`(Slip Opinion)
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`
`
` OCTOBER TERM, 2017
`
`
`Syllabus
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`1
`
` 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
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` 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.
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`
`SUPREME COURT OF THE UNITED STATES
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`
`
` 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
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`JESNER v. ARAB BANK, PLC
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`
`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
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`

`3
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`Cite as: 584 U. S. ____ (2018)
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`
`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:
`
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`

`4
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`JESNER v. ARAB BANK, PLC
`
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`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
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`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.
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`5
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`Cite as: 584 U. S. ____ (2018)
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`Syllabus
`
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`(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
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`

`6
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`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
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`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.
`
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`

`

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` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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`
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`
`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
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`

`

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`2
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`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.
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`

`

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`3
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` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
`I
`
`A
`
`Petitioners are plaintiffs in five ATS lawsuits filed
`
`against Arab Bank in the United States District Court for
`the Eastern District of New York. The suits were filed
`
`between 2004 and 2010.
`A significant majority of the plaintiffs in these 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
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`
`

`

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`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
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`

`5
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` Cite as: 584 U. S. ____ (2018)
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`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
`
`
`The respective opinions by Judges
`(CADC 2013).
`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
`
`
`
`
`
`
`
`

`

`
`
`7
`
`
`
` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
` citizens as a result of violations of international law;
`
`but the state courts’ vindication of the law of nations
`remained unsatisfactory. Concerns with the consequent
`international-relations tensions “persisted through the
`
`time of the Constitutional Convention.” 542 U. S., at 717.
`Under the Articles of Confederation, the inability of the
`
`central government to ensure adequate remedies for for-
`eign citizens caused substantial foreign-relations prob-
`lems. In 1784, the French Minister lodged a protest with
`the Continental Congress after a French adventurer, the
`Chevalier de Longchamps, assaulted the Secretary of the
`
`French Legation in Philadelphia. See Kiobel, 569 U. S., at
`
`120. A few years later, a New York constable caused an
`
`international incident when he entered the house of the
`Dutch Ambassador and arrested one of his servants. Ibid.
`
`Under the Articles of Confederation, there was no national
`
`forum available to resolve disputes like these under any
`binding laws that were or could be enacted or enforced by
`
`a central government.
`The Framers addressed these matters at the 1787 Phil-
`
`adelphia Convention; and, as a result, Article III of the
`Constitution extends the 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 whi