Jesner v. Arab Bank, PLC , 138 S. Ct. 1386 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JESNER ET AL. v. ARAB BANK, PLC
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 16–499. Argued October 11, 2017—Decided April 24, 2018
Petitioners filed suits under the Alien Tort Statute (ATS), alleging that
they, or the persons on whose behalf they assert claims, were injured
or killed by terrorist acts committed abroad, and that those acts were
in part caused or facilitated by respondent Arab Bank, PLC, a Jorda-
nian financial institution with a branch in New York. They seek to
impose liability on the bank for the conduct of its human agents, in-
cluding high-ranking bank officials. They claim that the bank used
its New York branch to clear dollar-denominated transactions that
benefited terrorists through the Clearing House Interbank Payments
System (CHIPS) and to launder money for a Texas-based charity al-
legedly affiliated with Hamas. While the litigation was pending, this
Court held, in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108,
that the ATS does not extend to suits against foreign corporations
when “all the relevant conduct took place outside the United States,”
id., at 124, but it left unresolved the Second Circuit’s broader holding
in its Kiobel decision: that foreign corporations may not be sued un-
der the ATS. Deeming that broader holding binding precedent, the
District Court dismissed petitioners’ ATS claims and the Second Cir-
cuit affirmed.
Held: The judgment is affirmed.
808 F.3d 144, affirmed.
JUSTICE KENNEDY delivered the opinion of the Court with respect to
Parts I, II–B–1, and II–C, concluding that foreign corporations may
not be defendants in suits brought under the ATS. Pp. 6–11, 18–19,
and 25–27.
(a) The Judiciary Act of 1789 included what is now known as the
ATS, which provides: “The district courts shall have original jurisdic-
tion of any civil action by an alien for a tort only, committed in viola-
2 JESNER v. ARAB BANK, PLC
Syllabus
tion of the law of nations or a treaty of the United States.” 28
U.S. C. §1350. The ATS is “strictly jurisdictional” and does not by its
own terms provide or delineate the definition of a cause of action for
international-law violations. Sosa v. Alvarez-Machain, 542 U.S. 692,
713–714. It was enacted against the backdrop of the general common
law, which in 1789 recognized a limited category of “torts in violation
of the law of nations,” id., at 714; and one of its principal objectives
was to avoid foreign entanglements by ensuring the availability of a
federal forum where the failure to have one might cause another na-
tion to hold the United States responsible for an injury to a foreign
citizen, see id., at 715–719. The ATS was invoked but a few times
over its first 190 years, but with the evolving recognition—e.g., in the
Nuremberg trials—that certain crimes against humanity violate
basic precepts of international law, courts began to give some redress
for violations of clear and unambiguous international human-rights
protections. After the Second Circuit first permitted plaintiffs to
bring ATS actions based on modern human-rights laws, Congress en-
acted the Torture Victim Protection Act of 1991 (TVPA), creating an
express cause of action for victims of torture and extrajudicial killing
in violation of international law. ATS suits became more frequent;
and modern ATS litigation has the potential to involve groups of for-
eign plaintiffs suing foreign corporations in the United States for al-
leged human-rights violations in other nations. In Sosa, the Court
held that in certain narrow circumstances courts may recognize a
common-law cause of action for claims based on the present-day law
of nations, 542 U. S., at 732, but it explicitly held that ATS litigation
implicates serious separation-of-powers and foreign-relations con-
cerns, id., at 727–728. The Court subsequently held in Kiobel that
“the presumption against extraterritoriality applies to [ATS] claims,”
569 U. S., at 124, and that even claims that “touch and concern the
territory of the United States . . . must do so with sufficient force to
displace” that presumption, id., at 124–125. Pp. 6–11.
(b) Sosa is consistent with this Court’s general reluctance to extend
judicially created private rights of action. Recent precedents cast
doubt on courts’ authority to extend or create private causes of action,
even in the realm of domestic law, rather than leaving such decisions
to the Legislature, which is better positioned “to consider if the public
interest would be served by imposing a new substantive legal liabil-
ity,” Ziglar v. Abbasi, 582 U.S. ___, ___ (internal quotation marks
omitted). This caution extends to the question whether the courts
should exercise the judicial authority to mandate a rule imposing lia-
bility upon artificial entities like corporations. Thus, in Correctional
Services Corp. v. Malesko, 534 U.S. 61, 72, the Court concluded that
Congress, not the courts, should decide whether corporate defendants
Cite as: 584 U. S. ____ (2018) 3
Syllabus
could be held liable in actions under Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388.
Neither the language of the ATS nor precedent supports an excep-
tion to these general principles in this context. Separation-of-powers
concerns that counsel against courts creating private rights of action
apply with particular force in the context of the ATS, which impli-
cates foreign-policy concerns that are the province of the political
branches. And courts must exercise “great caution” before recogniz-
ing new forms of liability under the ATS. Sosa, supra, at 728. The
question whether a proper application of Sosa would preclude courts
from ever recognizing new ATS causes of action need not be decided
here, for either way it would be inappropriate for courts to extend
ATS liability to foreign corporations absent further action from Con-
gress. Pp. 18–19.
(c) The ATS was intended to promote harmony in international re-
lations by ensuring foreign plaintiffs a remedy for international-law
violations when the absence of such a remedy might provoke foreign
nations to hold the United States accountable. But here, and in simi-
lar cases, the opposite is occurring. Petitioners are foreign nationals
seeking millions of dollars in damages from a major Jordanian finan-
cial institution for injuries suffered in attacks by foreign terrorists in
the Middle East. The only alleged connections to the United States
are the CHIPS transactions in Arab Bank’s New York branch and a
brief allegation about a charity in Texas. At a minimum, the rela-
tively minor connection between the terrorist attacks and the alleged
conduct in the United States illustrates the perils of extending the
scope of ATS liability to foreign multinational corporations like Arab
Bank.
For 13 years, this litigation has caused considerable diplomatic
tensions with Jordan, a critical ally that considers the litigation an
affront to its sovereignty. And this is not the first time that a foreign
sovereign has raised objections to ATS litigation in this Court. See
Sosa, supra, at 733, n. 21. These are the very foreign-relations ten-
sions the First Congress sought to avoid.
Nor are the courts well suited to make the required policy judg-
ments implicated by foreign corporate liability. Like the presumption
against extraterritoriality, judicial caution under Sosa “guards
against our courts triggering . . . serious foreign policy consequences,
and instead defers such decisions, quite appropriately, to the political
branches.” Kiobel, supra, at 124. Accordingly, the Court holds that
foreign corporations may not be defendants in suits brought under
the ATS. Pp. 25–27.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE THOM-
AS, concluded in Parts II–A, II–B–2, II–B–3, and III:
4 JESNER v. ARAB BANK, PLC
Syllabus
(a) Before recognizing an ATS common-law action, federal courts
must apply the two-part test announced in Sosa. The threshold
question is whether a plaintiff can demonstrate that the alleged vio-
lation is “ ‘of a norm that is specific, universal, and obligatory.’ ” 542
U. S., at 732. Assuming that such a norm can control, it must be de-
termined whether allowing the case to proceed under the ATS is a
proper exercise of judicial discretion or whether caution requires the
political branches to grant specific authority before corporate liability
can be imposed. Id., at 732–733, and nn. 20–21. With regard to the
first Sosa question, the Court need not resolve whether corporate lia-
bility is a question governed by international law or whether that law
imposes liability on corporations, because, as shown by the parties’
opposing arguments, there is at least sufficient doubt on the point to
turn to Sosa’s second question: whether the Judiciary must defer to
Congress to determine in the first instance whether that universal
norm has been recognized and, if so, whether it should be enforced in
ATS suits. Pp. 11–18.
(b) Especially here, in the realm of international law, it is im-
portant to look to analogous statutes for guidance on the appropriate
boundaries of judge-made causes of action. The logical statutory
analogy for an ATS common-law action is the TVPA—the only ATS
cause of action created by Congress rather than the courts. Drafted
as “an unambiguous and modern basis for [an ATS] cause of action,”
H. R. Rep. No. 102–367, p. 3, the TVPA reflects Congress’ considered
judgment of the proper structure for such an action. Absent a com-
pelling justification, courts should not deviate from that model. Rel-
evant here, the TVPA limits liability to “individuals,” a term which
unambiguously limits liability to natural persons, Mohamad v. Pales-
tinian Authority, 566 U.S. 449, 453–456. Congress’ decision to ex-
clude liability for corporations in TVPA actions is all but dispositive
in this case. Pp. 19–23.
(c) Other considerations relevant to the exercise of judicial discre-
tion also counsel against allowing liability under the ATS for foreign
corporations, absent congressional instructions. Corporate liability
under the ATS has not been shown to be essential to serving that
statute’s goals, the ATS will seldom be the only way for plaintiffs to
hold the perpetrators liable, and plaintiffs still can sue the individual
corporate employees responsible for a violation of international law
under the ATS. That the corporate form can be an instrument for in-
flicting grave harm and suffering poses serious and complex ques-
tions for the international community and for Congress. And this
complexity makes it all the more important that Congress determine
whether victims of human-rights abuses may sue foreign corpora-
tions in federal court. Pp. 23–25.
Cite as: 584 U. S. ____ (2018) 5
Syllabus
(d) In making its determination, Congress might decide that viola-
tions of international law do, or should, impose that liability to en-
sure that corporations make every effort to deter human-rights viola-
tions, and so that compensation for injured persons will be a cost of
doing business. Or Congress could conclude that neutral judicial
safeguards may not be ensured in every country and that, as a recip-
rocal matter, ATS liability for foreign corporations should be subject
to some limitations or preconditions. Finally, Congress might find
that corporate liability should be limited to cases where a corpora-
tion’s management was actively complicit in the crime. Pp. 27–29.
JUSTICE ALITO concluded that the outcome in this case is justified
not only by “judicial caution” but also by the separation of powers.
Assuming that Sosa v. Alvarez-Machain, 542 U.S. 692, correctly held
that federal courts, exercising their authority in limited circumstanc-
es to make federal common law, may create causes of action under
the ATS, this Court should not create such causes of action against
foreign corporate defendants. The objective for courts in any case re-
quiring the creation of federal common law must be “to find the rule
that will best effectuate the federal policy.” Textile Workers v. Lin-
coln Mills of Ala., 353 U.S. 448, 457. The First Congress enacted the
ATS to help the United States avoid diplomatic friction. Putting that
objective together with the rules governing federal common law gen-
erally, the following principle emerges: Federal courts should decline
to create federal common law causes of action whenever doing so
would not materially advance the ATS’s objective of avoiding diplo-
matic strife. Applying that principle here, it is clear that courts
should not create causes of action under the ATS against foreign cor-
porate defendants. Customary international law does not generally
require corporate liability, so declining to create it under the ATS
cannot give other nations just cause for complaint against the United
States. To the contrary, creating causes of action against foreign cor-
porations under the ATS may instead provoke exactly the sort of dip-
lomatic strife inimical to the statute’s fundamental purpose. Pp. 1–7.
JUSTICE GORSUCH concluded that there are two more fundamental
reasons why this lawsuit should be dismissed. Pp. 1–14.
(a) This Court has suggested that Congress originally enacted the
ATS to afford federal courts jurisdiction to hear tort claims related to
three violations of international law that were already embodied in
English common law: violations of safe conducts extended to aliens,
interference with ambassadors, and piracy. Sosa v. Alvarez-Machain,
542 U.S. 692, 715. Here, the plaintiffs seek much more. They want
the federal courts to recognize a new cause of action, one that did not
exist at the time of the statute’s adoption, one that Congress has nev-
er authorized. They find support in a passage suggesting that the
6 JESNER v. ARAB BANK, PLC
Syllabus
ATS may afford federal judges “discretion [to] conside[r] [creating]
new cause[s] of action” if they “rest on a norm of international char-
acter accepted by the civilized world and defined with a specificity
comparable to the features of the [three specified] 18th-century”
torts. Id., at 725. This is doubtful, for the people’s elected represent-
atives, not judges, make the laws that govern them. But even accept-
ing Sosa’s framework, a proper application of that framework would
preclude courts from recognizing any new causes of action under the
ATS. When courts are confronted with a request to fashion a new
cause of action, “separation-of-powers principles are or should be cen-
tral to the analysis.” Ziglar v. Abbasi, 582 U.S. ___, ___. The first
and most important question is whether Congress or the courts
should decide, and the right answer “most often will be Congress.”
Ibid. There is no reason to make a special exception for the ATS,
which was designed as “a jurisdictional statute creating no new caus-
es of action.” Sosa, 542 U. S., at 724. The context in which any Sosa
discretion would be exercised confirms the wisdom of restraint. The
“practical consequences” that might follow a decision to create a new
ATS cause of action, see id., at 732–733, would likely involve ques-
tions of foreign affairs and national security—matters implicating the
expertise and authority not of the Judiciary but of the political
branches. Pp. 2–5.
(b) Another independent problem is that this suit is by foreigners
against a foreigner over the meaning of international norms. The
original understanding of the ATS, which was but one clause in one
section of the Judiciary Act of 1789, likely would have required a do-
mestic defendant in order to comply with the requirements of the Di-
versity-of-Citizenship Clause of Article III. Precedent interpreting a
neighboring provision of the Judiciary Act confirms that conclusion.
See Mossman v. Higginson, 4 Dall. 12, 14. In any event, separation-
of-powers limits on the judicial function and deference to the political
branches should lead federal courts to require a domestic defendant
before agreeing to exercise any Sosa-generated discretion to entertain
an ATS suit. Pp. 5–14.
KENNEDY, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II–B–1, and II–C, in which
ROBERTS, C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined, and an
opinion with respect to Parts II–A, II–B–2, II–B–3, and III, in which
ROBERTS, C. J., and THOMAS, J., joined. THOMAS, J., filed a concurring
opinion. ALITO, J., and GORSUCH, J., filed opinions concurring in part
and concurring in the judgment. SOTOMAYOR, J., filed a dissenting
opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.
Cite as: 584 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–499
_________________
JOSEPH JESNER, ET AL., PETITIONERS v.
ARAB BANK, PLC
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 24, 2018]
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 liabil-
ity on the foreign corporation for the conduct of 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
2 JESNER v. ARAB BANK, PLC
Opinion of the Court
petitioners now seek compensation. Petitioners seek to
prove Arab Bank helped the terrorists receive the moneys
in part by means of currency clearances and bank transac-
tions passing through its New York City offices, all by
means of electronic transfers.
It is assumed here that those individuals who inflicted
death or injury by terrorism 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, en-
able, or facilitate the terrorist acts would themselves be
committing crimes under the same international-law
prohibitions.
Petitioners contend that international and domestic
laws impose responsibility and liability on a corporation if
its human agents use the corporation to commit crimes in
violation of international laws that protect human rights.
The question here is whether the Judiciary has the au-
thority, in an ATS action, to make that determination and
then to enforce that liability in ATS suits, all without any
explicit authorization from Congress to do so.
The answer turns upon the proper interpretation and
implementation of the ATS. The statute provides: “The
district courts shall have 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 im-
poses liability on corporations for human-rights violations
committed by its employees. The Court must also ask
whether it has authority and discretion in an ATS suit to
impose liability on a corporation without a specific direc-
tion from Congress to do so.
Cite as: 584 U. S. ____ (2018) 3
Opinion of the Court
I
A
Petitioners are plaintiffs in five ATS lawsuits filed
against Arab Bank in the United States District Court for
the Eastern District of New York. The suits were filed
between 2004 and 2010.
A significant majority of the plaintiffs in these law-
suits—about 6,000 of them—are foreign nationals whose
claims arise under the ATS. These foreign nationals are
petitioners here. They allege that they or their family
members were injured by terrorist attacks in the Middle
East over a 10-year period. Two of the five lawsuits also
included claims brought by American nationals under the
Anti-Terrorism Act, 18 U.S. C. §2333(a), but those claims
are not at issue.
Arab Bank is a major Jordanian financial institution
with branches throughout the world, including in New
York. According to the Kingdom of Jordan, Arab Bank
“accounts for between one-fifth and one-third of the total
market capitalization of the Amman Stock Exchange.”
Brief for Hashemite Kingdom of Jordan as Amicus Curiae
2. Petitioners allege that Arab Bank helped finance at-
tacks by Hamas and other terrorist groups. Among other
claims, petitioners allege that Arab Bank maintained
bank accounts for terrorists and their front groups and
allowed the accounts to be used to pay the families of
suicide bombers.
Most of petitioners’ allegations involve conduct that
occurred in the Middle East. Yet petitioners allege as well
that Arab Bank used its New York branch to clear 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
4 JESNER v. ARAB BANK, PLC
Opinion of the Court
dollars from one foreign bank account to another. Arab
Bank and certain amici point out that CHIPS transactions
are enormous both in volume and in dollar amounts. The
transactions occur predominantly in the United States but
are used by major banks both in the United States and
abroad. The CHIPS system is used for dollar-denominated
transactions and for transactions where the dollar is used
as an intermediate currency to facilitate a currency ex-
change. Brief for Institute of International Bankers as
Amicus Curiae 12–13, and n. 8. In New York each day, on
average, about 440,000 of these transfers occur, in dollar
amounts totaling about $1.5 trillion. Id., at 14. The
“clearance activity is an entirely mechanical function; it
occurs without human intervention in the proverbial ‘blink
of an eye.’ ” Ibid. There seems to be no dispute that the
speed and volume of these transactions are such that
individual supervision is simply not a systemic reality. As
noted below, substantial regulations govern these transac-
tions, both in the United States and in Jordan.
In addition to the dollar-clearing transactions, petition-
ers allege that Arab Bank’s New York branch was used to
launder money for the Holy Land Foundation for Relief
and Development (HLF), a Texas-based charity that peti-
tioners say is affiliated with Hamas. According to peti-
tioners, Arab Bank used its New York branch to facilitate
the transfer of funds from HLF to the bank accounts of
terrorist-affiliated charities in the Middle East.
During the pendency of this litigation, there was an
unrelated case that also implicated the issue whether the
ATS is applicable to suits in this country against foreign
corporations. See Kiobel v. Royal Dutch Petroleum Co.,
621 F.3d 111 (CA2 2010). That suit worked its way
through the trial court and the Court of Appeals for the
Second Circuit. The Kiobel litigation did not involve bank-
ing transactions. Its allegations were that holding compa-
nies incorporated in the Netherlands and the United
Cite as: 584 U. S. ____ (2018) 5
Opinion of the Court
Kingdom had, through a Nigerian subsidiary, aided and
abetted the Nigerian Government in human-rights abuses.
Id., at 123. In Kiobel, the Court of Appeals held that the
ATS does not extend to suits against corporations. Id., at
120. This Court granted certiorari in Kiobel. 565 U.S.
961 (2011).
After additional briefing and reargument in Kiobel, this
Court held that, given all the circumstances, the suit could
not be maintained under the ATS. Kiobel v. Royal Dutch
Petroleum Co., 569 U.S. 108, 114, 124–125 (2013). The
rationale of the holding, however, was not that the ATS
does not extend to suits against foreign corporations. That
question was left unresolved. The Court ruled, instead,
that “all the relevant conduct took place outside the United
States.” Id., at 124. Dismissal of the action was required
based on the presumption against extraterritorial applica-
tion of statutes.
So while this Court in Kiobel affirmed the ruling that
the action there could not be maintained, it did not ad-
dress the broader holding of the Court of Appeals that
dismissal was required because corporations may not be
sued under the ATS. Still, the courts of the Second Circuit
deemed that broader holding to be binding precedent. As
a consequence, in the instant case the District Court dis-
missed petitioners’ ATS claims based on the earlier Kiobel
holding in the Court of Appeals; and on review of the
dismissal order the Court of Appeals, also adhering to its
earlier holding, affirmed. In re Arab Bank, PLC Alien Tort
Statute Litigation, 808 F.3d 144 (2015). This Court
granted certiorari in the instant case. 581 U. S. ___
(2017).
Since the Court of Appeals relied on its Kiobel holding in
the instant case, it is instructive to begin with an analysis
of that decision. The majority opinion in Kiobel, written
by Judge Cabranes, held that the ATS does not apply to
alleged international-law violations by a corporation. 621
6 JESNER v. ARAB BANK, PLC
Opinion of the Court
F. 3d, at 120. Judge Cabranes relied in large part on the
fact that international criminal tribunals have consistently
limited their jurisdiction to natural persons. Id., at 132–
137.
Judge Leval filed a separate opinion. He concurred in
the judgment on other grounds but disagreed with the
proposition that the foreign corporation was not subject to
suit under the ATS. Id., at 196. Judge Leval conceded
that “international law, of its own force, imposes no liabili-
ties on corporations or other private juridical entities.”
Id., at 186. But he reasoned that corporate liability for
violations of international law is an issue of “civil compen-
satory liability” that international law leaves to individual
nations. Ibid. Later decisions in the Courts of Appeals for
the Seventh, Ninth, and District of Columbia Circuits
agreed with Judge Leval and held that corporations can be
subject to suit under the ATS. See Flomo v. Firestone Nat.
Rubber Co., 643 F.3d 1013, 1017–1021 (CA7 2011); Doe I
v. Nestle USA, Inc., 766 F.3d 1013, 1020–1022 (CA9
2014); Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 40–55
(CADC 2011), vacated on other grounds, 527 Fed. Appx. 7
(CADC 2013). The respective opinions by Judges
Cabranes and Leval are scholarly and extensive, providing
significant guidance for this Court in the case now before
it.
With this background, it is now proper to turn to the
history of the ATS and the decisions interpreting it.
B
Under the Articles of Confederation, the Continental
Congress lacked authority to “ ‘cause infractions of trea-
ties, or of the law of nations to be punished.’ ” Sosa v.
Alvarez-Machain, 542 U.S. 692, 716 (2004) (quoting J.
Madison, Journal of the Constitutional Convention 60 (E.
Scott ed. 1893)). The Continental Congress urged the
States to authorize suits for damages sustained by foreign
Cite as: 584 U. S. ____ (2018) 7
Opinion of the Court
citizens as a result of violations of international law;
but the state courts’ vindication of the law of nations
remained unsatisfactory. Concerns with the consequent
international-relations tensions “persisted through the
time of the Constitutional Convention.” 542 U. S., at 717.
Under the Articles of Confederation, the inability of the
central government to ensure adequate remedies for for-
eign citizens caused substantial foreign-relations prob-
lems. In 1784, the French Minister lodged a protest with
the Continental Congress after a French adventurer, the
Chevalier de Longchamps, assaulted the Secretary of the
French Legation in Philadelphia. See Kiobel, 569 U. S., at
120. A few years later, a New York constable caused an
international incident when he entered the house of the
Dutch Ambassador and arrested one of his servants. Ibid.
Under the Articles of Confederation, there was no national
forum available to resolve disputes like these under any
binding laws that were or could be enacted or enforced by
a central government.
The Framers addressed these matters at the 1787 Phil-
adelphia Convention; and, as a result, Article III of the
Constitution extends the federal judicial power to “all
cases affecting ambassadors, other public ministers and
consuls,” and “to controversies . . . between a state, or the
citizens thereof, and foreign states, citizens, or subjects.”
§2. The First Congress passed a statute to implement
these provisions: The Judiciary Act of 1789 authorized
federal jurisdiction over suits involving disputes between
aliens and United States citizens and suits involving
diplomats. §§9, 11, 1 Stat. 76–79.
The Judiciary Act also included what is now the statute
known as the ATS. §9, id., at 76. As noted, the ATS is
central to this case and its brief text bears repeating. Its
full text is: “The district courts shall have original jurisdic-
tion of any civil action by an alien for a tort only, commit-
ted in violation of the law of nations or a treaty of the
8 JESNER v. ARAB BANK, PLC
Opinion of the Court
United States.” 28 U.S. C. §1350.
The ATS is “strictly jurisdictional” and does not by its
own terms provide or delineate the definition of a cause of
action for violations of international law. Sosa, 542 U. S.,
at 713–714. But the statute was not enacted to sit on a
shelf awaiting further legislation. Id., at 714. Rather,
Congress enacted it against the backdrop of the general
common law, which in 1789 recognized a limited category
of “torts in violation of the law of nations.” Ibid.
In the 18th century, international law primarily gov-
erned relationships between and among nation-states, but
in a few instances it governed individual conduct occurring
outside national borders (for example, “disputes relating to
prizes, to shipwrecks, to hostages, and ransom bills”). Id.,
at 714–715 (internal quotation marks omitted). There
was, furthermore, a narrow domain in which “rules bind-
ing individuals for the benefit of other individuals over-
lapped with” the rules governing the relationships be-
tween nation-states. Id., at 715. As understood by
Blackstone, this domain included “three specific offenses
against the law of nations addressed by the criminal law
of England: violation of safe conducts, infringement of the
rights of ambassadors, and piracy.” Ibid. (citing 4 W.
Blackstone, Commentaries on the Laws of England 68
(1769)). “It was this narrow set of violations of the law of
nations, admitting of a judicial remedy and at the same
time threatening serious consequences in international
affairs, that was probably on the minds of the men who
drafted the ATS.” 542 U. S., at 715.
This history teaches that Congress drafted the ATS “to
furnish jurisdiction for a relatively modest set of actions
alleging violations of the law of nations.” Id., at 720. The
principal objective of the statute, when first enacted, was
to avoid foreign entanglements by ensuring the availabil-
ity of a federal forum where the failure to provide one
might cause another nation to hold the United States
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responsible for an injury to a foreign citizen. See id., at
715–719; Kiobel, 569 U. S., at 123–124.
Over the first 190 years or so after its enactment, the
ATS was invoked but a few times. Yet with the evolving
recognition—for instance, in the Nuremberg trials after
World War II—that certain acts constituting crimes
against humanity are in violation of basic precepts of
international law, courts began to give some redress for
violations of international human-rights protections that
are clear and unambiguous. In the modern era this began
with the decision of the Court of Appeals for the Second
Circuit in Filartiga v. Pena-Irala, 630 F.2d 876 (1980).
In Filartiga, it was alleged that a young man had been
tortured and murdered by Paraguayan police officers, and
that an officer named Pena-Irala was one of the supervi-
sors and perpetrators. Some members of the victim’s
family were in the United States on visas. When they
discovered that Pena-Irala himself was living in New
York, they filed suit against him. The action, seeking
damages for the suffering and death he allegedly had
caused, was filed in the United States District Court for
the Eastern District of New York. The Court of Appeals
found that there was jurisdiction under the ATS. For this
holding it relied upon the universal acknowledgment that
acts of official torture are contrary to the law of nations.
Id., at 890. This Court did not review that decision.
In the midst of debates in the courts of appeals over
whether the court in Filartiga was correct in holding that
plaintiffs could bring ATS actions based on modern 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. 73, note
following 28 U.S. C. §1350. H. R. Rep. No. 102–367,
pp. 3–4 (1991) (H. R. Rep.) (citing Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774 (CADC 1984)); S. Rep. No. 102–
249, pp. 3–5 (1991) (S. Rep.) (same). The TVPA—which is
10 JESNER v. ARAB BANK, PLC
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codified as a note following the ATS—creates an express
cause of action for victims of torture and extrajudicial
killing in violation of international law.
After Filartiga and the TVPA, ATS lawsuits became
more frequent. Modern ATS litigation has the potential to
involve large groups of foreign plaintiffs suing foreign
corporations in the United States for alleged human-rights
violations in other nations. For example, in Kiobel the
plaintiffs were Nigerian nationals who sued Dutch, Brit-
ish, and Nigerian corporations for alleged crimes in Nige-
ria. 569 U. S., at 111–112. The extent and scope of this
litigation in United States courts have resulted in criti-
cism here and abroad. See id., at 124 (noting objections to
ATS litigation by Canada, Germany, Indonesia, Papua
New Guinea, South Africa, Switzerland, and the United
Kingdom).
In Sosa, the Court considered the question whether
courts may recognize new, enforceable international
norms in ATS lawsuits. 542 U. S., at 730–731. The Sosa
Court acknowledged the decisions made in Filartiga and
similar cases; and it held that in certain narrow circum-
stances courts may recognize a common-law cause of
action for claims based on the present-day law of nations,
in addition to the “historical paradigms familiar when
§1350 was enacted.” 542 U. S., at 732. The Court was
quite explicit, however, in holding that ATS litigation
implicates serious separation-of-powers and foreign-
relations concerns. Id., at 727–728. Thus, ATS claims
must be “subject to vigilant doorkeeping.” Id., at 729.
This Court next addressed the ATS in Kiobel, the case
already noted. There, this Court held that “the presump-
tion against extraterritoriality applies to claims under the
ATS, and that nothing in the statute rebuts the presump-
tion.” 569 U. S., at 124. The Court added that “even
where the claims touch and concern the territory of the
United States, they must do so with sufficient force to
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displace the presumption against extraterritorial applica-
tion.” Id., at 124–125.
II
With these principles in mind, this Court now must
decide whether common-law liability under the ATS ex-
tends to a foreign corporate defendant. It could be argued,
under the Court’s holding in Kiobel, that even if, under
accepted principles of international law and federal com-
mon law, corporations are subject to ATS liability for
human-rights crimes committed by their human agents, in
this case the activities of the defendant corporation and
the alleged actions of its employees have insufficient
connections to the United States to subject it to jurisdic-
tion under the ATS. Various amici urge this as a rationale
to affirm here, while the Government argues that the
Court should remand this case so the Court of Appeals can
address the issue in the first instance. There are substan-
tial arguments on both sides of that question; but it is not
the question on which this Court granted certiorari, nor is
it the question that has divided the Courts of Appeals.
The question whether foreign corporations are subject to
liability under the ATS should be addressed; for, if there is
no liability for Arab Bank, the lengthy and costly litigation
concerning whether corporate contacts like those alleged
here suffice to impose 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 corpora-
tions, or at least foreign corporations, are subject to liabil-
ity in an ATS suit filed in a United States district court.
Before recognizing a common-law action under the ATS,
federal courts must apply the test announced in Sosa. An
initial, threshold question is whether a plaintiff can
demonstrate that the alleged violation is “of a norm that is
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specific, universal, and obligatory.” 542 U. S., at 732
(internal quotation marks omitted). And even assuming
that, under international law, there is a specific norm that
can be controlling, it must be determined further whether
allowing this case to proceed under the ATS is a proper
exercise of judicial discretion, or instead whether caution
requires the political branches to grant specific authority
before corporate liability can be imposed. See id., at 732–
733, and nn. 20–21. “[T]he potential implications for the
foreign relations of the United States of recognizing such
causes should make courts particularly wary of impinging
on the discretion of the Legislative and Executive
Branches in managing foreign affairs.” Id., at 727.
It must be said that some of the considerations that
pertain to determining whether there is a specific, univer-
sal, and obligatory norm that is established under interna-
tional law are applicable as well in determining whether
deference must be given to the political branches. For
instance, the fact that the charters of some international
tribunals and the provisions of some congressional stat-
utes addressing international human-rights violations are
specifically limited to 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 inquir-
ies inform each other and are, to that extent, not altogether
discrete.
With that introduction, it is proper now to turn first to
the question whether there is an international-law norm
imposing liability on corporations for acts of their employ-
ees that contravene fundamental human rights.
A
Petitioners and Arab Bank disagree as to whether cor-
porate liability is a question of international law or only a
question of judicial authority and discretion under domes-
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tic law. The dispute centers on a footnote in Sosa. In the
course of holding that international norms must be “suffi-
ciently definite to support a cause of action,” the Court in
Sosa noted that a “related consideration is whether inter-
national law extends the scope of liability for a violation of
a given norm to the perpetrator being sued, if the defend-
ant is a private actor such as a corporation or individual.”
Id., at 732, and n. 20.
In the Court of Appeals’ decision in Kiobel, the majority
opinion by Judge Cabranes interpreted footnote 20 to
mean that corporate defendants may be held liable under
the ATS only if there is a specific, universal, and obligatory
norm that corporations are liable for violations of interna-
tional law. 621 F. 3d, at 127. In Judge Cabranes’ view,
“[i]nternational law is not silent on the question of the
subjects of international law—that is, those that, to vary-
ing extents, have legal status, personality, rights, and
duties under international law,” “[n]or does international
law leave to individual States the responsibility of defin-
ing those subjects.” Id., at 126 (internal quotation marks
omitted). There is considerable force and weight to the
position articulated by Judge Cabranes. And, assuming
the Court of Appeals was correct that under Sosa corpo-
rate liability is a question of international law, there is an
equally strong argument that petitioners cannot satisfy
the high bar of demonstrating a specific, universal, and
obligatory norm of liability for corporations. Indeed,
Judge Leval agreed with the conclusion that international
law does “not provide for any form of liability of corpora-
tions.” Kiobel, 621 F. 3d, at 186.
1
In modern times, there is no doubt, of course, that “the
international community has come to recognize the com-
mon danger posed by the flagrant disregard of basic hu-
man rights,” leading “the nations of the world to recognize
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that respect for fundamental human rights is in their
individual and collective interest.” Filartiga, 630 F. 2d, at
890. That principle and commitment support the conclu-
sion that human-rights norms must bind the individual
men and women responsible for committing humanity’s
most terrible crimes, not just nation-states in their inter-
actions with one another. “The singular achievement of
international law since the 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 manufac-
tured and provided” the poison gas used in the Nazi death
chambers. Kiobel, 621 F. 3d, at 135. Although the Mili-
tary Tribunal “used the term ‘Farben’ as descriptive of the
instrumentality of cohesion in the name of which” the
crimes were committed, the Tribunal noted that “corpora-
tions act through individuals.” 8 The Farben Case, at
1153. Farben itself was not held liable. See ibid.
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The jurisdictional reach of more recent international
tribunals also has been limited to “natural persons.” See
Statute of the International Criminal Tribunal for the
Former Yugoslavia, S. C. Res. 827 (May 25, 1993), adopt-
ing U. N. Secretary-General Rep. Pursuant to Paragraph 2
of Security Council Resolution 808, Art. 6, U. N. Doc.
S/25704 (May 3, 1993); Statute of the International Tribu-
nal for Rwanda, Art. 5, S. C. Res. 955, Art. 5 (Nov. 8,
1994). The Rome Statute of the International Criminal
Court, for example, limits that tribunal’s jurisdiction to
“natural persons.” See Rome Statute of the International
Criminal Court, Art. 25(1), July 17, 1998, 2187 U. N. T. S.
90. The drafters of the Rome Statute considered, but
rejected, a proposal to give the International Criminal
Court jurisdiction over corporations. Eser, Individual
Criminal Responsibility, in 1 Rome Statute of the Interna-
tional Criminal Court 767, 778–779 (A. Cassese et al. eds.
2002).
The international community’s conscious decision to
limit the authority of these international tribunals to
natural persons counsels against a broad holding that
there is a specific, universal, and obligatory norm of corpo-
rate liability under currently prevailing international law.
2
In light of the sources just discussed, the sources peti-
tioners rely on to support their contention that liability for
corporations is well established as a matter of interna-
tional law lend weak 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 orga-
nized under its laws to be held liable when a person re-
sponsible for the management or control of that legal
entity has, in that capacity,” violated the Convention.
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International Convention for the Suppression of the Fi-
nancing of Terrorism, Dec. 9, 1999, S. Treaty Doc. No.
106–49, 2178 U. N. T. S. 232. But by its terms the Con-
vention imposes its obligations only on nation-states “to
enable” corporations to be held liable in certain circum-
stances under domestic law. The United States and other
nations, including Jordan, may fulfill their obligations
under the Convention by adopting detailed regulatory
regimes governing financial institutions. See, e.g., 18
U.S. C. §2333(a) (private right of action under the Anti-
Terrorism Act); 31 U.S. C. §5311 et seq. (Bank Secrecy
Act); 31 CFR pt. 595 (2017) (Terrorism Sanctions Regula-
tions); Brief for Central Bank of Jordan as Amicus Curiae
5 (describing Jordan’s “comprehensive approach to pre-
venting money laundering and terrorist financing”). The
Convention neither requires nor authorizes courts, with-
out congressional authorization, to displace those detailed
regulatory regimes by allowing common-law actions under
the ATS. And nothing in the Convention’s text requires
signatories to hold 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 inter-
national law in some circumstances. That falls far short of
establishing a specific, universal, and obligatory norm of
corporate liability.
It must be remembered that international law is distinct
from domestic law in its domain as well as its objectives.
International human-rights norms prohibit acts repug-
nant to all civilized peoples—crimes like genocide, torture,
and slavery, that make their perpetrators “enem[ies] of all
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mankind.” Sosa, 542 U. S., at 732 (internal quotation
marks omitted). In the American legal system, of course,
corporations are often subject to liability for the conduct of
their human employees, and so it may seem necessary and
natural that corporate entities are liable for violations of
international law under the ATS. It is true, furthermore,
that the enormity of the offenses that can be committed
against persons in violation of international human-rights
protections can be cited to show that corporations should
be subject to liability for the crimes of their human agents.
But the international community has not yet taken that
step, at least in the specific, universal, and obligatory
manner required by Sosa. Indeed, there is precedent to
the contrary in the statement during the Nuremberg
proceedings that “[c]rimes against international law are
committed by men, not by abstract entities, and only by
punishing individuals who commit such crimes can the
provisions of international law be enforced.” The Nurn-
berg Trial, 6 F. R. D. 69, 110 (1946).
Petitioners also contend that international law leaves
questions of remedies open for determination under do-
mestic law. As they see it, corporate liability is a remedial
consideration, not a substantive principle that must be
supported by a universal and obligatory norm if it is to be
implemented under the ATS. According to petitioners,
footnote 20 in Sosa does no more than recognize the dis-
tinction in international law between state and private
actors. But, as just explained, there is a similar distinc-
tion in international law between corporations and natu-
ral persons. And it is far from obvious why the question
whether corporations may be held liable for the interna-
tional crimes of their employees is a mere question of
remedy.
In any event, the Court need not resolve the questions
whether corporate liability is a question that is governed
by international law, or, if so, whether international law
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imposes liability on corporations. There is at least suffi-
cient doubt on the point to turn to Sosa’s second ques-
tion—whether the Judiciary must defer to Congress,
allowing it to determine in the first instance whether that
universal norm has been recognized and, if so, whether it
is prudent and necessary to direct its enforcement in suits
under the ATS.
B
1
Sosa is consistent with this Court’s general reluctance
to extend judicially created private rights of action. The
Court’s recent precedents cast doubt on the authority of
courts to extend or create private causes of action even in
the realm of domestic law, where this Court has “recently
and repeatedly said that a decision to create a private
right of action is one better left to legislative judgment in
the great majority of cases.” 542 U. S., at 727 (citing Cor-
rectional Services Corp. v. Malesko, 534 U.S. 61, 68 (2001);
Alexander v. Sandoval, 532 U.S. 275, 286–287 (2001)).
That is because “the Legislature is in the better position to
consider if the public interest would be served by imposing
a new substantive legal liability.” Ziglar v. Abbasi, 582
U.S. ___, ___ (2017) (slip op., at 12) (internal quotation
marks omitted). Thus, “if there are sound reasons to think
Congress might doubt the efficacy or necessity of a dam-
ages remedy, . . . courts must refrain from creating the
remedy in order to respect the role of Congress.” Id., at
___ (slip op., at 13).
This caution extends to the question whether the courts
should exercise the judicial authority to mandate a rule
that imposes liability upon artificial entities like corpora-
tions. Thus, in Malesko the Court held that corporate
defendants may not be held liable in Bivens actions. See
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971). Allowing corporate liability would have been a
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“marked extension” of Bivens that was unnecessary to
advance its purpose of holding individual officers respon-
sible for “engaging in unconstitutional wrongdoing.”
Malesko, 534 U. S., at 74. Whether corporate defendants
should be subject to suit was “a question for Congress, not
us, to decide.” Id., at 72.
Neither the language of the ATS nor the precedents
interpreting it support an exception to these general prin-
ciples in this context. In fact, the separation-of-powers
concerns that counsel against courts creating private
rights of action apply with particular force in the context
of the ATS. See infra, at 25–26. The political branches,
not the Judiciary, have the responsibility and institutional
capacity to weigh foreign-policy concerns. See Kiobel, 569
U. S., at 116–117. That the ATS implicates foreign rela-
tions “is itself a reason for a high bar to new private causes
of action for violating international law.” Sosa, supra,
at 727.
In Sosa, the Court emphasized that federal courts must
exercise “great caution” before recognizing new forms of
liability under the ATS. 542 U. S., at 728. In light of the
foreign-policy and separation-of-powers concerns inherent
in ATS litigation, there is an argument that a proper
application of Sosa would preclude courts from ever recog-
nizing any new causes of action under the ATS. But the
Court need not resolve that question in this case. Either
way, absent further action from Congress it would be
inappropriate for courts to extend ATS liability to foreign
corporations.
2
Even in areas less fraught with foreign-policy conse-
quences, the Court looks to analogous statutes for guid-
ance on the appropriate boundaries of judge-made causes
of action. See, e.g., Miles v. Apex Marine Corp., 498 U.S.
19, 24 (1990); Blue Chip Stamps v. Manor Drug Stores,
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421 U.S. 723, 736 (1975). Doing so is even more im-
portant in the realm of international law, where “the
general practice has been to look for legislative guidance
before exercising innovative authority over substantive
law.” Sosa, supra, at 726.
Here, the logical place to look for a statutory analogy to
an ATS common-law action is the TVPA—the only cause
of action under the ATS created by Congress rather than
the courts. As explained above, Congress drafted the
TVPA to “establish an unambiguous and modern basis for
a cause of action” under the ATS. H. R. Rep., at 3; S. Rep.,
at 4–5. Congress took care to delineate the TVPA’s
boundaries. In doing so, it could weigh the foreign-policy
implications of its rule. Among other things, Congress
specified who may be liable, created an exhaustion re-
quirement, and established a limitations period. Kiobel,
569 U. S., at 117. In Kiobel, the Court recognized that
“[e]ach of these decisions carries with it significant foreign
policy implications.” Ibid. The TVPA reflects Congress’
considered judgment of the proper structure for a right of
action under the ATS. Absent a compelling justification,
courts should not deviate from that model.
The key feature of the TVPA for this case is that it
limits liability to “individuals,” which, the Court has held,
unambiguously limits liability to natural persons. Mo-
hamad v. Palestinian Authority, 566 U.S. 449, 453–456
(2012). Congress’ decision to exclude liability for corpora-
tions in actions brought under the TVPA is all but disposi-
tive of the present case. That decision illustrates that
significant foreign-policy implications require the courts to
draw a careful balance in defining the scope of actions
under the ATS. It would be inconsistent with that balance
to create a remedy broader than the one created by Con-
gress. Indeed, it “would be remarkable to take a more
aggressive role in exercising a jurisdiction that remained
largely in shadow for much of the prior two centuries.”
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Sosa, supra, at 726.
According to petitioners, the TVPA is not a useful
guidepost because Congress limited liability under that
statute to “individuals” out of concern for the sovereign
immunity of foreign governmental entities, not out of
general hesitation about corporate liability under the ATS.
The argument seems to run as follows: The TVPA provides
a right of action to victims of torture and extrajudicial
killing, and under international law those human-rights
violations require state action. For a corporation’s em-
ployees to violate these norms therefore would require the
corporation to be an instrumentality of a foreign state or
other sovereign entity. That concern is absent, petitioners
insist, for crimes that lack a state-action requirement—for
example, genocide, slavery, or, in the present case, the
financing of terrorists.
At least two flaws inhere in this argument. First, in
Mohamad the Court unanimously rejected petitioners’
account of the TVPA’s legislative history. 566 U. S., at
453, 458–460. The Court instead read that history to
demonstrate that Congress acted to exclude all corporate
entities, not just the sovereign ones. Id., at 459–460 (cit-
ing Hearing and Markup on H. R. 1417 before the House
Committee on Foreign Affairs and Its Subcommittee on
Human Rights and International Organizations, 100th
Cong., 2d Sess., 87–88 (1988)); see also 566 U. S., at 461–
462 (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; see also, e.g., Sarei
v. Rio Tinto, PLC, 671 F.3d 736, 761–763 (CA9 2011) (en
banc) (corporate defendant allegedly used Papua New
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Guinea’s military to commit genocide), vacated and re-
manded, 569 U.S. 945 (2013).
Petitioners contend that, instead of the TVPA, the most
analogous statute here is the Anti-Terrorism Act. That
Act does permit suits against corporate entities. See 18
U.S. C. §§ 2331(3), 2333(d)(2). In fact, in these suits some
of the foreign plaintiffs 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 con-
trast, the ATS is available only for claims brought by “an
alien.” 28 U.S. C. §1350. A statute that excludes foreign
nationals (with the possible exception of foreign survivors
or heirs) is an inapt analogy for a common-law cause of
action that provides a remedy for foreign nationals only.
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 plaintiffs could bypass Congress’ ex-
press limitations on liability under the Anti-Terrorism Act
simply by bringing an ATS lawsuit. The Anti-Terrorism
Act, as mentioned above, is part of a comprehensive statu-
tory and regulatory regime that prohibits terrorism and
terrorism financing. The detailed regulatory structures
prescribed by Congress and the federal agencies charged
with oversight of financial institutions reflect the careful
deliberation of the political branches on when, and how,
banks should be held liable for the financing of terrorism.
It would be inappropriate for courts to displace this con-
sidered statutory and regulatory structure by holding
banks subject to common-law liability in actions filed
under the ATS.
In any event, even if the Anti-Terrorism Act were a
suitable model for an ATS suit, Congress’ decision in the
TVPA to limit liability to individuals still demonstrates
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that there are two reasonable choices. In this area, that is
dispositive—Congress, not the Judiciary, must decide
whether to expand the scope of liability under the ATS to
include foreign corporations.
3
Other considerations relevant to the exercise of judicial
discretion also counsel against allowing liability under the
ATS for foreign corporations, absent instructions from
Congress to do so. It has not been shown that corporate
liability under the ATS is essential to serve the goals of
the statute. As to the question of adequate remedies, the
ATS will seldom be the only way for plaintiffs to hold the
perpetrators liable. See, e.g., 18 U.S. C. §1091 (criminal
prohibition on genocide); §1595 (civil remedy for victims of
slavery). And plaintiffs still can sue the individual corpo-
rate employees responsible for a violation of international
law under the ATS. If the Court were to hold that foreign
corporations have liability for international-law violations,
then plaintiffs may well ignore the human perpetrators
and concentrate instead on multinational corporate
entities.
As explained above, in the context of criminal tribunals
international law itself generally limits liability to natural
persons. Although the Court need not decide whether the
seeming absence of a specific, universal, and obligatory
norm of corporate liability under international law by
itself forecloses petitioners’ claims against Arab Bank, or
whether this is an issue governed by international law,
the lack of a clear and well-established international-law
rule is of critical relevance in determining whether courts
should extend ATS liability to foreign corporations without
specific congressional authorization to do so. That is
especially so in light of the TVPA’s limitation of liability to
natural persons, which parallels the distinction between
corporations and individuals in international law.
24 JESNER v. ARAB BANK, PLC
OpinionofofKthe
Opinion Court
ENNEDY , J.
If, moreover, the Court were to hold that foreign corpo-
rations 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 na-
tions.” Kiobel, 569 U. S., at 124. This judicially mandated
doctrine, in turn, could subject American corporations to
an immediate, constant risk of claims seeking to impose
massive liability for the alleged conduct of their employees
and subsidiaries around the world, all as determined in
foreign courts, thereby “hinder[ing] global investment in
developing economies, where it is most needed.” Brief for
United States as Amicus Curiae in American Isuzu Mo-
tors, Inc. v. Ntsebeza, O. T. 2007, No. 07–919, p. 20 (inter-
nal quotation marks omitted).
In other words, allowing plaintiffs to sue foreign corpo-
rations under the ATS could establish a precedent that
discourages American corporations from investing abroad,
including in developing economies where the host govern-
ment might have a history of alleged human-rights viola-
tions, or where judicial systems might lack the safeguards
of United States courts. And, in consequence, that often
might deter the active corporate investment that contrib-
utes to the economic development that so often is an es-
sential foundation for human rights.
It is also true, of course, that natural persons can and do
use corporations for sinister purposes, including conduct
that violates international law. That the corporate form
can be an instrument for inflicting grave harm and suffer-
ing poses serious and complex questions both for the in-
ternational community and for Congress. So there are
strong arguments for permitting the victims to seek relief
from corporations themselves. Yet the urgency and com-
plexity of this problem make it all the more important that
Congress determine whether victims of human-rights
abuses may sue foreign corporations in federal courts in
Cite as: 584 U. S. ____ (2018) 25
Opinion of the Court
the United States. Congress, not the Judiciary, is the
branch with “the facilities necessary to make fairly such
an important policy decision where the possibilities of
international discord are so evident and retaliative action
so certain.” Kiobel, 569 U. S., at 116 (internal quotation
marks omitted). As noted further below, there are many
delicate and important considerations that Congress is in
a better position to examine in determining whether and
how best to impose corporate liability. And, as the TVPA
illustrates, Congress is well aware of the necessity of
clarifying the proper scope of liability under the ATS in a
timely way.
C
The ATS was intended to promote harmony in interna-
tional relations by ensuring foreign plaintiffs a remedy for
international-law violations in circumstances where the
absence of such a remedy might provoke foreign nations to
hold the United States accountable. Brief for United
States as Amicus Curiae 7. But here, and in similar cases,
the opposite is occurring.
Petitioners are foreign nationals seeking hundreds of
millions of dollars in damages from a major Jordanian
financial institution for injuries suffered in attacks by
foreign terrorists in the Middle East. The only alleged
connections to the United States are the CHIPS transac-
tions in Arab Bank’s New York branch and a brief allega-
tion regarding a charity in Texas. The Court of Appeals
did not address, and the Court need not now decide,
whether these allegations are sufficient to “touch and
concern” the United States under Kiobel. See 569 U. S., at
124–125.
At a minimum, the relatively minor connection between
the terrorist attacks at issue in this case and the alleged
conduct in the United States well illustrates the perils of
extending the scope of ATS liability to foreign multina-
26 JESNER v. ARAB BANK, PLC
Opinion of the Court
tional corporations like Arab Bank. For 13 years, this
litigation has “caused significant diplomatic tensions” with
Jordan, a critical ally in one of the world’s most sensitive
regions. Brief for United States as Amicus Curiae 30.
“Jordan is a key counterterrorism partner, especially in
the global campaign to defeat the Islamic State in Iraq
and Syria.” Id., at 31. The United States explains that
Arab Bank itself is “a constructive partner with the
United States in working to prevent terrorist financing.” Id.,
at 32 (internal quotation marks omitted). Jordan consid-
ers the instant litigation to be a “grave affront” to its
sovereignty. See Brief for Hashemite Kingdom of Jordan
as Amicus Curiae 3; see ibid. (“By exposing Arab Bank to
massive liability, this suit thus threatens to destabilize
Jordan’s economy and undermine its cooperation with the
United States”).
This is not the first time, furthermore, that a foreign
sovereign has appeared in this Court to note its objections
to ATS litigation. Sosa, 542 U. S., at 733, n. 21 (noting
objections by the European Commission and South Africa);
Brief for the Federal Republic of Germany as Amicus
Curiae in Kiobel v. Royal Dutch Petroleum Co., O. T. 2012,
No. 10–1491, p. 1; Brief for the Government of the United
Kingdom of Great Britain and Northern Ireland and the
Kingdom of the Netherlands as Amici Curiae in No. 10–
1491, p. 3. These are the very foreign-relations tensions
the First Congress sought to avoid.
Petitioners insist that whatever the faults of this litiga-
tion—for example, its tenuous connections to the United
States and the prolonged diplomatic disruptions it has
caused—the fact that Arab Bank is a foreign corporate
entity, as distinct from a natural person, is not one of
them. That misses the point. As demonstrated by this
litigation, foreign corporate defendants create unique
problems. And courts are not well suited to make the
required policy judgments that are implicated by corporate
Cite as: 584 U. S. ____ (2018) 27
OpinionofofKthe
Opinion Court
ENNEDY , J.
liability in cases like this one.
Like the presumption against extraterritoriality, judi-
cial caution under Sosa “guards against our courts trigger-
ing . . . serious foreign policy consequences, and instead
defers such decisions, quite appropriately, to the political
branches.” Kiobel, 569 U. S., at 124. If, in light of all the
concerns that must be weighed before imposing liability on
foreign corporations via ATS 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 viola-
tions 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 inter-
national law to the extent they deem proper, whether to
impose liability for human-rights violations upon foreign
corporations in this Nation’s courts, and, conversely, that
courts in other countries should be able to hold United
States corporations liable. Congress might determine that
violations of international law do, or should, impose that
liability to ensure that 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,
28 JESNER v. ARAB BANK, PLC
OpinionofofKthe
Opinion Court
ENNEDY , J.
and accountable to, the electorate.
It is still another possibility that, in the careful exercise
of its expertise in the field of foreign affairs, Congress
might conclude that neutral judicial safeguards may not
be ensured in every country; and so, as a reciprocal mat-
ter, it could determine that liability of foreign corporations
under the ATS should be subject to some limitations or
preconditions. Congress might deem this more careful
course to be the best way to encourage American corpora-
tions to undertake the 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 spe-
cial respect, especially because those careful distinctions
might themselves advance the Rule of Law. All this un-
derscores the important separation-of-powers concerns
that require the Judiciary to refrain from making these
kinds of decisions under the ATS. The political branches,
moreover, surely are better positioned than the Judiciary
to determine if corporate liability would, or would not,
create special risks of disrupting good relations with for-
eign governments.
Finally, Congress might find that corporate liability
should be limited to cases where a corporation’s manage-
ment was actively complicit in the crime. Cf. ALI, Model
Penal Code §2.07(1)(c) (1985) (a corporation may be held
criminally liable where “the commission of the offense was
authorized, requested, commanded, performed or recklessly
tolerated by the board of directors or by a high managerial
agent acting on behalf of the corporation within the scope
of his office or employment”). Again, the political branches
are better equipped to make the preliminary findings
and consequent conclusions that should inform this
Cite as: 584 U. S. ____ (2018) 29
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Opinion Court
ENNEDY , J.
determination.
These and other considerations that must shape and
instruct the formulation of principles of international and
domestic law are matters that the political branches are in
the better position to define and articulate. For these
reasons, judicial deference requires that any imposition of
corporate liability on foreign 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.
Cite as: 584 U. S. ____ (2018) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–499
_________________
JOSEPH JESNER, ET AL., PETITIONERS v.
ARAB BANK, PLC
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 24, 2018]
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full because it correctly
applies our precedents. I also agree with the points raised
by my concurring colleagues. Courts should not be in the
business of creating new causes of action under the Alien
Tort Statute, see post, at 2–5 (GORSUCH, J., concurring in
part and concurring in judgment), especially when it risks
international strife, see post, at 3–7 (ALITO, J., concurring
in part and concurring in judgment). And the Alien Tort
Statute likely does not apply to suits between foreign
plaintiffs and foreign defendants. See post, at 5–14 (opin-
ion of GORSUCH, J.).
Cite as: 584 U. S. ____ (2018) 1
Opinion of ALITO, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–499
_________________
JOSEPH JESNER, ET AL., PETITIONERS v.
ARAB BANK, PLC
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 24, 2018]
JUSTICE ALITO, concurring in part and concurring in the
judgment.
Creating causes of action under the Alien Tort Statute
against foreign corporate defendants would precipitate
exactly the sort of diplomatic strife that the law was en-
acted to prevent. As a result, I agree with the Court that
we should not take that step, and I join Parts I, II–B–1,
and II–C of the opinion of the Court. I write separately to
elaborate on why that outcome is compelled not only by
“judicial caution,” ante, at 27 (majority opinion), but also
by the separation of powers.
I
The ATS is a jurisdictional statute. It provides that
“[t]he district courts shall have original jurisdiction of any
civil action by an alien for a tort only, committed in viola-
tion of the law of nations or a treaty of the United States.”
28 U.S. C. §1350. By its terms, the ATS does not create
any causes of action.
In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), how-
ever, this Court nevertheless held that federal courts,
exercising their authority in limited circumstances to
make federal common law, may create causes of action
that aliens may assert under the ATS. That holding takes
some explaining.
2 JESNER v. ARAB BANK, PLC
Opinion of ALITO, J.
According to Sosa, when the First Congress enacted the
ATS in 1789, it assumed that the statute would “have
practical effect the moment it became law” because the
general common law “would provide a cause of action for
[a] modest number of international law violations.” Id., at
724. That assumption, however, depended on the contin-
ued existence of the general common law. And in 1938—a
century and a half after Congress enacted the ATS—this
Court rejected the “fallacy” underlying the general com-
mon law, declaring definitively that “[t]here is no federal
general common law.” Erie R. Co. v. Tompkins, 304 U.S.
64, 78, 79 (1938). That left the ATS in an awkward spot:
Congress had not created any causes of action for the
statute on the assumption that litigants would use those
provided by the general common law, but now the general
common law was no more.
In Sosa, this Court did its best to resolve that problem.
“[I]t would be unreasonable to assume,” the Court ex-
plained, “that the First Congress would have expected
federal courts to lose all capacity to recognize enforceable
international norms simply because the [general] common
law might lose some metaphysical cachet on the road to
modern realism.” 542 U. S., at 730. Although the general
common law was gone, the Court concluded, federal courts
could still exercise their authority to create so-called “fed-
eral common law” for those “ ‘few and restricted’ ” areas “in
which Congress has given the courts the power to develop
substantive law.” Texas Industries, Inc. v. Radcliff Mate-
rials, Inc., 451 U.S. 630, 640 (1981). Sosa interpreted the
ATS as conferring such authorization.
As a result, Sosa held that federal courts, subject to
certain conditions, may “recognize private causes of action
[under the ATS] for certain torts in violation of the law of
nations.” 542 U. S., at 724. But before doing so, Sosa
stressed, courts should follow a two-step process. First,
they should ensure that the contemplated cause of action
Cite as: 584 U. S. ____ (2018) 3
Opinion of ALITO, J.
reflects an international law norm that is “ ‘specific, uni-
versal and obligatory.’ ” Id., at 732. Second, if a suitable
norm is identified, federal courts should decide whether
there is any other reason to limit “the availability of re-
lief.” Id., at 733, n. 21.
II
For the reasons articulated by Justice Scalia in Sosa
and by JUSTICE GORSUCH today, I am not certain that
Sosa was correctly decided. See id., at 739–751 (Scalia, J.,
dissenting); post, at 2–5 (GORSUCH, J., concurring in part
and concurring in judgment). But even taking that deci-
sion on its own terms, this Court should not create causes
of action under the ATS against foreign corporate defend-
ants. As part of Sosa’s second step, a court should decline
to create a cause of action as a matter of federal common
law where the result would be to further, not avoid, dip-
lomatic strife. Properly applied, that rule easily resolves
the question presented by this case.*
Sosa interpreted the ATS to authorize the federal courts
to create causes of action as a matter of federal common
law. We have repeatedly emphasized that “in fashioning
federal [common law] principles to govern areas left open
by Congress, our function is to effectuate congressional
policy.” United States v. Kimbell Foods, Inc., 440 U.S.
715, 738 (1979). Fidelity to congressional policy is not
only prudent but necessary: Going beyond the bounds of
Congress’s authorization would mean unconstitutionally
usurping part of the “legislative Powers.” U. S. Const.,
Art. I, §1. Accordingly, the objective for courts in every
case requiring the creation of federal common law must be
——————
* Because this case involves a foreign corporation, we have no need to
reach the question whether an alien may sue a United States corpora-
tion under the ATS. And since such a suit may generally be brought in
federal court based on diversity jurisdiction, 28 U.S. C. §1332(a)(2), it
is unclear why ATS jurisdiction would be needed in that situation.
4 JESNER v. ARAB BANK, PLC
Opinion of ALITO, J.
“to find the rule that will best effectuate the federal policy.”
Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448,
457 (1957).
The ATS was meant to help the United States avoid
diplomatic friction. The First Congress enacted the law to
provide a forum for adjudicating that “narrow set of viola-
tions of the law of nations” that, if left unaddressed,
“threaten[ed] serious consequences” for the United States.
Sosa, 542 U. S., at 715; see also Brief for Professors of
International Law et al. as Amici Curiae 7–12. Specifically,
the First Congress was concerned about offenses like
piracy, violation of safe conducts, and infringement of the
rights of ambassadors, each of which “if not adequately
redressed could rise to an issue of war.” Sosa, supra, at
715. That threat was existentially terrifying for the young
Nation. See Kiobel v. Royal Dutch Petroleum Co., 569
U.S. 108, 123–124 (2013). To minimize the danger, the
First Congress enacted the ATS, “ensur[ing] that the
United States could provide a forum for adjudicating such
incidents” and thus helping the Nation avoid further
diplomatic imbroglios. Id., at 124; see ante, at 25 (majority
opinion).
Putting that objective together with the rules governing
federal common law generally, the following principle
emerges: Federal courts should decline to create federal
common law causes of action under Sosa’s second step
whenever doing so would not materially advance the
ATS’s objective of avoiding diplomatic strife. And apply-
ing that principle here, it is clear that federal courts
should not create causes of action under the ATS against
foreign corporate defendants. All parties agree that cus-
tomary international law does not require corporate liabil-
ity as a general matter. See Brief for Petitioners 30; Brief
for Respondent 22; see also ante, at 17 (plurality opinion);
post, at 3–4 (SOTOMAYOR, J., dissenting). But if customary
international law does not require corporate liability, then
Cite as: 584 U. S. ____ (2018) 5
Opinion of ALITO, J.
declining to create it under the ATS cannot give other
nations just cause for complaint against the United States.
To the contrary, ATS suits against foreign corporations
may provoke—and, indeed, frequently have provoked—
exactly the sort of diplomatic strife inimical to the funda-
mental purpose of the ATS. Some foreign states appear to
interpret international law as foreclosing civil corporate
liability for violations of the law of nations. See Brief for
Government of the United Kingdom et al. as Amici Curiae
in Kiobel v. Royal Dutch Petroleum Co., O. T. 2012, No.
10–1491, p. 14. Creating ATS causes of action against
foreign corporate defendants would put the United States
at odds with these nations. Even when states do not
object to this sort of corporate liability as a legal matter,
they may be concerned about ATS suits against their
corporations for political reasons. For example, Jordan
considers this suit “a direct affront” to its sovereignty and
one that “risks destabilizing Jordan’s economy and under-
cutting one of the most stable and productive alliances the
United States has in the Middle East.” Brief for Hashe-
mite Kingdom of Jordan as Amicus Curiae 4. Courting
these sorts of problems—which seem endemic to ATS
litigation—was the opposite of what the First Congress
had in mind.
In response, the dissent argues merely that any diplo-
matic friction “can be addressed with a tool more tailored
to the source of the problem than a blanket ban on corpo-
rate liability.” Post, at 19. Even on its own terms, that
argument is problematic: Many of the “more tailored” tools
offered by the dissent will still be hotly litigated by ATS
plaintiffs, and it may be years before incorrect initial
decisions about their applicability can be reviewed by the
courts of appeals. See ante, at 11 (plurality opinion).
In any event, the dissent misunderstands the relevant
standard. The question before us is whether the United
States would be embroiled in fewer international contro-
6 JESNER v. ARAB BANK, PLC
Opinion of ALITO, J.
versies if we created causes of action under the ATS
against foreign corporate defendants. Unless corporate
liability would actively decrease diplomatic disputes, we
have no authority to act. On that score, the dissent can
only speculate that declining to create causes of action
against foreign corporate defendants “might” lead to dip-
lomatic friction. Post, at 30. But the dissent has no real-
world examples to support its hunch, and that is not sur-
prising; the ATS already goes further than any other
statute in the world in granting aliens the right to sue
civilly for violations of international law, especially in
light of the many other avenues for relief available. See
ante, at 23 (plurality opinion). It would be rather rich for
any other nation to complain that the ATS does not go far
enough. Indeed, no country has.
Finally, the dissent invokes “the considered judgment of
the Executive Branch and Congress” that ATS suits
against foreign corporations are “necessary ‘to help the
United States avoid diplomatic friction.’ ” Post, at 31,
n. 13. Tellingly, however, the dissent cannot muster a
single source that actually supports that bold contention.
Instead, the dissent immediately retreats to two far more
modest assertions. First, the dissent observes that the
Executive Branch has twice suggested that this Court
should allow causes of action against corporate defendants
under the ATS. But both times the Executive Branch
defended that perspective primarily under the first step of
Sosa; here, however, we are dealing with Sosa’s second
step, and with the risk of diplomatic friction in particular.
Second, the dissent also notes that the Executive Branch
and Congress have each taken steps to hold corporations
liable for certain acts like terrorism. Post, at 31, n. 13.
That is, of course, true, but it is also entirely irrelevant.
Congress and the Executive Branch may be willing to
trade off the risk of some diplomatic friction in exchange
for the promotion of other objectives (such as “holding
Cite as: 584 U. S. ____ (2018) 7
Opinion of ALITO, J.
foreign corporations to account for certain egregious con-
duct,” ibid.). That is their prerogative as the political
branches. But consistent with the separation of powers,
we have neither the luxury nor the right to make such
policy decisions ourselves.
Creating causes of action under the ATS against foreign
corporate defendants would be a no-win proposition.
Foreign corporate liability would not only fail to meaning-
fully advance the objectives of the ATS, but it would also
lead to precisely those “serious consequences in interna-
tional affairs” that the ATS was enacted to avoid. Sosa,
542 U. S., at 715. Under those circumstances, federal
courts have a duty to refrain from acting. Although that
may make it more difficult for aliens to hold foreign corpo-
rations liable for human rights abuses, we have repeatedly
rejected the view that the ATS was meant to transform
the federal courts into forums for the litigation of all hu-
man rights suits. See ante, at 8–9, 25–27 (majority opin-
ion); Kiobel, 569 U. S., at 123–124; Sosa, supra, at 715–
718. Declining to extend the ATS to foreign corporate
defendants is thus not about “[i]mmunizing corporations
that violate human rights,” post, at 34, but rather about
furthering the purpose that the ATS was actually meant
to serve—avoiding diplomatic strife.
Cite as: 584 U. S. ____ (2018) 1
Opinion of GORSUCH, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–499
_________________
JOSEPH JESNER, ET AL., PETITIONERS v.
ARAB BANK, PLC
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 24, 2018]
JUSTICE GORSUCH, concurring in part and concurring in
the judgment.
I am pleased to join the Court’s judgment and Parts I,
II–B–1, and II–C of its opinion. Respectfully, though, I
believe there are two more fundamental reasons why this
lawsuit must be dismissed. A group of foreign plaintiffs
wants a federal court to invent a new cause of action so
they can sue another foreigner for allegedly breaching
international norms. In any other context, a federal judge
faced with a request like that would know exactly what to
do with it: dismiss it out of hand. Not because the defend-
ant happens to be a corporation instead of a human being.
But because the job of creating new causes of action and
navigating foreign policy 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 interna-
tional norms. I write because I am hopeful that courts in
the future might pause to consider both of these reasons
for restraint before taking up cases like this one. Whatever
powers courts may possess in ATS suits, they are powers
judges should be doubly careful not to abuse.
2 JESNER v. ARAB BANK, PLC
Opinion of GORSUCH, J.
I
First adopted in 1789, the current version of the ATS
provides that “[t]he district courts shall have original
jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of
the United States.” 28 U.S. C. §1350. More than two
hundred years later, the meaning of this terse provision
has still “proven elusive.” Sosa v. Alvarez-Machain, 542
U.S. 692, 719 (2004). At the same time, this Court has
suggested that Congress enacted the statute to afford
federal courts jurisdiction to hear tort claims related to
three violations of international law that were already
embodied in English common law: violations of safe con-
ducts extended to aliens, interference with ambassadors,
and piracy. Id., at 715; 4 W. Blackstone, Commentaries on
the Laws of England 68 (1769) (Blackstone); see also
Bellia & Clark, The Alien Tort Statute and the Law of
Nations, 78 U. Chi. L. Rev. 445 (2011) (arguing that the
ATS meant to supply jurisdiction over a slightly larger set
of claims involving intentional torts by Americans against
aliens).
In this case, the plaintiffs seek much more. They want
the federal courts to recognize a new cause of action, one
that did not exist at the time of the statute’s adoption, one
that Congress has never authorized. While their request
might appear inconsistent with Sosa’s explanation of the
ATS’s modest origin, the plaintiffs say that a caveat later
in the opinion saves them. They point to a passage where
the Court went on to suggest that the ATS may also afford
federal judges “discretion [to] conside[r] [creating] new
cause[s] of action” if they “rest on a norm of international
character accepted by the 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.
I harbor serious doubts about Sosa’s suggestion. In our
Cite as: 584 U. S. ____ (2018) 3
Opinion of GORSUCH, J.
democracy the people’s elected representatives make the
laws that govern them. Judges do not. The Constitution’s
provisions insulating judges from political accountability
may promote our ability to render impartial judgments
in disputes between the people, but they do nothing
to recommend us as policymakers for a large nation.
Recognizing just this, our cases have held that when
confronted with a request to fashion a new cause of action,
“separation-of-powers principles are or should be central
to the analysis.” Ziglar v. Abbasi, 582 U.S. ___, ___ (2017)
(slip op., at 12). The first and most important question in
that analysis “is ‘who should decide’ . . . , Congress or the
courts?” and the right answer “most often will be Con-
gress.” Ibid. Deciding that, henceforth, persons like A
who engage in certain conduct will be liable to persons like
B is, in every meaningful sense, just like enacting a new
law. And in our constitutional order the job of writing new
laws belongs to Congress, not the courts. Adopting new
causes of action may have been a “proper function for
common-law courts,” but it is not appropriate “for federal
tribunals” mindful of the limits of their constitutional
authority. Alexander v. Sandoval, 532 U.S. 275, 287
(2001) (internal quotation marks omitted).
Nor can I see any reason to make a special exception for
the ATS. As Sosa initially acknowledged, the ATS was
designed as “a jurisdictional statute creating no new
causes of action.” 542 U. S., at 724; accord, ante, at 8
(majority opinion). And I would have thought that the end
of the matter. A statute that creates no new causes of
action . . . creates no new causes of action. To the extent
Sosa continued on to claim for federal judges the discre-
tionary power to create new forms of liability on their own,
it invaded terrain that belongs to the people’s representa-
tives and should be promptly returned to them. 542 U. S.,
at 747 (Scalia, J., concurring in part and concurring in
4 JESNER v. ARAB BANK, PLC
Opinion of GORSUCH, J.
judgment).1
But even accepting Sosa’s framework does not end the
matter. As the Court acknowledges, there is a strong
argument that “a proper application of Sosa would pre-
clude courts from ever recognizing any new causes of
action under the ATS.” Ante, at 19. I believe that argu-
ment is correct. For the 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 stat-
ute’s passage, to start now. For a court inclined to claim
the discretion to enter this field, it is a discretion best
exercised by staying out of it.
The context in which any Sosa discretion would be
exercised confirms the wisdom of restraint. Sosa acknowl-
edged that any decision to create a new cause of action
would “inevitably [involve] an element of judgment about
the practical consequences” that might follow. Id., at 732–
733. But because the point of such a claim would be to
vindicate “a norm of international character,” id., at 725,
those “practical consequences” would likely involve ques-
tions of foreign affairs and national security—matters that
implicate neither judicial expertise nor authority. It is for
Congress to “define and punish . . . Offences against the
——————
1 Thedissent claims that Congress’s decision to give federal courts
“jurisdiction over claims based on ‘the law of nations,’ ” necessarily
implies the authority to develop that law. Post, at 16. That does not
follow. Federal courts have jurisdiction over all kinds of cases—for
example, those arising under the law of torts or contracts. Yet follow-
ing our decision in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), federal
courts are generally no longer permitted to promulgate new federal
common law causes of action in those areas. Id., at 75. I can see no
reason to treat the law of nations differently. See Sosa v. Alvarez-
Machain, 542 U.S. 692, 744–746 (2004) (Scalia, J., concurring in part
and concurring in judgment).
Cite as: 584 U. S. ____ (2018) 5
Opinion of GORSUCH, J.
Law of Nations” and to regulate foreign commerce. U. S.
Const., Art. I., §8. And it is for the President to resolve
diplomatic disputes and command the armed forces. Art.
II, §§2–3. Foreign policy and national security decisions
are “delicate, complex, and involve large elements of
prophecy” for which “the Judiciary has neither aptitude,
facilities[,] nor responsibility.” Chicago & Southern Air
Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 111
(1948) (Jackson, J.). And I find it difficult to imagine a
case in which a federal court might safely conclude other-
wise. Take this very lawsuit by way of example. The
Kingdom of Jordan considers it to be “a ‘grave affront’ to
its sovereignty,” and the State Department worries about
its foreign policy implications. Ante, at 26. Whether
American interests justify the “practical consequence” of
offending another nation in this way (or in worse ways
yet) is a question that should be addressed “only by those
directly responsible to the people whose welfare” such
decisions “advance or imperil.” Waterman S. S. Corp.,
supra, at 111. So while I have no quarrel with the dis-
sent’s observation, post, at 15–16, that lower federal courts
are not free to overrule Sosa’s framework or treat it as
optional, I do know that the analysis Sosa requires should
come out the same way in virtually every case. If Sosa is
right—and I am sure it is—that federal courts must “inev-
itably” exercise “an element of judgment” about delicate
questions of foreign affairs when deciding whether to
create a new cause of action, then judges should exercise
good judgment by declining the project before we create
real trouble.
II
Another independent problem lurks here. This is a suit
by foreigners against a foreigner over the meaning of
international norms. Respectfully, I do not think the
original understanding of the ATS or our precedent per-
6 JESNER v. ARAB BANK, PLC
Opinion of GORSUCH, J.
mits federal courts to hear cases like this. At a minimum,
both those considerations and simple common sense about
the limits of the judicial function should lead federal
courts to require a domestic defendant before agreeing to
exercise any Sosa-generated discretion to entertain an
ATS suit.
Start with the statute. What we call the Alien Tort
Statute began as just one clause among many in §9 of the
Judiciary Act of 1789, which specified the jurisdiction of
the federal courts. 1 Stat. 76–78. The ATS clause gave
the district courts “cognizance, concurrent with the courts
of the several States, or the circuit courts, as the case may
be, of all causes where an alien sues for a tort only in
violation of the law of nations or a treaty of the United
States.”2 Like today’s recodified version, 28 U.S. C.
——————
2 “Sec. 9. And be it further enacted, That the district courts shall
have, exclusively of the courts of the several States, cognizance of all
crimes and offences that shall be cognizable under the authority of the
United States, committed within their respective districts, or upon the
high seas; where no other punishment than whipping, not exceeding
thirty stripes, a fine not exceeding one hundred dollars, or a term of
imprisonment not exceeding six months, is to be inflicted; and shall also
have exclusive original cognizance of all civil causes of admiralty and
maritime jurisdiction, including all seizures under laws of impost,
navigation or trade of the United States, where the seizures are made,
on waters which are navigable from the sea by vessels of ten or more
tons burthen, within their respective districts as well as upon the high
seas; saving to suitors, in all cases, the right of a common law remedy,
where the common law is competent to give it; and shall also have
exclusive original cognizance of all seizures on land, or other waters
than as aforesaid, made, and of all suits for penalties and forfeitures
incurred, under the laws of the United States. And shall also have
cognizance, concurrent with the courts of the several States, or the
circuit courts, as the case may be, of all causes where an alien sues for a
tort only in violation of the law of nations or a treaty of the United
States. And shall also have cognizance, concurrent as last mentioned,
of all suits at common law where the United States sue, and the matter
in dispute amounts, exclusive of costs, to the sum or value of one
hundred dollars. And shall also have jurisdiction, exclusively of the
Cite as: 584 U. S. ____ (2018) 7
Opinion of GORSUCH, J.
§1350, the original text of the ATS did not expressly call
for a U. S. defendant. But I think it likely would have
been understood to contain such a requirement when
adopted.
That is because the First Congress passed the Judiciary
Act in the shadow of the Constitution. The Act created the
federal courts and vested them with statutory authority to
entertain claims consistent with the newly ratified terms
of Article III. Meanwhile, under Article III, Congress
could not have extended to federal courts the power to
hear just any suit between two aliens (unless, for example,
one was a diplomat). Diversity of citizenship was re-
quired. So, because Article III’s diversity-of-citizenship
clause calls for a U. S. party, and because the ATS clause
requires an alien plaintiff, it follows that an American
defendant was needed for an ATS suit to proceed.
Precedent confirms this conclusion. In Mossman v.
Higginson, 4 Dall. 12, 14 (1800), this Court addressed the
meaning of a neighboring provision of the Judiciary Act.
Section 11 gave the circuit 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
——————
courts of the several States, of all suits against consuls or vice-consuls,
except for offences above the description aforesaid. And the trial of
issues in fact, in the district courts, in all causes except civil causes of
admiralty and maritime jurisdiction, shall be by jury.” 1 Stat. 76–77
(some emphasis added; footnotes omitted).
8 JESNER v. ARAB BANK, PLC
Opinion of GORSUCH, J.
cases are, after all, supposed to come out alike. See Sarei
v. Rio Tinto, PLC, 671 F.3d 736, 828 (CA9 2011) (Ikuta,
J., dissenting) (“Mossman’s analysis [of §11] is equally
applicable to [§9]. . . . ATS does not give federal courts
jurisdiction to hear international law claims between two
aliens”), vacated and remanded, 569 U.S. 945 (2013).
Nor does it appear the ATS meant to rely on any other
head of Article III jurisdiction. You might wonder, for
example, if the First Congress considered a “violation of
the law of nations” to be a violation of, and thus “arise
under,” federal law. But that does not seem likely. At the
founding, the law of nations was considered a distinct
“system of rules, deducible by natural reason, and estab-
lished by universal consent among the civilized inhabit-
ants of the world,” 4 Blackstone 66. While this Court has
called international law “part of our law,” The Paquete
Habana, 175 U.S. 677, 700 (1900), and a component of the
“law of the land,” The Nereide, 9 Cranch 388, 423 (1815),
that simply meant international law was no different than
the law of torts or contracts—it was “part of the so-called
general common law,” but not part of federal law. Sosa,
542 U. S., at 739–740 (opinion of Scalia, J.). See Bradley &
Goldsmith, Customary International Law as Federal
Common Law: A Critique of the Modern Position, 110
Harv. L. Rev. 815, 824, 849–850 (1997); see also Young,
Sorting Out the Debate Over Customary International
Law, 42 Va. J. Int’l L. 365, 374–375 (2002). The text of the
Constitution appears to recognize just this distinction.
Article I speaks of “Offences against the Law of Nations,”
while both Article III and Article VI’s Supremacy Clause,
which defines the scope of pre-emptive federal law, omit
that phrase while referring to the “Laws of the United
States.” Congress may act to bring provisions of interna-
tional law into federal law, but they cannot find their way
there on their own. “The law of nations is not embodied in
any provision of the Constitution, nor in any treaty, act of
Cite as: 584 U. S. ____ (2018) 9
Opinion of GORSUCH, J.
Congress, or any authority, or commission derived from
the United States.” Caperton v. Bowyer, 14 Wall. 216, 228
(1872).
Even so, that hardly left the ATS without important
work to perform. At the time of the founding, “[i]f a nation
failed to redress injuries by its citizens upon the citizens of
another nation, the perpetrators’ nation violated the ‘per-
fect rights’ of the other nation,” which “provided the of-
fended nation with just cause for reprisals or war.” Bellia
& Clark, 78 U. Chi. L. Rev., at 476.3 This reality posed an
existential threat to the new nation. Under the Articles of
Confederation, States regularly refused to redress injuries
their citizens caused foreigners. British creditors, for
example, often found their efforts to collect debts from
American debtors thwarted. Id., at 498–501. Seeking to
remedy these and similar problems, the Continental Con-
gress in 1781 passed a resolution encouraging the States,
among other things, to establish tribunals for vindicating
“offences against the law of nations” and to “authorise
suits to be instituted for damages by the party injured.”
Id., at 495–496. But the States did too little, too late. So
when the framers gathered to write the Constitution they
included among their chief priorities endowing the national
——————
3 As a leading treatise explained, a sovereign “ought not to suffer his
subjects to molest the subjects of others, or to do them an injury, much
less should he permit them audaciously to offend foreign powers.” E. de
Vattel, 1 The Law of Nations, bk. II, §76, p. 145 (1760). Instead, the
nation “ought to oblige the guilty to repair the damage, if that be
possible, to inflict on him an exemplary punishment, or, in short,
according to the nature of the case, and the circumstances attending it,
to deliver him up to the offended state there to receive justice.” Ibid. A
sovereign who “refuses to cause a reparation to be made of the damage
caused by his subject, or to punish the guilty, or, in short, to deliver him
up, renders himself in some measure an accomplice in the injury, and
becomes responsible for it.” Id., §77, at 145; see also Bellia & Clark,
The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 472–
477 (2011).
10 JESNER v. ARAB BANK, PLC
Opinion of GORSUCH, J.
government with sufficient power to ensure the country’s
compliance with the law of nations. See 1 Records of the
Federal Convention of 1787, pp. 24–25 (M. Farrand rev.
1966).
Together with other provisions of the Judiciary Act, the
ATS served that purpose. The law of nations required
countries to ensure foreign citizens could obtain redress
for wrongs committed by domestic defendants, whether
“through criminal punishment, extradition, or a civil
remedy.” Bellia & Clark, 78 U. Chi. L. Rev., at 509. Yet
in 1789 this country had no comprehensive criminal code
and no extradition treaty with Great Britain. Id., at 509–
510. Section 11 achieved a partial solution to the problem
by permitting civil diversity suits in federal court between
aliens and domestic parties, but that provision required at
least $500 in controversy. 1 Stat. 78; cf. 28 U.S. C.
§1332(a) (today’s minimum is $75,000). But, as Professors
Bellia and Clark have explained, “[h]ad Congress stopped
there, it would have omitted an important category of law
of nations violations that threatened the peace of the
United States: personal injuries that US citizens inflicted
upon aliens resulting in less than $500 in damages.” 78 U.
Chi. L. Rev., at 509. So the ATS neatly filled the remain-
ing gap by allowing aliens to sue in federal court for a tort
in violation of the law of nations regardless of the amount
in controversy. One obvious advantage of this solution
“was that it was self-executing—it placed the burden on
injured aliens to bring suit and did not require the still-
forming US government immediately to marshal the
resources necessary to prosecute crimes” or aid extradi-
tions. Id., at 510.
Any attempt to decipher a cryptic old statute is sure to
meet with challenges. For example, one could object that
this reading of the Act does not assign to the ATS the
work of addressing assaults by aliens against foreign
ambassadors on our soil, even though Sosa suggested the
Cite as: 584 U. S. ____ (2018) 11
Opinion of GORSUCH, J.
statute was enacted partly in response to precisely such a
case: the “Marbois incident of May 1784, in which a
French adventurer, De Longchamps, verbally and physi-
cally assaulted the Secretary of the French Legion in
Philadelphia.” 542 U. S., at 716. Many thought that the
States’ failure to provide a forum for relief to the foreign
minister was a scandal and part of what prompted the
framers of the Constitution to strengthen the national
government. Id., at 717; Bellia & Clark, supra, at 467
(“The Confederation’s inability to remedy or curtail viola-
tions like these was a significant factor precipitating the
Federal Convention of 1787”).
But worries along these lines may be misplaced. The
ATS was never meant to serve as a freestanding statute,
only as one clause in one section of the Judiciary Act. So
even if you think something in the Judiciary Act must be
interpreted to address the Marbois incident, that doesn’t
mean it must be the ATS clause. And, as it happens, a
different provision of the Act did deal expressly with the
problem of ambassadorial assaults: Section 13 conferred
on this Court “original, but not exclusive jurisdiction of all
suits brought by ambassadors, or other public ministers,
or in which a consul, or vice consul shall be a party.” 1
Stat. 80–81. That implemented Article III’s provision
empowering us to hear suits “affecting Ambassadors, other
public ministers and Consuls.” §2. And given that §13
deals with the problem of “ambassadors” so directly, it is
unclear why we must read §9 to address that same prob-
lem. See Lee, The Safe-Conduct Theory of the Alien Tort
Statute, 106 Colum. L. Rev. 830, 855–858 (2006).
Along different but similar lines, some might be con-
cerned that requiring a U. S. defendant in ATS suits
would leave the problem of piracy inadequately addressed,
given that Sosa suggested that piracy was one of the three
offenses the ATS may have meant to capture, and many
pirates were foreigners. See 542 U. S., at 719. But here
12 JESNER v. ARAB BANK, PLC
Opinion of GORSUCH, J.
the response is much the same. A separate clause of §9
gave the district courts “exclusive original cognizance of
all civil causes of admiralty and maritime jurisdiction.” 1
Stat. 77. That statute has long been given a broad con-
struction covering “all maritime contracts, torts and inju-
ries,” DeLovio v. Boit, 7 F. Cas. 418, 442 (No. 3,776) (CC
Mass. 1815) (Story, J.), along with “prize jurisdiction,
which probably included almost all ‘piracy’ cases after
1789,” Lee, supra, at 867. So it is not clear why it’s neces-
sary to cram the problem of piracy into the ATS. If any-
thing, it may be necessary not to do so. Structural fea-
tures of §9 make it at least questionable that both
provisions were meant to 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 for-
eign pirates, what would that prove about more mine-run
cases like ours, where none of those special concerns are
implicated? There are at least serious historical argu-
ments suggesting the ATS was not meant to apply to suits
like this one. And to the extent Sosa affords courts discre-
tion to proceed, these arguments should inform any deci-
sion whether to exercise that discretion. In Kiobel v.
Royal Dutch Petroleum Co., 569 U.S. 108, 116–117 (2013),
the Court invoked Sosa discretion to refuse to hear cases
involving foreign conduct. I can see no reason why courts
should respond differently when it comes to cases involv-
Cite as: 584 U. S. ____ (2018) 13
Opinion of GORSUCH, J.
ing foreign defendants.4
Any consideration of Sosa’s discretion must also account
for proper limits on the judicial function. As discussed
above, federal courts generally lack the institutional ex-
pertise and constitutional authority to oversee foreign
policy and national security, and should be wary of stray-
ing where they do not belong. See supra, at 4–5. Yet
there are degrees of institutional incompetence and consti-
tutional evil. It is one thing for courts to assume the task
of creating new causes of action to ensure our citizens
abide by the law of nations and avoid reprisals against
this country. It is altogether another thing for courts to
punish foreign parties for conduct that could not be at-
tributed to the United States and thereby risk reprisals
against this country. If a foreign state or citizen violates
an “international norm” in a way that offends another
foreign state or citizen, the Constitution arms the Presi-
dent and Congress with ample means to address it. Or, if
they think best, the political branches may choose to look
the other way. But in all events, the decision to impose
sanctions in disputes between foreigners over international
——————
4 The dissent is wrong to suggest, post, at 17, that Sosa “forecloses”
the possibility of recognizing a U. S.-defendant requirement in ATS
cases. Sosa said nothing about the subject. And were Sosa taken to
preclude any future limits on ATS suits it did not itself anticipate, then
Kiobel must have been wrong to apply the canon against extraterrito-
rial application to that statute. But that is not so. The dissent also
observes that Sosa “involved an ATS suit brought by a citizen of Mexico
against a citizen of Mexico,” and that certain amici in Sosa filed briefs
arguing that the Court lacked authority over the ATS claims for that
reason. See post, at 17. But Sosa did not address those arguments;
questions that “merely lurk in the record are not resolved, and no
resolution of them may be inferred.” Illinois Bd. of Elections v. Social-
ist Workers Party, 440 U.S. 173, 183 (1979) (citations and internal
quotation marks omitted); accord, RJR Nabisco, Inc. v. European
Community, 579 U.S. ___, ___, n. 10 (2016) (slip op., at 23, n. 10) (issue
present but unaddressed by the Court in a previous case was not
implicitly decided).
14 JESNER v. ARAB BANK, PLC
Opinion of GORSUCH, J.
norms is not ours to make. It is a decision that belongs to
those answerable to the people and assigned by the Con-
stitution to defend this nation. If they wish our help, they
are free to enlist it, but we should not ever be in the busi-
ness of elbowing our way in.
Cite as: 584 U. S. ____ (2018) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–499
_________________
JOSEPH JESNER, ET AL., PETITIONERS v.
ARAB BANK, PLC
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 24, 2018]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE KAGAN join, dissenting.
The Court today holds that the Alien Tort Statute
(ATS), 28 U.S. C. §1350, categorically forecloses foreign
corporate liability. In so doing, it absolves corporations
from responsibility under the ATS for conscience-shocking
behavior. I disagree both with the Court’s conclusion and
its analytic approach. The text, history, and purpose of
the ATS, as well as the long and consistent history of
corporate liability in tort, confirm that tort claims for 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.
I
The plurality assumes without deciding that whether
corporations can be permissible defendants under the ATS
turns on the first step of the two-part inquiry set out in
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). But by
asking whether there is “a specific, universal, and obliga­
tory norm of liability for corporations” in international
2 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
law, ante, at 13, the plurality fundamentally misconceives
how international law works and so misapplies the first
step of Sosa.
A
In Sosa, the Court considered whether a Mexican citizen
could recover under the ATS for a claim of arbitrary de­
tention by a Mexican national who had been hired by the
Drug Enforcement Administration to seize and transport
him to the United States. See 542 U. S., at 697–698. The
Court held that the ATS permits federal courts to “recog­
nize private causes of action for certain torts in violation of
the law of nations,” id., at 724, without the need for any
“further congressional action,” id., at 712. The Court then
articulated a two-step framework to guide that inquiry.
First, a court must determine whether the particular
international-law norm alleged to have been violated is
“accepted by the civilized world and defined with a speci­
ficity comparable to the features of the 18th-century para­
digms,” i.e., “violation of safe conducts, infringement of the
rights of ambassadors, and piracy.” Id., at 724–725. Only
if the norm is “ ‘specific, universal, and obligatory’ ” may
federal courts recognize a cause of action for its violation.
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 117
(2013) (quoting Sosa, 542 U. S., at 732). Second, if that
threshold hurdle is satisfied, a court should consider
whether allowing a particular case to proceed is an appro­
priate exercise of judicial discretion. Sosa, 542 U. S., at
727–728, 732–733, 738. Applying that framework, Sosa
held that the alleged arbitrary detention claim at issue
failed at step one because “a single illegal detention of less
than a day, followed by the transfer of custody to lawful
authorities and a prompt arraignment, violates no norm of
customary international law so well defined as to support
the creation of a federal remedy.” Id., at 738.
Sosa’s norm-specific first step is inapposite to the cate­
Cite as: 584 U. S. ____ (2018) 3
SOTOMAYOR, J., dissenting
gorical question whether corporations may be sued under
the ATS as a general matter. International law imposes
certain obligations that are intended to govern the behav­
ior of states and private actors. See id., at 714–715; 1
Restatement (Third) of Foreign Relations Law of the
United States, pt. II, Introductory Note, pp. 70–71 (1987)
(Restatement). Among those obligations are substantive
prohibitions on certain conduct thought to violate human
rights, such as genocide, slavery, extrajudicial killing, and
torture. See 2 Restatement §702. Substantive prohibi­
tions 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 Restate­
ment §111, Comment h (“In the absence of special agree­
ment, it is ordinarily for the United States to decide how it
will carry out its international obligations”); Brief for
International Law Scholars as Amici Curiae 9–10.
In keeping with the nature of international law, Sosa
consistently used the word “norm” to refer to substantive
4 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
conduct. For example, Sosa commands that “federal
courts should not recognize private claims under federal
common law for violations of any international law norm
with less definite content and acceptance among civilized
nations than the historical paradigms familiar when
§1350 was enacted.” 542 U. S., at 732. That statement
would make little sense if “norm” encompassed enforce­
ment mechanisms like “corporate liability.” Unlike “the
prohibition on genocide,” “corporate liability” cannot be
violated. Moreover, “the historical paradigms familiar
when §1350 was enacted” are all prohibitions on conduct,
and Sosa clearly contemplated that courts should compare
the charged conduct with the historical conduct. See ibid.
(quoting Filartiga v. Pena-Irala, 630 F.2d 876 (1980),
where the Court of Appeals for the Second Circuit com­
pared 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 (CADC
1984), which suggested that the “ ‘limits of section 1350’s
reach’ ” be defined by “ ‘a handful of heinous actions—each
of which violates definable, universal and obligatory
norms,’ ” id., at 781). There is no indication in Sosa that
the Court also intended for courts to undertake the 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 interna­
tional law, not that the civil action be of a type that the
Cite as: 584 U. S. ____ (2018) 5
SOTOMAYOR, J., dissenting
international community specifically and universally
practices or endorses.
B
1
The plurality nonetheless allies itself with the view that
international law supplies the rule of decision in this case
based on its reading of footnote 20 in Sosa. That footnote
sets out “[a] related consideration” to “the determination
whether a norm is sufficiently definite to support a cause
of action.” 542 U. S., at 732, and n. 20. In full, it states:
“A related consideration is whether international law
extends the scope of liability for a violation of a given
norm to the perpetrator being sued, if the defendant is
a private actor such as a corporation or individual.
Compare Tel-Oren v. Libyan Arab Republic, 726 F.2d
774, 791–795 (CADC 1984) (Edwards, J., concurring)
(insufficient consensus in 1984 that torture by private
actors violates international law), with Kadic v.
Karadžić, 70 F.3d 232, 239–241 (CA2 1995) (suffi­
cient consensus in 1995 that genocide by private ac­
tors violates international law).” 542 U. S., at 732,
n. 20.
In the Second Circuit’s decision in Kiobel v. Royal Dutch
Petroleum, 621 F.3d 111 (2010), the majority opinion read
footnote 20 to “requir[e] that [courts] look to international
law to determine [their] jurisdiction over ATS claims
against a particular class of defendant, such as corpora­
tions.” Id., at 127 (emphasis in original). The plurality
today accords “considerable force and weight to [that]
position,” ante, at 13, and so proceeds to assess whether
there exists a specific, universal, and obligatory norm of
liability for corporations in international law, ante, at 13–
17. But the Court of Appeals mistook the meaning of
footnote 20, which simply draws attention to the fact that,
6 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
under international law, “the distinction between conduct
that does and conduct that does not violate the law of
nations can turn on whether the conduct is done by or on
behalf of a State or by a private actor independently of a
State.” Kiobel, 621 F. 3d, at 177 (Leval, J., concurring in
judgment).
The international-law norm against genocide, for exam­
ple, imposes obligations on all actors. Acts of genocide
thus violate the norm irrespective of whether they are
committed privately or in concert with the state. See
Convention on the Prevention and Punishment of the
Crime of Genocide, Art. II, Dec. 9, 1948, 102 Stat. 3045
(defining “genocide” as “any of the following acts commit­
ted 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. Con­
duct thus qualifies as torture and violates the norm only
when done “by or at the instigation of or with the consent
or acquiescence of a public official or other person acting
in an official capacity.” Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Pun­
ishment, Art. 1, Dec. 10, 1984, S. Treaty Doc. No. 100–20,
1465 U. N. T. S. 114 (Torture Convention).1
Footnote 20 in Sosa flags this distinction and instructs
courts to consider whether there is “sufficient consensus”
that, with respect to the particular conduct prohibited
under “a given norm,” the type of defendant being sued
can be alleged to have violated that specific norm. 542
U. S., at 732, n. 20. Because footnote 20 contemplates a
——————
1 This distinction is similar to the state-action doctrine in domestic
law. The prohibitions in the Bill of Rights, for instance, apply only to
state actors, whereas the Thirteenth Amendment’s prohibition on
slavery applies to all actors, state and private. See United States v.
Kozminski, 487 U.S. 931, 942 (1988).
Cite as: 584 U. S. ____ (2018) 7
SOTOMAYOR, J., dissenting
norm-specific inquiry, not a categorical one, it is irrelevant
to the categorical question presented here. Assuming the
prohibition against financing of terrorism is sufficiently
“specific, universal, and obligatory” to satisfy the first step
of Sosa, a question on which I would remand to the Court
of Appeals, nothing in international law suggests a corpo­
ration 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 Cus­
tomary International Law, 43 Geo. J. Int’l L. 1045, 1050 (2012) (“None
of the norms that are actionable under Sosa distinguish between
natural and juridical persons”).
Sosa itself supports the proposition that international law does not
distinguish between types of private actors, but rather treats natural
persons and corporations alike. Footnote 20 groups corporations and
individuals together under the larger category of “private actor.” Sosa,
542 U. S., at 732, n. 20 (“if the defendant is a private actor such as a
corporation or an individual”); see also id., at 760 (BREYER, J., concur­
ring in part and concurring in judgment) (“The norm must extend
liability to the type of perpetrator (e.g., a private actor) the plaintiff
seeks to sue” (citing id., at 732, n. 20)). Sosa also describes the two
Court of Appeals decisions on which it relies as having considered
whether there was sufficient consensus that particular conduct—
torture or genocide—“violates international law” when undertaken “by
private actors.” Id., at 732, n. 20 (discussing Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774, 791–795 (CADC 1984) (Edwards, J., concur­
ring), and Kadic v. Karadžić, 70 F.3d 232, 239–241 (CA2 1995)). Even
though the defendant in Kadic was a natural person, see id., at 237,
and the defendants in Tel-Oren were juridical entities, see 726 F. 2d, at
775–776, Sosa refers to them all as “private actors,” 542 U. S., at 732,
n. 20.
8 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
2
The plurality briefly acknowledges this critique of its
reading of footnote 20, but nonetheless assumes the cor­
rectness of its approach because of its view that there
exists a “distinction in international law between corpora­
tions and natural persons.” Ante, at 17. The plurality
attempts to substantiate this proposition by pointing to
the charters of certain international criminal tribunals
and noting that none was given jurisdiction over corporate
defendants. That argument, however, confuses the sub­
stance of international law with how it has been enforced
in particular contexts.
Again, the question of who must undertake the prohib­
ited 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 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 typi-
cally driven by strategic considerations and resource
constraints.
For example, the Allies elected not to prosecute corpora­
tions 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 Germa­
ny’s postwar economy, and a desire to focus on establish­
ing the principle of nonstate criminal responsibility for
human-rights violations. See Brief for Nuremberg Schol­
ars 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 corpo­
rations in part because states had varying domestic prac­
Cite as: 584 U. S. ____ (2018) 9
SOTOMAYOR, J., dissenting
tices as to whether and how to impose criminal liability on
corporations. See Frulli, Jurisdiction Ratione Personae, in
1 Rome Statute of the International Criminal Court 527,
532–533 (A. Cassese et al. eds. 2002); Brief for Ambassa­
dor David J. Scheffer as Amicus Curiae 8–10.
Taken to its natural conclusion, the plurality’s focus on
the practice of international criminal tribunals would
prove too much. No international tribunal has been created
and endowed with the jurisdiction to hold natural persons
civilly (as opposed to criminally) liable, yet the majority
and respondent accept that natural persons can be held
liable under the ATS. See ante, at 26; Tr. of Oral Arg. 62.
It cannot be persuasive evidence for purposes of ascertain­
ing the availability of corporate civil liability under the
ATS, then, that the jurisdiction of the handful of interna­
tional 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 be­
tween corporations and natural persons as a categorical
matter. To the contrary, it proves only that states’ collec­
tive efforts to enforce various international-law norms
have, to date, often focused on natural rather than corpo­
rate 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 prose­
cuted several corporate executives of IG Farben declared
that corporations could violate international law. See 8
Trials of War Criminals Before the Nuernberg Military
Tribunals Under Council Control Law No. 10, p. 1132
(1952) (“Where private individuals, including juristic
persons, proceed to exploit the military occupancy by
acquiring private property against the will and consent of
10 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
the former owner, such action . . . is in violation of interna­
tional law”).3 Similarly, the International Criminal Tri­
bunal for Rwanda found that three nonnatural entities—a
private radio station, newspaper, and political party—
were responsible for genocide. See Prosecutor v. Nahimana,
Case No. ICTR–99–52–T, Judgment and Sentence ¶953
(Dec. 3, 2003). Most recently, the appeals panel of the
Special Tribunal for Lebanon held that corporations may
be prosecuted for contempt. See Prosecutor v. New TV
S. A. L., Case No. STL–14–05/PT/AP/AR126.1, Decision on
Interlocutory Appeal Concerning Personal Jurisdiction in
Contempt Proceedings ¶74 (Oct. 2, 2014).
In addition, various international agreements require
signatory states to impose liability on corporations for
certain conduct.4 Of particular relevance here, the Inter­
national 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
——————
3 The Nuremberg Tribunal also was empowered to adjudicate a form
of criminal organizational liability, pursuant to which an individual
member of a convicted organization would face a rebuttable presump­
tion of guilt in a subsequent proceeding. Brief for Nuremberg Scholars
as Amici Curiae 4, 20–21 (citing Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis, Aug. 8,
1945, Arts. 9–10, 59 Stat. 1544, E. A. S. No. 472; see also Brief for
Nuremberg Scholars 21–22 (citing United States v. Goering, 22 Trial of
the Major War Criminals Before the International Military Tribunal
171, 505, 511, 516–517 (Int’l Mil. Trib. 1946) (declaring three organiza­
tions criminal)).
4 See, e.g., United Nations Convention Against Transnational Orga
­
nized Crime, Art. 10(1), Nov. 15, 2000, T. I. A. S. No. 13127, S. Treaty
Doc. No. 108–16; Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions, Art. 2, Dec. 17, 1997,
2802 U. N. T. S. 230.
Cite as: 584 U. S. ____ (2018) 11
SOTOMAYOR, J., dissenting
terrorism. Dec. 9, 1999, Art. 2, S. Treaty Doc. No. 106–49,
2178 U. N. T. S. 230. It then requires each signatory
state, “in accordance with its domestic legal principles,” to
“take the necessary measures to enable a legal entity
located in its territory or organized under its laws to be
held liable when a person responsible for the management
or control of that legal entity has, in that capacity,” violated
the Convention. Id., Art. 5(1). The Convention provides
that “[s]uch liability may be criminal, civil, or administra­
tive,” ibid., so long as the penalties, which can include
monetary sanctions, are “effective, proportionate and
dissuasive.” Id., Art. 5(3). The United States is a party to
the Convention, along with 131 other states.5
The plurality dismisses the relevance of this Convention
because it does not require states parties to hold corpora­
tions liable in common-law tort actions, but rather permits
them to “fulfill their obligations . . . by adopting detailed
regulatory regimes governing financial institutions.” Ante,
at 16. That critique misses the point. The significance of
the Convention is that the international community
agreed that financing terrorism is unacceptable conduct
and that such conduct violates the Convention when un­
dertaken by corporations. That the Convention leaves up
to each state party how to impose liability on corporations,
e.g., via erecting a regulatory regime, providing for tort
actions, or imposing criminal sanctions, is unremarkable,6
and simply reflects that international law sets out stand­
——————
5 See International Convention for the Suppression of the Financing
of Terrorism, online at https://treaties.un.org/doc/Publication/MTDSG/
Volume%20II/Chapter%20XVIII/XVIII-11.en.pdf (all Internet materials
as last visited Apr. 16, 2018).
6 The Genocide Convention also does not specifically require that
states parties recognize tort claims for genocide, but federal courts have
long permitted such actions under the ATS as a matter of federal
common law. See, e.g., Kadic, 70 F. 3d, at 236. The same is true of the
Torture Convention. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876,
885 (CA2 1980).
12 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
ards of conduct and leaves it to individual states to deter­
mine how best to enforce those standards.
Finally, a number of states, acting individually, have
imposed criminal and civil liability on corporations for
law-of-nations violations through their domestic legal
systems. See, e.g., New TV S. A. L., Case No. STL–14–
05/PT/AP/AR126.1, ¶¶52–55 (listing more than 40 coun­
tries that provide for corporate criminal liability); A. Ra­
masastry & R. Thompson, Commerce, Crime and Conflict:
Legal Remedies for Private Sector Liability for Grave
Breaches of International Law 22–24 (2006), available at
https://www.biicl.org/files/4364_536.pdf (noting that 15 of
16 countries surveyed permit civil claims against corpora­
tions 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 Neth­
erlands, and Canada).
C
Instead of asking whether there exists a specific, uni­
versal, and obligatory norm of corporate liability under
international law, the relevant inquiry in response to the
question presented here is whether there is any reason—
under either international law or our domestic law—to
distinguish between a corporation and a natural person
who is alleged to have violated the law of nations under
the ATS. As explained above, international law provides
no such reason. See Kiobel, 621 F. 3d, at 175 (Leval, J.,
concurring in judgment) (“[T]he answer international law
furnishes is that it takes no position on the question”).
Nor does domestic law. The text, history, and purpose of
the ATS plainly support the conclusion that corporations
may be held liable.
Beginning “with the language of the statute itself,”
United States v. Ron Pair Enterprises, Inc., 489 U.S. 235,
Cite as: 584 U. S. ____ (2018) 13
SOTOMAYOR, J., dissenting
241 (1989), two aspects of the text of the ATS make clear
that the statute allows corporate liability. First, the text
confers jurisdiction on federal district courts to hear “civil
action[s]” for “tort[s].” 28 U.S. C. §1350. Where Congress
uses a term of art like tort, “it presumably knows and
adopts the cluster of ideas that were attached to [the]
borrowed word in the body of learning from which it was
taken and the meaning its use will convey to the judicial
mind unless otherwise instructed.” Morissette v. United
States, 342 U.S. 246, 263 (1952).
Corporations have long been held liable in tort under
the federal common law. See Philadelphia, W., & B. R.
Co. v. Quigley, 21 How. 202, 210 (1859) (“At a very early
period, it was decided in Great Britain, as well as in the
United States, that actions might be maintained against
corporations for torts; and instances may be found, in the
judicial annals of both countries, of suits for torts arising
from the acts of their agents, of nearly every variety”);
Chestnut Hill & Spring House Turnpike Co. v. Rutter, 4
Serg. & Rawle 6, 17 (Pa. 1818) (“[F]rom the earliest times
to the present, corporations have been held liable for
torts”). This Court “has assumed that, when Congress
creates a tort action, it legislates against a legal back­
ground of ordinary tort-related . . . rules and consequently
intends its legislation to incorporate those rules.” Meyer v.
Holley, 537 U.S. 280, 285 (2003). The presumption, then,
is that, in providing for “tort” liability, the ATS provides
for corporate liability.
Second, whereas the ATS expressly limits the class of
permissible plaintiffs to “alien[s],” §1350, it “does not
distinguish among classes of defendants,” Argentine Re-
public v. Amerada Hess Shipping Corp., 488 U.S. 428, 438
(1989). That silence as to defendants cannot be presumed
to be inadvertent. That is because in the same section of
the Judiciary Act of 1789 as what is now the ATS, Con­
gress provided the federal district courts with jurisdiction
14 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
over “all suits against consuls or vice-consuls.” §9, 1 Stat.
76–77. Where Congress wanted to limit the range of
permissible defendants, then, it clearly knew how to do so.
Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion”
(internal quotation marks omitted)).
Nothing about the historical background against which
the ATS was enacted rebuts the presumption that the
statute incorporated the accepted principle of corporate
liability for tortious conduct. Under the Articles of Con­
federation, the Continental Congress was unable to pro­
vide redress to foreign citizens for violations of treaties or
the law of nations, which threatened to undermine the
United States’ relationships with other nations. See
Kiobel, 569 U. S., at 123. The First Congress responded
with, inter alia, the ATS. Although the two incidents that
highlighted the need to provide foreign citizens with a
federal forum in which to pursue their grievances involved
conflicts between natural persons, see ante, at 7 (majority
opinion) (describing the assault by a French adventurer on
the Secretary of the French Legation and the arrest of one
of the Dutch Ambassador’s servants by a New York con­
stable), 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., corpora­
tions, to do so,” Doe v. Exxon Mobil Corp., 654 F.3d 11, 47
(CADC 2011), vacated on other grounds, 527 Fed. Appx. 7
(CADC 2013); see also Brief for United States as Amicus
Curiae 6 (“The ATS was enacted to ensure a private dam­
ages remedy for incidents with the potential for serious
diplomatic consequences, and Congress had no good rea­
Cite as: 584 U. S. ____ (2018) 15
SOTOMAYOR, J., dissenting
son to limit the set of possible defendants in such actions
to potentially judgment-proof individuals”). Indeed, fore­
closing corporations from liability under the ATS would
have been at odds with the contemporaneous practice of
imposing liability for piracy on ships, juridical entities.
See, e.g., Skinner v. East India Co., 6 State Trials 710, 711
(1666); The Marianna Flora, 11 Wheat. 1, 40–41 (1826);
Harmony v. United States, 2 How. 210, 233 (1844).
Finally, the conclusion that corporations may be held
liable under the ATS for violations of the law of nations is
not of recent vintage. More than a century ago, the Attor­
ney General acknowledged that corporations could be held
liable under the ATS. See 26 Op. Atty. Gen. 250, 252
(1907) (stating that citizens of Mexico could bring a claim
under the ATS against a corporation, the American Rio
Grande Land and Irrigation Company, for violating provi­
sions of a treaty between the United States and Mexico).
D
In his concurrence, JUSTICE GORSUCH urges courts to
exercise restraint in recognizing causes of action under the
ATS. But whether the ATS provides a cause of action for
violations of the norms against genocide, crimes against
humanity, and financing of terrorism is not the question
the parties have asked the Court to decide. I therefore see
no reason why it is necessary to delve into the propriety of
creating new causes of action. Nevertheless, because I
disagree with the premises on which the concurrence
relies, I offer two brief observations.
First, JUSTICE GORSUCH says it “pass[es] understand­
ing” why federal courts have exercised jurisdiction over
ATS claims raised by foreign plaintiffs against foreign
defendants for breaches of international norms. See ante,
at 1 (opinion concurring in part and concurring in judg­
ment). Modern ATS cases, however, are not being litigated
against a blank slate. The Court held in Sosa that Con­
16 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
gress authorized the federal courts to “recognize private
causes of action for certain torts in violation of the law of
nations,” 542 U. S., at 724, so long as the underlying norm
had no “less definite content and acceptance among civi­
lized nations than the historical paradigms familiar when
§1350 was enacted,” id., at 732. That holding was no mere
“suggestion,” ante, at 2 (opinion of GORSUCH, J.), as this
Court has made clear. See Kiobel, 569 U. S., at 116–117.
Given that the First Congress authorized suit for viola­
tions 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 Na­
tion’s treaty obligations continued to develop. If Congress
intended to limit such cases to violations of safe conduct,
assaults against ambassadors, piracy, and—as JUSTICE
GORSUCH suggests may have been the case—“ ‘personal
injuries that US citizens inflicted upon aliens resulting in
less than $500 in damages,’ ” ante, at 10 (quoting Bellia &
Clark, The Alien Tort Statute and the Law of Nations, 78
U. Chi. L. Rev. 445, 509 (2011)), it easily could have said
so. Instead, it granted the federal courts jurisdiction over
claims based on “the law of nations,” a body of law that
Congress did not understand to be static. See United
States v. The La Jeune Eugenie, 26 F. Cas. 832, 846 (No.
15,551) (CC Mass. 1822) (Story, J.) (“What, therefore, the
law of nations is . . . may be considered as modified by
practice, or ascertained by the treaties of nations at differ­
ent periods. It does not follow . . . that because a principle
cannot be found settled by the consent or practice of na­
tions at one time, it is to be concluded, that at no subse­
quent period the principle can be considered as incorpo­
rated into the public code of nations”).
The question for courts considering new ATS claims is,
“Who are today’s pirates?” Kiobel, 569 U. S., at 129
(BREYER, J., concurring in judgment). Torturers and those
Cite as: 584 U. S. ____ (2018) 17
SOTOMAYOR, J., dissenting
who commit genocide are now fairly viewed, like pirates,
as “common enemies of all mankind.” Id., at 131 (internal
quotation marks omitted). On remand, the Court of Ap­
peals would decide whether the financiers of terrorism are
the same. The fact that few norms have overcome Sosa’s
high hurdle is strong evidence that the carefully consid­
ered standard set forth in that case is generating exactly
the kind of “judicial caution” the Court stressed as neces­
sary. See 542 U. S., at 725.
Second, the concurrence suggests that federal courts
may lack jurisdiction to entertain suits between aliens
based solely on a violation of the law of nations. It con­
tends that ATS suits between aliens fall under neither the
federal courts’ diversity jurisdiction nor our federal ques­
tion jurisdiction. The Court was not unaware of this
argument when it decided Sosa. As noted, that case in­
volved 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 Foun­
dation et al. as Amici Curiae in No. 03–339, pp. 14–21.
The Court nonetheless proceeded to decide the case, which
it could not have done had it been concerned about its
Article III power to do so. See Arbaugh v. Y & H Corp.,
546 U.S. 500, 514 (2006). That decision forecloses the
argument the concurrence now makes, as Sosa authorized
courts to “recognize private claims under federal common
law for violations of ” certain international law norms.
542 U. S., at 732 (emphasis added); see also id., at 729–
730 (explaining that, post-Erie R. Co. v. Tompkins, 304
U.S. 64 (1938), there are “limited enclaves in which federal
courts may derive from substantive law in a common law
way,” including the law of nations, and that “it would be
unreasonable to assume that the First Congress would
18 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
have expected federal courts to lose all capacity to recog­
nize enforceable international norms simply because the
common law might lose some metaphysical cachet on the
road to modern realism”); Sarei v. Rio Tinto, 671 F.3d
736, 749–754 (CA9 2011) (en banc) (discussing Sosa and
concluding that federal courts have Article III jurisdiction
to hear ATS cases between aliens), vacated and remanded,
569 U.S. 945 (2013) (remanding for further consideration
in light of Kiobel).
Sosa was correct as a legal matter. Moreover, our Na­
tion has an interest not only in providing a remedy when
our own citizens commit law of nations violations, but also
in preventing our Nation from serving as a safe harbor
for today’s pirates. See Kiobel, 569 U. S., at 133–134
(BREYER, J., concurring in judgment). To that end, Con­
gress has ratified treaties requiring the United States “to
punish or extradite offenders, even when the offense was
not committed . . . by a national.” 1 Restatement §404,
Reporters’ Note 1, at 255–257; see Torture Convention,
Arts. 5, 7; Convention on the Prevention and Punishment
of Crimes Against Internationally Protected Persons,
Including Diplomatic Agents, Art. 3, Dec. 14, 1973, 28
U. S. T. 1975, T. I. A. S. No. 8532; Convention for the
Suppression of Unlawful Acts Against the Safety of Civil
Aviation, Sept. 23, 1971, 24 U. S. T. 565, T. I. A. S. No.
7570; Convention for the Suppression of Unlawful Seizure
of Aircraft, Art. 4, Dec. 16, 1970, 22 U. S. T. 1641,
T. I. A. S. No. 7192; Geneva Convention Relative to the
Treatment of Prisoners of War, Art. 129, Aug. 12, 1949, 6
U. S. T. 3316, T. I. A. S. No. 3364. To the extent suits
against foreign defendants may lead to international
friction, that concern is better addressed under the pre­
sumption the Court established in Kiobel against extrater­
ritorial application of the ATS, see 569 U. S., at 124–125,
than it is by relitigating settled precedent.
Cite as: 584 U. S. ____ (2018) 19
SOTOMAYOR, J., dissenting
II
At its second step, Sosa cautions that courts should
consider whether permitting a case to proceed is an ap­
propriate exercise of judicial discretion in light of potential
foreign-policy implications. See 542 U. S., at 727–728,
732–733, 738. The plurality only assumes without decid­
ing that international law does not impose liability on
corporations, so it necessarily proceeds to Sosa’s second
step. Here, too, its analysis is flawed.
A
Nothing about the corporate form in itself justifies
categorically foreclosing corporate liability in all ATS
actions. Each source of diplomatic friction that respond­
ent 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 Re­
spondent 42. The heart of that qualm was already ad­
dressed in Kiobel, which held that the presumption
against extraterritoriality applies to the ATS. 569 U. S.,
at 124. Only where the claims “touch and concern the
territory of the United States . . . with sufficient force” can
the presumption be displaced. Id., at 124–125. “[M]ere
corporate presence” does not suffice. Id., at 125. Thus,
contrary to the majority’s contention, “the relatively minor
connection between the terrorist attacks at issue in this
case and the alleged conduct in the United States” does
not “well illustrat[e] the perils of extending the scope of
ATS liability to foreign multinational corporations,” ante,
at 25, but merely illustrates the risks of extending the
scope of ATS liability extraterritorially absent sufficient
connection to the United States.
Arab Bank also bemoans the unfairness of being sued
20 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
when others—namely, the individuals and organizations
that carried out the terrorist attacks—were “the direct
cause” of the harm petitioners here suffered. Brief for
Respondent 41. That complaint, though, is a critique of
the imposition of liability for financing terrorism, not an
argument that ATS suits against corporations generally
necessarily cause diplomatic tensions.
Arab Bank further expresses concern that ATS suits are
being filed against corporations in an effort to recover for
the bad acts of foreign governments or officials. See id., at
40. But the Bank’s explanation of this problem reveals
that the true source of its grievance is the availability of
aiding and abetting liability. See ibid. (“[N]umerous ATS
suits have alleged that a corporation has aided or abetted
bad acts committed by a foreign government and its offi-
cials” (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 govern­
ments.” Ante, at 21 (discussing Kiobel, in which plaintiffs
sought to hold a corporate defendant liable for “ ‘aiding
and abetting the Nigerian Government in committing’ ”
law-of-nations violations (quoting 569 U. S., at 114)). Yet
not all law-of-nations violations asserted against corpora­
tions are premised on aiding and abetting liability; it is
possible for a corporation to violate international-law
norms independent of a foreign state or foreign state
officials. In this respect, too, the Court’s rule is ill fitted to
the problem identified.
Notably, even the Hashemite Kingdom of Jordan does
not argue that there are foreign-policy tensions inherent
Cite as: 584 U. S. ____ (2018) 21
SOTOMAYOR, J., dissenting
in suing a corporation generally. Instead, Jordan contends
that this particular suit is an affront to its sovereignty
because of its extraterritorial character and because of the
role that Arab Bank specifically plays in the Jordanian
economy. See Brief for Hashemite Kingdom of Jordan as
Amicus Curiae 6–12.7
The majority also cites to instances in which other
foreign sovereigns have “appeared in this Court to note
[their] objections to ATS litigation,” ante, at 26, but none
of those objections was about the availability of corporate
liability as a general matter. See Sosa, 542 U. S., at 733,
n. 21 (noting argument of the European Commission that
“basic principles of international law require that before
asserting a claim in a foreign forum, the claimant must
have exhausted any remedies available in the domestic
legal system, and perhaps in other forums such as inter­
national 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 Repub­
lic 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 for­
eign defendants for alleged foreign activities that caused
injury on foreign soil”); Brief for Government of the United
——————
7 Jordan does argue that corporate liability is unavailable under the
ATS, but that argument is based on its view that there is no universally
recognized international-law norm of corporate liability, see Brief for
Hashemite Kingdom of Jordan as Amicus Curiae 12–15, not a conten­
tion that corporate status alone presents foreign-policy concerns justify­
ing immunity for all corporations in all ATS suits irrespective of
circumstance.
22 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
Kingdom of Great Britain and Northern Ireland et al. as
Amici Curiae in No. 10–1491, p. 3 (“The Governments
remain deeply concerned about . . . suits by foreign plain­
tiffs 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 litiga­
tion in recent decades has raised international friction”
and explaining that “the way to deal with that friction is
with a doctrine that speaks directly to the international
entanglement . . . as those questions arise”). In addition to
the presumption against extraterritoriality, federal courts
have at their disposal a number of tools to address any
foreign-relations concerns that an ATS case may raise.
This Court has held that a federal court may exercise
personal jurisdiction over a foreign corporate defendant
only if the corporation is incorporated in the United
States, has its principal place of business or is otherwise
at home here, or if the activities giving rise to the lawsuit
occurred or had their impact here. See Daimler AG v.
Bauman, 571 U.S. 117 (2014). Courts also can dismiss
ATS suits for a plaintiff ’s failure to exhaust the remedies
available in her domestic forum, on forum non conveniens
grounds, for reasons of international comity, or when
asked to do so by the State Department. See Kiobel, 569
U. S., at 133 (BREYER, J., concurring in judgment); Sosa,
542 U. S., at 733, n. 21.
Several of these doctrines might be implicated in this
case, and I would remand for the Second Circuit to ad­
dress them in the first instance.8 The majority, however,
——————
8 For instance, the alleged conduct might not sufficiently touch and
concern the United States to displace the presumption against extra­
territoriality; the prohibition on terrorism financing might not be a
Cite as: 584 U. S. ____ (2018) 23
SOTOMAYOR, J., dissenting
prefers to use a sledgehammer to crack a nut. I see no
need for such an ill-fitting and disproportionate response.
Foreclosing foreign corporate liability in all ATS actions,
irrespective of circumstance or norm, is simply too broad a
response to case-specific concerns that can be addressed
via other means.9
B
1
The Court urges that “[t]he political branches, not the
Judiciary, have the responsibility and institutional capacity
to weigh foreign-policy concerns.” Ante, at 19. I agree
that the political branches are well poised to assess the
foreign-policy concerns attending ATS litigation, which is
why I give significant weight to the fact that the Executive
Branch, in briefs signed by the Solicitor General and State
Department Legal Advisor, has twice urged the Court to
reach exactly the opposite conclusion of the one embraced
by the majority. See Brief for United States as Amicus
Curiae 5 (“This Court should vacate the decision below,
which rests on the mistaken premise that a federal 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
——————
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.
24 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
law. . . . Sosa’s cautionary admonitions provide no reason
to depart from the common law on this issue”). At oral
argument in this case, the United States told the Court
that it saw no “sound reason to categorically exclude
corporate liability.” Tr. of Oral Arg. 29. It explained that
another country would hold the United States accountable
for not providing a remedy against a corporate defendant
in a “classic” ATS case, such as one involving a “foreign
officia[l] injured in the United States,” id., at 32–33, and
suggested that foreclosing the ability to recover from a
corporation actually would raise “the possibility of fric­
tion,” 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 de­
fendants in an ATS suit, it has been to advise the Court
against the rule it now adopts. See Brief for Sen. Sheldon
Whitehouse et al. as Amici Curiae 7–11; Brief for Former
Sen. Arlen Specter et al. as Amici Curiae in Kiobel v.
Royal Dutch Petroleum Co., O. T. 2012, No. 10–1491,
pp. 17–18. Congress has also never seen it necessary to
immunize corporations from ATS liability even though
corporations have been named as defendants in ATS suits
for years. See Monessen Southwestern R. Co. v. Morgan,
486 U.S. 330, 338 (1988) (“Congress’ failure to disturb
a consistent judicial interpretation of a statute may pro­
vide some indication that ‘Congress at least acquiesces in,
and apparently affirms, that [interpretation]’ ” (quoting
Cannon v. University of Chicago, 441 U.S. 677, 703
(1979))).
Given the deference to the political branches that Sosa
encourages, I find it puzzling that the Court so eagerly
departs from the express assessment of the Executive
Branch and Members of Congress that corporations can be
Cite as: 584 U. S. ____ (2018) 25
SOTOMAYOR, J., dissenting
defendants in ATS actions.
2
The plurality instead purports to defer to Congress by
relying heavily on the Torture Victim Protection Act of
1991 (TVPA), 106 Stat. 73, note following 28 U.S. C.
§1350, to support its categorical bar. See ante, at 20. The
TVPA makes available to all individuals, not just foreign
citizens, a civil cause of action for torture and extrajudicial
killing that may be brought against natural persons. See
Mohamad v. Palestinian Authority, 566 U.S. 449, 451–
452, 454 (2012). The plurality extrapolates from Congress’
decision regarding the scope of liability under the TVPA a
rule that it contends should govern all ATS suits. See
ante, at 20. But there is no reason to think that because
Congress saw fit to permit suits only against natural
persons for two specific law-of-nations violations, Congress
meant to foreclose corporate liability for all law-of-nations
violations. The plurality’s contrary conclusion ignores the
critical textual differences between the ATS and TVPA, as
well as the TVPA’s legislative history, which emphasizes
Congress’ intent to leave the ATS undisturbed.
On its face, the TVPA is different from the ATS in sev­
eral 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.
It makes little sense, then, to conclude that the TVPA has
26 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
dispositive comparative value in discerning the scope of
liability under the ATS.
Furthermore, Congress repeatedly emphasized in the
House and Senate Reports on the TVPA that the statute
was meant to supplement the ATS, not replace or cabin it.
See H. R. Rep. No. 102–367, pt. 1, p. 3 (1991) (“Section
1350 has other important uses and should not be replaced.
There should also, however, be a clear and specific rem­
edy, 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 im­
portant respect: While the [ATS] provides a remedy to
aliens only, the TVPA would extend a civil remedy also to
U. S. citizens who may have been tortured abroad”); ibid.
(“[C]laims based on torture or summary executions do not
exhaust the list of actions that may appropriately be
covered b[y] section 1350. That statute should remain
intact to permit suits based on other norms that already
exist or may ripen in the future into rules of customary
international law”); S. Rep. No. 102–249, pp. 4–5 (1991);
see also Sosa, 542 U. S., at 731 (explaining that the TVPA
“supplement[ed] the judicial determination” in Filartiga).
Lacking any affirmative evidence that Congress’ deci­
sion to limit liability under the TVPA to natural persons
indicates a legislative judgment about the proper scope of
liability in all ATS suits, the plurality focuses its efforts on
dismissing petitioners’ argument that Congress limited
TVPA liability to natural persons to harmonize the statute
with the Foreign Sovereign Immunities Act of 1976
(FSIA), which generally immunizes foreign states from
suit. See ante, at 21.10 Contrary to the plurality’s conten­
——————
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
Cite as: 584 U. S. ____ (2018) 27
SOTOMAYOR, J., dissenting
tion, however, this Court did not reject petitioners’ account
of the TVPA’s legislative history in Mohamad. In fact,
that decision agreed that the legislative history “clarifi[es]
that the Act does not encompass liability against foreign
states.” 566 U. S., at 459. What Mohamad rejected was
the argument that because the TVPA forecloses liability
against foreign states, it necessarily permits liability
against corporations. In concluding that the TVPA
encompasses only natural persons, Mohamad took no
position on why Congress excluded organizations from its
reach.11
To infer from the TVPA that no corporation may ever
be held liable under the ATS for any violation of any
international-law norm, moreover, ignores that Congress
has elsewhere imposed liability on corporations for conduct
prohibited by customary international law. For instance,
the Antiterrorism Act of 1990 (ATA) created a civil cause
of action for U. S. nationals injured by an act of interna­
tional 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 consider­
ing whether to permit causes of action against corpora­
——————
been in conflict with the FSIA.
11 Petitioners may be right that Congress limited liability under the
TVPA to natural persons to harmonize the statute with the FSIA. That
Congress thought it necessary to achieve that goal by foreclosing
liability against all organizational defendants, not just those operating
under the authority of a foreign government, might indicate that
Congress thought such line drawing would be difficult, or that an
expansive approach was the cleanest way to avoid the statute becoming
a backdoor to suits against foreign governments.
28 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
tions for law-of-nations violations under the ATS.
The plurality dismisses the ATA as “an inapt analogy”
because the ATA “provides a cause of action only to ‘na­
tional[s] of the United States,’ ” whereas the ATS “provides
a remedy for foreign nationals only.” Ante, at 22 (quoting
18 U.S. C. §2333(a)). But if encompassing different
groups of plaintiffs is what makes two statutes poor com­
parators for each other, the TVPA, too, is an inapt analogy,
for it permits suits by all individuals, U. S. and foreign
nationals alike.
The plurality also posits that the ATA “suggests that
there should be no common-law action under the ATS for
allegations like petitioners’,” ante, at 22, because permit­
ting 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 demon­
strates, 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 plural­
ity is suggesting that Congress, in enacting the ATA,
meant to foreclose ATS suits based on terrorism financing,
the plurality offers no evidence to support that hypothesis,
and the legislative history suggests that Congress enacted
the ATA to provide U. S. citizens with the same remedy
already available to foreign citizens under the ATS. See
Hearing on S. 2465 before the Subcommittee on Courts
and Administrative Practice of the Senate Committee on
the Judiciary, 101st Cong., 1st Sess., 90 (1990) (testimony
of Joseph A. Morris) (noting that ATS actions for terrorism
“would be preserved”).
At bottom, the ATS and TVPA are related but distinct
statutes that coexist independently. There is no basis to
conclude that the considered judgment Congress made
Cite as: 584 U. S. ____ (2018) 29
SOTOMAYOR, J., dissenting
about who should be liable under the TVPA for torture
and extrajudicial killing should restrict who can be held
liable under the ATS for other law-of-nations violations,
particularly where Congress made a different judgment
about the scope of liability under the ATA for terrorism.
C
Finally, the plurality offers a set of “[o]ther considera­
tions relevant to the exercise of judicial discretion” that it
concludes “counsel against allowing liability under the
ATS for foreign corporations.” Ante, at 23. None is
persuasive.
First, the plurality asserts that “[i]t has not been shown
that corporate liability under the ATS is essential to serve
the goals of the statute” because “the ATS will seldom be
the only way for plaintiffs to hold the perpetrators liable,”
and because “plaintiffs still can sue the individual corpo­
rate 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 viola­
tion can be brought, such as a state-law tort claim, the
First Congress created the ATS because it wanted foreign
plaintiffs to be able to bring their claims in federal court
and sue for law-of-nations violations. A suit for state-law
battery, even if based on the same alleged conduct, is not
the equivalent of a federal suit for torture; the latter con­
tributes to the uptake of international human rights
30 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
norms, and the former does not.12
Furthermore, holding corporations accountable for
violating the human rights of foreign citizens when those
violations touch and concern the United States may well
be necessary to avoid the international tension with which
the First Congress was concerned. Consider again the
assault on the Secretary of the French Legation in Phila­
delphia by a French adventurer. See supra, at 14; ante, at
7 (majority opinion). Would the diplomatic strife that
followed really have been any less charged if a corporation
had sent its agent to accost the Secretary? Or, consider
piracy. If a corporation owned a fleet of vessels and di­
rected 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 partner­
ships”). 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 plain­
tiffs, 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 corpo­
rate policy and practice, might cause serious diplomatic
——————
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”).
Cite as: 584 U. S. ____ (2018) 31
SOTOMAYOR, J., dissenting
friction.13
Second, the plurality expresses concern that if foreign
corporations are subject to liability under the ATS, other
nations could hale American corporations into court and
subject them “to an immediate, constant risk of claims
seeking to impose massive liability for the alleged conduct
——————
13 JUSTICE ALITO, adopting a more absolutist position than the plurality,
asserts without qualification that “federal courts should not create
causes of action under the ATS against foreign corporate defendants”
because doing so “would precipitate . . . diplomatic strife.” Ante, at 1, 4
(opinion concurring in part and concurring in judgment). The conclu­
sion 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 4, however, is at odds with the considered
judgment of the Executive Branch and Congress regarding the im­
portance of holding foreign corporations to account for certain egregious
conduct. As noted, see Part II–B–1, supra, the Executive Branch has
twice urged the Court not to foreclose the ability of foreign nationals to
sue foreign corporate defendants under the ATS. The United States
also has ratified several international agreements that require it to
impose liability on corporations, both foreign and domestic, for certain
actions, including the financing of terrorism. See supra, at 10–11.
Congress, too, has expressly authorized civil suits against corporations
for acts related to terrorism. See 18 U.S. C. §2333. The Executive
Branch and Congress surely would not have taken these positions,
entered into these obligations, or made available these causes of action
if the result were intolerable diplomatic strife.
JUSTICE ALITO also faults the lack of “real-world examples” of in­
stances in which diplomatic friction has resulted from a court’s refusal
to permit an individual to bring an ATS suit against a foreign corpora­
tion solely because of the defendant’s status as a foreign juridical
entity. Ante, at 6. Such refusals, though, have been rare, as no other
Court of Appeals besides the Second Circuit that has considered the
question has imposed a bar on corporate liability. Compare Doe v.
Drummond Co., 782 F.3d 576, 584 (CA11 2015); Doe I v. Nestle USA,
Inc., 766 F.3d 1013, 1022 (CA9 2014); Doe v. Exxon Mobil Corp., 654
F.3d 11, 39–57 (CADC 2011), vacated on other grounds, 527 Fed. Appx.
7 (CADC 2013); Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013,
1017–1021 (CA7 2011), with Kiobel v. Royal Dutch Petroleum, 621 F.3d
111, 120 (CA2 2010).
32 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
of their employees and subsidiaries around the world,” a
prospect that will deter American corporations from in­
vesting in developing economies. Ante, at 24. The plurality
offers no empirical evidence to support these alarmist
conjectures, which is especially telling given that plaintiffs
have been filing ATS suits against foreign corporations in
United States courts for years. It does cite to an amicus
brief for the United States in American Isuzu Motors, Inc.
v. Ntsebeza, see ante, at 24, but that case was concerned
with the availability of civil aiding and abetting liability,
not corporate liability generally, and the United States
never contended that permitting corporate liability under
the ATS would undermine global investment. Instead, it
argued that permitting extraterritorial aiding and abet­
ting 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 extraterri­
torial dimensions premised on an aiding and abetting
theory.
* * *
In sum, international law establishes what conduct
violates the law of nations, and specifies whether, to con­
stitute 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 corpo­
rate liability. Tort actions against corporations have long
been available under federal common law. Whatever the
majority might think of the value of modern-day ATS
Cite as: 584 U. S. ____ (2018) 33
SOTOMAYOR, J., dissenting
litigation, it has identified nothing to support its conclu­
sion that “foreign corporate defendants create unique
problems” that necessitate a categorical rule barring all
foreign corporate liability. Ante, at 26.
Absent any reason to believe that the corporate form in
itself raises serious foreign-policy concerns, and given the
repeated urging from the Executive Branch and Members
of Congress that the Court need not and should not fore­
close corporate liability, I would reverse the decision of the
Court of Appeals for the Second Circuit and remand for
further proceedings, including whether the allegations
here sufficiently touch and concern the United States, see
Kiobel, 569 U. S., at 124–125, and whether the 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
In categorically barring all suits against foreign corpora­
tions under the ATS, the Court ensures that foreign corpo­
rations—entities capable of wrongdoing under our domes­
tic law—remain immune from liability for human rights
abuses, however egregious they may be.
Corporations can be and often are a force for innovation
and growth. Many of their contributions to society should
be celebrated. But the unique power that corporations
wield can be used both for good and for bad. Just as cor­
porations can increase the capacity for production, so, too,
some can increase the capacity for suffering. Consider the
genocide that took upwards of 800,000 lives in Rwanda in
1994, which was fueled by incendiary rhetoric delivered
via a private radio station, the Radio Télévision Libre des
Mille Collines (RTLM). Men spoke the hateful words, but
34 JESNER v. ARAB BANK, PLC
SOTOMAYOR, J., dissenting
the RTLM made their widespread influence possible.14
There can be, and sometimes is, a profit motive for these
types of abuses. Although the market does not price all
externalities, the law does. We recognize as much when
we permit a civil suit to proceed against a paint company
that long knew its product contained lead yet continued to
sell it to families, or against an oil company that failed to
undertake the requisite safety checks on a pipeline that
subsequently burst. There is no reason why a different
approach should obtain in the human rights context.
Immunizing corporations that violate human rights
from liability under the ATS undermines the system of
accountability for law-of-nations violations that the First
Congress endeavored to impose. It allows these entities to
take advantage of the significant benefits of the corporate
form and enjoy fundamental rights, see, e.g., Citizens
United v. Federal Election Comm’n, 558 U.S. 310 (2010);
Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014),
without having to shoulder attendant fundamental
responsibilities.
I respectfully dissent.
——————
14 See, e.g., Nahimana v. Prosecutor, Case No. ICTR 99–52–A, Ap­
peals 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).