SOSA v. ALVAREZ-MACHAIN et al.

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SOSA v. ALVAREZ-MACHAIN et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 03–339. Argued March 30, 2004—Decided June 29, 2004*
The Drug Enforcement Administration (DEA) approved using petitioner
Sosa and other Mexican nationals to abduct respondent Alvarez-
Machain (Alvarez), also a Mexican national, from Mexico to stand trial
in the United States for a DEA agent’s torture and murder. As rele-
vant here, after his acquittal, Alvarez sued the United States for false
arrest under the Federal Tort Claims Act (FTCA), which waives sover-
eign immunity in suits “for . . . personal injury . . . caused by the negli-
gent or wrongful act or omission of any [Government] employee while
acting within the scope of his office or employment,” 28 U. S. C.
§ 1346(b)(1); and sued Sosa for violating the law of nations under the
Alien Tort Statute (ATS), a 1789 law giving district courts “original
jurisdiction of any civil action by an alien for a tort only, committed in
violation of the law of nations . . . ,” § 1350. The District Court dis-
missed the FTCA claim, but awarded Alvarez summary judgment and
damages on the ATS claim. The Ninth Circuit affirmed the ATS judg-
ment, but reversed the FTCA claim’s dismissal.
Held:
1. The FTCA’s exception to waiver of sovereign immunity for claims
“arising in a foreign country,” 28 U. S. C. § 2680(k), bars claims based on
any injury suffered in a foreign country, regardless of where the tortious
act or omission occurred. Pp. 699–712.
(a) The exception on its face seems plainly applicable to the facts
of this action. Alvarez’s arrest was said to be “false,” and thus tortious,
only because, and only to the extent that, it took place and endured in
Mexico. Nonetheless, the Ninth Circuit allowed the action to proceed
under what is known as the “headquarters doctrine,” concluding that,
because Alvarez’s abduction was the direct result of wrongful planning
and direction by DEA agents in California, his claim did not “aris[e] in”
a foreign country. Because it will virtually always be possible to assert
negligent activity occurring in the United States, such analysis must
be viewed with skepticism. Two considerations confirm this Court’s
skepticism and lead it to reject the headquarters doctrine. Pp. 700–703.
*Together with No. 03–485, United States v. Alvarez-Machain et al.,
also on certiorari to the same court.

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(b) The first consideration applies to cases like this one, where
harm was arguably caused both by action in the foreign country and
planning in the United States. Proximate cause is necessary to connect
the domestic breach of duty with the action in the foreign country, for
the headquarters’ behavior must be sufficiently close to the ultimate
injury, and sufficiently important in producing it, to make it reasonable
to follow liability back to that behavior. A proximate cause connection
is not itself sufficient to bar the foreign country exception’s application,
since a given proximate cause may not be the harm’s exclusive proxi-
mate cause. Here, for example, assuming the DEA officials’ direction
was a proximate cause of the abduction, so were the actions of Sosa
and others in Mexico. Thus, at most, recognition of additional domestic
causation leaves an open question whether the exception applies to Al-
varez’s claim. Pp. 703–704.
(c) The second consideration is rooted in the fact that the harm
occurred on foreign soil. There is good reason to think that Congress
understood a claim “arising in” a foreign country to be a claim for injury
or harm occurring in that country. This was the common usage of “aris-
ing under” in contemporary state borrowing statutes used to determine
which State’s limitations statute applied in cases with transjurisdic-
tional facts. And such language was interpreted in tort cases in just
the same way that the Court reads the FTCA today. Moreover, there
is specific reason to believe that using “arising in” to refer to place of
harm was central to the foreign country exception’s object. When the
FTCA was passed, courts generally applied the law of the place where
the injury occurred in tort cases, which would have been foreign law for
a plaintiff injured in a foreign country. However, application of foreign
substantive law was what Congress intended to avoid by the foreign
country exception. Applying the headquarters doctrine would thus
have thwarted the exception’s object by recasting foreign injury claims
as claims not arising in a foreign country because of some domestic
planning or negligence. Nor has the headquarters doctrine outgrown
its tension with the exception. The traditional approach to choice of
substantive tort law has lost favor, but many States still use that analy-
sis. And, in at least some cases the Ninth Circuit’s approach would
treat as arising at headquarters, even the later methodologies of choice
point to the application of foreign law. There is also no merit to an
argument that the headquarters doctrine should be permitted when a
State’s choice-of-law approach would not apply the foreign law of the
place of injury. Congress did not write the exception to apply when
foreign law would be applied. Rather, the exception was written at
a time when “arising in” meant where the harm occurred; and the

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odds are that Congress meant simply that when it used the phrase.
Pp. 704–712.
2. Alvarez is not entitled to recover damages from Sosa under the
ATS. Pp. 712–738.
(a) The limited, implicit sanction to entertain the handful of inter-
national law cum common law claims understood in 1789 is not authority
to recognize the ATS right of action Alvarez asserts here. Contrary to
Alvarez’s claim, the ATS is a jurisdictional statute creating no new
causes of action. This does not mean, as Sosa contends, that the ATS
was stillborn because any claim for relief required a further statute
expressly authorizing adoption of causes of action. Rather, the reason-
able inference from history and practice is that the ATS was intended
to have practical effect the moment it became law, on the understanding
that the common law would provide a cause of action for the modest
number of international law violations thought to carry personal liability
at the time: offenses against ambassadors, violation of safe conducts, and
piracy. Sosa’s objections to this view are unpersuasive. Pp. 712–724.
(b) While it is correct to assume that the First Congress under-
stood that district courts would recognize private causes of action for
certain torts in violation of the law of nations and that no development
of law in the last two centuries has categorically precluded federal
courts from recognizing a claim under the law of nations as an element
of common law, there are good reasons for a restrained conception of
the discretion a federal court should exercise in considering such a new
cause of action. In deriving a standard for assessing Alvarez’s particu-
lar claim, it suffices to look to the historical antecedents, which persuade
this Court that federal courts should not recognize claims under federal
common law for violations of any international law norm with less defi-
nite content and acceptance among civilized nations than the 18th-
century paradigms familiar when § 1350 was enacted. Pp. 724–738.
(i) Several reasons argue for great caution in adapting the law of
nations to private rights. First, the prevailing conception of the com-
mon law has changed since 1790. When § 1350 was enacted, the ac-
cepted conception was that the common law was found or discovered,
but now it is understood, in most cases where a court is asked to state or
formulate a common law principle in a new context, as made or created.
Hence, a judge deciding in reliance on an international norm will find a
substantial element of discretionary judgment in the decision. Second,
along with, and in part driven by, this conceptual development has come
an equally significant rethinking of the federal courts’ role in making
common law. In Erie R. Co. v. Tompkins, 304 U. S. 64, 78, this Court
denied the existence of any federal “general” common law, which largely
withdrew to havens of specialty, with the general practice being to look

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for legislative guidance before exercising innovative authority over sub-
stantive law. Third, a decision to create a private right of action is
better left to legislative judgment in most cases. E. g., Correctional
Services Corp. v. Malesko, 534 U. S. 61, 68. Fourth, the potential impli-
cations for the foreign relations of the United States of recognizing pri-
vate causes of action for violating international law should make courts
particularly wary of impinging on the discretion of the Legislative and
Executive Branches in managing foreign affairs. Fifth, this Court has
no congressional mandate to seek out and define new and debatable
violations of the law of nations, and modern indications of congressional
understanding of the judicial role in the field have not affirmatively en-
couraged greater judicial creativity. Pp. 725–731.
(ii) The limit on judicial recognition adopted here is fatal to Al-
varez’s claim. Alvarez contends that prohibition of arbitrary arrest has
attained the status of binding customary international law and that his
arrest was arbitrary because no applicable law authorized it. He thus
invokes a general prohibition of arbitrary detention defined as officially
sanctioned action exceeding positive authorization to detain under the
domestic law of some government. However, he cites little authority
that a rule so broad has the status of a binding customary norm today.
He certainly cites nothing to justify the federal courts in taking his
rule as the predicate for a federal lawsuit, for its implications would be
breathtaking. It would create a cause of action for any seizure of an
alien in violation of the Fourth Amendment, supplanting the actions
under 42 U. S. C. § 1983 and Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U. S. 388, that now provide damages for such violations.
And it would create a federal action for arrests by state officers who
simply exceed their authority under state law. Alvarez’s failure to mar-
shal support for his rule is underscored by the Restatement (Third) of
Foreign Relations Law of the United States, which refers to prolonged
arbitrary detention, not relatively brief detention in excess of positive
authority. Whatever may be said for his broad principle, it expresses
an aspiration exceeding any binding customary rule with the specificity
this Court requires. Pp. 731–738.
331 F. 3d 604, reversed.
Souter, J., delivered the opinion of the Court, Parts I and III of which
were unanimous, Part II of which was joined by Rehnquist, C. J., and
Stevens, O’Connor, Scalia, Kennedy, and Thomas, JJ., and Part IV
of which was joined by Stevens, O’Connor, Kennedy, Ginsburg, and
Breyer, JJ. Scalia, J., filed an opinion concurring in part and concur-
ring in the judgment, in which Rehnquist, C. J., and Thomas, J., joined,
post, p. 739. Ginsburg, J., filed an opinion concurring in part and concur-

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ring in the judgment, in which Breyer, J., joined, post, p. 751. Breyer,
J., filed an opinion concurring in part and concurring in the judgment,
post, p. 760.
Deputy Solicitor General Clement argued the cause for
the United States, as petitioner in No. 03–485, and respond-
ent under this Court’s Rule 12.6 in support of petitioner in
No. 03–339. With him on the briefs were Solicitor General
Olson, Acting Assistant Attorney General Schiffer, Deputy
Solicitor General Kneedler, Deputy Assistant Attorney
General Katsas, Gregory G. Garre, Jeffrey A. Lamken,
Douglas N. Letter, Barbara L. Herwig, Robert M. Loeb, and
William H. Taft IV. Carter G. Phillips argued the cause
for petitioner in No. 03–339. With him on the briefs were
Joseph R. Guerra, Marinn F. Carlson, Maria T. DiGiulian,
Ryan D. Nelson, and Charles S. Leeper.
Paul L. Hoffman argued the cause for respondent
Alvarez-Machain in both cases. With him on the brief were
Erwin Chemerinsky, Ralph G. Steinhardt, Mark D. Rosen-
baum, Steven R. Shapiro, Douglas E. Mirell, and W. Allan
Edmiston.†
†Briefs of amici curiae urging reversal in No. 03–339 were filed for
the National Association of Manufacturers by Paul R. Friedman, John
Townsend Rich, William F. Sheehan, Jan S. Amundson, and Quentin
Riegel; for the National Foreign Trade Council et al. by Daniel M. Petro-
celli, M. Randall Oppenheimer, Walter E. Dellinger III, Pamela A. Har-
ris, and Robin S. Conrad; for the Pacific Legal Foundation by Anthony T.
Caso; for the Washington Legal Foundation et al. by Donald B. Ayer,
Christian G. Vergonis, Daniel J. Popeo, and Richard A. Samp; and for
Samuel Estreicher et al. by Paul B. Stephan and Mr. Estreicher, pro se.
Briefs of amici curiae urging affirmance in No. 03–339 were filed for
Alien Friends Representing Hungarian Jews and Bougainvilleans Inter-
ests by Steve W. Berman, R. Brent Walton, Jonathan W. Cuneo, David
W. Stanley, Michael Waldman, and Samuel J. Dubbin; for Amnesty Inter-
national et al. by Beth Stephens; for the Center for Justice and Account-
ability et al. by Laurel E. Fletcher, Peter Weiss, and Jennifer Green; for
the Center for Women Policy Studies et al. by Rhonda Copelon; for the
Presbyterian Church of Sudan et al. by Carey R. D’Avino, Stephen A.
Whinston, and Lawrence Kill; for the World Jewish Congress et al. by

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Opinion of the Court
Justice Souter delivered the opinion of the Court.
The two issues are whether respondent Alvarez-Machain’s
allegation that the Drug Enforcement Administration insti-
gated his abduction from Mexico for criminal trial in the
United States supports a claim against the Government
under the Federal Tort Claims Act (FTCA or Act), 28
U. S. C. §§ 1346(b)(1), 2671–2680, and whether he may recover
under the Alien Tort Statute (ATS), 28 U. S. C. § 1350. We
hold that he is not entitled to a remedy under either statute.
I
We have considered the underlying facts before, United
States v. Alvarez-Machain, 504 U. S. 655 (1992). In 1985,
an agent of the Drug Enforcement Administration (DEA),
Enrique Camarena-Salazar, was captured on assignment in
Mexico and taken to a house in Guadalajara, where he was
tortured over the course of a 2-day interrogation, then mur-
dered. Based in part on eyewitness testimony, DEA offi-
cials in the United States came to believe that respondent
Humberto Alvarez-Machain (Alvarez), a Mexican physician,
was present at the house and acted to prolong the agent’s
life in order to extend the interrogation and torture. Id.,
at 657.
In 1990, a federal grand jury indicted Alvarez for the tor-
ture and murder of Camarena-Salazar, and the United States
District Court for the Central District of California issued a
Bill Lann Lee, Stanley M. Chesley, Paul De Marco, Burt Neuborne, and
Michael D. Hausfeld; for Wendy A. Adams et al. by William J. Aceves
and David S. Weissbrodt; and for Mary Robinson et al. by Harold Hongju
Koh, John M. Townsend, and William R. Stein.
Briefs of amici curiae were filed in No. 03–339 for the Government of
the Commonwealth of Australia et al. by Donald I. Baker and W. Todd
Miller; for the International Labor Rights Fund et al. by Terrence P. Col-
lingsworth and Natacha Thys; for the European Commission by Jeffrey P.
Cunard; for James Akins et al. by Thomas E. Bishop; for Vikram Amar
et al. by Nicholas W. van Aelstyn; and for Barry Amundsen et al. by
Penny M. Venetis.

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warrant for his arrest. 331 F. 3d 604, 609 (CA9 2003) (en
banc). The DEA asked the Mexican Government for help
in getting Alvarez into the United States, but when the re-
quests and negotiations proved fruitless, the DEA approved
a plan to hire Mexican nationals to seize Alvarez and bring
him to the United States for trial. As so planned, a group of
Mexicans, including petitioner Jose Francisco Sosa, abducted
Alvarez from his house, held him overnight in a motel, and
brought him by private plane to El Paso, Texas, where he
was arrested by federal officers. Ibid.
Once in American custody, Alvarez moved to dismiss the
indictment on the ground that his seizure was “outrageous
governmental conduct,” Alvarez-Machain, 504 U. S., at 658,
and violated the extradition treaty between the United
States and Mexico. The District Court agreed, the Ninth
Circuit affirmed, and we reversed, id., at 670, holding that
the fact of Alvarez’s forcible seizure did not affect the juris-
diction of a federal court. The case was tried in 1992, and
ended at the close of the Government’s case, when the Dis-
trict Court granted Alvarez’s motion for a judgment of
acquittal.
In 1993, after returning to Mexico, Alvarez began the civil
action before us here. He sued Sosa, Mexican citizen and
DEA operative Antonio Garate-Bustamante, five unnamed
Mexican civilians, the United States, and four DEA agents.
331 F. 3d, at 610. So far as it matters here, Alvarez sought
damages from the United States under the FTCA, alleging
false arrest, and from Sosa under the ATS, for a violation of
the law of nations. The former statute authorizes suit
“for . . . personal injury . . . caused by the negligent or wrong-
ful act or omission of any employee of the Government while
acting within the scope of his office or employment.” 28
U. S. C. § 1346(b)(1). The latter provides in its entirety that
“[t]he district courts shall have original jurisdiction of any
civil action by an alien for a tort only, committed in violation

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of the law of nations or a treaty of the United States.”
§ 1350.
The District Court granted the Government’s motion to
dismiss the FTCA claim, but awarded summary judgment
and $25,000 in damages to Alvarez on the ATS claim. A
three-judge panel of the Ninth Circuit then affirmed the ATS
judgment, but reversed the dismissal of the FTCA claim.
266 F. 3d 1045 (2001).
A divided en banc court came to the same conclusion. 331
F. 3d, at 641. As for the ATS claim, the court called on its
own precedent, “that [the ATS] not only provides federal
courts with subject matter jurisdiction, but also creates a
cause of action for an alleged violation of the law of nations.”
Id., at 612. The Circuit then relied upon what it called the
“clear and universally recognized norm prohibiting arbitrary
arrest and detention,” id., at 620, to support the conclusion
that Alvarez’s arrest amounted to a tort in violation of inter-
national law. On the FTCA claim, the Ninth Circuit held
that, because “the DEA had no authority to effect Alvarez’s
arrest and detention in Mexico,” id., at 608, the United
States was liable to him under California law for the tort of
false arrest, id., at 640–641.
We granted certiorari in these companion cases to clarify
the scope of both the FTCA and the ATS. 540 U. S. 1045
(2003). We now reverse in each.
II
The Government seeks reversal of the judgment of liabil-
ity under the FTCA on two principal grounds. It argues
that the arrest could not have been tortious, because it was
authorized by 21 U. S. C. § 878, setting out the arrest author-
ity of the DEA, and it says that in any event the liability
asserted here falls within the FTCA exception to waiver of
sovereign immunity for claims “arising in a foreign country,”
28 U. S. C. § 2680(k). We think the exception applies and de-
cide on that ground.

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A
The FTCA “was designed primarily to remove the sover-
eign immunity of the United States from suits in tort and,
with certain specific exceptions, to render the Government
liable in tort as a private individual would be under like cir-
cumstances.” Richards v. United States, 369 U. S. 1, 6
(1962); see also 28 U. S. C. § 2674. The Act accordingly gives
federal district courts jurisdiction over claims against the
United States for injury “caused by the negligent or wrong-
ful act or omission of any employee of the Government while
acting within the scope of his office or employment, under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” § 1346(b)(1).
But the Act also limits its waiver of sovereign immunity in
a number of ways. See § 2680 (no waiver as to, e. g., “[a]ny
claim arising out of the loss, miscarriage, or negligent trans-
mission of letters or postal matter,” “[a]ny claim for damages
caused by the imposition or establishment of a quarantine by
the United States,” or “[a]ny claim arising from the activities
of the Panama Canal Company”).
Here the significant limitation on the waiver of immunity
is the Act’s exception for “[a]ny claim arising in a foreign
country,” § 2680(k), a provision that on its face seems plainly
applicable to the facts of this action. In the Ninth Circuit’s
view, once Alvarez was within the borders of the United
States, his detention was not tortious, see 331 F. 3d, at 636–
637; the appellate court suggested that the Government’s lia-
bility to Alvarez rested solely upon a false arrest claim. Id.,
at 640–641. Alvarez’s arrest, however, was said to be
“false,” and thus tortious, only because, and only to the ex-
tent that, it took place and endured in Mexico.1 The actions
1 In the Ninth Circuit’s view, it was critical that “DEA agents had no
authority under federal law to execute an extraterritorial arrest of a sus-
pect indicted in federal court in Los Angeles.” 331 F. 3d, at 640. Once
Alvarez arrived in the United States, “the actions of domestic law enforce-

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in Mexico are thus most naturally understood as the kernel
of a “claim arising in a foreign country,” and barred from suit
under the exception to the waiver of immunity.
Notwithstanding the straightforward language of the for-
eign country exception, the Ninth Circuit allowed the action
to proceed under what has come to be known as the “head-
quarters doctrine.” Some Courts of Appeals, reasoning that
“[t]he entire scheme of the FTCA focuses on the place where
the negligent or wrongful act or omission of the government
employee occurred,” Sami v. United States, 617 F. 2d 755,
761 (CADC 1979), have concluded that the foreign country
exception does not exempt the United States from suit “for
acts or omissions occurring here which have their operative
effect in another country,” id., at 762 (refusing to apply
§ 2680(k) where a communique sent from the United States
by a federal law enforcement officer resulted in plaintiff ’s
wrongful detention in Germany).2 Headquarters claims
“typically involve allegations of negligent guidance in an of-
fice within the United States of employees who cause dam-
age while in a foreign country, or of activities which take
place within a foreign country.” Cominotto v. United
States, 802 F. 2d 1127, 1130 (CA9 1986). In such instances,
these courts have concluded that § 2680(k) does not bar suit.
ment set in motion a supervening prosecutorial mechanism which met all
of the procedural requisites of federal due process.” Id., at 637.
2 See also Couzado v. United States, 105 F. 3d 1389, 1395 (CA11 1997)
(“ ‘[A] claim is not barred by section 2680(k) where the tortious conduct
occurs in the United States, but the injury is sustained in a foreign coun-
try’ ” (quoting Donahue v. United States Dept. of Justice, 751 F. Supp. 45,
48 (SDNY 1990))); Martinez v. Lamagno, No. 93–1573, 1994 WL 159771,
*2, judgt. order reported at 23 F. 3d 402 (CA4 1994) (per curiam) (unpub-
lished opinion) (“A headquarters claim exists where negligent acts in the
United States proximately cause harm in a foreign country”), rev’d on
other grounds, 515 U. S. 417 (1995); Leaf v. United States, 588 F. 2d 733,
736 (CA9 1978) (“A claim ‘arises’, as that term is used in . . . 2680(k),
where the acts or omissions that proximately cause the loss take place”);
cf. Eaglin v. United States, Dept. of Army, 794 F. 2d 981, 983 (CA5 1986)
(assuming, arguendo, that headquarters doctrine is valid).

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The reasoning of the Ninth Circuit here was that, since
Alvarez’s abduction in Mexico was the direct result of wrong-
ful acts of planning and direction by DEA agents located in
California, “Alvarez’s abduction fits the headquarters doc-
trine like a glove.” 331 F. 3d, at 638.
“Working out of DEA offices in Los Angeles, [DEA
agents] made the decision to kidnap Alvarez and . . .
gave [their Mexican intermediary] precise instructions
on whom to recruit, how to seize Alvarez, and how he
should be treated during the trip to the United States.
DEA officials in Washington, D. C., approved the details
of the operation. After Alvarez was abducted accord-
ing to plan, DEA agents supervised his transportation
into the United States, telling the arrest team where to
land the plane and obtaining clearance in El Paso for
landing. The United States, and California in particu-
lar, served as command central for the operation carried
out in Mexico.” Id., at 638–639.
Thus, the Ninth Circuit held that Alvarez’s claim did not
“aris[e] in” a foreign country.
The potential effect of this sort of headquarters analysis
flashes the yellow caution light. “[I]t will virtually always
be possible to assert that the negligent activity that injured
the plaintiff [abroad] was the consequence of faulty training,
selection or supervision—or even less than that, lack of care-
ful training, selection or supervision—in the United States.”
Beattie v. United States, 756 F. 2d 91, 119 (CADC 1984)
(Scalia, J., dissenting). Legal malpractice claims, Knisley v.
United States, 817 F. Supp. 680, 691–693 (SD Ohio 1993), alle-
gations of negligent medical care, Newborn v. United States,
238 F. Supp. 2d 145, 148–149 (DC 2002), and even slip-and-fall
cases, Eaglin v. United States, Dept. of Army, 794 F. 2d 981,
983–984 (CA5 1986), can all be repackaged as headquarters
claims based on a failure to train, a failure to warn, the offer-
ing of bad advice, or the adoption of a negligent policy. If

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we were to approve the headquarters exception to the for-
eign country exception, the “ ‘headquarters claim’ [would]
become a standard part of FTCA litigation” in cases poten-
tially implicating the foreign country exception. Beattie,
supra, at 119 (Scalia, J., dissenting). The headquarters doc-
trine threatens to swallow the foreign country exception
whole, certainly at the pleadings stage.
The need for skepticism is borne out by two considera-
tions. One of them is pertinent to cases like this one, where
harm was arguably caused both by individual action in a for-
eign country as well as by planning in the United States;
the other is suggested simply because the harm occurred on
foreign soil.
B
Although not every headquarters case is rested on an ex-
plicit analysis of proximate causation, this notion of cause is
necessary to connect the domestic breach of duty (at head-
quarters) with the action in the foreign country (in a case
like this) producing the foreign harm or injury. It is neces-
sary, in other words, to conclude that the act or omission at
home headquarters was sufficiently close to the ultimate in-
jury, and sufficiently important in producing it, to make it
reasonable to follow liability back to the headquarters behav-
ior. Only in this way could the behavior at headquarters
properly be seen as the act or omission on which all FTCA
liability must rest under § 2675. See, e. g., Cominotto,
supra, at 1130 (“[A] headquarters claim exists where negli-
gent acts in the United States proximately cause harm in a
foreign country”); Eaglin, supra, at 983 (noting that head-
quarters cases require “a plausible proximate nexus or con-
nection between acts or omissions in the United States and
the resulting damage or injury in a foreign country”).
Recognizing this connection of proximate cause between
domestic behavior and foreign harm or injury is not, how-
ever, sufficient of itself to bar application of the foreign coun-
try exception to a claim resting on that same foreign conse-

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quence. Proximate cause is causation substantial enough
and close enough to the harm to be recognized by law, but a
given proximate cause need not be, and frequently is not, the
exclusive proximate cause of harm. See, e. g., 57A Am. Jur.
2d § 529 (2004) (discussing proper jury instructions in cases
involving multiple proximate causes); Beattie, supra, at 121
(Scalia, J., dissenting) (“[I]n the ordinary case there may be
several points along the chain of causality” pertinent to the
enquiry). Here, for example, assuming that the direction by
DEA officials in California was a proximate cause of the ab-
duction, the actions of Sosa and others in Mexico were just
as surely proximate causes, as well. Thus, understanding
that California planning was a legal cause of the harm in no
way eliminates the conclusion that the claim here arose from
harm proximately caused by acts in Mexico. At most, recog-
nition of additional domestic causation under the headquar-
ters doctrine leaves an open question whether the exception
applies to the claim.
C
Not only does domestic proximate causation under the
headquarters doctrine fail to eliminate application of the for-
eign country exception, but there is good reason to think that
Congress understood a claim “arising in” a foreign country in
such a way as to bar application of the headquarters doc-
trine. There is good reason, that is, to conclude that Con-
gress understood a claim “arising in a foreign country” to be
a claim for injury or harm occurring in a foreign country.
28 U. S. C. § 2680(k). This sense of “arising in” was the com-
mon usage in state borrowing statutes contemporary with
the Act, which operated to determine which State’s statute
of limitations should apply in cases involving transjurisdic-
tional facts. When the FTCA was passed, the general rule,
as set out in various state statutes, was that “a cause of
action arising in another jurisdiction, which is barred by the
laws of that jurisdiction, will [also] be barred in the domestic
courts.” 41 A. L. R. 4th 1025, 1029, § 2 (1985). These bor-

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rowing statutes were typically restricted by express terms
to situations where a cause of action was time barred in the
State “where [the] cause of action arose, or accrued, or orig-
inated.” 75 A. L. R. 203, 211 (1931) (emphasis in original).
Critically for present purposes, these variations on the
theme of “arising in” were interpreted in tort cases in just
the same way that we read the FTCA today. A commenta-
tor noted in 1962 that, for the purposes of these borrowing
statutes, “[t]he courts unanimously hold that a cause of action
sounding in tort arises in the jurisdiction where the last act
necessary to establish liability occurred”; i. e., “the jurisdic-
tion in which injury was received.” Ester, Borrowing Stat-
utes of Limitation and Conflict of Laws, 15 U. Fla. L. Rev.
33, 47.
There is, moreover, specific reason to believe that using
“arising in” as referring to place of harm was central to the
object of the foreign country exception. Any tort action in a
court of the United States based on the acts of a Government
employee causing harm outside the State of the district court
in which the action is filed requires a determination of the
source of the substantive law that will govern liability.
When the FTCA was passed, the dominant principle in
choice-of-law analysis for tort cases was lex loci delicti:
courts generally applied the law of the place where the in-
jury occurred. See Richards v. United States, 369 U. S., at
11–12 (“The general conflict-of-laws rule, followed by a vast
majority of the States, is to apply the law of the place of
injury to the substantive rights of the parties” (footnote
omitted)); see also Restatement (First) of Conflict of Laws
§ 379 (1934) (defendant’s liability determined by “the law of
the place of wrong”); 3 id., § 377, Note 1 (place of wrong for
3 See also Restatement (Second) of Conflict of Laws 412 (1969) (herein-
after Restatement 2d) (“The original Restatement stated that, with minor
exceptions, all substantive questions relating to the existence of a tort
claim are governed by the local law of the ‘place of wrong.’ This was
described . . . as ‘the state where the last event necessary to make an

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torts involving bodily harm is “the place where the harmful
force takes effect upon the body” (emphasis in original)); ibid.
(same principle for torts of fraud and torts involving harm
to property).4 For a plaintiff injured in a foreign country,
then, the presumptive choice in American courts under
the traditional rule would have been to apply foreign law to
determine the tortfeasor’s liability. See, e. g., Day & Zim-
mermann, Inc. v. Challoner, 423 U. S. 3 (1975) (per curiam)
(noting that Texas would apply Cambodian law to wrongful-
death action involving explosion in Cambodia of an artillery
round manufactured in United States); Thomas v. FMC
Corp., 610 F. Supp. 912 (MD Ala. 1985) (applying German
law to determine American manufacturer’s liability for
negligently designing and manufacturing a Howitzer that
killed decedent in Germany); Quandt v. Beech Aircraft
Corp., 317 F. Supp. 1009 (Del. 1970) (noting that Italian law
applies to allegations of negligent manufacture in Kansas
that resulted in an airplane crash in Italy); Manos v. Trans
World Airlines, 295 F. Supp. 1170 (ND Ill. 1969) (applying
Italian law to determine American corporation’s liability for
negligent manufacture of a plane that crashed in Italy); see
also, e. g., Dallas v. Whitney, 118 W. Va. 106, 188 S. E. 766
(1936) (Ohio law applied where blasting operations on a West
Virginia highway caused property damage in Ohio); Cam-
actor liable for an alleged tort takes place.’ Since a tort is the product of
wrongful conduct and of resulting injury and since the injury follows the
conduct, the state of the ‘last event’ is the state where the injury
occurred”).
4 The FTCA was passed with precisely these kinds of garden-variety
torts in mind. See S. Rep. No. 1400, 79th Cong., 2d Sess., 31 (1946)
(“With the expansion of governmental activities in recent years, it be-
comes especially important to grant to private individuals the right to sue
the Government in respect to such torts as negligence in the operation of
vehicles”); see generally Feres v. United States, 340 U. S. 135, 139–140
(1950) (Congress was principally concerned with making the Government
liable for ordinary torts that “would have been actionable if inflicted by
an individual or a corporation”).

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eron v. Vandegriff, 53 Ark. 381, 13 S. W. 1092 (1890) (Arkan-
sas law applied where a blasting of a rock in Indian territory
inflicted injury on plaintiff in Arkansas).
The application of foreign substantive law exemplified in
these cases was, however, what Congress intended to avoid
by the foreign country exception. In 1942, the House Com-
mittee on the Judiciary considered an early draft of the
FTCA that would have exempted all claims “arising in a for-
eign country in behalf of an alien.” H. R. 5373, 77th Cong.,
2d Sess., § 303(12). The bill was then revised, at the sugges-
tion of the Attorney General, to omit the last five words. In
explaining the amendment to the House Committee on the
Judiciary, Assistant Attorney General Shea said that
“[c]laims arising in a foreign country have been ex-
empted from this bill, H. R. 6463, whether or not the
claimant is an alien. Since liability is to be determined
by the law of the situs of the wrongful act or omission
it is wise to restrict the bill to claims arising in this
country. This seems desirable because the law of the
particular State is being applied. Otherwise, it will
lead I think to a good deal of difficulty.” Hearings on
H. R. 5373 et al. before the House Committee on the
Judiciary, 77th Cong., 2d Sess., 35 (1942).
The amended version, which was enacted into law and consti-
tutes the current text of the foreign country exception, 28
U. S. C. § 2680(k), thus codified Congress’s “unwilling[ness] to
subject the United States to liabilities depending upon the
laws of a foreign power.” United States v. Spelar, 338 U. S.
217, 221 (1949). See also Sami v. United States, 617 F. 2d,
at 762 (noting Spelar’s explanation but attempting to recast
the object behind the foreign country exception); Leaf v.
United States, 588 F. 2d 733, 736, n. 3 (CA9 1978).
The object being to avoid application of substantive for-
eign law, Congress evidently used the modifier “arising in a
foreign country” to refer to claims based on foreign harm or

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injury, the fact that would trigger application of foreign law
to determine liability. That object, addressed by the quoted
phrase, would obviously have been thwarted, however, by
applying the headquarters doctrine, for that doctrine would
have displaced the exception by recasting claims of foreign
injury as claims not arising in a foreign country because
some planning or negligence at domestic headquarters was
their cause.5 And that, in turn, would have resulted in
applying foreign law of the place of injury, in accordance with
the choice-of-law rule of the headquarters jurisdiction.
Nor, as a practical matter, can it be said that the headquar-
ters doctrine has outgrown its tension with the exception.
It is true that the traditional approach to choice of substan-
tive tort law has lost favor, Simson, The Choice-of-Law Rev-
olution in the United States: Notes on Rereading Von
Mehren, 36 Cornell Int’l L. J. 125 (2002) (“The traditional
methodology of place of wrong . . . has receded in importance,
and new approaches and concepts such as governmental in-
terest analysis, most significant relationship, and better rule
of law have taken over center stage” (footnotes omitted)).6
5 The application of foreign law might nonetheless have been avoided in
headquarters cases if courts had been instructed to apply the substantive
tort law of the State where the federal act or omission occurred, regard-
less of where the ultimate harm transpired. But in Richards v. United
States, 369 U. S. 1 (1962), we held that the Act requires “the whole law
(including choice-of-law rules) . . . of the State where the [allegedly tor-
tious federal] act or omission occurred,” id., at 3, 11. Given the dominant
American choice-of-law approach at the time the Act was passed, that
would have resulted in the application of foreign law in virtually any case
where the plaintiff suffered injury overseas.
6 See also Rydstrom, Modern Status of Rule that Substantive Rights of
Parties to a Tort Action are Governed by the Law of the Place of the
Wrong, 29 A. L. R. 3d 603, 608, § 2[a] (1970) (“[M]any courts [are] now
abandoning the orthodox rule that the substantive rights of the parties
are governed by the law of the place of the wrong” (footnotes omitted)).
We express no opinion on the relative merits of the various approaches
to choice questions; our discussion of the subject is intended only to indi-

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But a good many States still employ essentially the same
choice-of-law analysis in tort cases that the First Restate-
ment exemplified. Symeonides, Choice of Law in the Amer-
ican Courts, 51 Am. J. Comp. L. 1, 4–5 (2003) (“Ten states
continue to adhere to the traditional method in tort con-
flicts”); see, e. g., Raskin v. Allison, 30 Kan. App. 2d 1240,
1242, 1241, 57 P. 3d 30, 32 (2002) (under “traditional choice of
law principles largely reflected in the original Restatement,”
Mexican law applied to boating accident in Mexican waters
because “the injuries were sustained in Mexican waters”).
Equally to the point is that in at least some cases that
the Court of Appeals’s approach would treat as arising at
headquarters, not the foreign country, even the later method-
ologies of choice point to the application of foreign law. The
Second Restatement itself, encouraging the general shift to-
ward using flexible balancing analysis to inform choice of
law,7 includes a default rule for tort cases rooted in the tradi-
tional approach: “[i]n an action for a personal injury, the local
law of the state where the injury occurred determines the
rights and liabilities of the parties, unless . . . some other
state has a more significant relationship . . . to the occurrence
and the parties.” Restatement 2d § 146; see also id., Com-
ment e (“On occasion, conduct and personal injury will occur
in different states. In such instances, the local law of the
state of injury will usually be applied to determine most is-
sues involving the tort”). In practice, then, the new dispen-
sation frequently leads to the traditional application of the
cate how, as a positive matter, transjurisdictional cases are likely to be
treated today.
7 Under the Second Restatement, tort liability is determined “by the
local law of the state which . . . has the most significant relationship to the
occurrence and the parties,” taking into account “the place where the in-
jury occurred,” “the place where the conduct causing the injury occurred,”
“the domicil, residence, nationality, place of incorporation and place of
business of the parties,” and “the place where the relationship, if any,
between the parties is centered.” Restatement 2d § 145.

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law of the jurisdiction of injury. See, e. g., Dorman v. Emer-
son Elec. Co., 23 F. 3d 1354 (CA8 1994) (applying Canadian
law where negligent saw design in Missouri caused injury in
Canada); Bing v. Halstead, 495 F. Supp. 517 (SDNY 1980)
(applying Costa Rican law where letter written and mailed
in Arizona caused mental distress in Costa Rica); McKinnon
v. F. H. Morgan & Co., 170 Vt. 422, 750 A. 2d 1026 (2000)
(applying Canadian law where a defective bicycle sold in Ver-
mont caused injuries in Quebec).
In sum, current flexibility in choice-of-law methodology
gives no assurance against applying foreign substantive law
if federal courts follow headquarters doctrine to assume ju-
risdiction over tort claims against the Government for for-
eign harm. Based on the experience just noted, the expec-
tation is that application of the headquarters doctrine would
in fact result in a substantial number of cases applying the
very foreign law the foreign country exception was meant
to avoid.8
Before concluding that headquarters analysis should have
no part in applying the foreign country exception, however,
8 The courts that have applied the headquarters doctrine, believing it to
be intimated by our emphasis, in Richards v. United States, supra, on
the place of the occurrence of the negligent act, have acknowledged the
possibility that foreign law may govern FTCA claims as a function of
Richards’s further holding that the whole law of the pertinent State (in-
cluding its choice-of-law provisions) is to be applied. See, e. g., Leaf, 588
F. 2d, at 736, n. 3. Some courts have attempted to defuse the resulting
tension with the object behind the foreign country exception. See, e. g.,
Sami v. United States, 617 F. 2d 755, 763 (CADC 1979) (believing that
norm against application of foreign law when contrary to forum policy is
sufficient to overcome possible conflict). We think that these attempts to
resolve the tension give short shrift to the clear congressional mandate
embodied by the foreign country exception. Cf. Shapiro, Choice of Law
Under the Federal Tort Claims Act: Richards and Renvoi Revisited, 70
N. C. L. Rev. 641, 659–660 (1992) (noting that the Richards rule that the
totality of a State’s law is to be consulted may undermine the object be-
hind the foreign country exception).

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a word is needed to answer an argument for selective appli-
cation of headquarters doctrine, that it ought to be permitted
when a State’s choice-of-law approach would not apply the
foreign law of place of injury. See In re “Agent Orange”
Product Liability Litigation, 580 F. Supp. 1242, 1254
(EDNY 1984) (noting that the purpose of the exception did
not apply to the litigation at hand because foreign law was
not implicated). The point would be well taken, of course,
if Congress had written the exception to apply when foreign
law would be applied. But that is not what Congress said.
Its provision of an exception when a claim arises in a foreign
country was written at a time when the phrase “arising in”
was used in state statutes to express the position that a
claim arises where the harm occurs; and the odds are that
Congress meant simply this when it used the “arising in”
language.9 Finally, even if it were not a stretch to equate
“arising in a foreign country” with “implicating foreign law,”
the result of accepting headquarters analysis for foreign in-
jury cases in which no application of foreign law would ensue
would be a scheme of federal jurisdiction that would vary
from State to State, benefiting or penalizing plaintiffs ac-
cordingly. The idea that Congress would have intended any
9 It is difficult to reconcile the Government’s contrary reading with the
fact that two of the Act’s other exceptions specifically reference an “act or
omission.” See 28 U. S. C. § 2680(a) (exempting United States from liabil-
ity for “[a]ny claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or regula-
tion”); § 2680(e) (“Any claim arising out of an act or omission of any em-
ployee of the Government in administering [certain portions of the Trad-
ing with the Enemy Act of 1917]”). The Government’s request that we
read that phrase into the foreign country exception, when it is clear that
Congress knew how to specify “act or omission” when it wanted to, runs
afoul of the usual rule that “when the legislature uses certain language in
one part of the statute and different language in another, the court as-
sumes different meanings were intended.” 2A N. Singer, Statutes and
Statutory Construction § 46:06, p. 194 (6th rev. ed. 2000).

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such jurisdictional variety is too implausible to drive the
analysis to the point of grafting even a selective headquar-
ters exception onto the foreign country exception itself. We
therefore hold that the FTCA’s foreign country exception
bars all claims based on any injury suffered in a foreign
country, regardless of where the tortious act or omission
occurred.
III
Alvarez has also brought an action under the ATS against
petitioner Sosa, who argues (as does the United States sup-
porting him) that there is no relief under the ATS because
the statute does no more than vest federal courts with juris-
diction, neither creating nor authorizing the courts to recog-
nize any particular right of action without further congres-
sional action. Although we agree the statute is in terms
only jurisdictional, we think that at the time of enactment
the jurisdiction enabled federal courts to hear claims in a
very limited category defined by the law of nations and rec-
ognized at common law. We do not believe, however, that
the limited, implicit sanction to entertain the handful of in-
ternational law cum common law claims understood in 1789
should be taken as authority to recognize the right of action
asserted by Alvarez here.
A
Judge Friendly called the ATS a “legal Lohengrin,” IIT
v. Vencap, Ltd., 519 F. 2d 1001, 1015 (CA2 1975); “no one
seems to know whence it came,” ibid., and for over 170 years
after its enactment it provided jurisdiction in only one case.
The first Congress passed it as part of the Judiciary Act of
1789, in providing that the new federal district courts “shall
also have cognizance, concurrent with the courts of the sev-
eral States, or the circuit courts, as the case may be, of all
causes where an alien sues for a tort only in violation of the

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Opinion of the Court
law of nations or a treaty of the United States.” Act of
Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77.10
The parties and amici here advance radically different his-
torical interpretations of this terse provision. Alvarez says
that the ATS was intended not simply as a jurisdictional
grant, but as authority for the creation of a new cause of
action for torts in violation of international law. We think
that reading is implausible. As enacted in 1789, the ATS
gave the district courts “cognizance” of certain causes of ac-
tion, and the term bespoke a grant of jurisdiction, not power
to mold substantive law. See, e. g., The Federalist No. 81,
pp. 447, 451 (J. Cooke ed. 1961) (A. Hamilton) (using “jurisdic-
tion” interchangeably with “cognizance”). The fact that the
ATS was placed in § 9 of the Judiciary Act, a statute other-
wise exclusively concerned with federal-court jurisdiction,
is itself support for its strictly jurisdictional nature. Nor
would the distinction between jurisdiction and cause of ac-
tion have been elided by the drafters of the Act or those who
voted on it. As Fisher Ames put it, “there is a substantial
difference between the jurisdiction of the courts and the
rules of decision.” 1 Annals of Cong. 807 (Gales ed. 1834).
It is unsurprising, then, that an authority on the historical
origins of the ATS has written that “section 1350 clearly does
not create a statutory cause of action,” and that the con-
trary suggestion is “simply frivolous.” Casto, The Federal
Courts’ Protective Jurisdiction over Torts Committed in Vio-
lation of the Law of Nations, 18 Conn. L. Rev. 467, 479, 480
(1986) (hereinafter Casto, Law of Nations); cf. Dodge, The
Constitutionality of the Alien Tort Statute: Some Observa-
tions on Text and Context, 42 Va. J. Int’l L. 687, 689 (2002).
10 The statute has been slightly modified on a number of occasions since
its original enactment. It now reads in its entirety: “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.

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In sum, we think the statute was intended as jurisdictional
in the sense of addressing the power of the courts to enter-
tain cases concerned with a certain subject.
But holding the ATS jurisdictional raises a new question,
this one about the interaction between the ATS at the time
of its enactment and the ambient law of the era. Sosa would
have it that the ATS was stillborn because there could be no
claim for relief without a further statute expressly authoriz-
ing adoption of causes of action. Amici professors of federal
jurisdiction and legal history take a different tack, that fed-
eral courts could entertain claims once the jurisdictional
grant was on the books, because torts in violation of the law
of nations would have been recognized within the common
law of the time. Brief for Vikram Amar et al. as Amici Cu-
riae. We think history and practice give the edge to this
latter position.
1
“When the United States declared their independence,
they were bound to receive the law of nations, in its modern
state of purity and refinement.” Ware v. Hylton, 3 Dall.
199, 281 (1796) (Wilson, J.). In the years of the early Repub-
lic, this law of nations comprised two principal elements, the
first covering the general norms governing the behavior of
national states with each other: “the science which teaches
the rights subsisting between nations or states, and the obli-
gations correspondent to those rights,” E. de Vattel, Law of
Nations, Preliminaries § 3 (J. Chitty et al. transl. and ed.
1883) (hereinafter Vattel) (footnote omitted), or “that code of
public instruction which defines the rights and prescribes the
duties of nations, in their intercourse with each other,” 1
J. Kent, Commentaries on American Law *1. This aspect of
the law of nations thus occupied the executive and legislative
domains, not the judicial. See 4 W. Blackstone, Commentar-
ies on the Laws of England 68 (1769) (hereinafter Commen-
taries) (“[O]ffences against” the law of nations are “princi-
pally incident to whole states or nations”).

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The law of nations included a second, more pedestrian ele-
ment, however, that did fall within the judicial sphere, as a
body of judge-made law regulating the conduct of individuals
situated outside domestic boundaries and consequently car-
rying an international savor. To Blackstone, the law of na-
tions in this sense was implicated “in mercantile questions,
such as bills of exchange and the like; in all marine causes,
relating to freight, average, demurrage, insurances, bot-
tomry . . . ; [and] in all disputes relating to prizes, to ship-
wrecks, to hostages, and ransom bills.” Id., at 67. The law
merchant emerged from the customary practices of interna-
tional traders and admiralty required its own transnational
regulation. And it was the law of nations in this sense that
our precursors spoke about when the Court explained the
status of coast fishing vessels in wartime grew from “ancient
usage among civilized nations, beginning centuries ago, and
gradually ripening into a rule of international law . . . .”
The Paquete Habana, 175 U. S. 677, 686 (1900).
There was, finally, a sphere in which these rules binding
individuals for the benefit of other individuals overlapped
with the norms of state relationships. Blackstone referred
to it when he mentioned three specific offenses against the
law of nations addressed by the criminal law of England:
violation of safe conducts, infringement of the rights of am-
bassadors, and piracy. 4 Commentaries 68. An assault
against an ambassador, for example, impinged upon the sov-
ereignty of the foreign nation and if not adequately re-
dressed could rise to an issue of war. See Vattel 463–464.
It was this narrow set of violations of the law of nations,
admitting of a judicial remedy and at the same time threat-
ening serious consequences in international affairs, that was
probably on minds of the men who drafted the ATS with its
reference to tort.
2
Before there was any ATS, a distinctly American preoccu-
pation with these hybrid international norms had taken

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shape owing to the distribution of political power from inde-
pendence through the period of confederation. The Conti-
nental Congress was hamstrung by its inability to “cause
infractions of treaties, or of the law of nations to be pun-
ished,” J. Madison, Journal of the Constitutional Convention
60 (E. Scott ed. 1893), and in 1781 the Congress implored the
States to vindicate rights under the law of nations. In
words that echo Blackstone, the congressional resolution
called upon state legislatures to “provide expeditious, exem-
plary and adequate punishment” for “the violation of safe
conducts or passports, . . . of hostility against such as are in
amity . . . with the United States, . . . infractions of the
immunities of ambassadors and other public ministers . . .
[and] infractions of treaties and conventions to which the
United States are a party.” 21 Journals of the Continental
Congress 1136–1137 (G. Hunt ed. 1912) (hereinafter Journals
of the Continental Congress). The resolution recommended
that the States “authorise suits . . . for damages by the party
injured, and for compensation to the United States for dam-
age sustained by them from an injury done to a foreign
power by a citizen.” Id., at 1137; cf. Vattel 463–464 (“Who-
ever offends . . . a public minister . . . should be punished . . . ,
and . . . the state should, at the expense of the delinquent,
give full satisfaction to the sovereign who has been offended
in the person of his minister”). Apparently only one State
acted upon the recommendation, see Public Records of the
State of Connecticut, 1782, pp. 82, 83 (L. Larabee ed. 1982)
(1942 compilation, exact date of Act unknown), but Congress
had done what it could to signal a commitment to enforce
the law of nations.
Appreciation of the Continental Congress’s incapacity to
deal with this class of cases was intensified by the so-called
Marbois incident of May 1784, in which a French adventurer,
De Longchamps, verbally and physically assaulted the Secre-
tary of the French Legion in Philadelphia. See Respublica

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Opinion of the Court
v. De Longchamps, 1 Dall. 111 (O. T. Phila. 1784).11 Con-
gress called again for state legislation addressing such mat-
ters, and concern over the inadequate vindication of the law
of nations persisted through the time of the Constitutional
Convention. See 1 Records of the Federal Convention of
1787, p. 25 (M. Farrand ed. 1911) (speech of J. Randolph).
During the Convention itself, in fact, a New York City con-
stable produced a reprise of the Marbois affair and Secretary
Jay reported to Congress on the Dutch Ambassador’s pro-
test, with the explanation that “ ‘the federal government
does not appear . . . to be vested with any judicial Powers
competent to the Cognizance and Judgment of such Cases.’ ”
Casto, Law of Nations 494, and n. 152.
The Framers responded by vesting the Supreme Court
with original jurisdiction over “all Cases affecting Ambassa-
dors, other public ministers and Consuls.” U. S. Const.,
Art. III, § 2, and the First Congress followed through. The
Judiciary Act reinforced this Court’s original jurisdiction
over suits brought by diplomats, see 1 Stat. 80, ch. 20, § 13,
created alienage jurisdiction, § 11, and, of course, included
the ATS, § 9. See generally Randall, Federal Jurisdiction
over International Law Claims: Inquiries into the Alien Tort
Statute, 18 N. Y. U. J. Int’l L. & Pol. 1, 15–21 (1985) (herein-
11 The French minister plenipotentiary lodged a formal protest with the
Continental Congress, 27 Journals of the Continental Congress 478, and
threatened to leave Pennsylvania “unless the decision on Longchamps
Case should give them full satisfaction.” Letter from Samuel Hardy to
Gov. Benjamin Harrison of Virginia, June 24, 1784, in 7 Letters of Mem-
bers of the Continental Congress 558, 559 (E. Burnett ed. 1934). De
Longchamps was prosecuted for a criminal violation of the law of nations
in state court.
The Congress could only pass resolutions, one approving the state-court
proceedings, 27 Journals of the Continental Congress 503, another direct-
ing the Secretary of Foreign Affairs to apologize and to “explain to Mr.
De Marbois the difficulties that may arise . . . from the nature of a federal
union,” 28 id., at 314, and to explain to the representative of Louis XVI
that “many allowances are to be made for” the young Nation, ibid.

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after Randall) (discussing foreign affairs implications of the
Judiciary Act); W. Casto, The Supreme Court in the Early
Republic 27–53 (1995).
3
Although Congress modified the draft of what became the
Judiciary Act, see generally Warren, New Light on the His-
tory of the Federal Judiciary Act of 1789, 37 Harv. L. Rev.
49 (1923), it made hardly any changes to the provisions on
aliens, including what became the ATS, see Casto, Law of
Nations 498. There is no record of congressional discussion
about private actions that might be subject to the jurisdic-
tional provision, or about any need for further legislation to
create private remedies; there is no record even of debate on
the section. Given the poverty of drafting history, modern
commentators have necessarily concentrated on the text, re-
marking on the innovative use of the word “tort,” see, e. g.,
Sweeney, A Tort only in Violation of the Law of Nations, 18
Hastings Int’l & Comp. L. Rev. 445 (1995) (arguing that
“tort” refers to the law of prize), and the statute’s mixture
of terms expansive (“all suits”), see, e. g., Casto, Law of Na-
tions 500, and restrictive (“for a tort only”), see, e. g., Randall
28–31 (limiting suits to torts, as opposed to commercial
actions, especially by British plaintiffs).12 The historical
scholarship has also placed the ATS within the competition
between federalist and antifederalist forces over the national
role in foreign relations. Id., at 22–23 (nonexclusiveness of
federal jurisdiction under the ATS may reflect compromise).
But despite considerable scholarly attention, it is fair to say
12 The restriction may have served the different purpose of putting for-
eigners on notice that they would no longer be able to prosecute their
own criminal cases in federal court. Compare, e. g., 3 Commentaries 160
(victims could start prosecutions) with the Judiciary Act § 35 (creating the
office of the district attorney). Cf. 1 Op. Atty. Gen. 41, 42 (1794) (British
consul could not himself initiate criminal prosecution, but could provide
evidence to the grand jury).

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that a consensus understanding of what Congress intended
has proven elusive.
Still, the history does tend to support two propositions.
First, there is every reason to suppose that the First Con-
gress did not pass the ATS as a jurisdictional convenience to
be placed on the shelf for use by a future Congress or state
legislature that might, someday, authorize the creation of
causes of action or itself decide to make some element of the
law of nations actionable for the benefit of foreigners. The
anxieties of the preconstitutional period cannot be ignored
easily enough to think that the statute was not meant to
have a practical effect. Consider that the principal drafts-
man of the ATS was apparently Oliver Ellsworth,13 pre-
viously a member of the Continental Congress that had
passed the 1781 resolution and a member of the Connecticut
Legislature that made good on that congressional request.
See generally W. Brown, The Life of Oliver Ellsworth (1905).
Consider, too, that the First Congress was attentive enough
to the law of nations to recognize certain offenses expressly
as criminal, including the three mentioned by Blackstone.
See An Act for the Punishment of Certain Crimes Against
the United States, § 8, 1 Stat. 113–114 (murder or robbery,
or other capital crimes, punishable as piracy if committed on
the high seas), and § 28, id., at 118 (violation of safe conducts
and assaults against ambassadors punished by imprisonment
and fines described as “infract[ions of] the law of nations”).
It would have been passing strange for Ellsworth and this
very Congress to vest federal courts expressly with jurisdic-
tion to entertain civil causes brought by aliens alleging viola-
tions of the law of nations, but to no effect whatever until
the Congress should take further action. There is too much
in the historical record to believe that Congress would have
enacted the ATS only to leave it lying fallow indefinitely.
13 The ATS appears in Ellsworth’s handwriting in the original version of
the bill in the National Archives. Casto, Law of Nations 498, n. 169.

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The second inference to be drawn from the history is that
Congress intended the ATS to furnish jurisdiction for a rela-
tively modest set of actions alleging violations of the law of
nations. Uppermost in the legislative mind appears to have
been offenses against ambassadors, see id., at 118; violations
of safe conduct were probably understood to be actionable,
ibid., and individual actions arising out of prize captures and
piracy may well have also been contemplated, id., at 113–114.
But the common law appears to have understood only those
three of the hybrid variety as definite and actionable, or at
any rate, to have assumed only a very limited set of claims.
As Blackstone had put it, “offences against this law [of na-
tions] are principally incident to whole states or nations,”
and not individuals seeking relief in court. 4 Commentar-
ies 68.
4
The sparse contemporaneous cases and legal materials re-
ferring to the ATS tend to confirm both inferences, that
some, but few, torts in violation of the law of nations were
understood to be within the common law. In Bolchos v.
Darrel, 3 F. Cas. 810 (No. 1,607) (SC 1795), the District
Court’s doubt about admiralty jurisdiction over a suit for
damages brought by a French privateer against the mortga-
gee of a British slave ship was assuaged by assuming that
the ATS was a jurisdictional basis for the court’s action.
Nor is Moxon v. The Fanny, 17 F. Cas. 942 (No. 9,895) (Pa.
1793), to the contrary, a case in which the owners of a British
ship sought damages for its seizure in United States waters
by a French privateer. The District Court said in dictum
that the ATS was not the proper vehicle for suit because “[i]t
cannot be called a suit for a tort only, when the property, as
well as damages for the supposed trespass, are sought for.”
Id., at 948. But the judge gave no intimation that further
legislation would have been needed to give the District
Court jurisdiction over a suit limited to damages.

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Then there was the 1795 opinion of Attorney General Wil-
liam Bradford, who was asked whether criminal prosecution
was available against Americans who had taken part in the
French plunder of a British slave colony in Sierra Leone. 1
Op. Atty. Gen. 57. Bradford was uncertain, but he made it
clear that a federal court was open for the prosecution of a
tort action growing out of the episode:
“But there can be no doubt that the company or individ-
uals who have been injured by these acts of hostility
have a remedy by a civil suit in the courts of the United
States; jurisdiction being expressly given to these
courts in all cases where an alien sues for a tort only, in
violation of the laws of nations, or a treaty of the United
States . . . .” Id., at 59.
Although it is conceivable that Bradford (who had prose-
cuted in the Marbois incident, see Casto, Law of Nations 503,
n. 201) assumed that there had been a violation of a treaty,
1 Op. Atty. Gen., at 58, that is certainly not obvious, and it
appears likely that Bradford understood the ATS to provide
jurisdiction over what must have amounted to common law
causes of action.
B
Against these indications that the ATS was meant to un-
derwrite litigation of a narrow set of common law actions
derived from the law of nations, Sosa raises two main objec-
tions. First, he claims that this conclusion makes no sense
in view of the Continental Congress’s 1781 recommendation
to state legislatures to pass laws authorizing such suits.
Sosa thinks state legislation would have been “absurd,”
Reply Brief for Petitioner Sosa 5, if common law remedies
had been available. Second, Sosa juxtaposes Blackstone’s
treatise mentioning violations of the law of nations as occa-
sions for criminal remedies, against the statute’s innovative
reference to “tort,” as evidence that there was no familiar

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set of legal actions for exercise of jurisdiction under the ATS.
Neither argument is convincing.
The notion that it would have been absurd for the Conti-
nental Congress to recommend that States pass positive law
to duplicate remedies already available at common law rests
on a misunderstanding of the relationship between common
law and positive law in the late 18th century, when positive
law was frequently relied upon to reinforce and give stand-
ard expression to the “brooding omnipresence” 14 of the com-
mon law then thought discoverable by reason. As Black-
stone clarified the relation between positive law and the law
of nations, “those acts of parliament, which have from time
to time been made to enforce this universal law, or to facili-
tate the execution of [its] decisions, are not to be considered
as introductive of any new rule, but merely as declaratory of
the old fundamental constitutions of the kingdom; without
which it must cease to be a part of the civilized world.” 4
Commentaries 67. Indeed, Sosa’s argument is undermined
by the 1781 resolution on which he principally relies. Not-
withstanding the undisputed fact (per Blackstone) that the
common law afforded criminal law remedies for violations of
the law of nations, the Continental Congress encouraged
state legislatures to pass criminal statutes to the same effect,
and the first Congress did the same, supra, at 719. 15
14 See Southern Pacific Co. v. Jensen, 244 U. S. 205, 222 (1917) (Holmes,
J., dissenting).
15 Being consistent with the prevailing understanding of international
law, the 1781 resolution is sensibly understood as an act of international
politics, for the recommendation was part of a program to assure the world
that the new Republic would observe the law of nations. On the same
day it made its recommendation to state legislatures, the Continental Con-
gress received a confidential report, detailing negotiations between Amer-
ican representatives and Versailles. 21 Journals of the Continental Con-
gress 1137–1140. The King was concerned about the British capture of
the ship Marquis de la Fayette on its way to Boston, id., at 1139, and he
“expresse[d] a desire that the plan for the appointment of consuls should

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Nor are we convinced by Sosa’s argument that legislation
conferring a right of action is needed because Blackstone
treated international law offenses under the rubric of “public
wrongs,” whereas the ATS uses a word, “tort,” that was rel-
atively uncommon in the legal vernacular of the day. It is
true that Blackstone did refer to what he deemed the three
principal offenses against the law of nations in the course of
discussing criminal sanctions, observing that it was in the
interest of sovereigns “to animadvert upon them with a be-
coming severity, that the peace of the world may be main-
tained,” 4 Commentaries 68.16 But Vattel explicitly linked
be digested and adopted, as the Court of France wished to make it the
basis of some commercial arrangements between France and the United
States,” id., at 1140. The congressional resolution would not have been
all that Louis XVI wished for, but it was calculated to assure foreign
powers that Congress at least intended their concerns to be addressed in
the way they would have chosen. As a French legal treatise well known
to early American lawyers, see Helmholz, Use of the Civil Law in Post-
Revolutionary American Jurisprudence, 66 Tulane L. Rev. 1649 (1992), put
it, “the laws ought to be written, to the end that the writing may fix the
sense of the law, and determine the mind to conceive a just idea of that
which is established by the law, and that it not [be] left free for every one
to frame the law as he himself is pleased to understand it . . . .” 1 J.
Domat, The Civil Law in its Natural Order 108 (W. Strahan transl. and L.
Cushing ed. 1861). A congressional statement that common law was up
to the task at hand might well have fallen short of impressing a continen-
tal readership.
16 Petitioner says animadversion is “an archaic reference to the imposi-
tion of punishment.” Reply Brief for Petitioner Sosa 4 (emphasis in orig-
inal). That claim is somewhat exaggerated, however. To animadvert
carried the broader implication of “turn[ing] the attention officially or
judicially, tak[ing] legal cognizance of anything deserving of chastisement
or censure; hence, to proceed by way of punishment or censure.” 1 Ox-
ford English Dictionary 474 (2d ed. 1989). Blackstone in fact used the
term in the context of property rights and damages. Of a man who is
disturbed in his enjoyment of “qualified property” “the law will animad-
vert hereon as an injury.” 2 Commentaries 395. See also 9 Papers of
James Madison 349 (R. Rutland ed. 1975) (“As yet foreign powers have not
been rigorous in animadverting on us” for violations of the law of nations).

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the criminal sanction for offenses against ambassadors with
the requirement that the state, “at the expense of the delin-
quent, give full satisfaction to the sovereign who has been
offended in the person of his minister.” Vattel 463–464.
Cf. Stephens, Individuals Enforcing International Law: The
Comparative and Historical Context, 52 DePaul L. Rev. 433,
444 (2002) (observing that a “mixed approach to international
law violations, encompassing both criminal prosecution . . .
and compensation to those injured through a civil suit, would
have been familiar to the founding generation”). The 1781
resolution goes a step further in showing that a private rem-
edy was thought necessary for diplomatic offenses under the
law of nations. And the Attorney General’s Letter of 1795,
as well as the two early federal precedents discussing the
ATS, point to a prevalent assumption that Congress did not
intend the ATS to sit on the shelf until some future time
when it might enact further legislation.
In sum, although the ATS is a jurisdictional statute creat-
ing no new causes of action, the reasonable inference from
the historical materials is that the statute was intended to
have practical effect the moment it became law. The juris-
dictional grant is best read as having been enacted on the
understanding that the common law would provide a cause
of action for the modest number of international law viola-
tions with a potential for personal liability at the time.
IV
We think it is correct, then, to assume that the First Con-
gress understood that the district courts would recognize
private causes of action for certain torts in violation of the
law of nations, though we have found no basis to suspect
Congress had any examples in mind beyond those torts cor-
responding to Blackstone’s three primary offenses: violation
of safe conducts, infringement of the rights of ambassadors,
and piracy. We assume, too, that no development in the two
centuries from the enactment of § 1350 to the birth of the

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modern line of cases beginning with Filartiga v. Pena-Irala,
630 F. 2d 876 (CA2 1980), has categorically precluded federal
courts from recognizing a claim under the law of nations as
an element of common law; Congress has not in any relevant
way amended § 1350 or limited civil common law power by
another statute. Still, there are good reasons for a re-
strained conception of the discretion a federal court should
exercise in considering a new cause of action of this kind.
Accordingly, we think courts should require any claim based
on the present-day law of nations to rest on a norm of inter-
national character accepted by the civilized world and de-
fined with a specificity comparable to the features of the
18th-century paradigms we have recognized. This require-
ment is fatal to Alvarez’s claim.
A
A series of reasons argue for judicial caution when consid-
ering the kinds of individual claims that might implement
the jurisdiction conferred by the early statute. First, the
prevailing conception of the common law has changed since
1789 in a way that counsels restraint in judicially applying
internationally generated norms. When § 1350 was enacted,
the accepted conception was of the common law as “a tran-
scendental body of law outside of any particular State but
obligatory within it unless and until changed by statute.”
Black and White Taxicab & Transfer Co. v. Brown and Yel-
low Taxicab & Transfer Co., 276 U. S. 518, 533 (1928)
(Holmes, J., dissenting). Now, however, in most cases where
a court is asked to state or formulate a common law principle
in a new context, there is a general understanding that the
law is not so much found or discovered as it is either made
or created. Holmes explained famously in 1881 that
“in substance the growth of the law is legislative . . .
[because t]he very considerations which judges most
rarely mention, and always with an apology, are the se-
cret root from which the law draws all the juices of life.

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I mean, of course, considerations of what is expedient for
the community concerned.” The Common Law 31–32
(Howe ed. 1963).
One need not accept the Holmesian view as far as its ultimate
implications to acknowledge that a judge deciding in reliance
on an international norm will find a substantial element of
discretionary judgment in the decision.
Second, along with, and in part driven by, that conceptual
development in understanding common law has come an
equally significant rethinking of the role of the federal courts
in making it. Erie R. Co. v. Tompkins, 304 U. S. 64 (1938),
was the watershed in which we denied the existence of any
federal “general” common law, id., at 78, which largely with-
drew to havens of specialty, some of them defined by express
congressional authorization to devise a body of law directly,
e. g., Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448
(1957) (interpretation of collective-bargaining agreements);
Fed. Rule Evid. 501 (evidentiary privileges in federal-
question cases). Elsewhere, this Court has thought it was
in order to create federal common law rules in interstitial
areas of particular federal interest. E. g., United States v.
Kimbell Foods, Inc., 440 U. S. 715, 726–727 (1979).17 And
although we have even assumed competence to make judicial
rules of decision of particular importance to foreign rela-
tions, such as the act of state doctrine, see Banco Nacional
de Cuba v. Sabbatino, 376 U. S. 398, 427 (1964), the general
practice has been to look for legislative guidance before exer-
cising innovative authority over substantive law. It would
be remarkable to take a more aggressive role in exercising
a jurisdiction that remained largely in shadow for much of
the prior two centuries.
17 See generally R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler’s
The Federal Courts and the Federal System, ch. 7 (5th ed. 2003); Friendly,
In Praise of Erie—and of the New Federal Common Law, 39 N. Y.
U. L. Rev. 383, 405–422 (1964).

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Third, this Court has recently and repeatedly said that a
decision to create a private right of action is one better left
to legislative judgment in the great majority of cases. Cor-
rectional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001);
Alexander v. Sandoval, 532 U. S. 275, 286–287 (2001). The
creation of a private right of action raises issues beyond the
mere consideration whether underlying primary conduct
should be allowed or not, entailing, for example, a decision
to permit enforcement without the check imposed by prose-
cutorial discretion. Accordingly, even when Congress has
made it clear by statute that a rule applies to purely domes-
tic conduct, we are reluctant to infer intent to provide a pri-
vate cause of action where the statute does not supply one
expressly. While the absence of congressional action ad-
dressing private rights of action under an international norm
is more equivocal than its failure to provide such a right
when it creates a statute, the possible collateral conse-
quences of making international rules privately actionable
argue for judicial caution.
Fourth, the subject of those collateral consequences is it-
self a reason for a high bar to new private causes of action
for violating international law, for the potential implications
for the foreign relations of the United States of recognizing
such causes should make courts particularly wary of imping-
ing on the discretion of the Legislative and Executive
Branches in managing foreign affairs. It is one thing for
American courts to enforce constitutional limits on our own
State and Federal Governments’ power, but quite another to
consider suits under rules that would go so far as to claim a
limit on the power of foreign governments over their own
citizens, and to hold that a foreign government or its agent
has transgressed those limits. Cf. Sabbatino, supra, at 431–
432. Yet modern international law is very much concerned
with just such questions, and apt to stimulate calls for vindi-
cating private interests in § 1350 cases. Since many at-
tempts by federal courts to craft remedies for the violation

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of new norms of international law would raise risks of ad-
verse foreign policy consequences, they should be under-
taken, if at all, with great caution. Cf. Tel-Oren v. Libyan
Arab Republic, 726 F. 2d 774, 813 (CADC 1984) (Bork, J.,
concurring) (expressing doubt that § 1350 should be read to
require “our courts [to] sit in judgment of the conduct of
foreign officials in their own countries with respect to their
own citizens”).
The fifth reason is particularly important in light of the
first four. We have no congressional mandate to seek out
and define new and debatable violations of the law of nations,
and modern indications of congressional understanding of
the judicial role in the field have not affirmatively encour-
aged greater judicial creativity. It is true that a clear man-
date appears in the Torture Victim Protection Act of 1991,
106 Stat. 73, providing authority that “establish[es] an unam-
biguous and modern basis for” federal claims of torture and
extrajudicial killing, H. R. Rep. No. 102–367, pt. 1, p. 3 (1991).
But that affirmative authority is confined to specific subject
matter, and although the legislative history includes the re-
mark that § 1350 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,” id., at 4, Congress
as a body has done nothing to promote such suits. Several
times, indeed, the Senate has expressly declined to give the
federal courts the task of interpreting and applying interna-
tional human rights law, as when its ratification of the Inter-
national Covenant on Civil and Political Rights declared that
the substantive provisions of the document were not self-
executing. 138 Cong. Rec. 8071 (1992).
B
These reasons argue for great caution in adapting the law
of nations to private rights. Justice Scalia, post, p. 739
(opinion concurring in part and concurring in judgment), con-
cludes that caution is too hospitable, and a word is in order

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to summarize where we have come so far and to focus our
difference with him on whether some norms of today’s law
of nations may ever be recognized legitimately by federal
courts in the absence of congressional action beyond § 1350.
All Members of the Court agree that § 1350 is only jurisdic-
tional. We also agree, or at least Justice Scalia does not
dispute, post, at 739, 744, that the jurisdiction was originally
understood to be available to enforce a small number of in-
ternational norms that a federal court could properly recog-
nize as within the common law enforceable without further
statutory authority. Justice Scalia concludes, however,
that two subsequent developments should be understood to
preclude federal courts from recognizing any further inter-
national norms as judicially enforceable today, absent further
congressional action. As described before, we now tend to
understand common law not as a discoverable reflection of
universal reason but, in a positivistic way, as a product of
human choice. And we now adhere to a conception of lim-
ited judicial power first expressed in reorienting federal di-
versity jurisdiction, see Erie R. Co. v. Tompkins, 304 U. S.
64 (1938), that federal courts have no authority to derive
“general” common law.
Whereas Justice Scalia sees these developments as suf-
ficient to close the door to further independent judicial recog-
nition of actionable international norms, other considerations
persuade us that the judicial power should be exercised on
the understanding that the door is still ajar subject to vigi-
lant doorkeeping, and thus open to a narrow class of interna-
tional norms today. Erie did not in terms bar any judicial
recognition of new substantive rules, no matter what the cir-
cumstances, and post-Erie understanding has identified lim-
ited enclaves in which federal courts may derive some sub-
stantive law in a common law way. For two centuries we
have affirmed that the domestic law of the United States
recognizes the law of nations. See, e. g., Sabbatino, 376
U. S., at 423 (“[I]t is, of course, true that United States

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courts apply international law as a part of our own in appro-
priate circumstances”); 18 The Paquete Habana, 175 U. S., at
700 (“International law is part of our law, and must be ascer-
tained and administered by the courts of justice of appro-
priate jurisdiction, as often as questions of right depending
upon it are duly presented for their determination”); The
Nereide, 9 Cranch 388, 423 (1815) (Marshall, C. J.) (“[T]he
Court is bound by the law of nations which is a part of the
law of the land”); see also Texas Industries, Inc. v. Radcliff
Materials, Inc., 451 U. S. 630, 641 (1981) (recognizing that
“international disputes implicating . . . our relations with for-
eign nations” are one of the “narrow areas” in which “federal
common law” continues to exist). It would take some ex-
plaining to say now that federal courts must avert their gaze
entirely from any international norm intended to protect
individuals.
We think an attempt to justify such a position would be
particularly unconvincing in light of what we know about
congressional understanding bearing on this issue lying at
the intersection of the judicial and legislative powers. The
First Congress, which reflected the understanding of the
framing generation and included some of the Framers, as-
sumed that federal courts could properly identify some inter-
national norms as enforceable in the exercise of § 1350 juris-
diction. We think 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 metaphysi-
cal cachet on the road to modern realism. Later Congresses
18 Sabbatino itself did not directly apply international law, see 376 U. S.,
at 421–423, but neither did it question the application of that law in appro-
priate cases, and it further endorsed the reasoning of a noted commentator
who had argued that Erie should not preclude the continued application
of international law in federal courts, 376 U. S., at 425 (citing Jessup, The
Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33
Am. J. Int’l L. 740 (1939)).

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seem to have shared our view. The position we take today
has been assumed by some federal courts for 24 years, ever
since the Second Circuit decided Filartiga v. Pena-Irala, 630
F. 2d 876 (CA2 1980), and for practical purposes the point of
today’s disagreement has been focused since the exchange
between Judge Edwards and Judge Bork in Tel-Oren v. Lib-
yan Arab Republic, 726 F. 2d 774 (CADC 1984). Congress,
however, has not only expressed no disagreement with our
view of the proper exercise of the judicial power, but has
responded to its most notable instance by enacting legisla-
tion supplementing the judicial determination in some detail.
See supra, at 728 (discussing the Torture Victim Protection
Act).
While we agree with Justice Scalia to the point that
we would welcome any congressional guidance in exercising
jurisdiction with such obvious potential to affect foreign rela-
tions, nothing Congress has done is a reason for us to shut
the door to the law of nations entirely. It is enough to say
that Congress may do that at any time (explicitly, or implic-
itly by treaties or statutes that occupy the field), just as it
may modify or cancel any judicial decision so far as it rests
on recognizing an international norm as such.19
C
We must still, however, derive a standard or set of stand-
ards for assessing the particular claim Alvarez raises, and
19 Our position does not, as Justice Scalia suggests, imply that every
grant of jurisdiction to a federal court carries with it an opportunity to
develop common law (so that the grant of federal-question jurisdiction
would be equally as good for our purposes as § 1350), see post, at 745, n.
Section 1350 was enacted on the congressional understanding that courts
would exercise jurisdiction by entertaining some common law claims de-
rived from the law of nations; and we know of no reason to think that
federal-question jurisdiction was extended subject to any comparable con-
gressional assumption. Further, our holding today is consistent with the
division of responsibilities between federal and state courts after Erie,
see supra, at 726, 729–730, as a more expansive common law power related
to 28 U. S. C. § 1331 might not be.

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732 SOSA v. ALVAREZ-MACHAIN
Opinion of the Court
for this action it suffices to look to the historical antecedents.
Whatever the ultimate criteria for accepting a cause of ac-
tion subject to jurisdiction under § 1350, we are persuaded
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 civi-
lized nations than the historical paradigms familiar when
§ 1350 was enacted. See, e. g., United States v. Smith, 5
Wheat. 153, 163–180, n. a (1820) (illustrating the specificity
with which the law of nations defined piracy). This limit
upon judicial recognition is generally consistent with the rea-
soning of many of the courts and judges who faced the issue
before it reached this Court. See Filartiga, supra, at 890
(“[F]or purposes of civil liability, the torturer has become—
like the pirate and slave trader before him—hostis humani
generis, an enemy of all mankind”); Tel-Oren, supra, at 781
(Edwards, J., concurring) (suggesting that the “limits of sec-
tion 1350’s reach” be defined by “a handful of heinous ac-
tions—each of which violates definable, universal and obliga-
tory norms”); see also In re Estate of Marcos Human Rights
Litigation, 25 F. 3d 1467, 1475 (CA9 1994) (“Actionable vio-
lations of international law must be of a norm that is spe-
cific, universal, and obligatory”). And the determination
whether a norm is sufficiently definite to support a cause
of action 20 should (and, indeed, inevitably must) involve an
element of judgment about the practical consequences of
20 A related consideration is whether international law extends the scope
of liability for a violation of a given norm to the perpetrator being sued,
if the defendant is a private actor such as a corporation or individual.
Compare Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 791–795 (CADC
1984) (Edwards, J., concurring) (insufficient consensus in 1984 that torture
by private actors violates international law), with Kadic v. Karadz˘ic´, 70
F. 3d 232, 239–241 (CA2 1995) (sufficient consensus in 1995 that genocide
by private actors violates international law).

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Opinion of the Court
making that cause available to litigants in the federal
courts.21
Thus, Alvarez’s detention claim must be gauged against
the current state of international law, looking to those
sources we have long, albeit cautiously, recognized.
21 This requirement of clear definition is not meant to be the only princi-
ple limiting the availability of relief in the federal courts for violations of
customary international law, though it disposes of this action. For exam-
ple, the European Commission argues as amicus curiae that basic princi-
ples 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. See Brief for European Commission as Amicus Curiae
24, n. 54 (citing I. Brownlie, Principles of Public International Law 472–481
(6th ed. 2003)); cf. Torture Victim Protection Act of 1991, § 2(b), 106 Stat.
73 (exhaustion requirement). We would certainly consider this require-
ment in an appropriate case.
Another possible limitation that we need not apply here is a policy of
case-specific deference to the political branches. For example, there are
now pending in Federal District Court several class actions seeking dam-
ages from various corporations alleged to have participated in, or abetted,
the regime of apartheid that formerly controlled South Africa. See In re
South African Apartheid Litigation, 238 F. Supp. 2d 1379 (JPML 2002)
(granting a motion to transfer the cases to the Southern District of New
York). The Government of South Africa has said that these cases inter-
fere with the policy embodied by its Truth and Reconciliation Commission,
which “deliberately avoided a ‘victors’ justice’ approach to the crimes of
apartheid and chose instead one based on confession and absolution, in-
formed by the principles of reconciliation, reconstruction, reparation and
goodwill.” Declaration of Penuell Mpapa Maduna, Minister of Justice and
Constitutional Development, Republic of South Africa, reprinted in App.
to Brief for Government of Commonwealth of Australia et al. as Amici
Curiae 7a, ¶ 3.2.1 (emphasis deleted). The United States has agreed.
See Letter of William H. Taft IV, Legal Adviser, Dept. of State, to Shan-
nen W. Coffin, Deputy Asst. Atty. Gen., Oct. 27, 2003, reprinted in id., at
2a. In such cases, there is a strong argument that federal courts should
give serious weight to the Executive Branch’s view of the case’s impact
on foreign policy. Cf. Republic of Austria v. Altmann, 541 U. S. 677,
701–702 (2004) (discussing the State Department’s use of statements of
interest in cases involving the Foreign Sovereign Immunities Act of 1976,
28 U. S. C. § 1602 et seq.).

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734 SOSA v. ALVAREZ-MACHAIN
Opinion of the Court
“[W]here there is no treaty, and no controlling executive
or legislative act or judicial decision, resort must be had
to the customs and usages of civilized nations; and, as
evidence of these, to the works of jurists and commenta-
tors, who by years of labor, research and experience,
have made themselves peculiarly well acquainted with
the subjects of which they treat. Such works are re-
sorted to by judicial tribunals, not for the speculations
of their authors concerning what the law ought to be,
but for trustworthy evidence of what the law really is.”
The Paquete Habana, 175 U. S., at 700.
To begin with, Alvarez cites two well-known international
agreements that, despite their moral authority, have little
utility under the standard set out in this opinion. He says
that his abduction by Sosa was an “arbitrary arrest” within
the meaning of the Universal Declaration of Human Rights
(Declaration), G. A. Res. 217A (III), U. N. Doc. A/810 (1948).
And he traces the rule against arbitrary arrest not only to
the Declaration, but also to article nine of the International
Covenant on Civil and Political Rights (Covenant), Dec. 16,
1966, 999 U. N. T. S. 171,22 to which the United States is a
party, and to various other conventions to which it is not.
But the Declaration does not of its own force impose obliga-
tions as a matter of international law. See Humphrey, The
UN Charter and the Universal Declaration of Human Rights,
in The International Protection of Human Rights 39, 50
(E. Luard ed. 1967) (quoting Eleanor Roosevelt calling the
Declaration “ ‘a statement of principles . . . setting up a com-
mon standard of achievement for all peoples and all nations’ ”
22 Article nine provides that “[n]o one shall be subjected to arbitrary
arrest or detention,” that “[n]o one shall be deprived of his liberty except
on such grounds and in accordance with such procedure as are established
by law,” and that “[a]nyone who has been the victim of unlawful arrest
or detention shall have an enforceable right to compensation.” 999
U. N. T. S., at 175–176.

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Opinion of the Court
and “ ‘not a treaty or international agreement . . . impos[ing]
legal obligations’ ”).23 And, although the Covenant does
bind the United States as a matter of international law, the
United States ratified the Covenant on the express under-
standing that it was not self-executing and so did not itself
create obligations enforceable in the federal courts. See
supra, at 728. Accordingly, Alvarez cannot say that the
Declaration and Covenant themselves establish the relevant
and applicable rule of international law. He instead at-
tempts to show that prohibition of arbitrary arrest has at-
tained the status of binding customary international law.
Here, it is useful to examine Alvarez’s complaint in greater
detail. As he presently argues it, the claim does not rest on
the cross-border feature of his abduction.24 Although the
District Court granted relief in part on finding a violation of
international law in taking Alvarez across the border from
Mexico to the United States, the Court of Appeals rejected
that ground of liability for failure to identify a norm of requi-
site force prohibiting a forcible abduction across a border.
Instead, it relied on the conclusion that the law of the United
States did not authorize Alvarez’s arrest, because the DEA
lacked extraterritorial authority under 21 U. S. C. § 878, and
because Federal Rule of Criminal Procedure 4(d)(2) limited
the warrant for Alvarez’s arrest to “the jurisdiction of the
United States.” 25 It is this position that Alvarez takes now:
23 It has nevertheless had substantial indirect effect on international law.
See Brownlie, supra, at 535 (calling the Declaration a “good example of an
informal prescription given legal significance by the actions of authorita-
tive decision-makers”).
24 Alvarez’s brief contains one footnote seeking to incorporate by refer-
ence his arguments on cross-border abductions before the Court of Ap-
peals. Brief for Respondent Alvarez-Machain 47, n. 46. That is not
enough to raise the question fairly, and we do not consider it.
25 The Rule has since been moved and amended and now provides that
a warrant may also be executed “anywhere else a federal statute author-
izes an arrest.” Fed. Rule Crim. Proc. 4(c)(2).

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736 SOSA v. ALVAREZ-MACHAIN
Opinion of the Court
that his arrest was arbitrary and as such forbidden by inter-
national law not because it infringed the prerogatives of
Mexico, but because no applicable law authorized it.26
Alvarez thus invokes a general prohibition of “arbitrary”
detention defined as officially sanctioned action exceed-
ing positive authorization to detain under the domestic law
of some government, regardless of the circumstances.
Whether or not this is an accurate reading of the Covenant,
Alvarez cites little authority that a rule so broad has the
status of a binding customary norm today.27 He certainly
cites nothing to justify the federal courts in taking his broad
rule as the predicate for a federal lawsuit, for its implications
would be breathtaking. His rule would support a cause of
action in federal court for any arrest, anywhere in the world,
unauthorized by the law of the jurisdiction in which it took
place, and would create a cause of action for any seizure of
an alien in violation of the Fourth Amendment, supplanting
the actions under Rev. Stat. § 1979, 42 U. S. C. § 1983, and
26 We have no occasion to decide whether Alvarez is right that 21 U. S. C.
§ 878 did not authorize the arrest.
27 Specifically, he relies on a survey of national constitutions, Bassiouni,
Human Rights in the Context of Criminal Justice: Identifying Interna-
tional Procedural Protections and Equivalent Protections in National Con-
stitutions, 3 Duke J. Comp. & Int’l L. 235, 260–261 (1993); a case from the
International Court of Justice, United States v. Iran, 1980 I. C. J. 3, 42; and
some authority drawn from the federal courts, see Brief for Respondent
Alvarez-Machain 49, n. 50. None of these suffice. The Bassiouni survey
does show that many nations recognize a norm against arbitrary deten-
tion, but that consensus is at a high level of generality. The Iran case, in
which the United States sought relief for the taking of its diplomatic and
consular staff as hostages, involved a different set of international norms
and mentioned the problem of arbitrary detention only in passing; the
detention in that case was, moreover, far longer and harsher than Alvar-
ez’s. See 1980 I. C. J., at 42, ¶ 91 (“detention of [United States] staff by a
group of armed militants” lasted “many months”). And the authority
from the federal courts, to the extent it supports Alvarez’s position, re-
flects a more assertive view of federal judicial discretion over claims based
on customary international law than the position we take today.

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Opinion of the Court
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388
(1971), that now provide damages remedies for such viola-
tions. It would create an action in federal court for arrests
by state officers who simply exceed their authority; and for
the violation of any limit that the law of any country might
place on the authority of its own officers to arrest. And all
of this assumes that Alvarez could establish that Sosa was
acting on behalf of a government when he made the arrest,
for otherwise he would need a rule broader still.
Alvarez’s failure to marshal support for his proposed rule
is underscored by the Restatement (Third) of Foreign Rela-
tions Law of the United States (1986), which says in its dis-
cussion of customary international human rights law that a
“state violates international law if, as a matter of state pol-
icy, it practices, encourages, or condones . . . prolonged arbi-
trary detention.” 2 id., § 702. Although the Restatement
does not explain its requirements of a “state policy” and of
“prolonged” detention, the implication is clear. Any credi-
ble invocation of a principle against arbitrary detention that
the civilized world accepts as binding customary interna-
tional law requires a factual basis beyond relatively brief de-
tention in excess of positive authority. Even the Restate-
ment’s limits are only the beginning of the enquiry, because
although it is easy to say that some policies of prolonged
arbitrary detentions are so bad that those who enforce them
become enemies of the human race, it may be harder to say
which policies cross that line with the certainty afforded by
Blackstone’s three common law offenses. In any event, the
label would never fit the reckless policeman who botches his
warrant, even though that same officer might pay damages
under municipal law. E. g., Groh v. Ramirez, 540 U. S. 551
(2004).28
28 In this action, Sosa might well have been liable under Mexican law.
Alvarez asserted such a claim, but the District Court concluded that the
applicable law was the law of California, and that under California law
Sosa had been privileged to make a citizen’s arrest in Mexico. Whether

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738 SOSA v. ALVAREZ-MACHAIN
Opinion of the Court
Whatever may be said for the broad principle Alvarez ad-
vances, in the present, imperfect world, it expresses an aspi-
ration that exceeds any binding customary rule having the
specificity we require.29 Creating a private cause of action
to further that aspiration would go beyond any residual com-
mon law discretion we think it appropriate to exercise.30 It
is enough to hold that a single illegal detention of less than
a day, followed by the transfer of custody to lawful authori-
ties and a prompt arraignment, violates no norm of custom-
ary international law so well defined as to support the cre-
ation of a federal remedy.
* * *
The judgment of the Court of Appeals is
Reversed.
this was correct is not now before us, though we discern tension between
the court’s simultaneous conclusions that the detention so lacked any legal
basis as to violate international law, yet was privileged by state law
against ordinary tort recovery.
29 It is not that violations of a rule logically foreclose the existence of
that rule as international law. Cf. Filartiga v. Pena-Irala, 630 F. 2d 876,
884, n. 15 (CA2 1980) (“The fact that the prohibition of torture is often
honored in the breach does not diminish its binding effect as a norm of
international law”). Nevertheless, that a rule as stated is as far from full
realization as the one Alvarez urges is evidence against its status as bind-
ing law; and an even clearer point against the creation by judges of a
private cause of action to enforce the aspiration behind the rule claimed.
30 Alvarez also cites, Brief for Respondent Alvarez-Machain 49–50, a
finding by a United Nations working group that his detention was arbi-
trary under the Declaration, the Covenant, and customary international
law. See Report of the United Nations Working Group on Arbitrary De-
tention, U. N. Doc. E/CN.4/1994/27, pp. 139–140 (Dec. 17, 1993). That
finding is not addressed, however, to our demanding standard of definition,
which must be met to raise even the possibility of a private cause of action.
If Alvarez wishes to seek compensation on the basis of the working group’s
finding, he must address his request to Congress.

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Opinion of Scalia, J.
Justice Scalia, with whom The Chief Justice and Jus-
tice Thomas join, concurring in part and concurring in the
judgment.
There is not much that I would add to the Court’s detailed
opinion, and only one thing that I would subtract: its reser-
vation of a discretionary power in the Federal Judiciary to
create causes of action for the enforcement of international-
law-based norms. Accordingly, I join Parts I, II, and III of
the Court’s opinion in these consolidated cases. Although I
agree with much in Part IV, I cannot join it because the
judicial lawmaking role it invites would commit the Federal
Judiciary to a task it is neither authorized nor suited to
perform.
I
The question at hand is whether the Alien Tort Statute
(ATS), 28 U. S. C. § 1350, provides respondent Alvarez-
Machain (hereinafter respondent) a cause of action to sue in
federal court to recover money damages for violation of what
is claimed to be a customary international law norm against
arbitrary arrest and detention. The ATS provides that
“[t]he district courts shall have original jurisdiction of any
civil action by an alien for a tort only, committed in violation
of the law of nations or a treaty of the United States.” Ibid.
The challenge posed by this action is to ascertain (in the
Court’s felicitous phrase) “the interaction between the ATS
at the time of its enactment and the ambient law of the era.”
Ante, at 714. I begin by describing the general principles
that must guide our analysis.
At the time of its enactment, the ATS provided a federal
forum in which aliens could bring suit to recover for torts
committed in “violation of the law of nations.” The law of
nations that would have been applied in this federal forum
was at the time part of the so-called general common law.
See Young, Sorting out the Debate Over Customary Interna-
tional Law, 42 Va. J. Int’l L. 365, 374 (2002); Bradley & Gold-

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740 SOSA v. ALVAREZ-MACHAIN
Opinion of Scalia, J.
smith, Customary International Law as Federal Common
Law: A Critique of the Modern Position, 110 Harv. L. Rev.
815, 824 (1997); Brief for Vikram Amar et al. as Amici Cu-
riae 12–13.
General common law was not federal law under the Su-
premacy Clause, which gave that effect only to the Constitu-
tion, the laws of the United States, and treaties. U. S.
Const., Art. VI, cl. 2. Federal and state courts adjudicating
questions of general common law were not adjudicating
questions of federal or state law, respectively—the general
common law was neither. See generally Clark, Federal
Common Law: A Structural Reinterpretation, 144 U. Pa.
L. Rev. 1245, 1279–1285 (1996). The nonfederal nature of
the law of nations explains this Court’s holding that it lacked
jurisdiction in New York Life Ins. Co. v. Hendren, 92 U. S.
286 (1876), where it was asked to review a state-court deci-
sion regarding “the effect, under the general public law, of a
state of sectional civil war upon [a] contract of life insur-
ance.” Ibid. Although the case involved “the general laws
of war, as recognized by the law of nations applicable to this
case,” ibid., it involved no federal question. The Court con-
cluded: “The case, . . . having been presented to the court
below for decision upon principles of general law alone, and
it nowhere appearing that the constitution, laws, treaties, or
executive proclamations, of the United States were necessar-
ily involved in the decision, we have no jurisdiction.” Id.,
at 287.
This Court’s decision in Erie R. Co. v. Tompkins, 304 U. S.
64 (1938), signaled the end of federal-court elaboration and
application of the general common law. Erie repudiated the
holding of Swift v. Tyson, 16 Pet. 1 (1842), that federal courts
were free to “express our own opinion” upon “the principles
established in the general commercial law.” Id., at 19, 18.
After canvassing the many problems resulting from “the
broad province accorded to the so-called ‘general law’ as to
which federal courts exercised an independent judgment,”

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Opinion of Scalia, J.
304 U. S., at 75, the Erie Court extirpated that law with its
famous declaration that “[t]here is no federal general com-
mon law.” Id., at 78. Erie affected the status of the law of
nations in federal courts not merely by the implication of its
holding but quite directly, since the question decided in Swift
turned on the “law merchant,” then a subset of the law of
nations. See Clark, supra, at 1280–1281.
After the death of the old general common law in Erie
came the birth of a new and different common law pro-
nounced by federal courts. There developed a specifically
federal common law (in the sense of judicially pronounced
law) for a “few and restricted” areas in which “a federal rule
of decision is necessary to protect uniquely federal interests,
and those in which Congress has given the courts the power
to develop substantive law.” Texas Industries, Inc. v. Rad-
cliff Materials, Inc., 451 U. S. 630, 640 (1981) (internal quota-
tion marks and citations omitted). Unlike the general com-
mon law that preceded it, however, federal common law was
self-consciously “made” rather than “discovered,” by judges
who sought to avoid falling under the sway of (in Holmes’s
hyperbolic language) “[t]he fallacy and illusion” that there
exists “a transcendental body of law outside of any particular
State but obligatory within it unless and until changed by
statute.” Black and White Taxicab & Transfer Co. v.
Brown and Yellow Taxicab & Transfer Co., 276 U. S. 518,
533 (1928) (dissenting opinion).
Because post-Erie federal common law is made, not dis-
covered, federal courts must possess some federal-common-
law-making authority before undertaking to craft it. “Fed-
eral courts, unlike state courts, are not general common-law
courts and do not possess a general power to develop and
apply their own rules of decision.” Milwaukee v. Illinois,
451 U. S. 304, 312 (1981).
The general rule as formulated in Texas Industries, 451
U. S., at 640–641, is that “[t]he vesting of jurisdiction in the
federal courts does not in and of itself give rise to authority

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Opinion of Scalia, J.
to formulate federal common law.” This rule applies not
only to applications of federal common law that would dis-
place a state rule, but also to applications that simply create
a private cause of action under a federal statute. Indeed,
Texas Industries itself involved the petitioner’s unsuccessful
request for an application of the latter sort—creation of a
right of contribution to damages assessed under the antitrust
laws. See id., at 639–646. See also Northwest Airlines,
Inc. v. Transport Workers, 451 U. S. 77, 99 (1981) (declining
to create a federal-common-law right of contribution to dam-
ages assessed under the Equal Pay Act and Title VII).
The rule against finding a delegation of substantive law-
making power in a grant of jurisdiction is subject to excep-
tions, some better established than others. The most firmly
entrenched is admiralty law, derived from the grant of admi-
ralty jurisdiction in Article III, § 2, cl. 3, of the Constitution.
In the exercise of that jurisdiction federal courts develop and
apply a body of general maritime law, “the well-known and
well-developed venerable law of the sea which arose from
the custom among seafaring men.” R. M. S. Titanic, Inc. v.
Haver, 171 F. 3d 943, 960 (CA4 1999) (Niemeyer, J.) (internal
quotation marks omitted). At the other extreme is Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),
which created a private damages cause of action against fed-
eral officials for violation of the Fourth Amendment. We
have said that the authority to create this cause of action
was derived from “our general jurisdiction to decide all cases
‘arising under the Constitution, laws, or treaties of the
United States.’ ” Correctional Services Corp. v. Malesko,
534 U. S. 61, 66 (2001) (quoting 28 U. S. C. § 1331). While
Bivens stands, the ground supporting it has eroded. For
the past 25 years, “we have consistently refused to extend
Bivens liability to any new context.” Correctional Services
Corp., supra, at 68. Bivens is “a relic of the heady days in
which this Court assumed common-law powers to create
causes of action.” 534 U. S., at 75 (Scalia, J., concurring).

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II
With these general principles in mind, I turn to the ques-
tion presented. The Court’s detailed exegesis of the ATS
conclusively establishes that it is “a jurisdictional statute
creating no new causes of action.” Ante, at 724. The Court
provides a persuasive explanation of why respondent’s con-
trary interpretation, that “the ATS was intended not simply
as a jurisdictional grant, but as authority for the creation of
a new cause of action for torts in violation of international
law,” is wrong. Ante, at 713. Indeed, the Court properly
endorses the views of one scholar that this interpretation
is “ ‘simply frivolous.’ ” Ibid. (quoting Casto, The Federal
Courts’ Protective Jurisdiction over Torts Committed in
Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479,
480 (1986)).
These conclusions are alone enough to dispose of the pres-
ent case in favor of petitioner Sosa. None of the exceptions
to the general rule against finding substantive lawmaking
power in a jurisdictional grant apply. Bivens provides per-
haps the closest analogy. That is shaky authority at best,
but at least it can be said that Bivens sought to enforce a
command of our own law—the United States Constitution.
In modern international human rights litigation of the sort
that has proliferated since Filartiga v. Pena-Irala, 630 F. 2d
876 (CA2 1980), a federal court must first create the underly-
ing federal command. But “the fact that a rule has been
recognized as [customary international law], by itself, is not
an adequate basis for viewing that rule as part of federal
common law.” Meltzer, Customary International Law, For-
eign Affairs, and Federal Common Law, 42 Va. J. Int’l L. 513,
519 (2002). In Benthamite terms, creating a federal com-
mand (federal common law) out of “international norms,” and
then constructing a cause of action to enforce that command
through the purely jurisdictional grant of the ATS, is non-
sense upon stilts.

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Opinion of Scalia, J.
III
The analysis in the Court’s opinion departs from my own
in this respect: After concluding in Part III that “the ATS
is a jurisdictional statute creating no new causes of action,”
ante, at 724, the Court addresses at length in Part IV the
“good reasons for a restrained conception of the discretion a
federal court should exercise in considering a new cause of
action” under the ATS. Ante, at 725 (emphasis added). By
framing the issue as one of “discretion,” the Court skips over
the antecedent question of authority. This neglects the
“lesson of Erie,” that “grants of jurisdiction alone” (which
the Court has acknowledged the ATS to be) “are not them-
selves grants of lawmaking authority.” Meltzer, supra, at
541. On this point, the Court observes only that no develop-
ment between the enactment of the ATS (in 1789) and the
birth of modern international human rights litigation under
that statute (in 1980) “has categorically precluded federal
courts from recognizing a claim under the law of nations as
an element of common law.” Ante, at 725 (emphasis added).
This turns our jurisprudence regarding federal common law
on its head. The question is not what case or congressional
action prevents federal courts from applying the law of na-
tions as part of the general common law; it is what author-
izes that peculiar exception from Erie’s fundamental holding
that a general common law does not exist.
The Court would apparently find authorization in the un-
derstanding of the Congress that enacted the ATS, that “dis-
trict courts would recognize private causes of action for cer-
tain torts in violation of the law of nations.” Ante, at 724.
But as discussed above, that understanding rested upon a
notion of general common law that has been repudiated by
Erie.
The Court recognizes that Erie was a “watershed” deci-
sion heralding an avulsive change, wrought by “conceptual
development in understanding common law . . . [and accom-
panied by an] equally significant rethinking of the role of
the federal courts in making it.” Ante, at 726. The Court’s

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analysis, however, does not follow through on this insight,
interchangeably using the unadorned phrase “common law”
in Parts III and IV to refer to pre-Erie general common
law and post-Erie federal common law. This lapse is crucial,
because the creation of post-Erie federal common law is
rooted in a positivist mindset utterly foreign to the American
common-law tradition of the late 18th century. Post-Erie
federal common lawmaking (all that is left to the federal
courts) is so far removed from that general-common-law ad-
judication which applied the “law of nations” that it would
be anachronistic to find authorization to do the former in a
statutory grant of jurisdiction that was thought to enable
the latter.* Yet that is precisely what the discretion-only
analysis in Part IV suggests.
*The Court conjures the illusion of common-law-making continuity be-
tween 1789 and the present by ignoring fundamental differences. The
Court’s approach places the law of nations on a federal-law footing un-
known to the First Congress. At the time of the ATS’s enactment, the
law of nations, being part of general common law, was not supreme federal
law that could displace state law. Supra, at 739–740. By contrast, a judi-
cially created federal rule based on international norms would be supreme
federal law. Moreover, a federal-common-law cause of action of the sort
the Court reserves discretion to create would “arise under” the laws of the
United States, not only for purposes of Article III but also for purposes of
statutory federal-question jurisdiction. See Illinois v. Milwaukee, 406
U. S. 91, 99–100 (1972).
The lack of genuine continuity is thus demonstrated by the fact that
today’s opinion renders the ATS unnecessary for federal jurisdiction over
(so-called) law-of-nations claims. If the law of nations can be transformed
into federal law on the basis of (1) a provision that merely grants jurisdic-
tion, combined with (2) some residual judicial power (from whence nobody
knows) to create federal causes of action in cases implicating foreign rela-
tions, then a grant of federal-question jurisdiction would give rise to a
power to create international-law-based federal common law just as effec-
tively as would the ATS. This would mean that the ATS became largely
superfluous as of 1875, when Congress granted general federal-question
jurisdiction subject to a $500 amount-in-controversy requirement, Act of
Mar. 3, 1875, § 1, 18 Stat. 470, and entirely superfluous as of 1980, when
Congress eliminated the amount-in-controversy requirement, Pub. L. 96–
486, 94 Stat. 2369.

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746 SOSA v. ALVAREZ-MACHAIN
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Because today’s federal common law is not our Framers’
general common law, the question presented by the sugges-
tion of discretionary authority to enforce the law of nations
is not whether to extend old-school general-common-law ad-
judication. Rather, it is whether to create new federal com-
mon law. The Court masks the novelty of its approach when
it suggests that the difference between us is that I would
“close the door to further independent judicial recognition of
actionable international norms,” whereas the Court would
permit the exercise of judicial power “on the understanding
that the door is still ajar subject to vigilant doorkeeping.”
Ante, at 729. The general common law was the old door.
We do not close that door today, for the deed was done in
Erie. Supra, at 740–741. Federal common law is a new
door. The question is not whether that door will be left ajar,
but whether this Court will open it.
Although I fundamentally disagree with the discretion-
based framework employed by the Court, we seem to be
in accord that creating a new federal common law of in-
ternational human rights is a questionable enterprise. We
agree that:
• “[T]he general practice has been to look for legislative
guidance before exercising innovative authority over
substantive law [in the area of foreign relations]. It
would be remarkable to take a more aggressive role in
exercising a jurisdiction that remained largely in shadow
for much of the prior two centuries.” Ante, at 726.
• “[T]he possible collateral consequences of making inter-
national rules privately actionable argue for judicial cau-
tion.” Ante, at 727.
• “It is one thing for American courts to enforce constitu-
tional limits on our own State and Federal Governments’
power, but quite another to consider suits under rules
that would go so far as to claim a limit on the power of
foreign governments over their own citizens, and to hold

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that a foreign government or its agent has transgressed
those limits.” Ibid.
• “[M]any attempts by federal courts to craft remedies for
the violation of new norms of international law would
raise risks of adverse foreign policy consequences.”
Ante, at 727–728.
• “Several times, indeed, the Senate has expressly declined
to give the federal courts the task of interpreting and
applying international human rights law.” Ante, at 728.
These considerations are not, as the Court thinks them, rea-
sons why courts must be circumspect in use of their extant
general-common-law-making powers. They are reasons
why courts cannot possibly be thought to have been given,
and should not be thought to possess, federal-common-law-
making powers with regard to the creation of private federal
causes of action for violations of customary international law.
To be sure, today’s opinion does not itself precipitate a
direct confrontation with Congress by creating a cause of
action that Congress has not. But it invites precisely that
action by the lower courts, even while recognizing (1) that
Congress understood the difference between granting juris-
diction and creating a federal cause of action in 1789, ante,
at 713, (2) that Congress understands that difference today,
ante, at 728, and (3) that the ATS itself supplies only juris-
diction, ante, at 724. In holding open the possibility that
judges may create rights where Congress has not authorized
them to do so, the Court countenances judicial occupation of
a domain that belongs to the people’s representatives. One
does not need a crystal ball to predict that this occupation
will not be long in coming, since the Court endorses the rea-
soning of “many of the courts and judges who faced the issue
before it reached this Court,” including the Second and
Ninth Circuits. Ante, at 732.
The Ninth Circuit brought us the judgment that the Court
reverses today. Perhaps its decision in this particular case,

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748 SOSA v. ALVAREZ-MACHAIN
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like the decisions of other lower federal courts that receive
passing attention in the Court’s opinion, “reflects a more as-
sertive view of federal judicial discretion over claims based
on customary international law than the position we take
today.” Ante, at 736, n. 27. But the verbal formula it ap-
plied is the same verbal formula that the Court explicitly
endorses. Compare ante, at 732 (quoting In re Estate of
Marcos Human Rights Litigation, 25 F. 3d 1467, 1475 (CA9
1994), for the proposition that actionable norms must be
“ ‘specific, universal, and obligatory’ ”), with 331 F. 3d 604,
621 (CA9 2003) (en banc) (finding the norm against arbitrary
arrest and detention in this action to be “universal, obliga-
tory, and specific”); id., at 619 (“[A]n actionable claim under
the [ATS] requires the showing of a violation of the law of
nations that is specific, universal, and obligatory” (internal
quotation marks omitted)). Endorsing the very formula
that led the Ninth Circuit to its result in this action hardly
seems to be a recipe for restraint in the future.
The Second Circuit, which started the Judiciary down the
path the Court today tries to hedge in, is a good indicator of
where that path leads us: directly into confrontation with the
political branches. Kadic v. Karadz˘ic´, 70 F. 3d 232 (CA2
1995), provides a case in point. One of the norms at issue
in that case was a norm against genocide set forth in the
Convention on the Prevention and Punishment of the Crime
of Genocide, Dec. 9, 1948, 78 U. N. T. S. 278. The Second
Circuit held that the norm was actionable under the ATS
after applying Circuit case law that the Court today en-
dorses. 70 F. 3d, at 238–239, 241–242. The Court of Ap-
peals then did something that is perfectly logical and yet
truly remarkable: It dismissed the determination by Con-
gress and the Executive that this norm should not give rise
to a private cause of action. We know that Congress and
the Executive made this determination, because Congress
inscribed it into the Genocide Convention Implementation
Act of 1987, 18 U. S. C. § 1091 et seq., a law signed by the

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President attaching criminal penalties to the norm against
genocide. The Act, Congress said, shall not “be construed
as creating any substantive or procedural right enforceable
by law by any party in any proceeding.” § 1092. Unde-
terred, the Second Circuit reasoned that this “decision not
to create a new private remedy” could hardly be construed
as repealing by implication the cause of action supplied by
the ATS. 70 F. 3d, at 242 (emphasis added). Does this
Court truly wish to encourage the use of a jurisdiction-
granting statute with respect to which there is “no record of
congressional discussion about private actions that might be
subject to the jurisdictional provision, or about any need for
further legislation to create private remedies; [and] no rec-
ord even of debate on the section,” ante, at 718, to override
a clear indication from the political branches that a “specific,
universal, and obligatory” norm against genocide is not to be
enforced through a private damages action? Today’s opin-
ion leads the lower courts right down that perilous path.
Though it is not necessary to resolution of the present ac-
tion, one further consideration deserves mention: Despite the
avulsive change of Erie, the Framers who included reference
to “the Law of Nations” in Article I, § 8, cl. 10, of the Consti-
tution would be entirely content with the post-Erie system
I have described, and quite terrified by the “discretion” en-
dorsed by the Court. That portion of the general common
law known as the law of nations was understood to refer to
the accepted practices of nations in their dealings with one
another (treatment of ambassadors, immunity of foreign sov-
ereigns from suit, etc.) and with actors on the high seas hos-
tile to all nations and beyond all their territorial jurisdictions
(pirates). Those accepted practices have for the most part,
if not in their entirety, been enacted into United States stat-
utory law, so that insofar as they are concerned the demise
of the general common law is inconsequential. The notion
that a law of nations, redefined to mean the consensus of
states on any subject, can be used by a private citizen to

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750 SOSA v. ALVAREZ-MACHAIN
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control a sovereign’s treatment of its own citizens within its
own territory is a 20th-century invention of internationalist
law professors and human rights advocates. See generally
Bradley & Goldsmith, Critique of the Modern Position, 110
Harv. L. Rev., at 831–837. The Framers would, I am confi-
dent, be appalled by the proposition that, for example, the
American peoples’ democratic adoption of the death penalty,
see, e. g., Tex. Penal Code Ann. § 12.31 (West 2003), could
be judicially nullified because of the disapproving views of
foreigners.
* * *
We Americans have a method for making the laws that are
over us. We elect representatives to two Houses of Con-
gress, each of which must enact the new law and present it
for the approval of a President, whom we also elect. For
over two decades now, unelected federal judges have been
usurping this lawmaking power by converting what they
regard as norms of international law into American law. To-
day’s opinion approves that process in principle, though urg-
ing the lower courts to be more restrained.
This Court seems incapable of admitting that some mat-
ters—any matters—are none of its business. See, e. g.,
Rasul v. Bush, ante, p. 466; INS v. St. Cyr, 533 U. S. 289
(2001). In today’s latest victory for its Never Say Never
Jurisprudence, the Court ignores its own conclusion that the
ATS provides only jurisdiction, wags a finger at the lower
courts for going too far, and then—repeating the same for-
mula the ambitious lower courts themselves have used—in-
vites them to try again.
It would be bad enough if there were some assurance that
future conversions of perceived international norms into
American law would be approved by this Court itself.
(Though we know ourselves to be eminently reasonable,
self-awareness of eminent reasonableness is not really a sub-
stitute for democratic election.) But in this illegitimate law-
making endeavor, the lower federal courts will be the princi-

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Opinion of Ginsburg, J.
pal actors; we review but a tiny fraction of their decisions.
And no one thinks that all of them are eminently reasonable.
American law—the law made by the people’s democrati-
cally elected representatives—does not recognize a category
of activity that is so universally disapproved by other nations
that it is automatically unlawful here, and automatically
gives rise to a private action for money damages in federal
court. That simple principle is what today’s decision should
have announced.
Justice Ginsburg, with whom Justice Breyer joins,
concurring in part and concurring in the judgment.
I join in full the Court’s disposition of Alvarez’s claim pur-
suant to 28 U. S. C. § 1350. See ante, at 712–738. As to
Alvarez’s Federal Tort Claims Act (FTCA or Act) claim, see
ante, at 699–712, although I agree with the Court’s result
and much of its reasoning, I take a different path and would
adopt a different construction of 28 U. S. C. § 2680(k). Al-
varez’s case against the Government does not call for any
comparison of old versus newer choice-of-law methodologies.
See ante, at 708–710. See generally Kay, Theory into Prac-
tice: Choice of Law in the Courts, 34 Mercer L. Rev. 521,
525–584 (1983). In particular, the Court’s discussion of de-
velopments in choice of law after the FTCA’s enactment
hardly illuminates the meaning of that statute, and risks giv-
ing undue prominence to a jurisdiction-selecting approach
the vast majority of States have long abandoned. See Sy-
meonides, Choice of Law in the American Courts in 2002:
Sixteenth Annual Survey, 51 Am. J. Comp. L. 1, 5–6 (2003)
(lex loci delicti rule has been abandoned in 42 States).
I
The FTCA renders the United States liable for tort claims
“in the same manner and to the same extent as a private
individual under like circumstances.” 28 U. S. C. § 2674.
The Act gives federal district courts “exclusive jurisdiction

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of civil actions on claims against the United States, for
money damages . . . for injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment, under circum-
stances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the
place where the act or omission occurred.” § 1346(b)(1).
Congress included in the FTCA a series of exceptions to that
sovereign-immunity waiver. Relevant to this litigation, the
Act expressly excepts “[a]ny claim arising in a foreign coun-
try.” § 2680(k). I agree with the Court, see ante, at 699–
712, that this provision, the foreign-country exception, ap-
plies here, and bars Alvarez’s tort claim against the United
States. But I would read the words “arising in,” as they
appear in § 2680(k), to signal “place where the act or omission
occurred,” § 1346(b)(1), not “place of injury,” ante, at 707–708,
711, and n. 9.1
1 In common with § 2680(k), most of the exceptions listed in § 2680 use
the “claim arising” formulation. See §§ 2680(b), (c), (e), (h), ( j), (l), (m),
and (n). Only two use the “act or omission” terminology. See § 2680(a)
(exception for “[a]ny claim based upon an act or omission of an employee
of the Government, exercising due care, in the execution of a statute or
regulation . . . or based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty . . .”); § 2680(e) (no
liability for “[a]ny claim arising out of an act or omission of any employee
of the Government in administering [certain provisions concerning war
and national defense]”). It is hardly apparent, however, that Congress
intended only §§ 2680(a) and (e) to be interpreted in accord with § 1346(b).
Congress used the phrase “arising out of ” for § 2680 exceptions that focus
on a governmental act or omission. See § 2680(b) (exception for “[a]ny
claim arising out of the loss, miscarriage, or negligent transmission of let-
ters or postal matter”); § 2680(h) (no liability for “[a]ny claim arising out
of assault, battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit, or interference
with contractual rights”). Given that usage, and in light of the legislative

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Opinion of Ginsburg, J.
A
On its face, the foreign-country exception appears to cover
this litigation. See ante, at 700. Alvarez’s suit is predi-
cated on an arrest in Mexico alleged to be “false” only be-
cause it occurred there. Sosa’s conduct in Mexico, implicat-
ing questions of Mexican law, is, as the Court notes, “the
kernel” of Alvarez’s claim. Ante, at 701. Once Alvarez was
inside United States borders, the Ninth Circuit observed, no
activity regarding his detention was tortious. See 331 F. 3d
604, 636–637 (2003). Government liability to Alvarez, as an-
alyzed by the Court of Appeals, rested solely upon a false-
arrest claim. Id., at 640–641. Just as Alvarez’s arrest was
“false,” and thus tortious, only because, and only to the ex-
tent that, it took place and endured in Mexico, so damages
accrued only while the alleged wrongful conduct continued
abroad. Id., at 636–637.
Critical in the Ninth Circuit’s view, “DEA agents had no
authority under federal law to execute an extraterritorial
arrest of a suspect indicted in federal court in Los Angeles.”
Id., at 640; see ante, at 700–701, n. 1. See also Fermino v.
Fedco, Inc., 7 Cal. 4th 701, 715, 872 P. 2d 559, 567 (1994)
(defining as tortious “the nonconsensual, intentional con-
finement of a person, without lawful privilege, for an appre-
ciable length of time, however short” (emphasis added and
internal quotation marks omitted)); App. to Pet. for Cert. in
No. 03–339, p. 184a (same). Once Alvarez arrived in El Paso,
Texas, “the actions of domestic law enforcement set in mo-
history of § 2680(k), omission of a reference to an “act or omission of any
employee” from that provision may reflect only Congress’ attempt to use
the least complex statutory language feasible. Cf. Sami v. United States,
617 F. 2d 755, 762, n. 7 (CADC 1979) (“We do not think the omission of a
specific reference to acts or omissions in § 2680(k) was meaningful or that
the focus of that exemption shifted from acts or omissions to resultant
injuries.”).

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tion a supervening prosecutorial mechanism which met all of
the procedural requisites of federal due process.” 331 F. 3d,
at 637; see ante, at 700–701, n. 1.
Accepting, as the Ninth Circuit did, that no tortious act
occurred once Alvarez was within United States borders, the
Government’s liability on Alvarez’s claim for false arrest nec-
essarily depended on the foreign location of the arrest and
implicated foreign law. While the Court of Appeals focused
on whether United States law furnished authority to seize
Alvarez in Mexican territory, see 331 F. 3d, at 626–631, Mexi-
can law equally could have provided—or denied—authority
for such an arrest. Had Sosa and the arrest team been Mex-
ican law enforcement officers, authorized by Mexican law to
arrest Alvarez and to hand him over to United States author-
ities, for example, no false-arrest claim would have been ten-
able. Similarly, there would have been no viable false-
arrest claim if Mexican law authorized a citizen’s arrest in
the circumstances presented here. Indeed, Mexican and
Honduran agents seized other suspects indicted along with
Alvarez, respectively in Mexico and Honduras; “Alvarez’s ab-
duction was unique in that it involved neither the coopera-
tion of local police nor the consent of a foreign government.”
Id., at 623, n. 23.
The interpretation of the FTCA adopted by the Ninth Cir-
cuit, in short, yielded liability based on acts occurring in
Mexico that entangled questions of foreign law. Subjecting
the United States to liability depending upon the law of a
foreign sovereign, however, was the very result § 2680(k)’s
foreign-country exception aimed to exclude. See United
States v. Spelar, 338 U. S. 217, 221 (1949).
B
I would construe the foreign-country exception, § 2680(k),
in harmony with the FTCA’s sovereign-immunity waiver,
§ 1346(b), which refers to the place where the negligent or
intentional act occurred. See Brief for United States in

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Opinion of Ginsburg, J.
No. 03–485, p. 45 (urging that § 2680(k) should be applied by
looking to “where the prohibited act is committed”); id., at
46 (“the foreign country exception must be viewed together
with [§ ]1346,” which points to “the law of the place where
the [allegedly wrongful] act or omission occurred” (inter-
nal quotation marks and citations omitted and emphasis
deleted)).
Interpretation of § 2680(k) in the light of § 1346, as the
Government maintains, is grounded in this Court’s prece-
dent. In construing § 2680(k)’s reference to a “foreign coun-
try,” this Court has “draw[n] support from the language of
§ 1346(b), the principal provision of the [FTCA].” Smith v.
United States, 507 U. S. 197, 201 (1993) (internal quotation
marks omitted). In Smith, the Court held that a wrongful-
death action “based exclusively on acts or omissions occur-
ring in Antarctica” was barred by the foreign-country ex-
ception. Id., at 198–199. Were it not, the Court noted,
Ҥ 1346(b) would instruct courts to look to the law of a place
that has no law [i. e., Antarctica] in order to determine the
liability of the United States—surely a bizarre result.” Id.,
at 201–202. Thus, in Smith, the Court presumed that the
place “where the act or omission occurred” for purposes of
the sovereign-immunity waiver, § 1346(b)(1), coincided with
the place where the “claim ar[ose]” for purposes of the
foreign-country exception, § 2680(k). See also Beattie v.
United States, 756 F. 2d 91, 122 (CADC 1984) (Scalia, J., dis-
senting) (“[A] claim ‘arises’ for purposes of § 2680(k) where
there occurs the alleged [standard-of-care] violation . . . (at-
tributable to government action or inaction) nearest to the
injury . . . .”); Sami v. United States, 617 F. 2d 755, 761–762
(CADC 1979) (looking to where “the act or omission com-
plained of occurred” in applying § 2680(k)).
Harmonious construction of §§ 1346(b) and 2680(k) accords
with Congress’ intent in enacting the foreign-country excep-
tion. Congress was “unwilling to subject the United States
to liabilities depending upon the laws of a foreign power.”

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Spelar, 338 U. S., at 221. The legislative history of the
FTCA suggests that Congress viewed cases in which the
relevant act or omission occurred in a foreign country as
entailing too great a risk of foreign-law application. Thus,
Assistant Attorney General Francis M. Shea, in explaining
the finally enacted version of the foreign-country exception
to the House Committee on the Judiciary, emphasized that,
when an act or omission occurred in a foreign country,
§ 1346(b) would direct a court toward the law of that country:
“Since liability is to be determined by the law of the situs of
the wrongful act or omission it is wise to restrict the bill to
claims arising in this country.” Hearings on H. R. 5373
et al. before the House Committee on the Judiciary, 77th
Cong., 2d Sess., 35 (1942) (emphasis added); see ante, at 707.2
In the enacting Congress’ view, it thus appears, §§ 1346(b)
and 2680(k) were aligned so as to block the United States’
waiver of sovereign immunity when the relevant act or omis-
sion took place overseas. See supra, at 752–753, n. 1.
True, the Court has read renvoi into § 1346(b)(1)’s words
“in accordance with the law of.” See Richards v. United
States, 369 U. S. 1, 11 (1962) (“the [FTCA] . . . requires appli-
cation of the whole law of the State where the act or omission
occurred” (emphasis added)).3 That, however, is no reason
to resist defining the place where a claim arises for § 2680(k)
purposes to mean the place where the liability-creating act
2 The foreign-country exception’s focus on the location of the tortious act
or omission is borne out by a further colloquy during the hearing before
the House Committee on the Judiciary. A member of that Committee
asked whether he understood correctly that “any representative of the
United States who committed a tort in England or some other country
could not be reached under [the FTCA].” Hearings on H. R. 5373 et al.,
at 35 (emphasis added). Assistant Attorney General Shea said yes to that
understanding of § 2680(k). Ibid.
3 Renvoi is “[t]he doctrine under which a court in resorting to foreign
law adopts as well the foreign law’s conflict-of-laws principles, which may
in turn refer the court back to the law of the forum.” Black’s Law Dic-
tionary 1300 (7th ed. 1999).

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or omission occurred, with no renvoi elsewhere. It is one
thing to apply renvoi to determine which State, within the
United States, supplies the governing law, quite another to
suppose that Congress meant United States courts to ex-
plore what choice of law a foreign court would make.4
In 1948, when the FTCA was enacted, it is also true, Con-
gress reasonably might have anticipated that the then
prevailing choice-of-law methodology, reflected in the Re-
statement (First) of Conflicts, would lead mechanically to the
law of the place of injury. See Restatement (First) of Con-
flicts § 377 (1934) (“The place of wrong is in the state where
the last event necessary to make an actor liable for an al-
leged tort takes place.”); Richards, 369 U. S., at 11–12 (“The
general conflict-of-laws rule, followed by a vast majority of
the States, [wa]s to apply the law of the place of injury to
the substantive rights of the parties.” (footnote omitted));
ante, at 705–707, 708, n. 5 (same). Generally, albeit not al-
ways, the place where the negligent or intentional act or
omission takes place coincides with the place of injury.5
Looking to the whole law of the State where the wrongful
“act or omission occurred” would therefore ordinarily lead to
application of that State’s own law. But cf. ante, at 707–708,
711–712 (adopting a place-of-injury rule for § 2680(k)).
4 Reading renvoi into § 1346(b)(1), even to determine which State sup-
plies the governing law, moreover, is questionable. See Shapiro, Choice
of Law Under the Federal Tort Claims Act: Richards and Renvoi Revis-
ited, 70 N. C. L. Rev. 641, 679 (1992) (“It is only fair that federal liability
be determined by the law where the federal employee’s negligence took
place, as Congress intended. The simplicity of the internal law approach
is preferable to the complexity and opportunity for manipulation of [Rich-
ards’] whole law construction.”).
5 Enacting the FTCA, Congress was concerned with quotidian “wrongs
which would have been actionable if inflicted by an individual or a corpora-
tion,” Feres v. United States, 340 U. S. 135, 139–140 (1950), such as vehicu-
lar accidents, see S. Rep. No. 1400, 79th Cong., 2d Sess., 31 (1946). See
also ante, at 706, n. 4. The place of injury in such torts almost inevitably
would be the place the act or omission occurred as well.

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758 SOSA v. ALVAREZ-MACHAIN
Opinion of Ginsburg, J.
II
The Ninth Circuit concluded that the foreign-country ex-
ception did not bar Alvarez’s false-arrest claim because that
claim “involve[d] federal employees working from offices in
the United States to guide and supervise actions in other
countries.” 331 F. 3d, at 638. In so holding, the Court
of Appeals applied a “ ‘headquarters doctrine,’ ” whereby
“a claim can still proceed . . . if harm occurring in a for-
eign country was proximately caused by acts in the United
States.” Ibid.
There is good reason to resist the headquarters doctrine
described and relied upon by the Ninth Circuit. The Court
of Appeals’ employment of that doctrine renders the FTCA’s
foreign-country exception inapplicable whenever some au-
thorization, support, or planning takes place in the United
States. But “it will virtually always be possible to assert
that the negligent [or intentional] activity that injured the
plaintiff was the consequence of faulty training, selection or
supervision—or even less than that, lack of careful training,
selection or supervision—in the United States.” Beattie,
756 F. 2d, at 119 (Scalia, J., dissenting); see ante, at 702–703
(same). Hence the headquarters doctrine, which considers
whether steps toward the commission of the tort occurred
within the United States, risks swallowing up the foreign-
country exception.
Furthermore, the Court of Appeals failed to address the
choice-of-law question implicated by both §§ 1346(b) and
2680(k) whenever tortious acts are committed in multiple
states. Both those provisions direct federal courts “in
multistate tort actions, to look in the first instance to the law
of the place where the acts of negligence [or the intentional
tort] took place.” Richards, 369 U. S., at 10. In cases in-
volving acts or omissions in several states, the question is
which acts count. “Neither the text of the FTCA nor Rich-
ards provides any guidance . . . when the alleged acts or
omissions occur in more than one state. Moreover, the leg-

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759 Cite as: 542 U. S. 692 (2004)
Opinion of Ginsburg, J.
islative history of the FTCA sheds no light on this problem.”
Gould Electronics Inc. v. United States, 220 F. 3d 169, 181
(CA3 2000); see Raflo v. United States, 157 F. Supp. 2d 1, 9
(DC 2001) (same).
Courts of appeals have adopted varying approaches to this
question. See Simon v. United States, 341 F. 3d 193, 202
(CA3 2003) (listing five different choice-of-law methodologies
for § 1346(b)(1)); Gould Electronics, 220 F. 3d, at 181–183
(same). 6 Having canvassed those different approaches,
Third Circuit Judge Becker concluded that “clarity is the
most important virtue in crafting a rule by which [a federal
court would] choose a jurisdiction.” Simon, 341 F. 3d, at
204. Eschewing “vague and overlapping” approaches that
yielded “indeterminate” results, Judge Becker “appl[ied]
[under § 1346(b)(1)] the choice-of-law regime of the jurisdic-
tion in which the last significant act or omission occurred.
This has the salutary effect of avoiding the selection of a
jurisdiction based on a completely incidental ‘last contact,’
6 As cataloged by the Court of Appeals for the Third Circuit, these are:
“(1) applying different rules to different theories of liability; (2) choosing
the place of the last allegedly-wrongful act or omission; (3) determining
which asserted act of wrongdoing had the most significant effect on the
injury; (4) choosing the state in which the United States’ physical actions
could have prevented injury; and (5) determining where the ‘relevant’ act
or omission occurred.” Simon, 341 F. 3d, at 202. For cases applying and
discussing one or another of those five approaches, see Ducey v. United
States, 713 F. 2d 504, 508, n. 2 (CA9 1983) (considering where “physical
acts” that could have prevented the harm would have occurred); Hitchcock
v. United States, 665 F. 2d 354, 359 (CADC 1981) (looking for the “rele-
vant” act or omission); Bowen v. United States, 570 F. 2d 1311, 1318 (CA7
1978) (noting “the alternatives of the place of the last act or omission
having a causal effect, or the place of the act or omission having the most
significant causal effect,” but finding that both rules would lead to the
same place); Raflo v. United States, 157 F. Supp. 2d 1, 10 (DC 2001) (apply-
ing Hitchcock’s relevance test by looking for the place where the “most
substantial portion of the acts or omissions occurred”); Kohn v. United
States, 591 F. Supp. 568, 572 (EDNY 1984) (applying different States’
choice-of-law rules on an act-by-act basis).

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760 SOSA v. ALVAREZ-MACHAIN
Opinion of Breyer, J.
while also avoiding the conjecture that [alternative] inquires
often entail.” Ibid. I agree.
A “last significant act or omission” rule applied under
§ 2680(k) would close the door to the headquarters doctrine
as applied by the Ninth Circuit in this litigation. By direct-
ing attention to the place where the last significant act or
omission occurred, rather than to a United States location
where some authorization, support, or planning may have
taken place, the clear rule advanced by Judge Becker pre-
serves § 2680(k) as the genuine limitation Congress intended
it to be.
The “last significant act or omission” rule works in this
litigation to identify Mexico, not California, as the place
where the instant controversy arose. I would apply that
rule here to hold that Alvarez’s tort claim for false ar-
rest under the FTCA is barred under the foreign-country
exception.
Accordingly, I concur in the Court’s judgment and concur
in Parts I, III, and IV of its opinion.
Justice Breyer, concurring in part and concurring in
the judgment.
I join Justice Ginsburg ’s concurrence and join the
Court’s opinion in respect to the Alien Tort Statute (ATS)
claim. The Court says that to qualify for recognition under
the ATS a norm of international law must have a content as
definite as, and an acceptance as widespread as, those that
characterized 18th-century international norms prohibiting
piracy. Ante, at 732. The norm must extend liability to the
type of perpetrator (e. g., a private actor) the plaintiff seeks
to sue. Ante, at 732, n. 20. And Congress can make clear
that courts should not recognize any such norm, through a
direct or indirect command or by occupying the field. See
ante, at 731. The Court also suggests that principles of ex-
haustion might apply, and that courts should give “serious
weight” to the Executive Branch’s view of the impact on for-

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Opinion of Breyer, J.
eign policy that permitting an ATS suit will likely have in a
given case or type of case. Ante, at 733, n. 21. I believe
all of these conditions are important.
I would add one further consideration. Since enforcement
of an international norm by one nation’s courts implies that
other nations’ courts may do the same, I would ask whether
the exercise of jurisdiction under the ATS is consistent with
those notions of comity that lead each nation to respect the
sovereign rights of other nations by limiting the reach of its
laws and their enforcement. In applying those principles,
courts help ensure that “the potentially conflicting laws of
different nations” will “work together in harmony,” a matter
of increasing importance in an ever more interdependent
world. F. Hoffmann-La Roche Ltd v. Empagran S. A.,
ante, at 164; cf. Murray v. Schooner Charming Betsy, 2
Cranch 64, 118 (1804). Such consideration is necessary to
ensure that ATS litigation does not undermine the very har-
mony that it was intended to promote. See ante, at 715–718.
These comity concerns normally do not arise (or at least
are mitigated) if the conduct in question takes place in the
country that provides the cause of action or if that conduct
involves that country’s own national—where, say, an Ameri-
can assaults a foreign diplomat and the diplomat brings suit
in an American court. See Restatement (Third) of Foreign
Relations Law of the United States §§ 402(1), (2) (1986)
(hereinafter Restatement) (describing traditional bases of
territorial and nationality jurisdiction). They do arise, how-
ever, when foreign persons injured abroad bring suit in the
United States under the ATS, asking the courts to recognize
a claim that a certain kind of foreign conduct violates an
international norm.
Since different courts in different nations will not neces-
sarily apply even similar substantive laws similarly, work-
able harmony, in practice, depends upon more than substan-
tive uniformity among the laws of those nations. That is to
say, substantive uniformity does not automatically mean

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762 SOSA v. ALVAREZ-MACHAIN
Opinion of Breyer, J.
that universal jurisdiction is appropriate. Thus, in the 18th
century, nations reached consensus not only on the substan-
tive principle that acts of piracy were universally wrong but
also on the jurisdictional principle that any nation that found
a pirate could prosecute him. See, e. g., United States v.
Smith, 5 Wheat. 153, 162 (1820) (referring to “the general
practice of all nations in punishing all persons, whether na-
tives or foreigners, who have committed [piracy] against any
persons whatsoever, with whom they are in amity”).
Today international law will sometimes similarly reflect
not only substantive agreement as to certain universally con-
demned behavior but also procedural agreement that univer-
sal jurisdiction exists to prosecute a subset of that behavior.
See Restatement § 404, and Comment a; International Law
Association, Final Report on the Exercise of Universal Juris-
diction in Respect of Gross Human Rights Offences 2 (2000).
That subset includes torture, genocide, crimes against hu-
manity, and war crimes. See id., at 5–8; see also, e. g.,
Prosecutor v. Furundzija, Case No. IT–95–17/1–T, ¶¶ 155–
156 (International Tribunal for Prosecution of Persons Re-
sponsible for Serious Violations of International Humanitar-
ian Law Committed in Territory of Former Yugoslavia Since
1991, Dec. 10, 1998); Attorney Gen. of Israel v. Eichmann,
36 I. L. R. 277 (Sup. Ct. Israel 1962).
The fact that this procedural consensus exists suggests
that recognition of universal jurisdiction in respect to a lim-
ited set of norms is consistent with principles of international
comity. That is, allowing every nation’s courts to adjudicate
foreign conduct involving foreign parties in such cases will
not significantly threaten the practical harmony that comity
principles seek to protect. That consensus concerns crimi-
nal jurisdiction, but consensus as to universal criminal juris-
diction itself suggests that universal tort jurisdiction would
be no more threatening. Cf. Restatement § 404, Comment
b. That is because the criminal courts of many nations com-
bine civil and criminal proceedings, allowing those injured

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Opinion of Breyer, J.
by criminal conduct to be represented, and to recover dam-
ages, in the criminal proceeding itself. Brief for European
Commission as Amicus Curiae 21, n. 48 (citing 3 Y. Donzal-
laz, La Convention de Lugano du 16 septembre 1988 concern-
ant la compe´ tence judiciaire et l’exe´ cution des de´ cisions en
matie` re civile et commerciale, ¶¶ 5203–5272 (1998); EC
Council Regulation Art. 5, § 4, No. 44/2001, 2001 O. J. (L 12/
1) (Jan. 16, 2001)). Thus, universal criminal jurisdiction nec-
essarily contemplates a significant degree of civil tort recov-
ery as well.
Taking these matters into account, as I believe courts
should, I can find no similar procedural consensus supporting
the exercise of jurisdiction in these cases. That lack of con-
sensus provides additional support for the Court’s conclusion
that the ATS does not recognize the claim at issue here—
where the underlying substantive claim concerns arbitrary
arrest, outside the United States, of a citizen of one foreign
country by another.

Job: 542ORD Take: NOT1 B.V. Date/Time: 10-05-06 17:14:59
Reporter’s Note
The next page is purposely numbered 901. The numbers between 763
and 901 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita-
tions available upon publication of the preliminary prints of the United
States Reports.