SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1491
_________________
ESTHER KIOBEL, individually and on behalf of
her late husband, Dr. BARINEM KIOBEL, et al., PETI- TIONERS
v. ROYAL DUTCH PETROLEUM CO. et al.
on writ of certiorari to the united states
court of appeals for the second circuit
[April 17, 2013]
Justice Breyer, with whom Justice Ginsburg,
Justice Sotomayor and Justice Kagan join, concurring in the
judgment.
I agree with the Court’s conclusion but
not with its reasoning. The Court sets forth four key propositions
of law: First, the “presumption against extraterritoriality
applies to claims under” the Alien Tort Statute.
Ante,
at 13. Second, “nothing in the statute rebuts that
presumption.”
Ibid. Third, there “is no clear
indication of extraterritoria[l application] here,” where
“all the relevant conduct took place outside the United
States” and “where the claims” do not
“touch and concern the territory of the United
States . . . with sufficient force to displace
the presumption.”
Ante, at 13–14 (internal
quotation marks omitted). Fourth, that is in part because
“[c]orporations are often present in many countries, and it
would reach too far to say that mere corporate presence
suffices.”
Ante, at 14.
Unlike the Court, I would not invoke the
presumption against extraterritoriality. Rather, guided in part by
principles and practices of foreign relations law, I would find
jurisdiction under this statute where (1) the alleged tort occurs
on American soil, (2) the defendant is an American national, or (3)
the defendant’s conduct substantially and adversely affects
an important American national interest, and that includes a
distinct interest in preventing the United States from becoming a
safe harbor (free of civil as well as criminal liability) for a
torturer or other common enemy of mankind. See
Sosa v.
Alvarez-Machain,
542 U.S.
692, 732 (2004) (“ ‘[F]or purposes of civil
liability, the torturer has become—like the pirate and slave
trader before him—
hostis humani generis, an enemy of
all mankind.’ ” (quoting
Filartiga v.
Pena-Irala, 630 F.2d 876, 890 (CA2 1980) (alteration in
original))). See also 1 Re-statement (Third) of Foreign Relations
Law of the United States §§ 402, 403, 404 (1986). In this
case, however, the parties and relevant conduct lack sufficient
ties to the United States for the ATS to provide jurisdiction.
I
A
Our decision in
Sosa frames the
question. In
Sosa the Court specified that the Alien Tort
Statute (ATS), when enacted in 1789, “was intended as
jurisdictional.” 542 U. S., at 714. We added that the
statute gives today’s courts the power to apply certain
“judge-made” damages law to victims of certain foreign
affairs-related misconduct, including “three specific
offenses” to which “Blackstone referred,” namely
“violation of safe conducts, infringement of the rights of
ambassadors, and piracy.”
Id., at 715. We held that
the statute provides today’s federal judges with the power to
fashion “a cause of action” for a “modest
number” of claims, “based on the present-day law of
nations,” and which “rest on a norm of international
character accepted by the civilized world and defined with a
specificity comparable to the features” of those three
“18th-century paradigms.”
Id., at
724–725.
We further said that, in doing so, a requirement
of “exhaust[ion]” of “remedies” might
apply.
Id., at 733, n. 21. We noted “a strong
argument that federal courts should give serious weight to the
Executive Branch’s view of the case’s impact on foreign
policy.”
Ibid. Adjudicating any such claim must, in my
view, also be consistent with those notions of comity that lead
each nation to respect the sovereign rights of other nations by
limiting the reach of its own laws and their enforcement.
Id., at 761 (Breyer, J., concurring in part and concurring
in judgment). See also
F. Hoffmann-La Roche Ltd v.
Empagran S. A.,
542 U.S.
155, 165–169 (2004).
Recognizing that Congress enacted the ATS to
permit recovery of damages from pirates and others who violated
basic international law norms as understood in 1789,
Sosa
essentially leads today’s judges to ask: Who are
today’s pirates? See 542 U. S., at 724–725
(majority opinion). We provided a framework for answering that
question by setting down principles drawn from international norms
and designed to limit ATS claims to those that are similar in
character and specificity to piracy.
Id., at 725.
In this case we must decide the extent to which
this jurisdictional statute opens a federal court’s doors to
those harmed by activities belonging to the limited class that
Sosa set forth
when those activities take place
abroad. To help answer this question here, I would refer both
to
Sosa and, as in
Sosa, to norms of international
law. See Part II,
infra.
B
In my view the majority’s effort to
answer the question by referring to the “presumption against
extraterritoriality” does not work well. That presumption
“rests on the perception that Congress ordinarily legislates
with respect to domestic, not foreign matters.”
Morrison v.
National Australia Bank Ltd., 561
U. S. ___, ___ (2010) (slip op., at 5–6). See
ante, at 4. The ATS, however, was enacted with
“foreign matters” in mind. The statute’s text
refers explicitly to “alien[s],”
“treat[ies],” and “the law of nations.” 28
U. S. C. §1350. The statute’s purpose was to
address “violations of the law of nations, admitting of a
judicial remedy and at the same time threatening serious
con-sequences in international affairs.”
Sosa, 542
U. S., at 715. And at least one of the three kinds of
activities that we found to fall within the statute’s scope,
namely piracy,
ibid., normally takes place abroad. See 4
W. Blackstone, Commentaries on the Law of England 72
(1769).
The majority cannot wish this piracy example
away by emphasizing that piracy takes place on the high seas. See
ante, at 10. That is because the robbery and murder that
make up piracy do not normally take place in the water; they take
place on a ship. And a ship is like land, in that it falls within
the jurisdiction of the nation whose flag it flies. See
McCulloch v.
Sociedad Nacional de Marineros de
Honduras,
372 U.S.
10, 20–21 (1963); 2 Restatement §502, Comment
d (“[F]lag state has jurisdiction to prescribe with
respect to any activity aboard the ship”). Indeed, in the
early 19th century Chief Justice Marshall described piracy as an
“offenc[e] against the nation under whose flag the vessel
sails, and within whose particular jurisdiction all on board the
vessel are.”
United States v.
Palmer, 3 Wheat.
610, 632 (1818)
. See
United States v.
Furlong,
5 Wheat. 184, 197 (1820) (a crime committed “within the
jurisdiction” of a foreign state and a crime committed
“in the vessel of another nation” are “the same
thing”).
The majority nonetheless tries to find a
distinction between piracy at sea and similar cases on land. It
writes, “Applying U. S. law to pirates . . .
does not typically impose the sovereign will of the United States
onto conduct occurring within the
territorial jurisdiction
of another sovereign and therefore carries less direct foreign
policy consequences.”
Ante, at 10 (emphasis added).
But, as I have just pointed out, “[a]pplying U. S. law
to pirates”
does typically involve applying our law to
acts taking place within the jurisdiction of another sovereign. Nor
can the majority’s words “territorial
jurisdiction” sensibly dis-tinguish land from sea for
purposes of isolating adverse foreign policy risks, as the Barbary
Pirates, the War of 1812, the sinking of the
Lusitania, and
the Lockerbie bombing make all too clear.
The majority also writes, “Pirates were
fair game wherever found, by any nation, because they generally did
not operate within any jurisdiction.”
Ibid. I very
much agree that pirates were fair game “wherever
found.” Indeed, that is the point. That is why we asked, in
Sosa, who are today’s pirates? Certainly today’s
pirates include torturers and perpetrators of genocide. And today,
like the pirates of old, they are “fair game” where
they are found. Like those pirates, they are “common enemies
of all mankind and all nations have an equal interest in their
apprehension and punishment.” 1 Restatement §404
Reporters’ Note 1, p. 256 (quoting
In re
Demjanjuk,
612 F. Supp. 544, 556 (ND Ohio 1985) (internal quotation marks
omitted)). See
Sosa, supra, at 732. And just as a nation
that harbored pirates provoked the concern of other nations in past
centuries, see
infra, at 8, so harboring “common
enemies of all mankind” provokes similar concerns today.
Thus the Court’s reasoning, as applied to
the narrow class of cases that
Sosa described, fails to
provide significant support for the use of any presumption against
extraterritoriality; rather, it suggests the contrary. See also
ante, at 10 (conceding and citing cases showing that this
Court has “generally treated the high seas the same as
foreign soil for purposes of the presumption against
extraterritorial application”).
In any event, as the Court uses its
“presumption against extraterritorial application,” it
offers only limited help in deciding the question presented, namely
“ ‘under what circumstances the Alien Tort Statute
. . . allows courts to recognize a cause of action for
violations of the law of nations occurring within the territory of
a sovereign other than the United States.’ ” 565
U. S. ___ (2012). The majority echoes in this jurisdictional
context
Sosa’s warning to use “caution” in
shaping federal common-law causes of action.
Ante, at 5. But
it also makes clear that a statutory claim might sometimes
“touch and concern the territory of the United States . . .
with sufficient force to displace the presumption.”
Ante, at 14. It leaves for another day the determination of
just when the presumption against extraterritoriality might be
“overcome.”
Ante, at 8.
II
In applying the ATS to acts “occurring
within the territory of a[nother] sovereign,” I would assume
that Congress intended the statute’s jurisdictional reach to
match the statute’s underlying substantive grasp. That grasp,
defined by the statute’s purposes set forth in
Sosa,
includes compensation for those injured by piracy and its
modern-day equivalents, at least where allowing such compensation
avoids “serious” negative international
“consequences” for the United States. 542 U. S., at
715. And just as we have looked to established international
substantive norms to help determine the statute’s substantive
reach,
id., at 729
, so we should look to
international jurisdictional norms to help determine the
statute’s jurisdictional scope.
The Restatement (Third) of Foreign Relations
Law is helpful. Section 402 recognizes that, subject to
§403’s “rea-sonableness” requirement, a
nation may apply its law (for example, federal common law, see 542
U. S., at 729–730) not only (1) to “conduct”
that “takes place [or to persons or things] within its
territory” but also (2) to the “activities, interests,
status, or relations of its nationals outside as well as within its
territory,” (3) to “conduct outside its territory that
has or is intended to have substantial effect within its
territory,” and (4) to certain foreign “conduct outside
its territory . . . that is directed against the security
of the state or against a limited class of other state
interests.” In addition, §404 of the Restatement
explains that a “state has jurisdiction to define and
prescribe punishment for certain offenses recognized by the
community of nations as of universal concern, such as piracy, slave
trade,” and analogous behavior.
Considering these jurisdictional norms in light
of both the ATS’s basic purpose (to provide compensation for
those injured by today’s pirates) and
Sosa’s
basic caution (to avoid international friction), I believe that the
statute provides jurisdiction where (1) the alleged tort occurs on
American soil, (2) the defendant is an American national, or (3)
the defendant’s conduct substantially and adversely affects
an important American national interest, and that includes a
distinct interest in preventing the United States from becoming a
safe harbor (free of civil as well as criminal liability) for a
torturer or other common enemy of mankind.
I would interpret the statute as providing
jurisdiction only where distinct American interests are at issue.
Doing so reflects the fact that Congress adopted the present
statute at a time when, as Justice Story put it, “No nation
ha[d] ever yet pretended to be the custos morum of the whole
world.”
United States v.
La Jeune Eugenie, 26
F. Cas. 832, 847 (No. 15,551) (CC Mass. 1822). That restriction
also should help to minimize international friction. Further
limiting principles such as exhaustion,
forum non
conveniens, and comity would do the same. So would a practice
of courts giving weight to the views of the Executive Branch. See
Sosa, 542 U. S., at 733, n. 21;
id., at 761
(opinion of Breyer, J.).
As I have indicated, we should treat this
Nation’s interest in not becoming a safe harbor for violators
of the most fundamental international norms as an important
jurisdiction-related interest justifying application of the ATS in
light of the statute’s basic purposes—in particular
that of compensating those who have suffered harm at the hands of,
e.g., torturers or other modern pirates. Nothing in the
statute or its history suggests that our courts should turn a blind
eye to the plight of victims in that “handful of heinous
actions.”
Tel-Oren v.
Libyan Arab Republic, 726
F.2d 774, 781 (CADC 1984) (Edwards, J., concurring). See generally
Leval, The Long Arm of International Law: Giving Victims of Human
Rights Abuses Their Day in Court, 92 Foreign Affairs 16 (Mar. /
Apr. 2013). To the contrary, the statute’s language, history,
and purposes suggest that the statute was to be a weapon in the
“war” against those modern pirates who, by their
conduct, have “declar[ed] war against all mankind.”
4 Blackstone 71.
International norms have long included a duty
not to permit a nation to become a safe harbor for pirates (or
their equivalent). See generally A. Bradford, Flying the Black
Flag: A Brief History of Piracy 19 (2007) (“Every polis by
the sea . . . which was suspected of sponsoring piracy or
harboring pirates could be attacked and destroyed by the
Athenians”); F. Sanborn, Origins of the Early English
Maritime and Commercial Law 313 (1930) (“In 1490 Henry VII
made a proclamation against harboring pirates or purchasing goods
from them”); N. Risjord, Representative Americans: The
Colonists 146 (1981) (“William Markham, Penn’s
lieutenant governor in the 1690s, was accused of harboring pirates
in Philadelphia . . . . Governor Benjamin
Fletcher of New York became the target of a royal inquiry after he
issued privateering commissions to a band of notorious
pirates”); 3 C. Yonge, A Pictorial History of the
World’s Great Nations 954 (1882) (“[In the early 18th
century, t]he government of Connecticut was accused of harboring
pirates”); S. Menefee, Piracy, Terrorism, and the Insurgent
Passenger: A Historical and Legal Perspective, in Maritime
Terrorism and International Law 51 (N. Ronzitti ed. 1990) (quoting
the judge who handled the seizure of the
Chesapeake during
the Civil War as stating that “ ‘piracy
jure
gentium was justiciable by the court of New Brunswick, wherever
committed’ ”); D. Field, Outlines of an
International Code 33, Art. 84 (2d ed. 1876) (citing the 1794
treaty between the United States and Great Britain
(“
Harboring pirates forbidden. No nation can receive
pirates into its territory, or permit any person within the same to
receive, protect, conceal or assist them in any manner; but must
punish all persons guilty of such acts”)).
More recently two lower American courts have, in
effect, rested jurisdiction primarily upon that kind of concern. In
Filartiga, 630 F.2d 876, an alien plaintiff brought a
lawsuit against an alien defendant for damages suffered through
acts of torture that the defendant allegedly inflicted in a foreign
nation, Paraguay. Neither plaintiff nor defendant was an American
national and the actions underlying the lawsuit took place abroad.
The defendant, however,
“had . . . resided in the United States
for more than ninth months” before being sued, having
overstayed his visitor’s visa.
Id., at 878–879.
Jurisdiction was deemed proper because the defendant’s
alleged conduct violated a well-established international law norm,
and the suit vindicated our Nation’s interest in not
providing a safe harbor, free of damages claims, for those
defendants who commit such conduct.
In
Marcos, the plaintiffs were nationals
of the Philippines, the defendant was a Philippine national, and
the alleged wrongful act, death by torture, took place abroad.
In re Estate of Marcos, Human Rights Litigation,
25 F.3d 1467, 1469, 1475 (CA9 1994);
In re Estate
of Marcos Human Rights Litigation, 978 F.2d 493,
495–496, 500 (CA9 1992). A month before being sued, the
defendant, “his family, . . . and others
loyal to [him] fled to Hawaii,” where the ATS case was heard.
Marcos, 25 F. 3d, at 1469. As in
Filartiga, the
court found ATS jurisdiction.
And in
Sosa we referred to both cases
with approval, suggesting that the ATS allowed a claim for relief
in such circumstances. 542 U. S., at 732. See also
Flomo v.
Firestone Natural Rubber Co., 643 F.3d 1013,
1025 (CA7 2011) (Posner, J.) (“
Sosa was a case of
nonmaritime extraterritorial conduct yet no Justice suggested that
therefore it couldn’t be maintained”). Not
surprisingly, both before and after
Sosa, courts have
consistently rejected the notion that the ATS is categorically
barred from extraterritorial application. See,
e.g., 643
F. 3d, at 1025 (“[N]o court to our knowledge has ever
held that it doesn’t apply extraterritorially”);
Sarei v.
Rio Tinto, PLC, 671 F.3d 736, 747 (CA9 2011)
(en banc) (“We therefore conclude that the ATS is not limited
to conduct occurring within the United States”);
Doe
v.
Exxon Mobil Corp., 654 F.3d 11, 20 (CADC 2011)
(“[W]e hold that there is no extraterritoriality
bar”).
Application of the statute in the way I have
suggested is consistent with international law and foreign
practice. Nations have long been obliged not to provide safe
harbors for their own nationals who commit such serious crimes
abroad. See E. de Vattel, Law of Nations, Book II, p. 163
(§76) (“pretty generally observed” practice in
“respect to great crimes, which are equally contrary to the
laws and safety of all nations,” that a sovereign should not
“suffer his subjects to molest the subjects of other states,
or to do them an injury,” but should “compel the
transgressor to make reparation for the damage or injury,” or
be “deliver[ed] . . . up to the offended state, to
be there brought to justice”).
Many countries permit foreign plaintiffs to
bring suits against their own nationals based on unlawful conduct
that took place abroad. See,
e.g., Brief for Government of
the Kingdom of the Netherlands et al. as
Amici Curiae
19–23 (hereinafter Netherlands Brief) (citing
inter
alia Guerrero v.
Monterrico Metals PLc [2009]
EWHC (QB) 2475 (Eng.) (attacking conduct of U. K. companies in
Peru);
Lubbe and Others v.
Cape PLc [2000] UKHL 41
(attacking conduct of U. K. companies in South Africa);
Rb.
Gravenhage [Court of the Hague], 30 December 2009, JOR 2010, 41
m.nt. Mr. RGJ de Haan (Oguro/Royal Dutch Shell PLC) (Neth.)
(attacking conduct of Dutch respondent in Nigeria)). See also Brief
for European Commission as
Amicus Curiae 11 (It is
“uncontroversial” that the “United States may
. . . exercise jurisdiction over ATS claims involving
conduct committed by its own nationals within the terri-tory of
another sovereign, consistent with international law”).
Other countries permit some form of lawsuit
brought by a foreign national against a foreign national, based
upon conduct taking place abroad and seeking damages. Certain
countries, which find “universal” criminal
“jurisdiction” to try perpetrators of particularly
heinous crimes such as piracy and genocide, see Restatement
§404, also permit private persons injured by that conduct to
pursue
“actions civiles,” seeking civil damages
in the criminal proceeding. Thompson, Ramasastry, & Taylor,
Translating
Unocal: The Expanding Web of Liability for Busi-
ness Entities Implicated in International Crimes, 40 Geo. Wash.
Int’l L. Rev. 841, 886 (2009). See,
e.g., Ely Ould Dah
v.
France, App. No. 13113/03 (Eur. Ct. H. R.; Mar 30,
2009), 48 Int’l Legal Materials 884; Metcalf, Reparations for
Displaced Torture Victims, 19 Cardozo J. Int’l & Comp. L.
451, 468–470 (2011). Moreover, the United Kingdom and the
Netherlands, while not authorizing such damages actions themselves,
tell us that they would have no objection to the exercise of
American jurisdiction in cases such as
Filartiga and
Marcos. Netherlands Brief 15–16, and n. 23.
At the same time Congress has ratified treaties
obliging the United States to find and punish foreign perpetrators
of serious crimes committed against foreign persons abroad. See
Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons, Including Diplomatic Agents,
Dec. 28, 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, Dec. 16, 1970, 22
U. S. T. 1641, T. I. A. S. No. 7192;
Restatement §404 Reporters’ Note 1, at 257 (“These
agreements include an obligation on the parties to pun- ish or
extradite offenders, even when the offense was not committed within
their territory or by a national”). See also International
Convention for the Protection of All Persons from Enforced
Disappearance, Art. 9(2) (2006) (state parties must take measures
to establish jurisdiction “when the alleged offender is
present in any territory un-der its jurisdiction, unless it
extradites or surrenders him or her”);
http://www.unhcr.org/refworld/docid/47fdfaeb0.pdf (as visited
Apr.1, 2013, and available in Clerk of Court’s case file);
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment of Punishment, Dec. 10, 1984, 1465
U. N. T. S. 85, Arts. 5(2), 7(1) (similar); Geneva
Convention (III) Relative to the Treatment of Prisoners of War,
Art. 129, Aug. 12, 1949, [1955] 6 U. S. T. 3316,
T. I. A. S. No. 3364 (signatories must
“search for persons alleged to have committed, or to have
ordered to be committed, such grave breaches, and shall bring such
persons, regardless of their nationality, before its own
courts” or “hand such persons over for
trial”).
And Congress has sometimes authorized civil
damages in such cases. See generally note following 28
U. S. C. §1350 (Torture Victim Protection Act of
1991 (TVPA) (private damages action for torture or extrajudicial
killing committed under authority of a foreign nation));
S. Rep. No. 102–249, p. 4 (1991) (ATS “should not
be replaced” by TVPA); H. R. Rep. No. 102–367, pt.
1, p. 4 (TVPA intended to “enhance the remedy already
available under” the ATS). But cf.
Mohamad v.
Palestinian Authority, 566 U. S. ___ (2012) (TVPA
allows suits against only natural persons).
Congress, while aware of the award of civil
damages under the ATS—including cases such as
Filartiga with foreign plaintiffs, defendants, and
conduct—has not sought to limit the statute’s
jurisdictional or substantive reach. Rather, Congress has enacted
other statutes, and not only criminal statutes, that allow the
United States to prosecute (or allow victims to obtain damages
from) foreign persons who injure foreign victims by committing
abroad torture, genocide, and other heinous acts. See,
e.g.,
18 U. S. C. §2340A(b)(2) (authorizing prosecution of torturers
if “the alleged offender is present in the United States,
irrespective of the nationality of the victim or alleged
offender”); §1091(e)(2)(D) (2006 ed., Supp. V) (genocide
prosecution authorized when, “regardless of where the offense
is committed, the alleged offender is . . . present in
the United States”); note following 28 U. S. C.
§1350, §2(a) (private right of action on behalf of
individuals harmed by an act of torture or extrajudicial killing
committed “under actual or apparent authority, or color of
law, of any foreign nation”). See also S. Rep. No.
102–249,
supra, at 3–4 (purpose to “mak[e]
sure that torturers and death squads will no longer have a safe
haven in the United States,” by “providing a civil
cause of action in U. S. courts for torture committed
abroad”).
Thus, the jurisdictional approach that I would
use is analogous to, and consistent with, the approaches of a
number of other nations. It is consistent with the approaches set
forth in the Restatement. Its insistence upon the presence of some
distinct American interest, its reliance upon courts also invoking
other related doctrines such as comity, exhaustion, and
forum
non conveniens, along with its dependence (for its workability)
upon courts obtaining, and paying particular attention to, the
views of the Executive Branch, all should obviate the
majority’s concern that our jurisdictional example would lead
“other nations, also applying the law of nations,” to
“hale our citizens into their courts for alleged violations
of the law of nations occurring in the United States, or anywhere
else in the world.”
Ante, at 13.
Most importantly, this jurisdictional view is
consistent with the substantive view of the statute that we took in
Sosa. This approach would avoid placing the statute’s
jurisdictional scope at odds with its substantive objectives,
holding out “the word of promise” of compensation for
victims of the torturer, while “break[ing] it to the
hope.”
III
Applying these jurisdictional principles to
this case, however, I agree with the Court that jurisdiction does
not lie. The defendants are two foreign corporations. Their shares,
like those of many foreign corporations, are traded on the New York
Stock Exchange. Their only presence in the United States consists
of an office in New York City (actually owned by a separate but
affiliated company) that helps to explain their business to
potential investors. See Supp. Brief for Petitioners 4, n. 3
(citing
Wiwa v.
Royal Dutch Petroleum Co.,
226 F.3d 88, 94 (CA2 2000)); App. 55. The plaintiffs are not
United States nationals but nationals of other nations. The conduct
at issue took place abroad. And the plaintiffs allege, not that the
defendants directly engaged in acts of torture, genocide, or the
equivalent, but that they helped others (who are not American
nationals) to do so.
Under these circumstances, even if the New York
office were a sufficient basis for asserting general jurisdiction,
but see
Goodyear Dunlop Tires Operations, S. A. v.
Brown, 564 U. S. ___ (2011), it would be farfetched to
believe, based solely upon the defendants’ minimal and
indirect American presence, that this legal action helps to
vindicate a distinct American interest, such as in not providing a
safe harbor for an “enemy of all mankind.” Thus I agree
with the Court that here it would “reach too far to
say” that such “mere corporate presence
suffices.”
Ante, at 14.
I consequently join the Court’s judgment
but not its opinion.