SUPREME COURT OF THE UNITED STATES
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.
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
542 U. S. 692 (2004)
. But by asking whether there is “a specific, universal, and obligatory norm of liability for corporations” in international law, ante,
at 13, the plurality fundamentally misconceives how international law works and so misapplies the first step of Sosa.
, the Court considered whether a Mexican citizen could recover under the ATS for a claim of arbitrary detention by a Mexican national who had been hired by the Drug Enforcement Administration to seize and transport him to the United States. See 542 U. S., at 697–698. The Court held that the ATS permits federal courts to “recognize private causes of action for certain torts in violation of the law of nations,” id.,
at 724, without the need for any “further congressional action,” id.,
at 712. The Court then
articulated a two-step framework to guide that inquiry. First, a court must determine whether the particular international-law norm alleged to have been violated is “accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms,” i.e.,
“violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Id.,
at 724–725. Only if the norm is “ ‘specific, universal, and obligatory’ ” may federal courts recognize a cause of action for its violation. Kiobel
v. Royal Dutch Petroleum Co.
569 U. S. 108, 117 (2013)
, 542 U. S., at 732). Second, if that threshold hurdle is satisfied, a court should consider whether allowing a particular case to proceed is an appropriate exercise of judicial discretion. Sosa
, 542 U. S., at 727–728, 732–733, 738. Applying that framework, Sosa
held that the alleged arbitrary detention claim at issue failed at step one because “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.” Id.,
’s norm-specific first step is inapposite to the categorical question whether corporations may be sued under the ATS as a general matter. International law imposes certain obligations that are intended to govern the behavior of states and private actors. See id.,
at 714–715; 1 Restatement (Third) of Foreign Relations Law of the United States, pt. II, Introductory Note, pp. 70–71 (1987) (Restatement). Among those obligations are substantive prohibitions on certain conduct thought to violate human rights, such as genocide, slavery, extrajudicial killing, and torture. See 2 Restatement §702. Substantive prohibitions like these are the norms at which Sosa
’s step-one inquiry is aimed and for which Sosa
requires that there be sufficient international consensus.
does not, however, demand that there be sufficient international consensus with regard to the mechanisms of enforcing these norms, for enforcement is not a question with which customary international law is concerned. Although international law determines what substantive conduct violates the law of nations, it leaves the specific rules of how to enforce international-law norms and remedy their violation to states, which may act to impose liability collectively through treaties or independently via their domestic legal systems. See, e.g.,
L. Henkin, Foreign Affairs and the United States Constitution 245 (2d ed. 1996) (“International law itself . . . does not require any particular reaction to violations of law”); Denza, The Relationship Between International and National Law, in International Law 423 (M. Evans ed. 2006) (“[I]nternational law does not itself prescribe how it should be applied or enforced at the national level”); 1 Restatement §111, Comment h
(“In the absence of special agreement, it is ordinarily for the United States to decide how it will carry out its international obligations”); Brief for International Law Scholars as Amici Curiae
In keeping with the nature of international law, Sosa
consistently used the word “norm” to refer to substantive conduct. For example, Sosa
commands that “federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when §1350 was enacted.” 542 U. S., at 732. That statement would make little sense if “norm” encompassed enforcement mechanisms like “corporate liability.” Unlike “the prohibition on genocide,” “corporate liability” cannot be violated. Moreover, “the historical paradigms familiar when §1350 was enacted” are all prohibitions on conduct, and Sosa
clearly contemplated that courts should compare the charged conduct with the historical conduct. See ibid.
, 630 F. 2d 876 (1980), where the Court of Appeals for the Second Circuit compared a “ ‘torturer’ ” to “ ‘the pirate and slave trader before him,’ ” id.
, at 890, and Judge Edwards’ concurrence in Tel-Oren
v. Libyan Arab Republic
, 726 F. 2d 774 (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 international law, not that the civil action be of a type that the international community specifically and universally practices or endorses.
The plurality nonetheless allies itself with the view that international law supplies the rule of decision in this case based on its reading of footnote 20 in Sosa
. That footnote sets out “[a] related consideration” to “the determination whether a norm is sufficiently definite to support a cause of action.” 542 U. S., at 732, and n. 20. 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
, 70 F. 3d 232, 239–241 (CA2 1995) (sufficient consensus in 1995 that genocide by private actors violates international law).” 542 U. S., at 732, n. 20.
In the Second Circuit’s decision in Kiobel
v. Royal Dutch Petroleum
, 621 F. 3d 111 (2010), the majority opinion read footnote 20 to “requir[e] that [courts] look to international law
to determine [their] jurisdiction over ATS claims against a particular class of defendant, such as corporations.” Id.,
at 127 (emphasis in original). The plurality today accords “considerable force and weight to [that] position,” ante,
at 13, and so proceeds to assess whether there exists a specific, universal, and obligatory norm of liability for corporations in international law, ante,
at 13–17. But the Court of Appeals mistook the meaning of footnote 20, which simply draws attention to the fact that, under international law, “the distinction between conduct that does and conduct that does not violate the law of nations can turn on whether the conduct is done by or on behalf of a State or by a private actor independently of a State.” Kiobel
, 621 F. 3d, at 177 (Leval, J., concurring in judgment).
The international-law norm against genocide, for example, imposes obligations on all actors. Acts of genocide thus violate the norm irrespective of whether they are committed privately or in concert with the state. See Convention on the Prevention and Punishment of the Crime of Genocide, Art. II, Dec. 9, 1948,
3045 (defining “genocide” as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”); see also
18 U. S. C. §1091(a) (“Whoever” commits genocide “shall be punished as provided in subsection (b)”). In contrast, other norms, like the prohibition on torture, require state action. Conduct thus qualifies as torture and violates the norm only when done “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 1, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S. 114 (Torture Convention).[1
Footnote 20 in Sosa
flags this distinction and instructs courts to consider whether there is “sufficient consensus” that, with respect to the particular conduct prohibited under “a given norm,” the type of defendant being sued can be alleged to have violated that specific norm. 542 U. S., at 732, n. 20. Because footnote 20 contemplates a norm-specific inquiry, not a categorical one, it is irrelevant to the categorical question presented here. Assuming the prohibition against financing of terrorism is sufficiently “specific, universal, and obligatory” to satisfy the first step of Sosa
, a question on which I would remand to the Court of Appeals, nothing in international law suggests a corporation may not violate it.[2
The plurality briefly acknowledges this critique of its reading of footnote 20, but nonetheless assumes the correctness of its approach because of its view that there exists a “distinction in international law between corporations and natural persons.” Ante,
at 17. The plurality attempts to substantiate this proposition by pointing to the charters of certain international criminal tribunals and noting that none was given jurisdiction over corporate defendants. That argument, however, confuses the substance of international law with how it has been enforced in particular contexts.
Again, the question of who must undertake the prohibited conduct for there to be a violation of an 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 corporations at Nuremberg because of pragmatic factors. Those factors included scarce judicial resources, a preference of the occupation governments to swiftly dismantle the most culpable German companies without destroying Germany’s postwar economy, and a desire to focus on establishing the principle of nonstate criminal responsibility for human-rights violations. See Brief for Nuremberg Scholars as Amici Curiae
More recently, the delegations that negotiated the Rome Statute of the International Criminal Court in the 1990’s elected not to extend that tribunal’s jurisdiction to corporations in part because states had varying domestic practices as to whether and how to impose criminal liability on corporations. See Frulli, Jurisdiction Ratione Personae
, in 1 Rome Statute of the International Criminal Court 527, 532–533 (A. Cassese et al. eds. 2002); Brief for Ambassador David J. Scheffer as Amicus Curiae
Taken to its natural conclusion, the plurality’s focus on the practice of international criminal tribunals would prove too much. No international tribunal has been created and endowed with the jurisdiction to hold natural persons civilly (as opposed to criminally) liable, yet the majority and respondent accept that natural persons can be held liable under the ATS. See ante,
at 26; Tr. of Oral Arg. 62. It cannot be persuasive evidence for purposes of ascertaining the availability of corporate civil liability under the ATS, then, that the jurisdiction of the handful of international criminal tribunals that states have seen fit to create in the last 75 years has not extended to corporate defendants.
Ultimately, the evidence on which the plurality relies does not prove that international law distinguishes between corporations and natural persons as a categorical matter. To the contrary, it proves only that states’ collective efforts to enforce various international-law norms have, to date, often focused on natural rather than corporate defendants.
In fact, careful review of states’ collective and individual enforcement efforts makes clear that corporations are subject to certain obligations under international law. For instance, the United States Military Tribunal that prosecuted several corporate executives of IG Farben declared that corporations could violate international law. See 8 Trials of War Criminals Before the Nuernberg Military Tribunals Under Council Control Law No. 10, p. 1132 (1952) (“Where private individuals, including juristic persons, proceed to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such action . . . is in violation of international law”).[3
] Similarly, the International Criminal Tribunal for Rwanda found that three nonnatural entities—a private radio station, newspaper, and political party—were responsible for genocide. See Prosecutor
, Case No. ICTR–99–52–T, Judgment and Sentence ¶953 (Dec. 3, 2003). Most recently, the appeals panel of the Special Tribunal for Lebanon held that corporations may be prosecuted for contempt. See Prosecutor
v. New TV S. A. L.,
Case No. STL–14–05/PT/AP/AR126.1, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings ¶74 (Oct. 2, 2014).
In addition, various international agreements require signatory states to impose liability on corporations for certain conduct.[4
] Of particular relevance here, the International Convention for the Suppression of the Financing of Terrorism provides: “Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out” an act of terrorism. Dec. 9, 1999, Art. 2, S. Treaty Doc. No. 106–49, 2178 U. N. T. S. 230. It then requires each signatory state, “in accordance with its domestic legal principles,” to “take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity,” violated the Convention. Id.
, Art. 5(1). The Convention provides that “[s]uch liability may be criminal, civil, or administrative,” ibid.
, so long as the penalties, which can include monetary sanctions, are “effective, proportionate and dissuasive.” Id.,
Art. 5(3). The United States is a party to the Convention, along with 131 other states.[5
The plurality dismisses the relevance of this Convention because it does not require states parties to hold corporations liable in common-law tort actions, but rather permits them to “fulfill their obligations . . . by adopting detailed regulatory regimes governing financial institutions.” Ante,
at 16. That critique misses the point. The significance of the Convention is that the international community agreed that financing terrorism is unacceptable conduct and that such conduct violates the Convention when undertaken by corporations. That the Convention leaves up to each state party how to impose liability on corporations, e.g.,
via erecting a regulatory regime, providing for tort actions, or imposing criminal sanctions, is unremarkable,[6
] and simply reflects that international law sets out standards of conduct and leaves it to individual states to determine how best to enforce those standards.
Finally, a number of states, acting individually, have imposed criminal and civil liability on corporations for law-of-nations violations through their domestic legal systems. See, e.g., New TV S. A. L.
, Case No. STL–14–05/PT/AP/AR126.1, ¶¶52–55 (listing more than 40 countries that provide for corporate criminal liability); A. Ramasastry & R. Thompson, Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave Breaches of International Law 22–24 (2006), available at https://www.biicl.org/files/4364_536.pdf (noting that 15 of 16 countries surveyed permit civil claims against corporations for human rights violations); Brief for Comparative Law Scholars and Practitioners as Amici Curiae
15–19 (detailing provisions creating corporate civil liability for international-law violations in England, France, the Netherlands, and Canada).
Instead of asking whether there exists a specific, universal, and obligatory norm of corporate liability under international law, the relevant inquiry in response to the question presented here is whether there is any reason—under either international law or our domestic law—to distinguish between a corporation and a natural person who is alleged to have violated the law of nations under the ATS. As explained above, international law provides no such reason. See Kiobel
, 621 F. 3d, at 175 (Leval, J., concurring in judgment) (“[T]he answer international law furnishes is that it takes no position on the question”). Nor does domestic law. The text, history, and purpose of the ATS plainly support the conclusion that corporations may be held liable.
Beginning “with the language of the statute itself,” United States
v. Ron Pair Enterprises, Inc.
489 U. S. 235
, 241 (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.
, 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.
, 4 Serg. & Rawle 6, 17 (Pa. 1818) (“[F]rom the earliest times to the present, corporations have been held liable for torts”). This Court “has assumed that, when Congress creates a tort action, it legislates against a legal background of ordinary tort-related . . . rules and consequently intends its legislation to incorporate those rules.” Meyer
537 U. S. 280, 285 (2003)
. The presumption, then, is that, in providing for “tort” liability, the ATS provides for corporate liability.
Second, whereas the ATS expressly limits the class of permissible plaintiffs to “alien[s],” §1350, it “does not distinguish among classes of defendants,” Argentine Republic
v. Amerada Hess Shipping Corp.
488 U. S. 428, 438 (1989)
. That silence as to defendants cannot be presumed to be inadvertent. That is because in the same section of the Judiciary Act of 1789 as what is now the ATS, Congress provided the federal district courts with jurisdiction over “all suits against consuls or vice-consuls.” §9,
76–77. Where Congress wanted to limit the range of permissible defendants, then, it clearly knew how to do so. Russello
v. United States
464 U. S. 16, 23 (1983)
(“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (internal quotation marks omitted)).
Nothing about the historical background against which the ATS was enacted rebuts the presumption that the statute incorporated the accepted principle of corporate liability for tortious conduct. Under the Articles of Confederation, the Continental Congress was unable to provide redress to foreign citizens for violations of treaties or the law of nations, which threatened to undermine the United States’ relationships with other nations. See Kiobel
, 569 U. S., at 123. The First Congress responded with, inter alia
, the ATS. Although the two incidents that highlighted the need to provide foreign citizens with a federal forum in which to pursue their grievances involved conflicts between natural persons, see ante,
at 7 (majority opinion) (describing the assault by a French adventurer on the Secretary of the French Legation and the arrest of one of the Dutch Ambassador’s servants by a New York constable), there is “no reason to conclude that the First Congress was supremely concerned with the risk that natural persons would cause the United States to be drawn into foreign entanglements, but was content to allow formal legal associations of individuals, i.e.,
corporations, to do so,” Doe
v. Exxon Mobil Corp.
, 654 F. 3d 11, 47 (CADC 2011), vacated on other grounds, 527 Fed. Appx. 7 (CADC 2013); see also Brief for United States as Amicus Curiae
6 (“The ATS was enacted to ensure a private damages remedy for incidents with the potential for serious diplomatic consequences, and Congress had no good reason to limit the set of possible defendants in such actions to potentially judgment-proof individuals”). Indeed, foreclosing corporations from liability under the ATS would have been at odds with the contemporaneous practice of imposing liability for piracy on ships, juridical entities. See, e.g., Skinner
v. East India Co.
, 6 State Trials 710, 711 (1666); The Marianna Flora
, 11 Wheat. 1, 40–41 (1826); Harmony
v. United States
, 2 How. 210, 233 (1844).
Finally, the conclusion that corporations may be held liable under the ATS for violations of the law of nations is not of recent vintage. More than a century ago, the Attorney General acknowledged that corporations could be held liable under the ATS. See 26 Op. Atty. Gen. 250, 252 (1907) (stating that citizens of Mexico could bring a claim under the ATS against a corporation, the American Rio Grande Land and Irrigation Company, for violating provisions of a treaty between the United States and Mexico).
In his concurrence, Justice Gorsuch urges courts to exercise restraint in recognizing causes of action under the ATS. But whether the ATS provides a cause of action for violations of the norms against genocide, crimes against humanity, and financing of terrorism is not the question the parties have asked the Court to decide. I therefore see no reason why it is necessary to delve into the propriety of creating new causes of action. Nevertheless, because I disagree with the premises on which the concurrence relies, I offer two brief observations.
First, Justice Gorsuch says it “pass[es] understanding” why federal courts have exercised jurisdiction over ATS claims raised by foreign plaintiffs against foreign defendants for breaches of international norms. See ante,
1 (opinion concurring in part and concurring in judgment). Modern ATS cases, however, are not being litigated against a blank slate. The Court held in Sosa
that Congress authorized the federal courts to “recognize private causes of action for certain torts in violation of the law of nations,” 542 U. S., at 724, so long as the underlying norm had no “less definite content and acceptance among civilized nations than the historical paradigms familiar when §1350 was enacted,” id.,
at 732. That holding was no mere “suggestion,” ante,
at 2 (opinion of Gorsuch, J.), as this Court has made clear. See Kiobel
, 569 U. S., at 116–117.
Given that the First Congress authorized suit for violations based on “the law of nations” and “treat[ies] of the United States,”
28 U. S. C. §1350, it is natural to conclude that Congress intended the district courts to consider new claims under the law of nations as that law and our Nation’s treaty obligations continued to develop. If Congress intended to limit such cases to violations of safe conduct, assaults against ambassadors, piracy, and—as Justice Gorsuch suggests may have been the case—“ ‘personal injuries that US citizens inflicted upon aliens resulting in less than $500 in damages,’ ” ante
, at 10 (quoting Bellia & Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445, 509 (2011)), it easily could have said so. Instead, it granted the federal courts jurisdiction over claims based on “the law of nations,” a body of law that Congress did not understand to be static. See United States
v. The La Jeune Eugenie
, 26 F. Cas. 832, 846 (No. 15,551) (CC Mass. 1822) (Story, J.) (“What, therefore, the law of nations is . . . may be considered as modified by practice, or ascertained by the treaties of nations at different periods. It does not follow . . . that because a principle cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at no subsequent period the principle can be considered as incorporated into the public code of nations”).
The question for courts considering new ATS claims is, “Who are today’s pirates?” Kiobel
, 569 U. S., at 129 (Breyer, J., concurring in judgment). Torturers and those who commit genocide are now fairly viewed, like pirates, as “common enemies of all mankind.” Id.,
at 131 (internal quotation marks omitted). On remand, the Court of Appeals would decide whether the financiers of terrorism are the same. The fact that few norms have overcome Sosa
’s high hurdle is strong evidence that the carefully considered standard set forth in that case is generating exactly the kind of “judicial caution” the Court stressed as necessary. See 542 U. S., at 725.
Second, the concurrence suggests that federal courts may lack jurisdiction to entertain suits between aliens based solely on a violation of the law of nations. It contends that ATS suits between aliens fall under neither the federal courts’ diversity jurisdiction nor our federal question jurisdiction. The Court was not unaware of this argument when it decided Sosa
. As noted, that case involved an ATS suit brought by a citizen of Mexico against a citizen of Mexico, and various amici
argued that the Court lacked Article III jurisdiction over such suits. See Brief for National Foreign Trade Counsel et al. as Amici Curiae
, O. T. 2003, No. 03–339, pp. 24–25; see also Brief for Washington Legal Foundation et al. as Amici Curiae
in No. 03–339, pp. 14–21. The Court nonetheless proceeded to decide the case, which it could not have done had it been concerned about its Article III power to do so. See Arbaugh
v. Y & H Corp.
546 U. S. 500, 514 (2006)
. That decision forecloses the argument the concurrence now makes, as Sosa
authorized courts to “recognize private claims under federal common law
for violations of” certain international law norms. 542 U. S., at 732 (emphasis added); see also id.
, at 729–730 (explaining that, post-Erie R. Co.
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 have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism”); Sarei
v. Rio Tinto
, 671 F. 3d 736, 749–754 (CA9 2011) (en banc) (discussing Sosa
and concluding that federal courts have Article III jurisdiction to hear ATS cases between aliens), vacated and remanded,
569 U. S. 945 (2013)
(remanding for further consideration in light of Kiobel
was correct as a legal matter. Moreover, our Nation has an interest not only in providing a remedy when our own citizens commit law of nations violations, but also in preventing our Nation from serving as a safe harbor for today’s pirates. See Kiobel
, 569 U. S., at 133–134 (Breyer, J., concurring in judgment). To that end, Congress has ratified treaties requiring the United States “to punish or extradite offenders, even when the offense was not committed . . . by a national.” 1 Restatement §404, Reporters’ Note 1, at 255–257; see Torture Convention, Arts. 5, 7; Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Art. 3, Dec. 14, 1973, 28 U. S. T. 1975, T. I. A. S. No. 8532; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U. S. T. 565, T. I. A. S. No. 7570; Convention for the Suppression of Unlawful Seizure of Aircraft, Art. 4, Dec. 16, 1970, 22 U. S. T. 1641, T. I. A. S. No. 7192; Geneva Convention Relative to the Treatment of Prisoners of War, Art. 129, Aug. 12, 1949, 6 U. S. T. 3316, T. I. A. S. No. 3364. To the extent suits against foreign defendants may lead to international friction, that concern is better addressed under the presumption the Court established in Kiobel
against extraterritorial application of the ATS, see 569 U. S., at 124–125, than it is by relitigating settled precedent.
At its second step, Sosa
cautions that courts should consider whether permitting a case to proceed is an appropriate exercise of judicial discretion in light of potential foreign-policy implications. See 542 U. S., at 727–728, 732–733, 738. The plurality only assumes without deciding that international law does not impose liability on corporations, so it necessarily proceeds to Sosa
’s second step. Here, too, its analysis is flawed.
Nothing about the corporate form in itself justifies categorically foreclosing corporate liability in all ATS actions. Each source of diplomatic friction that respondent Arab Bank and the plurality identify can be addressed with a tool more tailored to the source of the problem than a blanket ban on corporate liability.
Arab Bank contends that foreign citizens should not be able “to sue a Jordanian corporation in New York for events taking place in the Middle East.” Brief for Respondent 42. The heart of that qualm was already addressed in Kiobel
, which held that the presumption against extraterritoriality applies to the ATS. 569 U. S., at 124. Only where the claims “touch and concern the territory of the United States . . . with sufficient force” can the presumption be displaced. Id.,
at 124–125. “[M]ere corporate presence” does not suffice. Id.,
at 125. Thus, contrary to the majority’s contention, “the relatively minor connection between the terrorist attacks at issue in this case and the alleged conduct in the United States” does not “well illustrat[e] the perils of extending the scope of ATS liability to foreign multinational corporations,” ante,
at 25, but merely illustrates the risks of extending the scope of ATS liability extraterritorially absent sufficient connection to the United States.
Arab Bank also bemoans the unfairness of being sued when others—namely, the individuals and organizations that carried out the terrorist attacks—were “the direct cause” of the harm petitioners here suffered. Brief for Respondent 41. That complaint, though, is a critique of the imposition of liability for financing terrorism, not an argument that ATS suits against corporations generally necessarily cause diplomatic tensions.
Arab Bank further expresses concern that ATS suits are being filed against corporations in an effort to recover for the bad acts of foreign governments or officials. See id.
, at 40. But the Bank’s explanation of this problem reveals that the true source of its grievance is the availability of aiding and abetting liability. See ibid.
(“[N]umerous ATS suits have alleged that a corporation has aided or abetted bad acts committed by a foreign government and its officials
” (emphasis in original)); id.,
at 41 (“[A]iding and abetting suits under the ATS have given plaintiffs ‘a clear means for effectively circumventing’ critical limits on foreign sovereign immunity” (quoting Brief for United States as Amicus Curiae
in American Isuzu Motors, Inc.
, O. T. 2007, No. 07–919, p. 15)). The plurality too points to an aiding and abetting case to support its contention that plaintiffs “use corporations as surrogate defendants to challenge the conduct of foreign governments.” Ante,
at 21 (discussing Kiobel
, in which plaintiffs sought to hold a corporate defendant liable for “ ‘aiding and abetting the Nigerian Government in committing’ ” law-of-nations violations (quoting 569 U. S., at 114)). Yet not all law-of-nations violations asserted against corporations are premised on aiding and abetting liability; it is possible for a corporation to violate international-law norms independent of a foreign state or foreign state officials. In this respect, too, the Court’s rule is ill fitted to the problem identified.
Notably, even the Hashemite Kingdom of Jordan does not argue that there are foreign-policy tensions inherent 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
The majority also cites to instances in which other foreign sovereigns have “appeared in this Court to note [their] objections to ATS litigation,” ante,
at 26, but none of those objections was about the availability of corporate liability as a general matter. See Sosa
, 542 U. S., at 733, n. 21 (noting argument of the European Commission that “basic principles of international law require that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system, and perhaps in other forums such as international claims tribunals”); ibid.
(noting objections by South Africa to “several class actions seeking damages from various corporations alleged to have participated in, or abetted, the regime of apartheid” on the basis that the cases “interfere[d] with the policy embodied by its Truth and Reconciliation Commission”); Brief for Federal Republic of Germany as Amicus Curiae
v. Royal Dutch Petroleum Co.
, O. T. 2012, No. 10–1491, p. 1 (“The Federal Republic of Germany has consistently maintained its opposition to overly broad assertions of extraterritorial civil jurisdiction arising out of aliens’ claims against foreign defendants for alleged foreign activities that caused injury on foreign soil”); Brief for Government of the United Kingdom of Great Britain and Northern Ireland et al. as Amici Curiae
in No. 10–1491, p. 3 (“The Governments remain deeply concerned about . . . suits by foreign plaintiffs against foreign defendants for conduct that entirely took place in the territory of a foreign sovereign”).
As the United States urged at oral argument, when international friction arises, a court should respond with the doctrine that speaks directly to the friction’s source. See Tr. of Oral. Arg. 28 (acknowledging that “ATS litigation in recent decades has raised international friction” and explaining that “the way to deal with that friction is with a doctrine that speaks directly to the international entanglement . . . as those questions arise”). In addition to the presumption against extraterritoriality, federal courts have at their disposal a number of tools to address any foreign-relations concerns that an ATS case may raise. This Court has held that a federal court may exercise personal jurisdiction over a foreign corporate defendant only if the corporation is incorporated in the United States, has its principal place of business or is otherwise at home here, or if the activities giving rise to the lawsuit occurred or had their impact here. See Daimler AG
571 U. S. 117 (2014)
. Courts also can dismiss ATS suits for a plaintiff’s failure to exhaust the remedies available in her domestic forum, on forum non conveniens
grounds, for reasons of international comity, or when asked to do so by the State Department. See Kiobel
, 569 U. S., at 133 (Breyer, J., concurring in judgment); Sosa
, 542 U. S., at 733, n. 21.
Several of these doctrines might be implicated in this case, and I would remand for the Second Circuit to address them in the first instance.[8
] The majority, however, 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
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
v. Royal Dutch Petroleum Co.
, O. T. 2012, No. 10–1491, p. 7 (“Courts may recognize corporate liability in actions under the ATS as a matter of federal common law. . . . Sosa
’s cautionary admonitions provide no reason to depart from the common law on this issue”). At oral argument in this case, the United States told the Court that it saw no “sound reason to categorically exclude corporate liability.” Tr. of Oral Arg. 29. It explained that another country would hold the United States accountable for not providing a remedy against a corporate defendant in a “classic” ATS case, such as one involving a “foreign officia[l] injured in the United States,” id.
, at 32–33, and suggested that foreclosing the ability to recover from a corporation actually would raise “the possibility of friction,” id.,
at 33. Notably, the Government’s position that categorically barring corporate liability under the ATS is wrong has been consistent across two administrations led by Presidents of different political parties.
Likewise, when Members of Congress have weighed in on the question whether corporations can be proper defendants in an ATS suit, it has been to advise the Court against the rule it now adopts. See Brief for Sen. Sheldon Whitehouse et al. as Amici Curiae
7–11; Brief for Former Sen. Arlen Specter et al. as Amici Curiae
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.
486 U. S. 330, 338 (1988)
(“Congress’ failure to disturb a consistent judicial interpretation of a statute may provide some indication that ‘Congress at least acquiesces in, and apparently affirms, that [interpretation]’ ” (quoting Cannon
v. University of Chicago
441 U. S. 677, 703 (1979)
Given the deference to the political branches that Sosa
encourages, I find it puzzling that the Court so eagerly departs from the express assessment of the Executive Branch and Members of Congress that corporations can be defendants in ATS actions.
The plurality instead purports to defer to Congress by relying heavily on the Torture Victim Protection Act of 1991 (TVPA),
73, note following
28 U. S. C. §1350, to support its categorical bar. See ante,
at 20. The TVPA makes available to all individuals, not just foreign citizens, a civil cause of action for torture and extrajudicial killing that may be brought against natural persons. See Mohamad
v. Palestinian Authority
566 U. S. 449, 451
–452, 454 (2012). The plurality extrapolates from Congress’ decision regarding the scope of liability under the TVPA a rule that it contends should govern all ATS suits. See ante,
at 20. But there is no reason to think that because Congress saw fit to permit suits only against natural persons for two specific law-of-nations violations, Congress meant to foreclose corporate liability for all law-of-nations violations. The plurality’s contrary conclusion ignores the critical textual differences between the ATS and TVPA, as well as the TVPA’s legislative history, which emphasizes Congress’ intent to leave the ATS undisturbed.
On its face, the TVPA is different from the ATS in several significant ways: It is focused on only two law-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 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 important respect: While the [ATS] provides a remedy to aliens only, the TVPA would extend a civil remedy also to U. S. citizens who may have been tortured abroad”); ibid.
(“[C]laims based on torture or summary executions do not exhaust the list of actions that may appropriately be covered b[y] section 1350. That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law”); S. Rep. No. 102–249, pp. 4–5 (1991); see also Sosa
, 542 U. S., at 731 (explaining that the TVPA “supplement[ed] the judicial determination” in Filartiga
Lacking any affirmative evidence that Congress’ decision to limit liability under the TVPA to natural persons indicates a legislative judgment about the proper scope of liability in all ATS suits, the plurality focuses its efforts on dismissing petitioners’ argument that Congress limited TVPA liability to natural persons to harmonize the statute with the Foreign Sovereign Immunities Act of 1976 (FSIA), which generally immunizes foreign states from suit. See ante,
] Contrary to the plurality’s contention, however, this Court did not reject petitioners’ account of the TVPA’s legislative history in Mohamad
. In fact, that decision agreed that the legislative history “clarifi[es] that the Act does not encompass liability against foreign states.” 566 U. S., at 459. What Mohamad
rejected was the argument that because the TVPA forecloses liability against foreign states, it necessarily permits liability against corporations. In concluding that the TVPA encompasses only natural persons, Mohamad
took no position on why Congress excluded organizations from its reach.[11
To infer from the TVPA that no corporation may ever be held liable under the ATS for any violation of any international-law norm, moreover, ignores that Congress has elsewhere imposed liability on corporations for conduct prohibited by customary international law. For instance, the Antiterrorism Act of 1990 (ATA) created a civil cause of action for U. S. nationals injured by an act of international terrorism and expressly provides for corporate liability.
18 U. S. C. §2333. That Congress foreclosed corporate liability for torture and extrajudicial killing claims under the TVPA but permitted corporate liability for terrorism-related claims under the ATA is strong evidence that Congress exercises its judgment as to the appropriateness of corporate liability on a norm-by-norm basis, and that courts should do the same when considering whether to permit causes of action against corporations for law-of-nations violations under the ATS.
The plurality dismisses the ATA as “an inapt analogy” because the ATA “provides a cause of action only to ‘national[s] of the United States,’ ” whereas the ATS “provides a remedy for foreign nationals only.” Ante,
at 22 (quoting
18 U. S. C. §2333(a)). But if encompassing different groups of plaintiffs is what makes two statutes poor comparators for each other, the TVPA, too, is an inapt analogy, for it permits suits by all individuals, U. S. and foreign nationals alike.
The plurality also posits that the ATA “suggests that there should be no common-law action under the ATS for allegations like petitioners’,” ante,
at 22, because permitting such suits would allow foreign plaintiffs to “bypass Congress’ express limitations on liability under the [ATA] simply by bringing an ATS lawsuit,” ibid
. Yet an ATS suit alleging terrorism-related conduct does not “bypass” or “displace” any “statutory and regulatory structure,” ibid.
, any more than an ATA suit does. As this case demonstrates, U. S. nationals and foreign citizens may bring ATA and ATS suits in the same court, at the same time, for the same underlying conduct. To the extent the plurality is suggesting that Congress, in enacting the ATA, meant to foreclose ATS suits based on terrorism financing, the plurality offers no evidence to support that hypothesis, and the legislative history suggests that Congress enacted the ATA to provide U. S. citizens with the same remedy already available to foreign citizens under the ATS. See Hearing on S. 2465 before the Subcommittee on Courts and Administrative Practice of the Senate Committee on the Judiciary, 101st Cong., 1st Sess., 90 (1990) (testimony of Joseph A. Morris) (noting that ATS actions for terrorism “would be preserved”).
At bottom, the ATS and TVPA are related but distinct statutes that coexist independently. There is no basis to conclude that the considered judgment Congress made 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.
Finally, the plurality offers a set of “[o]ther considerations relevant to the exercise of judicial discretion” that it concludes “counsel against allowing liability under the ATS for foreign corporations.” Ante,
at 23. None is persuasive.
First, the plurality asserts that “[i]t has not been shown that corporate liability under the ATS is essential to serve the goals of the statute” because “the ATS will seldom be the only way for plaintiffs to hold the perpetrators liable,” and because “plaintiffs still can sue the individual corporate employees responsible for a violation of international law under the ATS.” Ibid.
This Court has never previously required that, to maintain an ATS action, a plaintiff must show that the ATS is the exclusive means by which to hold the alleged perpetrator liable and that no relief can be had from other parties. Such requirements extend far beyond the inquiry Sosa
contemplated and are without any basis in the statutory text.
Moreover, even if there are other grounds on which a suit alleging conduct constituting a law-of-nations violation can be brought, such as a state-law tort claim, the First Congress created the ATS because it wanted foreign plaintiffs to be able to bring their claims in federal court and sue for law-of-nations violations. A suit for state-law battery, even if based on the same alleged conduct, is not the equivalent of a federal suit for torture; the latter contributes to the uptake of international human rights norms, and the former does not.[12
Furthermore, holding corporations accountable for violating the human rights of foreign citizens when those violations touch and concern the United States may well be necessary to avoid the international tension with which the First Congress was concerned. Consider again the assault on the Secretary of the French Legation in Philadelphia by a French adventurer. See supra,
at 14; ante,
at 7 (majority opinion). Would the diplomatic strife that followed really have been any less charged if a corporation had sent its agent to accost the Secretary? Or, consider piracy. If a corporation owned a fleet of vessels and directed them to seize other ships in U. S. waters, there no doubt would be calls to hold the corporation to account. See Kiobel
, 621 F. 3d, at 156, and n. 10 (observing that “Somali pirates essentially operate as limited partnerships”). Finally, take, for example, a corporation posing as a job-placement agency that actually traffics in persons, forcibly transporting foreign nationals to the United States for exploitation and profiting from their abuse. Not only are the individual employees of that business less likely to be able fully to compensate successful ATS plaintiffs, but holding only individual employees liable does not impose accountability for the institution-wide disregard for human rights. Absent a corporate sanction, that harm will persist unremedied. Immunizing the corporation from suit under the ATS merely because it is a corporation, even though the violations stemmed directly from corporate policy and practice, might cause serious diplomatic 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 of their employees and subsidiaries around the world,” a prospect that will deter American corporations from investing in developing economies. Ante,
at 24. The plurality offers no empirical evidence to support these alarmist conjectures, which is especially telling given that plaintiffs have been filing ATS suits against foreign corporations in United States courts for years. It does cite to an amicus
brief for the United States in American Isuzu Motors, Inc.
, see ante,
at 24, but that case was concerned with the availability of civil aiding and abetting liability, not corporate liability generally, and the United States never contended that permitting corporate liability under the ATS would undermine global investment. Instead, it argued that permitting extraterritorial aiding and abetting cases would interfere with foreign relations and deter “the free flow of trade and investment.” See Brief for United States as Amicus Curiae
, O. T. 2007, No. 07–919, pp. 12–16, 20. Driven by hypothetical worry about besieged American corporations, today’s decision needlessly goes much further, encompassing all ATS suits against all foreign corporations, not just those cases with extraterritorial dimensions premised on an aiding and abetting theory.
* * *
In sum, international law establishes what conduct violates the law of nations, and specifies whether, to constitute a law-of-nations violation, the alleged conduct must be undertaken by a particular type of actor. But it is federal common law that determines whether corporations may, as a general matter, be held liable in tort for law-of-nations violations. Applying that framework here, I would hold that the ATS does not categorically foreclose corporate liability. Tort actions against corporations have long been available under federal common law. Whatever the majority might think of the value of modern-day ATS litigation, it has identified nothing to support its conclusion that “foreign corporate defendants create unique problems” that necessitate a categorical rule barring all foreign corporate liability. Ante,
Absent any reason to believe that the corporate form in itself raises serious foreign-policy concerns, and given the repeated urging from the Executive Branch and Members of Congress that the Court need not and should not foreclose corporate liability, I would reverse the decision of the Court of Appeals for the Second Circuit and remand for further proceedings, including whether the allegations here sufficiently touch and concern the United States, see Kiobel
, 569 U. S., at 124–125, and whether the 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.
In categorically barring all suits against foreign corporations under the ATS, the Court ensures that foreign corporations—entities capable of wrongdoing under our domestic law—remain immune from liability for human rights abuses, however egregious they may be.
Corporations can be and often are a force for innovation and growth. Many of their contributions to society should be celebrated. But the unique power that corporations wield can be used both for good and for bad. Just as corporations can increase the capacity for production, so, too, some can increase the capacity for suffering. Consider the genocide that took upwards of 800,000 lives in Rwanda in 1994, which was fueled by incendiary rhetoric delivered via a private radio station, the Radio Télévision Libre des Mille Collines (RTLM). Men spoke the hateful words, but 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)
v. Hobby Lobby Stores, Inc.
, 573 U. S. ___ (2014), without having to shoulder attendant fundamental responsibilities.
I respectfully dissent.