if encompassing different *1434 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 1405, because permitting such suits would allow foreign plaintiffs to
"bypass Congress' express limitations on liability under the [ATA] simply by bringing an ATS lawsuit," ibid .
Yet an ATS suit alleging terrorism-related conduct does not "bypass" or "displace" any "statutory and
regulatory structure," ibid., any more than an ATA suit does. As this case demonstrates, U.S. nationals and
foreign citizens may bring ATA and ATS suits in the same court, at the same time, for the same underlying
conduct. To the extent the plurality is suggesting that Congress, in enacting the ATA, meant to foreclose ATS
suits based on terrorism financing, the plurality offers no evidence to support that hypothesis, and the
legislative history suggests that Congress enacted the ATA to provide U.S. citizens with the same remedy
already available to foreign citizens under the ATS. See Hearing on S. 2465 before the Subcommittee on Courts
and Administrative Practice of the Senate Committee on the Judiciary, 101st Cong., 1st Sess., 90 (1990)
(testimony of Joseph A. Morris) (noting that ATS actions for terrorism "would be preserved").
At bottom, the ATS and TVPA are related but distinct statutes that coexist independently. There is no basis to
conclude that the considered judgment Congress made 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.
37
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 1405. None is
persuasive.
First, the plurality asserts that "[i]t has not been shown that corporate liability under the ATS is essential to
serve the goals of the statute" because "the ATS will seldom be the only way for plaintiffs to hold the
perpetrators liable," and because "plaintiffs still can sue the individual corporate employees responsible for a
violation of international law under the ATS." Ibid. This Court has never previously required that, to maintain
an ATS action, a plaintiff must show that the ATS is the exclusive means by which to hold the alleged
perpetrator liable and that no relief can be had from other parties. Such requirements extend far beyond the
inquiry Sosa contemplated and are without any basis in the statutory text.
Moreover, even if there are other grounds on which a suit alleging conduct constituting a law-of-nations
violation can be brought, such as a state-law tort claim, the First Congress created the ATS because it wanted
foreign plaintiffs to be able to bring their claims in federal court and sue for law-of-nations violations. A suit
for state-law battery, even if based on the same alleged conduct, is not the equivalent of a federal suit for
1435 torture; the latter contributes to the uptake of international human rights norms, and the former does not.12 *1435
Furthermore, holding corporations accountable for violating the human rights of foreign citizens when those
violations touch and concern the United States may well be necessary to avoid the international tension with
which the First Congress was concerned. Consider again the assault on the Secretary of the French Legation in
Philadelphia by a French adventurer. See supra, at 1426; ante, at 1415 (majority opinion). Would the
diplomatic strife that followed really have been any less charged if a corporation had sent its agent to accost the
Secretary? Or, consider piracy. If a corporation owned a fleet of vessels and directed them to seize other ships
in U.S. waters, there no doubt would be calls to hold the corporation to account. See Kiobel, 621 F.3d, at 156,
and n. 10 (observing that "Somali pirates essentially operate as limited partnerships"). Finally, take, for
example, a corporation posing as a job-placement agency that actually traffics in persons, forcibly transporting
foreign nationals to the United States for exploitation and profiting from their abuse. Not only are the
individual employees of that business less likely to be able fully to compensate successful ATS plaintiffs, but
holding only individual employees liable does not impose accountability for the institution-wide disregard for
human rights. Absent a corporate sanction, that harm will persist unremedied. Immunizing the corporation from
suit under the ATS merely because it is a corporation, even though the violations stemmed directly from
1436 corporate policy and practice, might cause serious diplomatic friction.13 *1436 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 of their employees and subsidiaries around the world," a prospect that will
deter American corporations from investing in developing economies. Ante, at 1405. 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 1405, but that case was
concerned with the availability of civil aiding and abetting liability, not corporate liability generally, and the
United States never contended that permitting corporate liability under the ATS would undermine global
investment. Instead, it argued that permitting extraterritorial aiding and abetting cases would interfere with
foreign relations and deter "the free flow of trade and investment." See Brief for United States as Amicus
Curiae, O.T. 2007, No. 07–919, pp. 12–16, 20. Driven by hypothetical worry about besieged American
corporations, today's decision needlessly goes much further, encompassing all ATS suits against all foreign
corporations, not just those cases with extraterritorial dimensions premised on an aiding and abetting theory.
38
12 Counsel for Arab Bank acknowledged the symbolic force of ATS liability at oral argument. See Tr. of Oral Arg. 60 ("
[T]he idea of the ATS is ... not just that you violated a statute, but that you have violated some specific universal
obligatory norm so you are essentially an enemy of mankind. So, as much as my clients would not like to be an ATA
defendant, they would really, really, really not like to be ... labeled an enemy of mankind").
13 Justice ALITO, adopting a more absolutist position than the plurality, asserts without qualification that "federal courts
should not create causes of action under the ATS against foreign corporate defendants" because doing so "would
precipitate ... diplomatic strife." Ante, at 1415, 1414 (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 diplomatic friction, and that such suits will never be necessary "to help the United States avoid diplomatic
friction," ante, at 1411, however, is at odds with the considered judgment of the Executive Branch and Congress
regarding the importance of holding foreign corporations to account for certain egregious conduct. As noted, see Part
II–B–1, supra, the Executive Branch has twice urged the Court not to foreclose the ability of foreign nationals to sue
foreign corporate defendants under the ATS. The United States also has ratified several international agreements that
require it to impose liability on corporations, both foreign and domestic, for certain actions, including the financing of
terrorism. See supra, at 1424 – 1425. Congress, too, has expressly authorized civil suits against corporations for acts
related to terrorism. See 18 U.S.C. § 2333. The Executive Branch and Congress surely would not have taken these
positions, entered into these obligations, or made available these causes of action if the result were intolerable
diplomatic strife.
Justice ALITO also faults the lack of "real-world examples" of instances in which diplomatic friction has resulted from
a court's refusal to permit an individual to bring an ATS suit against a foreign corporation solely because of the
defendant's status as a foreign juridical entity. Ante, at 1414. 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 (C.A.11 2015) ; Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1022 (C.A.9 2014)
; Doe v. Exxon Mobil Corp., 654 F.3d 11, 39–57 (C.A.D.C.2011), vacated on other grounds, 527 Fed.Appx. 7
(C.A.D.C.2013) ; Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1017–1021 (C.A.7 2011), with Kiobel v. Royal
Dutch Petroleum, 621 F.3d 111, 120 (C.A.2 2010).
***
In sum, international law establishes what conduct violates the law of nations, and specifies whether, to
constitute a law-of-nations violation, the alleged conduct must be undertaken by a particular type of actor. But
it is federal common law that determines whether corporations may, as a general matter, be held liable in tort
for law-of-nations violations. Applying that framework here, I would hold that the ATS does not categorically
foreclose corporate liability. Tort actions against corporations have long been available under federal common
law. Whatever the majority might think of the value of modern-day ATS 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 1406.
Absent any reason to believe that the corporate form in itself raises serious foreign-policy concerns, and given
the repeated urging from the Executive Branch and Members of Congress that the Court need not and should
not foreclose corporate liability, I would reverse the decision of the Court of Appeals for the Second Circuit
and remand for further proceedings, including whether the allegations here sufficiently touch and concern the
United States, see Kiobel, 569 U.S., at 124–125, 133 S.Ct. 1659 and whether the international-law 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
39
In categorically barring all suits against foreign corporations under the ATS, the Court ensures that foreign
corporations—entities capable of wrongdoing under our domestic law—remain immune from liability for
human rights abuses, however egregious they may be.
Corporations can be and often are a force for innovation and growth. Many of their contributions to society
1437 should be *1437 celebrated. But the unique power that corporations wield can be used both for good and for bad.
Just as corporations can increase the capacity for production, so, too, some can increase the capacity for
suffering. Consider the genocide that took upwards of 800,000 lives in Rwanda in 1994, which was fueled by
incendiary rhetoric delivered via a private radio station, the Radio Télévision Libre des Mille Collines (RTLM).
Men spoke the hateful words, but the RTLM made their widespread influence possible.14
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 "contributed substantially to the killing of Tutsi"); G. Prunier, The Rwanda
Crisis: History of a Genocide 224 (2d ed. 1999) (detailing incitements to murder broadcast on the RTLM, including: "
'The graves are not yet full. Who is going to do the good work and help us fill them completely' "); Yanagizawa–Drott,
Propaganda and Conflict: Evidence From the Rwandan Genocide, 129 Q.J. Econ. 1947, 1950 (2014) (analyzing
village-level data from Rwanda to estimate that the RTLM's transmissions caused 10 percent of the total participation
in the genocide).
--------
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, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) ;
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ––––, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), without having
to shoulder attendant fundamental responsibilities.
I respectfully dissent.
40

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Jesner v. Arab Bank, PLC

Joseph JESNER, et al., Petitioners v. ARAB BANK, PLC.

Jeffrey L. Fisher, Stanford, CA, for Petitioners.

Paul D. Clement, Washington, DC, for Respondent.

The judgment of the Court of Appeals is affirmed.

Justice ALITO, concurring in part and concurring in the judgment.

Justice GORSUCH, concurring in part and concurring in the judgment.

https://treaties.un.org/doc/Publication/MTDSG/Volume% 20II/Chapter% 20XVIII/XVIII–11.en.pdf (all Internet

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