ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.

[333] Mr. Dallas V. Halverstadt, for plaintiff in error, submitted. Mr. E. Heister Guie was also on the brief.

Mr. Charles T. Donworth, with whom Mr. Thomas J.L. Kennedy, Mr. Walter B. Beals and Mr. Edwin C. Ewing were on the brief, for defendants in error.

[339] MR. JUSTICE BUTLER delivered the opinion of the Court.

Plaintiff in error is a subject of the Emperor of Japan, and, since 1904, has resided in Seattle, Washington. Since July, 1915, he has been engaged in business there as a pawnbroker. The city passed an ordinance, which took effect July 2, 1921, regulating the business of pawnbroker and repealing former ordinances on the same subject. It makes it unlawful for any person to engage in the business unless he shall have a license, and the ordinance provides [340] "that no such license shall be granted unless the applicant be a citizen of the United States." Violations of the ordinance are punishable by fine or imprisonment or both. Plaintiff in error brought this suit in the Superior Court of King County, Washington, against the city, its Comptroller and its Chief of Police to restrain them from enforcing the ordinance against him. He attacked the ordinance on the ground that it violates the treaty between the United States and the Empire of Japan, proclaimed April 5, 1911, 37 Stat. 1504; violates the constitution of the State of Washington, and also the due process and equal protection clauses of the Fourteenth Amendment of the Constitution of the United States. He declared his willingness to comply with any valid ordinance relating to the business of pawnbroker. It was shown that he had about $5,000 invested in his business, which would be broken up and destroyed by the enforcement of the ordinance. The Superior Court granted the relief prayed. On appeal, the Supreme Court of the State held the ordinance valid and reversed the decree. The case is here on writ of error under § 237 of the Judicial Code.

Does the ordinance violate the treaty? Plaintiff in error invokes and relies upon the following provisions: "The citizens or subjects of each of the High Contracting Parties shall have liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established. . . . The citizens or subjects of each . . . shall receive, in the territories of the other, the most constant protection and security for their persons and property, . . . ."

[341] A treaty made under the authority of the United States "shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding." Constitution, Art. VI, § 2.

The treaty-making power of the United States is not limited by any express provision of the Constitution, and, though it does not extend "so far as to authorize what the Constitution forbids," it does extend to all proper subjects of negotiation between our government and other nations. Geofroy v. Riggs, 133 U.S. 258, 266, 267; In re Ross, 140 U.S. 453, 463; Missouri v. Holland, 252 U.S. 416. The treaty was made to strengthen friendly relations between the two nations. As to the things covered by it, the provision quoted establishes the rule of equality between Japanese subjects while in this country and native citizens. Treaties for the protection of citizens of one country residing in the territory of another are numerous,^[1] and make for good understanding between nations. The treaty is binding within the State of Washington. Baldwin v. Franks, 120 U.S. 678, 682-683. The rule of equality established by it cannot be rendered nugatory in any part of the United States by municipal ordinances or state laws. It stands on the same footing of supremacy as do the provisions of the Constitution and laws of the United States. It operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts. Foster v. Neilson, 2 Pet. 253, 314; Head Money Cases, 112 U.S. 580, 598; Chew Heong v. United States, 112 U.S. 536, 540; Whitney v. Robertson, 124 U.S. 190, 194; Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268, 272.

The purpose of the ordinance complained of is to regulate, not to prohibit, the business of pawnbroker. But it [342] makes it impossible for aliens to carry on the business. It need not be considered whether the State, if it sees fit, may forbid and destroy the business generally. Such a law would apply equally to aliens and citizens, and no question of conflict with the treaty would arise. The grievance here alleged is that plaintiff in error, in violation of the treaty, is denied equal opportunity.

It remains to be considered whether the business of pawnbroker is "trade" within the meaning of the treaty. Treaties are to be construed in a broad and liberal spirit, and, when two constructions are possible, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred. Hauenstein v. Lynham, 100 U.S. 483, 487; Geofroy v. Riggs, supra, 271; Tucker v. Alexandroff, 183 U.S. 424, 437. The ordinance defines "pawnbroker" to "mean and include every person whose business or occupation [it] is to take and receive by way of pledge, pawn or exchange, goods, wares or merchandise, or any kind of personal property whatever, for the repayment or security of any money loaned thereon, or to loan money on deposit of personal property"; and defines "pawnshop" to "mean and include every place at which the business of pawnbroker is carried on." The language of the treaty is comprehensive. The phrase "to carry on trade" is broad. That it is not to be given a restricted meaning is plain. The clauses "to own or lease . . . shops, . . . to lease land for . . . commercial purposes, and generally to do anything incident to or necessary for trade," and "shall receive . . . the most constant protection and security for their . . . property . . ." all go to show the intention of the parties that the citizens or subjects of either shall have liberty in the territory of the other to engage in all kinds and classes of business that are or reasonably may be embraced within the meaning of the word "trade" as used in the treaty.

[343] By definition contained in the ordinance, pawnbrokers are regarded as carrying on a "business." A feature of it is the lending of money upon the pledge or pawn of personal property which, in case of default, may be sold to pay the debt. While the amounts of the loans made in that business are relatively small and the character of property pledged as security is different, the transactions are similar to loans made by banks on collateral security. The business of lending money on portable securities has been carried on for centuries. In most of the countries of Europe, the pledge system is carried on by governmental agencies; in some of them the business is also carried on by private parties. In England, as in the United States, the private pledge system prevails. In this country, the practice of pledging personal property for loans dates back to early colonial times, and pawnshops have been regulated by state laws for more than a century. We have found no state legislation abolishing or forbidding the business. Most, if not all, of the States provide for licensing pawnbrokers and authorize regulation by municipalities. While regulation has been found necessary in the public interest, the business is not on that account to be excluded from the trade and commerce referred to in the treaty. Many worthy occupations and lines of legitimate business are regulated by state and federal laws for the protection of the public against fraudulent and dishonest practices. There is nothing in the character of the business of pawnbroker which requires it to be excluded from the field covered by the above quoted provision, and it must be held that such business is "trade" within the meaning of the treaty. The ordinance violates the treaty. The question in the present case relates solely to Japanese subjects who have been admitted to this country. We do not pass upon the right of admission or the construction of the treaty in this respect, as that question is not before us and would require consideration of [344] other matters with which it is not now necessary to deal. We need not consider other grounds upon which the ordinance is attacked.

Decree reversed.

[1] See "Handbook of Commercial Treaties," prepared by United States Tariff Commission, 1922.

[1352] Paul D. Clement, for United States as amicus curiae, by special leave of the Court, supporting the Petitioner.

R. Ted Cruz, for Respondent.

Donald Francis Donovan, Carl Micarelli, Catherine M. Amirfar, Bruce W. Klaw, Jill Van Berg, Emma C. Prete, Debevoise & Plimpton LLP, New York, New York, for Petitioner.

Greg Abbott, Attorney General of Texas, Kent C. Sullivan, First Assistant Attorney General, Eric J.R. Nichols, Deputy Attorney General for Criminal Justice, R. Ted Cruz, Solicitor General, Sean D. Jordan, Deputy Solicitor General, Kristofer S. Monson, Daniel L. Geyser, Adam W. Aston, Assistant Solicitors General Office of the Attorney General, Austin, Texas, for Respondent.

Chief Justice ROBERTS delivered the opinion of the Court.

The International Court of Justice (ICJ), located in the Hague, is a tribunal established pursuant to the United Nations Charter to adjudicate disputes between member states. In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Judgment of Mar. 31) (Avena), that tribunal considered a claim brought by Mexico against the United States. The ICJ held that, based on violations of the Vienna Convention, 51 named Mexican nationals were entitled to review and reconsideration of their state-court convictions and sentences in the United States. This was so regardless of any forfeiture of the right to raise Vienna Convention claims because of a failure to comply with generally applicable state rules governing challenges to criminal convictions.

In Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006)—issued after Avena but involving [1353] individuals who were not named in the Avena judgment—we held that, contrary to the ICJ's determination, the Vienna Convention did not preclude the application of state default rules. After the Avena decision, President George W. Bush determined, through a Memorandum to the Attorney General (Feb. 28, 2005), App. to Pet. for Cert. 187a (Memorandum or President's Memorandum), that the United States would "discharge its international obligations" under Avena "by having State courts give effect to the decision."

Petitioner José Ernesto Medellín, who had been convicted and sentenced in Texas state court for murder, is one of the 51 Mexican nationals named in the Avena decision. Relying on the ICJ's decision and the President's Memorandum, Medellín filed an application for a writ of habeas corpus in state court. The Texas Court of Criminal Appeals dismissed Medellín's application as an abuse of the writ under state law, given Medellín's failure to raise his Vienna Convention claim in a timely manner under state law. We granted certiorari to decide two questions. First, is the ICJ's judgment in Avena directly enforceable as domestic law in a state court in the United States? Second, does the President's Memorandum independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules? We conclude that neither Avena nor the President's Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. We therefore affirm the decision below.

I

A

In 1969, the United States, upon the advice and consent of the Senate, ratified the Vienna Convention on Consular Relations (Vienna Convention or Convention), Apr. 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No. 6820, and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention (Optional Protocol or Protocol), Apr. 24, 1963, [1970] 21 U.S.T. 325, T.I.A.S. No. 6820. The preamble to the Convention provides that its purpose is to "contribute to the development of friendly relations among nations." 21 U.S.T., at 79; Sanchez-Llamas, supra, at 337, 126 S.Ct. 2669. Toward that end, Article 36 of the Convention was drafted to "facilitat[e] the exercise of consular functions." Art. 36(1), 21 U.S.T., at 100. It provides that if a person detained by a foreign country "so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State" of such detention, and "inform the [detainee] of his righ[t]" to request assistance from the consul of his own state. Art. 36(1)(b), id., at 101.

The Optional Protocol provides a venue for the resolution of disputes arising out of the interpretation or application of the Vienna Convention. Art. I, 21 U.S.T., at 326. Under the Protocol, such disputes "shall lie within the compulsory jurisdiction of the International Court of Justice" and "may accordingly be brought before the [ICJ] ... by any party to the dispute being a Party to the present Protocol." Ibid.

The ICJ is "the principal judicial organ of the United Nations." United Nations Charter, Art. 92, 59 Stat. 1051, T.S. No. 993 (1945). It was established in 1945 pursuant to the United Nations Charter. The ICJ Statute—annexed to the U.N. Charter—provides the organizational framework and governing procedures for cases brought before the ICJ. Statute of [1354] the International Court of Justice (ICJ Statute), 59 Stat. 1055, T.S. No. 993 (1945).

Under Article 94(1) of the U.N. Charter, "[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party." 59 Stat. 1051. The ICJ's jurisdiction in any particular case, however, is dependent upon the consent of the parties. See Art. 36, 59 Stat. 1060. The ICJ Statute delineates two ways in which a nation may consent to ICJ jurisdiction: It may consent generally to jurisdiction on any question arising under a treaty or general international law, Art. 36(2), ibid., or it may consent specifically to jurisdiction over a particular category of cases or disputes pursuant to a separate treaty, Art. 36(1), ibid. The United States originally consented to the general jurisdiction of the ICJ when it filed a declaration recognizing compulsory jurisdiction under Art. 36(2) in 1946. The United States withdrew from general ICJ jurisdiction in 1985. See U.S. Dept. of State Letter and Statement Concerning Termination of Acceptance of ICJ Compulsory Jurisdiction (Oct. 7, 1985), reprinted in 24 I.L.M. 1742 (1985). By ratifying the Optional Protocol to the Vienna Convention, the United States consented to the specific jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention. On March 7, 2005, subsequent to the ICJ's judgment in Avena, the United States gave notice of withdrawal from the Optional Protocol to the Vienna Convention. Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations.

B

Petitioner José Ernesto Medellín, a Mexican national, has lived in the United States since preschool. A member of the "Black and Whites" gang, Medellín was convicted of capital murder and sentenced to death in Texas for the gang rape and brutal murders of two Houston teenagers.

On June 24, 1993, 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena were walking home when they encountered Medellín and several fellow gang members. Medellín attempted to engage Elizabeth in conversation. When she tried to run, petitioner threw her to the ground. Jennifer was grabbed by other gang members when she, in response to her friend's cries, ran back to help. The gang members raped both girls for over an hour. Then, to prevent their victims from identifying them, Medellín and his fellow gang members murdered the girls and discarded their bodies in a wooded area. Medellín was personally responsible for strangling at least one of the girls with her own shoelace.

Medellín was arrested at approximately 4 a.m. on June 29, 1993. A few hours later, between 5:54 and 7:23 a.m., Medellín was given Miranda warnings; he then signed a written waiver and gave a detailed written confession. App. to Brief for Respondent 32-36. Local law enforcement officers did not, however, inform Medellín of his Vienna Convention right to notify the Mexican consulate of his detention. Brief for Petitioner 6-7. Medellín was convicted of capital murder and sentenced to death; his conviction and sentence were affirmed on appeal. Medellín v. State, No. 71,997 (Tex.Crim.App., May 16, 1997), App. to Brief for Respondent 2-31.

Medellín first raised his Vienna Convention claim in his first application for state postconviction relief. The state trial court held that the claim was procedurally defaulted because Medellín had failed to raise it at trial or on direct review. The trial court also rejected the Vienna Convention claim on the merits, finding that Medellín had "fail[ed] to show that any [1355] non-notification of the Mexican authorities impacted on the validity of his conviction or punishment." Id., at 62.^[1] The Texas Court of Criminal Appeals affirmed. Id., at 64-65.

Medellín then filed a habeas petition in Federal District Court. The District Court denied relief, holding that Medellín's Vienna Convention claim was procedurally defaulted and that Medellín had failed to show prejudice arising from the Vienna Convention violation. See Medellín v. Cockrell, Civ. Action No. H-01-4078 (SD Tex., June 26, 2003), App. to Brief for Respondent 86-92.

While Medellín's application for a certificate of appealability was pending in the Fifth Circuit, the ICJ issued its decision in Avena. The ICJ held that the United States had violated Article 36(1)(b) of the Vienna Convention by failing to inform the 51 named Mexican nationals, including Medellín, of their Vienna Convention rights. 2004 I.C. J., at 53-55. In the ICJ's determination, the United States was obligated "to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals." Id., at 72. The ICJ indicated that such review was required without regard to state procedural default rules. Id., at 56-57.

The Fifth Circuit denied a certificate of appealability. Medellín v. Dretke, 371 F.3d 270, 281 (2004). The court concluded that the Vienna Convention did not confer individually enforceable rights. Id., at 280. The court further ruled that it was in any event bound by this Court's decision in Breard v. Greene, 523 U.S. 371, 375, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (per curiam), which held that Vienna Convention claims are subject to procedural default rules, rather than by the ICJ's contrary decision in Avena. 371 F.3d, at 280.

This Court granted certiorari. Medellín v. Dretke, 544 U.S. 660, 661, 125 S.Ct. 2088, 161 L.Ed.2d 982 (2005) (per curiam) (Medellín I). Before we heard oral argument, however, President George W. Bush issued his Memorandum to the United States Attorney General, providing:

I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena], by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision. App. to Pet. for Cert. 187a.

[1356] Medellín, relying on the President's Memorandum and the ICJ's decision in Avena, filed a second application for habeas relief in state court. Ex parte Medellín, 223 S.W.3d 315, 322-323 (Tex.Crim. App.2006). Because the state-court proceedings might have provided Medellín with the review and reconsideration he requested, and because his claim for federal relief might otherwise have been barred, we dismissed his petition for certiorari as improvidently granted. Medellín I, supra, at 664, 125 S.Ct. 2088.

The Texas Court of Criminal Appeals subsequently dismissed Medellín's second state habeas application as an abuse of the writ. 223 S.W.3d, at 352. In the court's view, neither the Avena decision nor the President's Memorandum was "binding federal law" that could displace the State's limitations on the filing of successive habeas applications. Ibid. We again granted certiorari. 550 U.S. ___, 127 S.Ct. 2129, 167 L.Ed.2d 862 (2007).

II

Medellín first contends that the ICJ's judgment in Avena constitutes a "binding" obligation on the state and federal courts of the United States. He argues that "by virtue of the Supremacy Clause, the treaties requiring compliance with the Avena judgment are already the `Law of the Land' by which all state and federal courts in this country are `bound.'" Reply Brief for Petitioner 1. Accordingly, Medellín argues, Avena is a binding federal rule of decision that pre-empts contrary state limitations on successive habeas petitions.

No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.

This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall's opinion in Foster v. Neilson, 2 Pet. 253, 315, 7 L.Ed. 415 (1829), overruled on other grounds, United States v. Percheman, 7 Pet. 51, 8 L.Ed. 604 (1833), which held that a treaty is "equivalent to an act of the legislature," and hence self-executing, when it "operates of itself without the aid of any legislative provision." Foster, supra, at 314. When, in contrast, "[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect." Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 31 L.Ed. 386 (1888). In sum, while treaties "may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be `self-executing' and is ratified on these terms." Igartua-De La Rosa v. United States, 417 F.3d 145, 150 (C.A.1 2005) (en banc) (Boudin, C. J.).^[2]

[1357] A treaty is, of course, "primarily a compact between independent nations." Head Money Cases, 112 U.S. 580, 598, 5 S.Ct. 247, 28 L.Ed. 798 (1884). It ordinarily "depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it." Ibid.; see also The Federalist No. 33, p. 207 (J. Cooke ed. 1961) (A. Hamilton) (comparing laws that individuals are "bound to observe" as "the supreme law of the land" with "a mere treaty, dependent on the good faith of the parties"). "If these [interests] fail, its infraction becomes the subject of international negotiations and reclamations. . . . It is obvious that with all this the judicial courts have nothing to do and can give no redress." Head Money Cases, supra, at 598, 112 U.S. 580. Only "[i]f the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, [will] they have the force and effect of a legislative enactment." Whitney, supra, at 194, 8 S.Ct. 456.^[3]

Medellín and his amici nonetheless contend that the Optional Protocol, United Nations Charter, and ICJ Statute supply the "relevant obligation" to give the Avena judgment binding effect in the domestic courts of the United States. Reply Brief for Petitioner 5-6.^[4] Because none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we conclude that the Avena judgment is not automatically binding domestic law.

A

The interpretation of a treaty, like the interpretation of a statute, begins with its text. Air France v. Saks, 470 U.S. 392, 396-397, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). Because a treaty ratified by the United States is "an agreement among sovereign powers," we have also considered as "aids to its interpretation" the negotiation and drafting history of the treaty as well as "the postratification understanding" of signatory nations. Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996); see also United States v. Stuart, 489 U.S. 353, 365-366, 109 S.Ct. 1183, 103 [1358] L.Ed.2d 388 (1989); Choctaw Nation v. United States, 318 U.S. 423, 431-432, 63 S.Ct. 672, 87 L.Ed. 877 (1943).

As a signatory to the Optional Protocol, the United States agreed to submit disputes arising out of the Vienna Convention to the ICJ. The Protocol provides: "Disputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice." Art. I, 21 U.S.T., at 326. Of course, submitting to jurisdiction and agreeing to be bound are two different things. A party could, for example, agree to compulsory nonbinding arbitration. Such an agreement would require the party to appear before the arbitral tribunal without obligating the party to treat the tribunal's decision as binding. See, e.g., North American Free Trade Agreement, U.S.-Can.-Mex., Art. 2018(1), Dec. 17, 1992, 32 I.L.M. 605, 697 (1993) ("On receipt of the final report of [the arbitral panel requested by a Party to the agreement], the disputing Parties shall agree on the resolution of the dispute, which normally shall conform with the determinations and recommendations of the panel").

The most natural reading of the Optional Protocol is as a bare grant of jurisdiction. It provides only that "[d]isputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice" and "may accordingly be brought before the [ICJ]. . . by any party to the dispute being a Party to the present Protocol." Art. I, 21 U.S.T., at 326. The Protocol says nothing about the effect of an ICJ decision and does not itself commit signatories to comply with an ICJ judgment. The Protocol is similarly silent as to any enforcement mechanism.

The obligation on the part of signatory nations to comply with ICJ judgments derives not from the Optional Protocol, but rather from Article 94 of the United Nations Charter—the provision that specifically addresses the effect of ICJ decisions. Article 94(1) provides that "[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party." 59 Stat. 1051 (emphasis added). The Executive Branch contends that the phrase "undertakes to comply" is not "an acknowledgement that an ICJ decision will have immediate legal effect in the courts of U.N. members," but rather "a commitment on the part of U.N. Members to take future action through their political branches to comply with an ICJ decision." Brief for United States as Amicus Curiae in Medellín I, O.T.2004, No. 04-5928, p. 34.

We agree with this construction of Article 94. The Article is not a directive to domestic courts. It does not provide that the United States "shall" or "must" comply with an ICJ decision, nor indicate that the Senate that ratified the U.N. Charter intended to vest ICJ decisions with immediate legal effect in domestic courts. Instead, "[t]he words of Article 94 ... call upon governments to take certain action." Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 938 (C.A.D.C.1988) (quoting Diggs v. Richardson, 555 F.2d 848, 851 (C.A.D.C.1976); internal quotation marks omitted). See also Foster, 2 Pet., at 314, 315 (holding a treaty non-self-executing because its text—"`all ... grants of land ... shall be ratified and confirmed'"—did not "act directly on the grants" but rather "pledge[d] the faith of the United States to pass acts which shall ratify and confirm them"). In other words, the U.N. Charter reads like "a compact between independent nations" that "depends for the enforcement of its provisions on the interest and the honor of [1359] the governments which are parties to it." Head Money Cases, 112 U.S., at 598, 5 S.Ct. 247.^[5]

The remainder of Article 94 confirms that the U.N. Charter does not contemplate the automatic enforceability of ICJ decisions in domestic courts.^[6] Article 94(2)—the enforcement provision—provides the sole remedy for noncompliance: referral to the United Nations Security Council by an aggrieved state. 59 Stat. 1051.

The U.N. Charter's provision of an express diplomatic—that is, nonjudicial—remedy is itself evidence that ICJ judgments were not meant to be enforceable in domestic courts. See Sanchez-Llamas, 548 U.S., at 347, 126 S.Ct. 2669. And even this "quintessentially international remed[y]," id., at 355, 126 S.Ct. 2669, is not absolute. First, the Security Council must "dee[m] necessary" the issuance of a recommendation or measure to effectuate the judgment. Art. 94(2), 59 Stat. 1051. Second, as the President and Senate were undoubtedly aware in subscribing to the U.N. Charter and Optional Protocol, the United States retained the unqualified right to exercise its veto of any Security Council resolution.

This was the understanding of the Executive Branch when the President agreed to the U.N. Charter and the declaration accepting general compulsory ICJ jurisdiction. See, e.g., The Charter of the United Nations for the Maintenance of International Peace and Security: Hearings before the Senate Committee on Foreign Relations, 79th Cong., 1st Sess., 124-125 (1945) ("[I]f a state fails to perform its obligations under a judgment of the [ICJ], the other party may have recourse to the Security Council"); id., at 286 (statement of Leo Paslovsky, Special Assistant to the Secretary of State for International Organizations and Security Affairs) ("[W]hen the Court has rendered a judgment and one of the parties refuses to accept it, then the dispute becomes political rather than legal. It is as a political dispute that the matter is referred to the Security Council"); A Resolution Proposing Acceptance of Compulsory Jurisdiction of International Court of Justice: Hearings on S. Res. 196 before the Subcommittee of the Senate Committee on Foreign Relations, 79th Cong., 2d Sess., 142 (1946) (statement of Charles Fahy, State Dept. Legal Adviser) (while parties that accept ICJ jurisdiction have "a moral obligation" to comply with [1360] ICJ decisions, Article 94(2) provides the exclusive means of enforcement).

If ICJ judgments were instead regarded as automatically enforceable domestic law, they would be immediately and directly binding on state and federal courts pursuant to the Supremacy Clause. Mexico or the ICJ would have no need to proceed to the Security Council to enforce the judgment in this case. Noncompliance with an ICJ judgment through exercise of the Security Council veto—always regarded as an option by the Executive and ratifying Senate during and after consideration of the U.N. Charter, Optional Protocol, and ICJ Statute—would no longer be a viable alternative. There would be nothing to veto. In light of the U.N. Charter's remedial scheme, there is no reason to believe that the President and Senate signed up for such a result.

In sum, Medellín's view that ICJ decisions are automatically enforceable as domestic law is fatally undermined by the enforcement structure established by Article 94. His construction would eliminate the option of noncompliance contemplated by Article 94(2), undermining the ability of the political branches to determine whether and how to comply with an ICJ judgment. Those sensitive foreign policy decisions would instead be transferred to state and federal courts charged with applying an ICJ judgment directly as domestic law. And those courts would not be empowered to decide whether to comply with the judgment—again, always regarded as an option by the political branches—any more than courts may consider whether to comply with any other species of domestic law. This result would be particularly anomalous in light of the principle that "[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative—`the political'—Departments." Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918).

The ICJ Statute, incorporated into the U.N. Charter, provides further evidence that the ICJ's judgment in Avena does not automatically constitute federal law judicially enforceable in United States courts. Art. 59, 59 Stat. 1062. To begin with, the ICJ's "principal purpose" is said to be to "arbitrate particular disputes between national governments." Sanchez-Llamas, supra, at 355, 126 S.Ct. 2669 (citing 59 Stat. 1055). Accordingly, the ICJ can hear disputes only between nations, not individuals. Art. 34(1), 59 Stat. 1059 ("Only states [i.e., countries] may be parties in cases before the [ICJ]"). More important, Article 59 of the statute provides that "[t]he decision of the [ICJ] has no binding force except between the parties and in respect of that particular case." Id., at 1062 (emphasis added).^[7] The dissent does not explain how Medellín, an individual, can be a party to the ICJ proceeding.

Medellín argues that because the Avena case involves him, it is clear that he—and the 50 other Mexican nationals named in the Avena decision—should be regarded as parties to the Avena judgment. Brief for Petitioner 21-22. But cases before the ICJ are often precipitated by disputes involving particular persons or entities, disputes that a nation elects to take up as its own. See, e.g., Case Concerning the Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3 (Judgment of Feb. 5) (claim brought by Belgium on behalf of Belgian nationals and shareholders); [1361] Case Concerning the Protection of French Nationals and Protected Persons in Egypt (Fr. v. Egypt), 1950 I.C.J. 59 (Order of Mar. 29) (claim brought by France on behalf of French nationals and protected persons in Egypt); Anglo-Iranian Oil Co. Case (U.K. v. Iran), 1952 I.C.J. 93, 112 (Judgment of July 22) (claim brought by the United Kingdom on behalf of the Anglo-Iranian Oil Company). That has never been understood to alter the express and established rules that only nation-states may be parties before the ICJ, Art. 34, 59 Stat. 1059, and—contrary to the position of the dissent, post, at 1387—that ICJ judgments are binding only between those parties, Art. 59, id., at 1062.^[8]

It is, moreover, well settled that the United States' interpretation of a treaty "is entitled to great weight." Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-185, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982); see also El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999). The Executive Branch has unfailingly adhered to its view that the relevant treaties do not create domestically enforceable federal law. See Brief for United States as Amicus Curiae 4, 27-29.^[9]

The pertinent international agreements, therefore, do not provide for implementation of ICJ judgments through direct enforcement in domestic courts, and "where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking of their own." Sanchez-Llamas, 548 U.S., at 347, 126 S.Ct. 2669.

B

The dissent faults our analysis because it "looks for the wrong thing (explicit textual [1362] expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language)." Post, at 1389. Given our obligation to interpret treaty provisions to determine whether they are self-executing, we have to confess that we do think it rather important to look to the treaty language to see what it has to say about the issue. That is after all what the Senate looks to in deciding whether to approve the treaty.

The interpretive approach employed by the Court today—resorting to the text—is hardly novel. In two early cases involving an 1819 land-grant treaty between Spain and the United States, Chief Justice Marshall found the language of the treaty dispositive. In Foster, after distinguishing between self-executing treaties (those "equivalent to an act of the legislature") and non-self-executing treaties (those "the legislature must execute"), Chief Justice Marshall held that the 1819 treaty was non-self-executing. 2 Pet., at 314. Four years later, the Supreme Court considered another claim under the same treaty, but concluded that the treaty was self-executing. See Percheman, 7 Pet., at 87. The reason was not because the treaty was sometimes self-executing and sometimes not, but because "the language of" the Spanish translation (brought to the Court's attention for the first time) indicated the parties' intent to ratify and confirm the land-grant "by force of the instrument itself." Id., at 89.

As against this time-honored textual approach, the dissent proposes a multifactor, judgment-by-judgment analysis that would "jettiso[n] relative predictability for the open-ended rough-and-tumble of factors." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). The dissent's novel approach to deciding which (or, more accurately, when) treaties give rise to directly enforceable federal law is arrestingly indeterminate. Treaty language is barely probative. Post, at 1381-1382 ("[T]he absence or presence of language in a treaty about a provision's self-execution proves nothing at all"). Determining whether treaties themselves create federal law is sometimes committed to the political branches and sometimes to the judiciary. Post, at 1382. Of those committed to the judiciary, the courts pick and choose which shall be binding United States law—trumping not only state but other federal law as well—and which shall not. Post, at 1382-1389. They do this on the basis of a multifactor, "context-specific" inquiry. Post, at 1382. Even then, the same treaty sometimes gives rise to United States law and sometimes does not, again depending on an ad hoc judicial assessment. Post, at 1382-1389.

Our Framers established a careful set of procedures that must be followed before federal law can be created under the Constitution—vesting that decision in the political branches, subject to checks and balances. U.S. Const., Art. I, § 7. They also recognized that treaties could create federal law, but again through the political branches, with the President making the treaty and the Senate approving it. Art. II, § 2. The dissent's understanding of the treaty route, depending on an ad hoc judgment of the judiciary without looking to the treaty language—the very language negotiated by the President and approved by the Senate—cannot readily be ascribed to those same Framers.

The dissent's approach risks the United States' involvement in international agreements. It is hard to believe that the United States would enter into treaties that are sometimes enforceable and sometimes not. Such a treaty would be the equivalent of writing a blank check to the judiciary. Senators could never be quite sure what the treaties on which they were voting [1363] meant. Only a judge could say for sure and only at some future date. This uncertainty could hobble the United States' efforts to negotiate and sign international agreements.

In this case, the dissent—for a grab bag of no less than seven reasons—would tell us that this particular ICJ judgment is federal law. Post, at 1382-1389. That is no sort of guidance. Nor is it any answer to say that the federal courts will diligently police international agreements and enforce the decisions of international tribunals only when they should be enforced. Ibid. The point of a non-self-executing treaty is that it "addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court." Foster, supra, at 314 (emphasis added); Whitney, 124 U.S., at 195, 8 S.Ct. 456. See also Foster, supra, at 307 ("The judiciary is not that department of the government, to which the assertion of its interests against foreign powers is confided"). The dissent's contrary approach would assign to the courts—not the political branches—the primary role in deciding when and how international agreements will be enforced. To read a treaty so that it sometimes has the effect of domestic law and sometimes does not is tantamount to vesting with the judiciary the power not only to interpret but also to create the law.

C

Our conclusion that Avena does not by itself constitute binding federal law is confirmed by the "postratification understanding" of signatory nations. See Zicherman, 516 U.S., at 226, 116 S.Ct. 629. There are currently 47 nations that are parties to the Optional Protocol and 171 nations that are parties to the Vienna Convention. Yet neither Medellín nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts.^[10] In determining that the Vienna Convention did not require certain relief in United States courts in Sanchez-Llamas, we found it pertinent that the requested relief would not be available under the treaty in any other signatory country. See 548 U.S., at 343-344, and n. 3, 126 S.Ct. 2669. So too here the lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly suggests that the treaty should not be so viewed in our courts.

Our conclusion is further supported by general principles of interpretation. To begin with, we reiterated in Sanchez-Llamas what we held in Breard, that "`absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State.'" 548 U.S., at 351, 126 S.Ct. 2669 (quoting Breard, 523 U.S., at 375, 118 S.Ct. 1352). Given that ICJ judgments may interfere with state procedural rules, one would expect the ratifying parties to the relevant treaties to have clearly stated their intent to give those [1364] judgments domestic effect, if they had so intended. Here there is no statement in the Optional Protocol, the U.N. Charter, or the ICJ Statute that supports the notion that ICJ judgments displace state procedural rules.

Moreover, the consequences of Medellín's argument give pause. An ICJ judgment, the argument goes, is not only binding domestic law but is also unassailable. As a result, neither Texas nor this Court may look behind a judgment and quarrel with its reasoning or result. (We already know, from Sanchez-Llamas, that this Court disagrees with both the reasoning and result in Avena.) Medellín's interpretation would allow ICJ judgments to override otherwise binding state law; there is nothing in his logic that would exempt contrary federal law from the same fate. See, e.g., Cook v. United States, 288 U.S. 102, 119, 53 S.Ct. 305, 77 L.Ed. 641 (1933) (later-in-time self-executing treaty supersedes a federal statute if there is a conflict). And there is nothing to prevent the ICJ from ordering state courts to annul criminal convictions and sentences, for any reason deemed sufficient by the ICJ. Indeed, that is precisely the relief Mexico requested. Avena, 2004 I.C. J., at 58-59.

Even the dissent flinches at reading the relevant treaties to give rise to self-executing ICJ judgments in all cases. It admits that "Congress is unlikely to authorize automatic judicial enforceability of all ICJ judgments, for that could include some politically sensitive judgments and others better suited for enforcement by other branches." Post, at 1388. Our point precisely. But the lesson to draw from that insight is hardly that the judiciary should decide which judgments are politically sensitive and which are not.

In short, and as we observed in Sanchez-Llamas, "[n]othing in the structure or purpose of the ICJ suggests that its interpretations were intended to be conclusive on our courts." 548 U.S., at 354, 126 S.Ct. 2669. Given that holding, it is difficult to see how that same structure and purpose can establish, as Medellín argues, that judgments of the ICJ nonetheless were intended to be conclusive on our courts, A judgment is binding only if there is a rule of law that makes it so. And the question whether ICJ judgments can bind domestic courts depends upon the same analysis undertaken in Sanchez-Llamas and set forth above.

Our prior decisions identified by the dissent as holding a number of treaties to be self-executing, see post, at 1379-1380, Appendix A, stand only for the unremarkable proposition that some international agreements are self-executing and others are not. It is well settled that the "[i]nterpretation of [a treaty] ... must, of course, begin with the language of the Treaty itself." Sumitomo Shoji America, Inc., 457 U.S., at 180, 102 S.Ct. 2374. As a result, we have held treaties to be self-executing when the textual provisions indicate that the President and Senate intended for the agreement to have domestic effect.

Medellín and the dissent cite Comegys v. Vasse, 1 Pet. 193, 7 L.Ed. 108 (1828), for the proposition that the judgments of international tribunals are automatically binding on domestic courts. See post, at 1380; Reply Brief for Petitioner 2; Brief for Petitioner 19-20. That case, of course, involved a different treaty than the ones at issue here; it stands only for the modest principle that the terms of a treaty control the outcome of a case.^[11] We do not suggest [1365] that treaties can never afford binding domestic effect to international tribunal judgments—only that the U.N. Charter, the Optional Protocol, and the ICJ Statute do not do so. And whether the treaties underlying a judgment are self-executing so that the judgment is directly enforceable as domestic law in our courts is, of course, a matter for this Court to decide. See Sanchez-Llamas, supra, at 353-354, 126 S.Ct. 2669.

D

Our holding does not call into question the ordinary enforcement of foreign judgments or international arbitral agreements. Indeed, we agree with Medellín that, as a general matter, "an agreement to abide by the result" of an international adjudication—or what he really means, an agreement to give the result of such adjudication domestic legal effect—can be a treaty obligation like any other, so long as the agreement is consistent with the Constitution. See Brief for Petitioner 20. The point is that the particular treaty obligations on which Medellín relies do not of their own force create domestic law.

The dissent worries that our decision casts doubt on some 70-odd treaties under which the United States has agreed to submit disputes to the ICJ according to "roughly similar" provisions. See post, at 1377, 1383-1384. Again, under our established precedent, some treaties are self-executing and some are not, depending on the treaty. That the judgment of an international tribunal might not automatically become domestic law hardly means the underlying treaty is "useless." See post, at 1384; cf. post, at 1381 (describing the British system in which treaties "virtually always requir[e] parliamentary legislation"). Such judgments would still constitute international obligations, the proper subject of political and diplomatic negotiations. See Head Money Cases, 112 U.S., at 598, 5 S.Ct. 247. And Congress could elect to give them wholesale effect (rather than the judgment-by-judgment approach hypothesized by the dissent, post, at 1388) through implementing legislation, as it regularly has. See, e.g., Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. 105-277, div. G, § 2242, 112 Stat. 2681-822, note following 8 U.S.C. § 1231 (directing the "appropriate agencies" to "prescribe regulations to implement the obligations of the United States under Article 3" of the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment); see also infra, at 1388-1389 (listing examples of legislation implementing international obligations).

Further, that an ICJ judgment may not be automatically enforceable in domestic courts does not mean the particular underlying treaty is not. Indeed, we have held that a number of the "Friendship, Commerce, and Navigation" Treaties cited by the dissent, see post, Appendix B, are self-executing—based on "the language of the[se] Treat[ies]." See Sumitomo Shoji America, Inc., supra, at 180, 189-190, 102 S.Ct. 2374. In Kolovrat v. [1366] Oregon, 366 U.S. 187, 191, 196, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961), for example, the Court found that Yugoslavian claimants denied inheritance under Oregon law were entitled to inherit personal property pursuant to an 1881 Treaty of Friendship, Navigation, and Commerce between the United States and Serbia. See also Clark v. Allen, 331 U.S. 503, 507-511, 517-518, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947) (finding that the right to inherit real property granted German aliens under the Treaty of Friendship, Commerce, and Consular Rights with Germany prevailed over California law). Contrary to the dissent's suggestion, see post, at 1380-1381, neither our approach nor our cases require that a treaty provide for self-execution in so many talismanic words; that is a caricature of the Court's opinion. Our cases simply require courts to decide whether a treaty's terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect.

In addition, Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes. Cf. post, at 1388 (BREYER, J., dissenting). The judgments of a number of international tribunals enjoy a different status because of implementing legislation enacted by Congress. See, e.g., 22 U.S.C. § 1650a(a) ("An award of an arbitral tribunal rendered pursuant to chapter IV of the [Convention on the Settlement of Investment Disputes] shall create a right arising under a treaty of the United States. The pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States"); 9 U.S.C. §§ 201-208 ("The [U.N.] Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in United States courts in accordance with this chapter," § 201). Such language demonstrates that Congress knows how to accord domestic effect to international obligations when it desires such a result.^[12]

Further, Medellín frames his argument as though giving the Avena judgment binding effect in domestic courts simply conforms to the proposition that domestic courts generally give effect to foreign judgments. But Medellín does not ask us to enforce a foreign-court judgment settling a typical commercial or property dispute. See, e.g., Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895); United States v. Arredondo, 6 Pet. 691, 8 L.Ed. 547 (1832); see also Uniform Foreign Money-Judgments Recognition Act § 1(2), 13 U.L. A., pt. 2, p. 44 (2002) ("`[F]oreign judgment' means any judgment of a foreign state granting or denying recovery of a sum of money"). Rather, Medellín argues that the Avena judgment has the effect of enjoining the operation of state law. What is more, on Medellín's view, the judgment would force the State to take action to "review and reconside[r]" his case. The general rule, however, is that judgments of foreign courts awarding injunctive relief, even as to private parties, [1367] let alone sovereign States, "are not generally entitled to enforcement." See 2 Restatement § 481, Comment b, at 595.

In sum, while the ICJ's judgment in Avena creates an international law obligation on the part of the United States, it does not of its own force constitute binding federal law that pre-empts state restrictions on the filing of successive habeas petitions. As we noted in Sanchez-Llamas, a contrary conclusion would be extraordinary, given that basic rights guaranteed by our own Constitution do not have the effect of displacing state procedural rules. See 548 U.S., at 360, 126 S.Ct. 2669. Nothing in the text, back-ground, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of an international tribunal a higher status than that enjoyed by "many of our most fundamental constitutional protections." Ibid.

III

Medellín next argues that the ICJ's judgment in Avena is binding on state courts by virtue of the President's February 28, 2005 Memorandum. The United States contends that while the Avena judgment does not of its own force require domestic courts to set aside ordinary rules of procedural default, that judgment became the law of the land with precisely that effect pursuant to the President's Memorandum and his power "to establish binding rules of decision that preempt contrary state law." Brief for United States as Amicus Curiae 5. Accordingly, we must decide whether the President's declaration alters our conclusion that the Avena judgment is not a rule of domestic law binding in state and federal courts.^[13]

A

The United States maintains that the President's constitutional role "uniquely qualifies" him to resolve the sensitive foreign policy decisions that bear on compliance with an ICJ decision and "to do so expeditiously." Brief for United States as Amicus Curiae 11, 12. We do not question these propositions. See, e.g., First Nat. City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 767, 92 S.Ct. 1808, 32 L.Ed.2d 466 (1972) (plurality opinion) (The President has "the lead role ... in foreign policy"); American Ins. Assn. v. Garamendi, 539 U.S. 396, 414, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (Article II of the Constitution places with the President the " `vast share of responsibility for the conduct of our foreign relations' " (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-611, 72 S.Ct. 863, 96 L.Ed. 1153 (1952)) (Frankfurter, J., concurring)). In this case, the President seeks to vindicate United States interests in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. These interests are plainly compelling.

[1368] Such considerations, however, do not allow us to set aside first principles. The President's authority to act, as with the exercise of any governmental power, "must stem either from an act of Congress or from the Constitution itself." Youngstown, supra, at 585, 72 S.Ct. 863; Dames & Moore v. Regan, 453 U.S. 654, 668, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981).

Justice Jackson's familiar tripartite scheme provides the accepted framework for evaluating executive action in this area. First, "[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." Youngstown, 343 U.S., at 635, 72 S.Ct. 863 (Jackson, J., concurring). Second, "[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." Id., at 637, 72 S.Ct. 863. In this circumstance, Presidential authority can derive support from "congressional inertia, indifference or quiescence." Ibid. Finally, "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb," and the Court can sustain his actions "only by disabling the Congress from acting upon the subject." Id., at 637-638, 72 S.Ct. 863.

B

The United States marshals two principal arguments in favor of the President's authority "to establish binding rules of decision that preempt contrary state law." Brief for United States as Amicus Curiae 5. The Solicitor General first argues that the relevant treaties give the President the authority to implement the Avena judgment and that Congress has acquiesced in the exercise of such authority. The United States also relies upon an "independent" international dispute-resolution power wholly apart from the asserted authority based on the pertinent treaties. Medellín adds the additional argument that the President's Memorandum is a valid exercise of his power to take care that the laws be faithfully executed.

1

The United States maintains that the President's Memorandum is authorized by the Optional Protocol and the U.N. Charter. Brief for United States as Amicus Curiae 9. That is, because the relevant treaties "create an obligation to comply with Avena," they "implicitly give the President authority to implement that treaty-based obligation." Id., at 11 (emphasis added). As a result, the President's Memorandum is well grounded in the first category of the Youngstown framework.

We disagree. The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. Foster, 2 Pet., at 315; Whitney, 124 U.S., at 194, 8 S.Ct. 456; Igartua-De La Rosa, 417 F.3d, at 150. As this Court has explained, when treaty stipulations are "not self-executing they can only be enforced pursuant to legislation to carry them into effect." Whitney, supra, at 194, 8 S.Ct. 456. Moreover, "[u]ntil such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject." Foster, supra, at 315.

The requirement that Congress, rather than the President, implement a non-self-executing [1369] treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate. The Constitution vests the President with the authority to "make" a treaty. Art. II, § 2. If the Executive determines that a treaty should have domestic effect of its own force, that determination may be implemented "in mak[ing]" the treaty, by ensuring that it contains language plainly providing for domestic enforceability. If the treaty is to be self-executing in this respect, the Senate must consent to the treaty by the requisite two-thirds vote, ibid., consistent with all other constitutional restraints.

Once a treaty is ratified without provisions clearly according it domestic effect, however, whether the treaty will ever have such effect is governed by the fundamental constitutional principle that " `[t]he power to make the necessary laws is in Congress; the power to execute in the President.' " Hamdan v. Rumsfeld, 548 U.S. 557, 591, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (quoting Ex parte Milligan, 4 Wall. 2, 139, 18 L.Ed. 281 (1866) (opinion of Chase, C. J.)); see U.S. Const., Art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States"). As already noted, the terms of a non-self-executing treaty can become domestic law only in the same way as any other law—through passage of legislation by both Houses of Congress, combined with either the President's signature or a congressional override of a Presidential veto. See Art. I, § 7. Indeed, "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." Youngstown, 343 U.S., at 587, 72 S.Ct. 863.

A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President— acting on his own—to achieve precisely the same result. We therefore conclude, given the absence of congressional legislation, that the non-self-executing treaties at issue here did not "express[ly] or implied[ly]" vest the President with the unilateral authority to make them self-executing. See id., at 635, 72 S.Ct. 863 (Jackson, J., concurring). Accordingly, the President's Memorandum does not fall within the first category of the Youngstown framework.

Indeed, the preceding discussion should make clear that the non-self-executing character of the relevant treaties not only refutes the notion that the ratifying parties vested the President with the authority to unilaterally make treaty obligations binding on domestic courts, but also implicitly prohibits him from doing so. When the President asserts the power to "enforce" a non-self-executing treaty by unilaterally creating domestic law, he acts in conflict with the implicit understanding of the ratifying Senate. His assertion of authority, insofar as it is based on the pertinent non-self-executing treaties, is therefore within Justice Jackson's third category, not the first or even the second. See id., at 637-638, 72 S.Ct. 863.

Each of the two means described above for giving domestic effect to an international treaty obligation under the Constitution—for making law—requires joint action by the Executive and Legislative Branches: The Senate can ratify a self-executing treaty "ma[de]" by the Executive, or, if the ratified treaty is not self-executing, Congress can enact implementing legislation approved by the President. It should not be surprising that our Constitution does not contemplate vesting such power in the Executive alone. As Madison explained in The Federalist No. 47, under our constitutional system of checks and [1370] balances, "[t]he magistrate in whom the whole executive power resides cannot of himself make a law." J. Cooke ed., p. 326 (1961). That would, however, seem an apt description of the asserted executive authority unilaterally to give the effect of domestic law to obligations under a non-self-executing treaty.

The United States nonetheless maintains that the President's Memorandum should be given effect as domestic law because "this case involves a valid Presidential action in the context of Congressional `acquiescence'." Brief for United States as Amicus Curiae 11, n. 2. Under the Youngstown tripartite framework, congressional acquiescence is pertinent when the President's action falls within the second category—that is, when he "acts in absence of either a congressional grant or denial of authority." 343 U.S., at 637, 72 S.Ct. 863 (Jackson, J., concurring). Here, however, as we have explained, the President's effort to accord domestic effect to the Avena judgment does not meet that prerequisite.

In any event, even if we were persuaded that congressional acquiescence could support the President's asserted authority to create domestic law pursuant to a non-self-executing treaty, such acquiescence does not exist here. The United States first locates congressional acquiescence in Congress's failure to act following the President's resolution of prior ICJ controversies. A review of the Executive's actions in those prior cases, however, cannot support the claim that Congress acquiesced in this particular exercise of Presidential authority, for none of them remotely involved transforming an international obligation into domestic law and thereby displacing state law.^[14]

[1371] The United States also directs us to the President's "related" statutory responsibilities and to his "established role" in litigating foreign policy concerns as support for the President's asserted authority to give the ICJ's decision in Avena the force of domestic law. Brief for United States as Amicus Curiae 16-19. Congress has indeed authorized the President to represent the United States before the United Nations, the ICJ, and the Security Council, 22 U.S.C. § 287, but the authority of the President to represent the United States before such bodies speaks to the President's international responsibilities, not any unilateral authority to create domestic law. The authority expressly conferred by Congress in the international realm cannot be said to "invite" the Presidential action at issue here. See Youngstown, supra, at 637, 72 S.Ct. 863 (Jackson, J., concurring). At bottom, none of the sources of authority identified by the United States supports the President's claim that Congress has acquiesced in his asserted power to establish on his own federal law or to override state law.

None of this is to say, however, that the combination of a non-self-executing treaty and the lack of implementing legislation precludes the President from acting to comply with an international treaty obligation. It is only to say that the Executive cannot unilaterally execute a non-self-executing treaty by giving it domestic effect. That is, the non-self-executing character of a treaty constrains the President's ability to comply with treaty commitments by unilaterally making the treaty binding on domestic courts. The President may comply with the treaty's obligations by some other means, so long as they are consistent with the Constitution. But he may not rely upon a non-self-executing treaty to "establish binding rules of decision that preempt contrary state law." Brief for United States as Amicus Curiae 5.

2

We thus turn to the United States' claim that—independent of the United States' treaty obligations—the Memorandum is a valid exercise of the President's foreign affairs authority to resolve claims disputes with foreign nations. Id., at 12-16. The United States relies on a series of cases in which this Court has upheld the authority of the President to settle foreign claims pursuant to an executive agreement. See Garamendi, 539 U.S., at 415, 123 S.Ct. 2374; Dames & Moore, 453 U.S., at 679-680, 101 S.Ct. 2972; United States v. Pink, 315 U.S. 203, 229, 62 S.Ct. 552, 86 L.Ed. 796 (1942); United States v. Belmont, 301 U.S. 324, 330, 57 S.Ct. 758, 81 L.Ed. 1134 (1937). In these cases this Court has explained that, if pervasive enough, a history of congressional acquiescence can be treated as a "gloss on `Executive Power' vested in the President by § 1 of Art. II." Dames & Moore, supra, at 686, 101 S.Ct. 2972 (some internal quotation marks omitted).

This argument is of a different nature than the one rejected above. Rather than relying on the United States' treaty obligations, the President relies on an independent source of authority in ordering Texas to put aside its procedural bar to successive habeas petitions. Nevertheless, we find that our claims-settlement cases do not support the authority that the President asserts in this case.

The claims-settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. See, e.g., Belmont, supra, at 327, 57 S.Ct. 758. They are based on the view that "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress [1372] and never before questioned," can "raise a presumption that the [action] had been [taken] in pursuance of its consent." Dames & Moore, supra, at 686, 101 S.Ct. 2972 (some internal quotation marks omitted). As this Court explained in Garamendi,

Making executive agreements to settle claims of American nationals against foreign governments is a particularly longstanding practice .... Given the fact that the practice goes back over 200 years, and has received congressional acquiescence throughout its history, the conclusion that the President's control of foreign relations includes the settlement of claims is indisputable. 539 U.S., at 415, 123 S.Ct. 2374 (internal quotation marks and brackets omitted).

Even still, the limitations on this source of executive power are clearly set forth and the Court has been careful to note that "[p]ast practice does not, by itself, create power." Dames & Moore, supra, at 686, 101 S.Ct. 2972.

The President's Memorandum is not supported by a "particularly longstanding practice" of congressional acquiescence, see Garamendi, supra, at 415, 123 S.Ct. 2374, but rather is what the United States itself has described as "unprecedented action," Brief for United States as Amicus Curiae in Sanchez-Llamas, O.T. 2005, Nos. 05-51 and 04-10566, pp. 29-30. Indeed, the Government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State's police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws. Cf. Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ("States possess primary authority for defining and enforcing the criminal law" (quoting Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)); internal quotation marks omitted). The Executive's narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far as to support the current Presidential Memorandum.

3

Medellín argues that the President's Memorandum is a valid exercise of his "Take Care" power. Brief for Petitioner 28. The United States, however, does not rely upon the President's responsibility to "take Care that the Laws be faithfully executed." U.S. Const., Art. II, § 3. We think this a wise concession. This authority allows the President to execute the laws, not make them. For the reasons we have stated, the Avena judgment is not domestic law; accordingly, the President cannot rely on his Take Care powers here.

The judgment of the Texas Court of Criminal Appeals is affirmed.

It is so ordered.

Justice STEVENS, concurring in the judgment.

There is a great deal of wisdom in Justice BREYER's dissent. I agree that the text and history of the Supremacy Clause, as well as this Court's treaty-related cases, do not support a presumption against self-execution. See post, at 1377-1380. I also endorse the proposition that the Vienna Convention on Consular Relations, Apr. 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No. 6820, "is itself self-executing and judicially enforceable." Post, at 1385. Moreover, I think this case presents a closer question than the Court's opinion allows. In the end, however, I am persuaded that the relevant treaties do not authorize this Court to enforce the judgment of the International [1373] Court of Justice (ICJ) in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Judgment of Mar. 31) (Avena).

The source of the United States' obligation to comply with judgments of the ICJ is found in Article 94(1) of the United Nations Charter, which was ratified in 1945. Article 94(1) provides that "[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party." 59 Stat. 1051, T.S. No. 993 (emphasis added). In my view, the words "undertakes to comply"—while not the model of either a self-executing or a non-self-executing commitment—are most naturally read as a promise to take additional steps to enforce ICJ judgments.

Unlike the text of some other treaties, the terms of the United Nations Charter do not necessarily incorporate international judgments into domestic law. Cf., e.g., United Nations Convention on the Law of the Sea, Annex VI, Art. 39, Dec. 10, 1982, S. Treaty Doc. No. 103-39, 1833 U.N.T.S. 570 ("[D]ecisions of the [Seabed Disputes] Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought"). Moreover, Congress has passed implementing legislation to ensure the enforcement of other international judgments, even when the operative treaty provisions use far more mandatory language than "undertakes to comply."^[15]

On the other hand Article 94(1) does not contain the kind of unambiguous language foreclosing self-execution that is found in other treaties. The obligation to undertake to comply with ICJ decisions is more consistent with self-execution than, for example, an obligation to enact legislation. Cf., e.g., International Plant Protection Convention, Art. I, Dec. 6, 1951, [1972] 23 U.S.T. 2770, T.I.A.S. No. 7465 ("[T]he contracting Governments undertake to adopt the legislative, technical and administrative measures specified in this Convention"). Furthermore, whereas the Senate has issued declarations of non-self-execution when ratifying some treaties, it did not do so with respect to the United Nations Charter.^[16]

Absent a presumption one way or the other, the best reading of the words "undertakes to comply" is, in my judgment, one that contemplates future action by the political branches. I agree with the dissenters that "Congress is unlikely to authorize automatic judicial enforceability of all ICJ judgments, for that could include some politically sensitive judgments and others better suited for enforcement by other branches." Post, at 1388. But this concern counsels in favor of reading any ambiguity in Article 94(1) as leaving the [1374] choice of whether to comply with ICJ judgments, and in what manner, "to the political, not the judicial department." Foster v. Neilson, 2 Pet. 253, 314, 7 L.Ed. 415 (1829).^[17]

The additional treaty provisions cited by the dissent do not suggest otherwise. In an annex to the United Nations Charter, the Statute of the International Court of Justice (ICJ Statute) states that a decision of the ICJ "has no binding force except between the parties and in respect of that particular case." Art. 59, 59 Stat. 1062. Because I read that provision as confining, not expanding, the effect of ICJ judgments, it does not make the undertaking to comply with such judgments any more enforceable than the terms of Article 94(1) itself. That the judgment is "binding" as a matter of international law says nothing about its domestic legal effect. Nor in my opinion does the reference to "compulsory jurisdiction" in the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, Art. I, Apr. 24, 1963, [1970] 21 U.S.T. 325, T.I.A.S. No. 6820, shed any light on the matter. This provision merely secures the consent of signatory nations to the specific jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention. See ICJ Statute, Art. 36(1), 59 Stat. 1060 ("The jurisdiction of the Court comprises... all matters specially provided for ... in treaties and conventions in force").

Even though the ICJ's judgment in Avena is not "the supreme Law of the Land," U.S. Const., Art. VI, cl. 2, no one disputes that it constitutes an international law obligation on the part of the United States. Ante, at 1356. By issuing a memorandum declaring that state courts should give effect to the judgment in Avena, the President made a commendable attempt to induce the States to discharge the Nation's obligation. I agree with the Texas judges and the majority of this Court that the President's memorandum is not binding law. Nonetheless, the fact that the President cannot legislate unilaterally does not absolve the United States from its promise to take action necessary to comply with the ICJ's judgment.

Under the express terms of the Supremacy Clause, the United States' obligation to "undertak[e] to comply" with the ICJ's decision falls on each of the States as well as the Federal Government. One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas' duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention—ensnared the United States in the current controversy. Having already put the Nation in breach of one treaty, it is now up to Texas to prevent the breach of another.

The decision in Avena merely obligates the United States "to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals," 2004 I.C. J., at 72, ¶ 153(9), "with a view to ascertaining" whether the failure to provide proper notice to consular officials "caused actual prejudice to the defendant in the process of administration of criminal justice," id., [1375] at 60, ¶ 121. The cost to Texas of complying with Avena would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced Jose Ernesto Medellín. See ante, at 1354-1355, and n. 1. It is a cost that the State of Oklahoma unhesitatingly assumed.^[18]

On the other hand, the costs of refusing to respect the ICJ's judgment are significant. The entire Court and the President agree that breach will jeopardize the United States' "plainly compelling" interests in "ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law." Ante, at 1367. When the honor of the Nation is balanced against the modest cost of compliance, Texas would do well to recognize that more is at stake than whether judgments of the ICJ, and the principled admonitions of the President of the United States, trump state procedural rules in the absence of implementing legislation.

The Court's judgment, which I join, does not foreclose further appropriate action by the State of Texas.

Justice BREYER, with whom Justice SOUTER and Justice GINSBURG join, dissenting.

The Constitution's Supremacy Clause provides that "all Treaties ... which shall be made ... under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." Art. VI, cl. 2. The Clause means that the "courts" must regard "a treaty ... as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision." Foster v. Neilson, 2 Pet. 253, 314, 7 L.Ed. 415 (1829) (majority opinion of Marshall, C. J.).

In the Avena case the International Court of Justice (ICJ) (interpreting and applying the Vienna Convention on Consular Relations) issued a judgment that requires the United States to reexamine certain criminal proceedings in the cases of 51 Mexican nationals. Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Judgment of Mar. 31) (Avena). The question here is whether the ICJ's Avena judgment is enforceable now as a matter of domestic law, i.e., whether it "operates of itself without the aid" of any further legislation.

[1376] The United States has signed and ratified a series of treaties obliging it to comply with ICJ judgments in cases in which it has given its consent to the exercise of the ICJ's adjudicatory authority. Specifically, the United States has agreed to submit, in this kind of case, to the ICJ's "compulsory jurisdiction" for purposes of "compulsory settlement." Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol or Protocol), Art. I, Apr. 24, 1963, [1970] 21 U.S.T. 325, 326 T.I.A.S. No. 6820 (capitalization altered). And it agreed that the ICJ's judgments would have "binding force ... between the parties and in respect of [a] particular case." United Nations Charter, Art. 59, 59 Stat. 1062, T.S. No. 993 (1945). President Bush has determined that domestic courts should enforce this particular ICJ judgment. Memorandum to the Attorney General (Feb. 28, 2005), App. to Pet. for Cert. 187a (hereinafter President's Memorandum). And Congress has done nothing to suggest the contrary. Under these circumstances, I believe the treaty obligations, and hence the judgment, resting as it does upon the consent of the United States to the ICJ's jurisdiction, bind the courts no less than would "an act of the [federal] legislature." Foster, supra, at 314.

I

To understand the issue before us, the reader must keep in mind three separate ratified United States treaties and one ICJ judgment against the United States. The first treaty, the Vienna Convention, contains two relevant provisions. The first requires the United States and other signatory nations to inform arrested foreign nationals of their separate Convention-given right to contact their nation's consul. The second says that these rights (of an arrested person) "shall be exercised in conformity with the laws and regulations" of the arresting nation, provided that the "laws and regulations ... enable full effect to be given to the purposes for which" those "rights ... are intended." See Vienna Convention on Consular Relations, Arts. 36(1)(b), 36(2), Apr. 24, 1963, [1970] 21 U.S.T. 100-101, T.I.A.S. No. 6820 (emphasis added).

The second treaty, the Optional Protocol, concerns the "compulsory settlement" of Vienna Convention disputes. 21 U.S.T., at 326. It provides that for parties that elect to subscribe to the Protocol, "[d]isputes arising out of the interpretation or application of the [Vienna] Convention" shall be submitted to the "compulsory jurisdiction of the International Court of Justice." Art. I, ibid. It authorizes any party that has consented to the ICJ's jurisdiction (by signing the Optional Protocol) to bring another such party before that Court. Ibid.

The third treaty, the United Nations Charter, says that every signatory Nation "undertakes to comply with the decision of the International Court of Justice in any case to which it is a party." Art. 94(1), 59 Stat. 1051. In an annex to the Charter, the Statute of the International Court of Justice states that an ICJ judgment has "binding force ... between the parties and in respect of that particular case." Art. 59, id., at 1062. See also Art. 60, id., at 1063 (ICJ "judgment is final and without appeal").

The judgment at issue is the ICJ's judgment in Avena, a case that Mexico brought against the United States on behalf of 52 nationals arrested in different States on different criminal charges. 2004 I.C.J., at 39. Mexico claimed that state authorities within the United States had failed to notify the arrested persons of their Vienna Convention rights and, by applying state procedural law in a manner which did not [1377] give full effect to the Vienna Convention rights, had deprived them of an appropriate remedy. Ibid. The ICJ judgment in Avena requires that the United States reexamine "by means of its own choosing" certain aspects of the relevant state criminal proceedings of 51 of these individual Mexican nationals. Id., at 62. The President has determined that this should be done. See President's Memorandum.

The critical question here is whether the Supremacy Clause requires Texas to follow, i.e., to enforce, this ICJ judgment. The Court says "no." And it reaches its negative answer by interpreting the labyrinth of treaty provisions as creating a legal obligation that binds the United States internationally, but which, for Supremacy Clause purposes, is not automatically enforceable as domestic law. In the majority's view, the Optional Protocol simply sends the dispute to the ICJ; the ICJ statute says that the ICJ will subsequently reach a judgment; and the U.N. Charter contains no more than a promise to " `undertak[e] to comply' " with that judgment. Ante, at 1354. Such a promise, the majority says, does not as a domestic law matter (in Chief Justice Marshall's words) "operat[e] of itself without the aid of any legislative provision." Foster, 2 Pet., at 314. Rather, here (and presumably in any other ICJ judgment rendered pursuant to any of the approximately 70 U.S. treaties in force that contain similar provisions for submitting treaty-based disputes to the ICJ for decisions that bind the parties) Congress must enact specific legislation before ICJ judgments entered pursuant to our consent to compulsory ICJ jurisdiction can become domestic law. See Brief for International Court of Justice Experts as Amici Curiae 18 ("Approximately 70 U.S. treaties now in force contain obligations comparable to those in the Optional Protocol for submission of treaty-based disputes to the ICJ"); see also id., at 18, n. 25.

In my view, the President has correctly determined that Congress need not enact additional legislation. The majority places too much weight upon treaty language that says little about the matter. The words "undertak[e] to comply," for example, do not tell us whether an ICJ judgment rendered pursuant to the parties' consent to compulsory ICJ jurisdiction does, or does not, automatically become part of our domestic law. To answer that question we must look instead to our own domestic law, in particular, to the many treaty-related cases interpreting the Supremacy Clause. Those cases, including some written by Justices well aware of the Founders' original intent, lead to the conclusion that the ICJ judgment before us is enforceable as a matter of domestic law without further legislation.

A

Supreme Court case law stretching back more than 200 years helps explain what, for present purposes, the Founders meant when they wrote that "all Treaties ... shall be the supreme Law of the Land." Art. VI, cl. 2. In 1796, for example, the Court decided the case of Ware v. Hylton, 3 Dall. 199, 1 L.Ed. 568. A British creditor sought payment of an American's Revolutionary War debt. The debtor argued that he had, under Virginia law, repaid the debt by complying with a state statute enacted during the Revolutionary War that required debtors to repay money owed to British creditors into a Virginia state fund. Id., at 220-221 (opinion of Chase, J.). The creditor, however, claimed that this state-sanctioned repayment did not count because a provision of the 1783 Paris Peace Treaty between Britain and the United States said that " `the creditors of either side should meet with no lawful impediment to the recovery of the full value ... of all bona fide debts, theretofore [1378] contracted'"; and that provision, the creditor argued, effectively nullified the state law. Id., at 203-204. The Court, with each Justice writing separately, agreed with the British creditor, held the Virginia statute invalid, and found that the American debtor remained liable for the debt. Id., at 285.

The key fact relevant here is that Congress had not enacted a specific statute enforcing the treaty provision at issue. Hence the Court had to decide whether the provision was (to put the matter in present terms) "self-executing." Justice Iredell, a member of North Carolina's Ratifying Convention, addressed the matter specifically, setting forth views on which Justice Story later relied to explain the Founders' reasons for drafting the Supremacy Clause. 3 J. Story, Commentaries on the Constitution of the United States 696-697 (1833) (hereinafter Story). See Vázquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int'l L. 695, 697-700 (1995) (hereinafter Vázquez) (describing the history and purpose of the Supremacy Clause). See also Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as "Supreme Law of the Land", 99 Colum. L.Rev.2095 (1999) (contending that the Founders crafted the Supremacy Clause to make ratified treaties self-executing). But see Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L.Rev.1955 (1999).

Justice Iredell pointed out that some Treaty provisions, those, for example, declaring the United States an independent Nation or acknowledging its right to navigate the Mississippi River, were "executed," taking effect automatically upon ratification. 3 Dall., at 272. Other provisions were "executory," in the sense that they were "to be carried into execution" by each signatory nation "in the manner which the Constitution of that nation prescribes." Ibid. Before adoption of the U.S. Constitution, all such provisions would have taken effect as domestic law only if Congress on the American side, or Parliament on the British side, had written them into domestic law. Id., at 274-277.

But, Justice Iredell adds, after the Constitution's adoption, while further parliamentary action remained necessary in Britain (where the "practice" of the need for an "act of parliament" in respect to "any thing of a legislative nature" had "been constantly observed," id., at 275-276), further legislative action in respect to the treaty's debt-collection provision was no longer necessary in the United States. Id., at 276-277. The ratification of the Constitution with its Supremacy Clause means that treaty provisions that bind the United States may (and in this instance did) also enter domestic law without further congressional action and automatically bind the States and courts as well. Id., at 277.

"Under this Constitution," Justice Iredell concluded, "so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also by the vigour of its own authority to be executed in fact. It would not otherwise be the Supreme law in the new sense provided for." Ibid.; see also Story, supra, § 1833, at 697 (noting that the Supremacy Clause's language was crafted to make the Clause's "obligation more strongly felt by the state judges" and to "remov[e] every pretense" by which they could "escape from [its] controlling power"); see also The Federalist No. 42, p. 264 (C. Rossiter ed. 1961) (J. Madison) (Supremacy Clause "disembarrassed" the Convention of the problem presented by the Articles of Confederation where "treaties might be substantially frustrated by regulations of the States"). [1379] Justice Iredell gave examples of provisions that would no longer require further legislative action, such as those requiring the release of prisoners, those forbidding warrelated "future confiscations" and " `prosecutions,' " and, of course, the specific debt-collection provision at issue in the Ware case itself. 3 Dall., at 273, 277.

Some 30 years later, the Court returned to the "self-execution" problem. In Foster, 2 Pet. 253, the Court examined a provision in an 1819 treaty with Spain ceding Florida to the United States; the provision said that " `grants of land made' " by Spain before January 24, 1818, " `shall be ratified and confirmed' " to the grantee. Id., at 310. Chief Justice Marshall, writing for the Court, noted that, as a general matter, one might expect a signatory nation to execute a treaty through a formal exercise of its domestic sovereign authority (e.g., through an act of the legislature). Id., at 314. But in the United States "a different principle" applies. Ibid. (emphasis added). The Supremacy Clause means that, here, a treaty is "the law of the land... to be regarded in Courts of justice as equivalent to an act of the legislature" and "operates of itself without the aid of any legislative provision" unless it specifically contemplates execution by the legislature and thereby "addresses itself to the political, not the judicial department." Ibid. (emphasis added). The Court decided that the treaty provision in question was not self-executing; in its view, the words "shall be ratified" demonstrated that the provision foresaw further legislative action. Id., at 315.

The Court, however, changed its mind about the result in Foster four years later, after being shown a less legislatively oriented, less tentative, but equally authentic Spanish-language version of the treaty. See United States v. Percheman, 7 Pet. 51, 88-89, 8 L.Ed. 604 (1833). And by 1840, instances in which treaty provisions automatically became part of domestic law were common enough for one Justice to write that "it would be a bold proposition" to assert "that an act of Congress must be first passed" in order to give a treaty effect as "a supreme law of the land." Lessee of Pollard's Heirs v. Kibbe, 14 Pet. 353, 388, 10 L.Ed. 490 (1840) (Baldwin, J., concurring).

Since Foster and Pollard, this Court has frequently held or assumed that particular treaty provisions are self-executing, automatically binding the States without more. See Appendix A, infra (listing, as examples, 29 such cases, including 12 concluding that the treaty provision invalidates state or territorial law or policy as a consequence). See also Wu, Treaties' Domains, 93 Va. L.Rev. 571, 583-584 (2007) (concluding "enforcement against States is the primary and historically most significant type of treaty enforcement in the United States"). As far as I can tell, the Court has held to the contrary only in two cases: Foster, supra, which was later reversed, and Cameron Septic Tank Co. v. Knoxville, 227 U.S. 39, 33 S.Ct. 209, 57 L.Ed. 407 (1913), where specific congressional actions indicated that Congress thought further legislation necessary. See also Vázquez 716. The Court has found "self-executing" provisions in multilateral treaties as well as bilateral treaties. See, e.g., Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252, 104 S.Ct. 1776, 80 L.Ed.2d 273 (1984); Bacardi Corp. of America v. Domenech, 311 U.S. 150, 160, and n. 9, 161, 61 S.Ct. 219, 85 L.Ed. 98 (1940). And the subject matter of such provisions has varied widely, from extradition, see, e.g., United States v. Rauscher, 119 U.S. 407, 411-412, 7 S.Ct. 234, 30 L.Ed. 425 (1886), to criminal trial jurisdiction, see Wildenhus's Case, 120 U.S. 1, 11, 17-18, 7 S.Ct. 385, 30 L.Ed. 565 (1887), to civil liability, see, e.g., El Al [1380] Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161-163, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999), to trademark infringement, see Bacardi, supra, at 160, and n. 9, 161, 61 S.Ct. 219, to an alien's freedom to engage in trade, see, e.g., Jordan v. Tashiro, 278 U.S. 123, 126, n. 1, 49 S.Ct. 47, 73 L.Ed. 214 (1928), to immunity from state taxation, see Nielsen v. Johnson, 279 U.S. 47, 50, 58, 49 S.Ct. 223, 73 L.Ed. 607 (1929), to land ownership, Percheman, supra, at 88-89, and to inheritance, see, e.g., Kolovrat v. Oregon, 366 U.S. 187, 191, n. 6, 198, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961).

Of particular relevance to the present case, the Court has held that the United States may be obligated by treaty to comply with the judgment of an international tribunal interpreting that treaty, despite the absence of any congressional enactment specifically requiring such compliance. See Comegys v. Vasse, 1 Pet. 193, 211-212, 7 L.Ed. 108 (1828) (holding that decision of tribunal rendered pursuant to a United States-Spain treaty, which obliged the parties to "undertake to make satisfaction" of treaty-based rights, was "conclusive and final" and "not re-examinable" in American courts); see also Meade v. United States, 9 Wall. 691, 725, 19 L.Ed. 687 (1870) (holding that decision of tribunal adjudicating claims arising under United States-Spain treaty "was final and conclusive, and bar[red] a recovery upon the merits" in American court).

All of these cases make clear that self-executing treaty provisions are not uncommon or peculiar creatures of our domestic law; that they cover a wide range of subjects; that the Supremacy Clause itself answers the self-execution question by applying many, but not all, treaty provisions directly to the States; and that the Clause answers the self-execution question differently than does the law in many other nations. See supra, at 1354-1357. The cases also provide criteria that help determine which provisions automatically so apply—a matter to which I now turn.

B

1

The case law provides no simple magic answer to the question whether a particular treaty provision is self-executing. But the case law does make clear that, insofar as today's majority looks for language about "self-execution" in the treaty itself and insofar as it erects "clear statement" presumptions designed to help find an answer, it is misguided. See, e.g., ante, at 1363-1364 (expecting "clea[r] state[ment]" of parties' intent where treaty obligation "may interfere with state procedural rules"); ante, at 1368 (for treaty to be self-executing, Executive should at drafting "ensur[e] that it contains language plainly providing for domestic enforceability").

The many treaty provisions that this Court has found self-executing contain no textual language on the point (see Appendix A, infra). Few, if any, of these provisions are clear. See, e.g., Ware, 3 Dall., at 273 (opinion of Iredell, J.). Those that displace state law in respect to such quintessential state matters as, say, property, inheritance, or debt repayment, lack the "clea[r] state[ment]" that the Court today apparently requires. Compare ante, at 1363-1364 (majority expects "clea[r] state[ment]" of parties' intent where treaty obligation "may interfere with state procedural rules"). This is also true of those cases that deal with state rules roughly comparable to the sort that the majority suggests require special accommodation. See, e.g., Hopkirk v. Bell, 3 Cranch 454, 457-458, 2 L.Ed. 497 (1806) (treaty preempts Virginia state statute of limitations). Cf. ante, at 1363-1364 (setting forth majority's reliance on case law that is apparently inapposite). These many Supreme [1381] Court cases finding treaty provisions to be self-executing cannot be reconciled with the majority's demand for textual clarity.

Indeed, the majority does not point to a single ratified United States treaty that contains the kind of "clea[r]" or "plai[n]" textual indication for which the majority searches. Ante, at 1363, 1368. Justice STEVENS' reliance upon one ratified and one un-ratified treaty to make the point that a treaty could speak clearly on the matter of self-execution, see ante, at 1373 and n. 1, does suggest that there are a few such treaties. But that simply highlights how few of them actually do speak clearly on the matter. And that is not because the United States never, or hardly ever, has entered into a treaty with self-executing provisions. The case law belies any such conclusion. Rather, it is because the issue whether further legislative action is required before a treaty provision takes domestic effect in a signatory nation is often a matter of how that Nation's domestic law regards the provision's legal status. And that domestic status-determining law differs markedly from one nation to another. See generally Hollis, Comparative Approach to Treaty Law and Practice, in National Treaty Law and Practice 1, 9-50 (D. Hollis, M. Blakeslee, & L. Ederington eds.2005) (hereinafter Hollis). As Justice Iredell pointed out 200 years ago, Britain, for example, taking the view that the British Crown makes treaties but Parliament makes domestic law, virtually always requires parliamentary legislation. See Ware, supra, at 274-277; Sinclair, Dickson, & Maciver, United Kingdom, in National Treaty Law and Practice, supra, at 727, 733, and n. 9 (citing Queen v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Lord Rees-Mogg, [1994] Q.B. 552 (1993) (in Britain, "`treaties are not self-executing'")). See also Torruella, The Insular Cases: The Establishment of a Regime of Political Apartheid, 29 U. Pa. J. Int'l L. 283, 337 (2007). On the other hand, the United States, with its Supremacy Clause, does not take Britain's view. See, e.g., Ware, supra, at 277 (opinion of Iredell, J.). And the law of other nations, the Netherlands for example, directly incorporates many treaties concluded by the executive into its domestic law even without explicit parliamentary approval of the treaty. See Brouwer, The Netherlands, in National Treaty Law and Practice, supra, at 483, 483-502.

The majority correctly notes that the treaties do not explicitly state that the relevant obligations are self-executing. But given the differences among nations, why would drafters write treaty language stating that a provision about, say, alien property inheritance, is self-executing? How could those drafters achieve agreement when one signatory nation follows one tradition and a second follows another? Why would such a difference matter sufficiently for drafters to try to secure language that would prevent, for example, Britain's following treaty ratification with a further law while (perhaps unnecessarily) insisting that the United States apply a treaty provision without further domestic legislation? Above all, what does the absence of specific language about "self-execution" prove? It may reflect the drafters' awareness of national differences. It may reflect the practical fact that drafters, favoring speedy, effective implementation, conclude they should best leave national legal practices alone. It may reflect the fact that achieving international agreement on this point is simply a game not worth the candle.

In a word, for present purposes, the absence or presence of language in a treaty about a provision's self-execution proves nothing at all. At best the Court is hunting the snark. At worst it erects legalistic hurdles that can threaten the application [1382] of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones. (For examples, see Appendix B, infra.)

2

The case law also suggests practical, context-specific criteria that this Court has previously used to help determine whether, for Supremacy Clause purposes, a treaty provision is self-executing. The provision's text matters very much. Cf. ante, at 1361-1362. But that is not because it contains language that explicitly refers to self-execution. For reasons I have already explained, Part I-B-1, supra, one should not expect that kind of textual statement. Drafting history is also relevant. But, again, that is not because it will explicitly address the relevant question. Instead text and history, along with subject matter and related characteristics will help our courts determine whether, as Chief Justice Marshall put it, the treaty provision "addresses itself to the political ... department[s]" for further action or to "the judicial department" for direct enforcement. Foster, 2 Pet., at 314; see also Ware, 3 Dall., at 244 (opinion of Chase, J.) ("No one can doubt that a treaty may stipulate, that certain acts shall be done by the Legislature; that other acts shall be done by the Executive; and others by the Judiciary").

In making this determination, this Court has found the provision's subject matter of particular importance. Does the treaty provision declare peace? Does it promise not to engage in hostilities? If so, it addresses itself to the political branches. See id., at 259-262 (opinion of Iredell, J.). Alternatively, does it concern the adjudication of traditional private legal rights such as rights to own property, to conduct a business, or to obtain civil tort recovery? If so, it may well address itself to the Judiciary. Enforcing such rights and setting their boundaries is the bread-and-butter work of the courts. See, e.g., Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947) (treating provision with such subject matter as self-executing); Asakura v. Seattle, 265 U.S. 332, 44 S.Ct. 515, 68 L.Ed. 1041 (1924) (same).

One might also ask whether the treaty provision confers specific, detailed individual legal rights. Does it set forth definite standards that judges can readily enforce? Other things being equal, where rights are specific and readily enforceable, the treaty provision more likely "addresses" the judiciary. See, e.g., Olympic Airways v. Husain, 540 U.S. 644, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004) (specific conditions for air-carrier civil liability); Geofroy v. Riggs, 133 U.S. 258, 10 S.Ct. 295, 33 L.Ed. 642 (1890) (French citizens' inheritance rights). Compare Foster, supra, at 314-315 (treaty provision stating that landholders' titles "shall be ratified and confirmed" foresees legislative action).

Alternatively, would direct enforcement require the courts to create a new cause of action? Would such enforcement engender constitutional controversy? Would it create constitutionally undesirable conflict with the other branches? In such circumstances, it is not likely that the provision contemplates direct judicial enforcement. See, e.g., Asakura, supra, at 341, 44 S.Ct. 515 (although "not limited by any express provision of the Constitution," the treaty-making power of the United States "does not extend `so far as to authorize what the Constitution forbids' ").

Such questions, drawn from case law stretching back 200 years, do not create a simple test, let alone a magic formula. But they do help to constitute a practical, context-specific judicial approach, seeking to separate run-of-the-mill judicial matters from other matters, sometimes more politically [1383] charged, sometimes more clearly the responsibility of other branches, sometimes lacking those attributes that would permit courts to act on their own without more ado. And such an approach is all that we need to find an answer to the legal question now before us.

C

Applying the approach just described, I would find the relevant treaty provisions self-executing as applied to the ICJ judgment before us (giving that judgment domestic legal effect) for the following reasons, taken together.

First, the language of the relevant treaties strongly supports direct judicial enforceability, at least of judgments of the kind at issue here. The Optional Protocol bears the title "Compulsory Settlement of Disputes," thereby emphasizing the mandatory and binding nature of the procedures it sets forth. 21 U.S.T., at 326. The body of the Protocol says specifically that "any party" that has consented to the ICJ's "compulsory jurisdiction" may bring a "dispute" before the court against any other such party. Art. I, ibid. And the Protocol contrasts proceedings of the compulsory kind with an alternative "conciliation procedure," the recommendations of which a party may decide "not" to "accep[t]." Art. III, id., at 327. Thus, the Optional Protocol's basic objective is not just to provide a forum for settlement but to provide a forum for compulsory settlement.

Moreover, in accepting Article 94(1) of the Charter, "[e]ach Member ... undertakes to comply with the decision" of the ICJ "in any case to which it is a party." 59 Stat. 1051. And the ICJ Statute (part of the U.N. Charter) makes clear that, a decision of the ICJ between parties that have consented to the ICJ's compulsory jurisdiction has "binding force ... between the parties and in respect of that particular case." Art. 59, id., at 1062 (emphasis added). Enforcement of a court's judgment that has "binding force" involves quintessential judicial activity.

True, neither the Protocol nor the Charter explicitly states that the obligation to comply with an ICJ judgment automatically binds a party as a matter of domestic law without further domestic legislation. But how could the language of those documents do otherwise? The treaties are multilateral. And, as I have explained, some signatories follow British further-legislation-always-needed principles, others follow United States Supremacy Clause principles, and still others, e.g., the Netherlands, can directly incorporate treaty provisions into their domestic law in particular circumstances. See Hollis 9-50. Why, given national differences, would drafters, seeking as strong a legal obligation as is practically attainable, use treaty language that requires all signatories to adopt uniform domestic-law treatment in this respect?

The absence of that likely unobtainable language can make no difference. We are considering the language for purposes of applying the Supremacy Clause. And for that purpose, this Court has found to be self-executing multilateral treaty language that is far less direct or forceful (on the relevant point) than the language set forth in the present treaties. See, e.g., Trans World Airlines, 466 U.S., at 247, 252, 104 S.Ct. 1776; Bacardi, 311 U.S., at 160, and n. 9, 161, 61 S.Ct. 219. The language here in effect tells signatory nations to make an ICJ compulsory jurisdiction judgment "as binding as you can." Thus, assuming other factors favor self-execution, the language adds, rather than subtracts, support.

Indeed, as I have said, supra, at 1354, the United States has ratified approximately [1384] 70 treaties with ICJ dispute resolution provisions roughly similar to those contained in the Optional Protocol; many of those treaties contemplate ICJ adjudication of the sort of substantive matters (property, commercial dealings, and the like) that the Court has found self-executing, or otherwise appear addressed to the judicial branch. See Appendix B, infra. None of the ICJ provisions in these treaties contains stronger language about self-execution than the language at issue here. See, e.g., Treaty of Friendship, Commerce and Navigation between the United States of America and the Kingdom of Denmark, Art. XXIV(2), Oct. 1, 1951, [1961] 12 U.S.T. 935, T.I.A.S. No. 4797 ("Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by some other pacific means"). In signing these treaties (in respect to, say, alien land ownership provisions) was the United States engaging in a near useless act? Does the majority believe the drafters expected Congress to enact further legislation about, say, an alien's inheritance rights, decision by decision?

I recognize, as the majority emphasizes, that the U.N. Charter uses the words "undertakes to comply," rather than, say, "shall comply" or "must comply." But what is inadequate about the word "undertak[e]"? A leading contemporary dictionary defined it in terms of "lay[ing] oneself under obligation ... to perform or to execute." Webster's New International Dictionary 2770 (2d ed.1939). And that definition is just what the equally authoritative Spanish version of the provision (familiar to Mexico) says directly: The words "compromete a cumplir" indicate a present obligation to execute, without any tentativeness of the sort the majority finds in the English word "undertakes." See Carta de las Naciones Unidas, Articulo 94, 59 Stat. 1175 (1945); Spanish and English Legal and Commercial Dictionary 44 (1945) (defining "comprometer" as "become liable"); id., at 59 (defining "cumplir" as "to perform, discharge, carry out, execute"); see also Art. 111, 59 Stat. 1054 (Spanish-language version equally valid); Percheman, 7 Pet., at 88-89 (looking to Spanish version of a treaty to clear up ambiguity in English version). Compare Todok v. Union State Bank of Harvard, 281 U.S. 449, 453, 50 S.Ct. 363, 74 L.Ed. 956 (1930) (treating a treaty provision as self-executing even though it expressly stated what the majority says the word "undertakes" implicitly provides: that " `[t]he United States ... shall be at liberty to make respecting this matter, such laws as they think proper' ").

And even if I agreed with Justice STEVENS that the language is perfectly ambiguous (which I do not), I could not agree that "the best reading ... is ... one that contemplates future action by the political branches." Ante, at 1373. The consequence of such a reading is to place the fate of an international promise made by the United States in the hands of a single State. See ante, at 1374-1375. And that is precisely the situation that the Framers sought to prevent by enacting the Supremacy Clause. See 3 Story 696 (purpose of Supremacy Clause "was probably to obviate" the "difficulty" of system where treaties were "dependent upon the good will of the states for their execution"); see also Ware, 3 Dall., at 277-278 (opinion of Iredell, J.).

I also recognize, as the majority emphasizes (ante, at 1359-1360), that the U.N. Charter says that "[i]f any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the [ICJ], the other party may have recourse to the Security Council." Art. 94(2), 59 Stat. 1051. And when the Senate ratified [1385] the charter, it took comfort in the fact that the United States has a veto in the Security Council. See 92 Cong. Rec. 10694-10695 (1946) (statements of Sens. Pepper and Connally).

But what has that to do with the matter? To begin with, the Senate would have been contemplating politically significant ICJ decisions, not, e.g., the bread-and-butter commercial and other matters that are the typical subjects of self-executing treaty provisions. And in any event, both the Senate debate and U.N. Charter provision discuss and describe what happens (or does not happen) when a nation decides not to carry out an ICJ decision. See Charter of the United Nations for the Maintenance of International Peace and Security: Hearing before the Senate Committee on Foreign Relations, 79th Cong., 1st Sess., 286 (1945) (statement of Leo Pasvolsky, Special Assistant to the Secretary of State for International Organization and Security Affairs) ("[W]hen the Court has rendered a judgment and one of the parties refuses to accept it, then the dispute becomes political rather than legal"). The debates refer to remedies for a breach of our promise to carry out an ICJ decision. The Senate understood, for example, that Congress (unlike legislatures in other nations that do not permit domestic legislation to trump treaty obligations, Hollis 47-49) can block through legislation self-executing, as well as non-self-executing determinations. The debates nowhere refer to the method we use for affirmatively carrying out an ICJ obligation that no political branch has decided to dishonor, still less to a decision that the President (without congressional dissent) seeks to enforce. For that reason, these aspects of the ratification debates are here beside the point. See infra, at 1387-1388.

The upshot is that treaty language says that an ICJ decision is legally binding, but it leaves the implementation of that binding legal obligation to the domestic law of each signatory nation. In this Nation, the Supremacy Clause, as long and consistently interpreted, indicates that ICJ decisions rendered pursuant to provisions for binding adjudication must be domestically legally binding and enforceable in domestic courts at least sometimes. And for purposes of this argument, that conclusion is all that I need. The remainder of the discussion will explain why, if ICJ judgments sometimes bind domestic courts, then they have that effect here.

Second, the Optional Protocol here applies to a dispute about the meaning of a Vienna Convention provision that is itself self-executing and judicially enforceable. The Convention provision is about an individual's "rights," namely, his right upon being arrested to be informed of his separate right to contact his nation's consul. See Art. 36(1)(b), 21 U.S.T., at 101. The provision language is precise. The dispute arises at the intersection of an individual right with ordinary rules of criminal procedure; it consequently concerns the kind of matter with which judges are familiar. The provisions contain judicially enforceable standards. See Art. 36(2), ibid. (providing for exercise of rights "in conformity with the laws and regulations" of the arresting nation provided that the "laws and regulations ... enable full effect to be given to the purposes for which the rights accorded under this Article are intended"). And the judgment itself requires a further hearing of a sort that is typically judicial. See infra, at 1388-1389.

This Court has found similar treaty provisions self-executing. See, e.g., Rauscher, 119 U.S., at 410-411, 429-430, 7 S.Ct. 234 (violation of extradition treaty could be raised as defense in criminal trial); Johnson v. Browne, 205 U.S. 309, 317-322, 27 S.Ct. 539, 51 L.Ed. 816 (1907) (extradition [1386] treaty required grant of writ of habeas corpus); Wildenhus's Case, 120 U.S., at 11, 17-18, 7 S.Ct. 385 (treaty defined scope of state jurisdiction in a criminal case). It is consequently not surprising that, when Congress ratified the Convention, the State Department reported that the "Convention is considered entirely self-executive and does not require any implementing or complementing legislation." S. Exec. Rep. No. 91-9, p. 5 (1969); see also id., at 18, 7 S.Ct. 385 ("To the extent that there are conflicts with Federal legislation or State laws the Vienna Convention, after ratification, would govern"). And the Executive Branch has said in this Court that other, indistinguishable Vienna Convention provisions are self-executing. See Brief for United States as Amicus Curiae in Sanchez-Llamas v. Oregon, O.T. 2005, Nos. 05-51 and 04-10566, p. 14, n. 2; cf. ante, at 1357, n. 4 (majority leaves question open).

Third, logic suggests that a treaty provision providing for "final" and "binding" judgments that "settl[e]" treaty-based disputes is self-executing insofar as the judgment in question concerns the meaning of an underlying treaty provision that is itself self-executing. Imagine that two parties to a contract agree to binding arbitration about whether a contract provision's word "grain" includes rye. They would expect that, if the arbitrator decides that the word "grain" does include rye, the arbitrator will then simply read the relevant provision as if it said "grain including rye." They would also expect the arbitrator to issue a binding award that embodies whatever relief would be appropriate under that circumstance.

Why treat differently the parties' agreement to binding ICJ determination about, e.g., the proper interpretation of the Vienna Convention clauses containing the rights here at issue? Why not simply read the relevant Vienna Convention provisions as if (between the parties and in respect to the 51 individuals at issue) they contain words that encapsulate the ICJ's decision? See Art. 59, 59 Stat. 1062 (ICJ decision has "binding force ... between the parties and in respect of [the] particular case"). Why would the ICJ judgment not bind in precisely the same way those words would bind if they appeared in the relevant Vienna Convention provisions—just as the ICJ says, for purposes of this case, that they do?

To put the same point differently: What sense would it make (1) to make a self-executing promise and (2) to promise to accept as final an ICJ judgment interpreting that self-executing promise, yet (3) to insist that the judgment itself is not self-executing (i.e., that Congress must enact specific legislation to enforce it)?

I am not aware of any satisfactory answer to these questions. It is no answer to point to the fact that in Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006), this Court interpreted the relevant Convention provisions differently from the ICJ in Avena. This Court's Sanchez-Llamas interpretation binds our courts with respect to individuals whose rights were not espoused by a state party in Avena. Moreover, as the Court itself recognizes, see ante, at 1352-1353, and as the President recognizes, see President's Memorandum, the question here is the very different question of applying the ICJ's Avena judgment to the very parties whose interests Mexico and the United States espoused in the ICJ Avena proceeding. It is in respect to these individuals that the United States has promised the ICJ decision will have binding force. Art. 59, 59 Stat. 1062. See 1 Restatement (Second) of Conflict of Laws § 98 (1969); 2 Restatement (Third) of Foreign Relations § 481 (1986); 1 Restatement (Second) of Judgments § 17 [1387] (1980) (all calling for recognition of judgment rendered after fair hearing in a contested proceeding before a court with adjudicatory authority over the case). See also 1 Restatement (Second) of Conflict of Laws § 106 ("A judgment will be recognized and enforced in other states even though an error of fact or law was made in the proceedings before judgment ..."); id., § 106, Comment a ("Th[is] rule is ... applicable to judgments rendered in foreign nations ..."); Reese, The Status in This Country of Judgments Rendered Abroad, 50 Colum. L.Rev. 783, 789 (1950) ("[Foreign] judgments will not be denied effect merely because the original court made an error either of fact or of law").

Contrary to the majority's suggestion, see ante, at 1360-1361, that binding force does not disappear by virtue of the fact that Mexico, rather than Medellín himself, presented his claims to the ICJ. Mexico brought the Avena case in part in "the exercise of its right of diplomatic protection of its nationals," e.g., 2004 I.C. J., at 21, ¶¶ 13(1), (3), including Medellín, see id., at 25, ¶ 16. Such derivative claims are a well-established feature of international law, and the United States has several times asserted them on behalf of its own citizens. See 2 Restatement (Third) of Foreign Relations, supra, § 713, Comments a, b, at 217; Case Concerning Elettronic Sicula S. p. A. (U.S. v. Italy), 1989 I.C.J. 15, 20 (Judgment of July 20); Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1979 I.C.J. 7, 8 (Judgment of Dec. 15); Case Concerning Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), 1952 I.C.J. 176, 180-181 (Judgment of Aug. 27). They are treated in relevant respects as the claims of the represented individuals themselves. See 2 Restatement (Third) of Foreign Relations, supra, § 713, Comments a, b. In particular, they can give rise to remedies, tailored to the individual, that bind the Nation against whom the claims are brought (here, the United States). See ibid.; see also, e.g., Frelinghuysen v. Key, 110 U.S. 63, 71-72, 3 S.Ct. 462, 28 L.Ed. 71 (1884).

Nor does recognition of the ICJ judgment as binding with respect to the individuals whose claims were espoused by Mexico in any way derogate from the Court's holding in Sanchez-Llamas, supra. See ante, at 1361, n. 8. This case does not implicate the general interpretive question answered in Sanchez-Llamas: whether the Vienna Convention displaces state procedural rules. We are instead confronted with the discrete question of Texas' obligation to comply with a binding judgment issued by a tribunal with undisputed jurisdiction to adjudicate the rights of the individuals named therein. "It is inherent in international adjudication that an international tribunal may reject one country's legal position in favor of another's—and the United States explicitly accepted this possibility when it ratified the Optional Protocol." Brief for United States as Amicus Curiae 22.

Fourth, the majority's very different approach has seriously negative practical implications. The United States has entered into at least 70 treaties that contain provisions for ICJ dispute settlement similar to the Protocol before us. Many of these treaties contain provisions similar to those this Court has previously found self-executing —provisions that involve, for example, property rights, contract and commercial rights, trademarks, civil liability for personal injury, rights of foreign diplomats, taxation, domestic-court jurisdiction, and so forth. Compare Appendix A, infra, with Appendix B, infra. If the Optional Protocol here, taken together with the U.N. Charter and its annexed ICJ Statute, is insufficient to warrant enforcement of the ICJ judgment before us, it is difficult [1388] to see how one could reach a different conclusion in any of these other instances. And the consequence is to undermine longstanding efforts in those treaties to create an effective international system for interpreting and applying many, often commercial, self-executing treaty provisions. I thus doubt that the majority is right when it says, "We do not suggest that treaties can never afford binding domestic effect to international tribunal judgments." Ante, at 1364-1365. In respect to the 70 treaties that currently refer disputes to the ICJ's binding adjudicatory authority, some multilateral, some bilateral, that is just what the majority has done.

Nor can the majority look to congressional legislation for a quick fix. Congress is unlikely to authorize automatic judicial enforceability of all ICJ judgments, for that could include some politically sensitive judgments and others better suited for enforcement by other branches: for example, those touching upon military hostilities, naval activity, handling of nuclear material, and so forth. Nor is Congress likely to have the time available, let alone the will, to legislate judgment-by-judgment enforcement of, say, the ICJ's (or other international tribunals') resolution of non-politically-sensitive commercial disputes. And as this Court's prior case law has avoided laying down bright-line rules but instead has adopted a more complex approach, it seems unlikely that Congress will find it easy to develop legislative bright lines that pick out those provisions (addressed to the Judicial Branch) where self-execution seems warranted. But, of course, it is not necessary for Congress to do so—at least not if one believes that this Court's Supremacy Clause cases already embody criteria likely to work reasonably well. It is those criteria that I would apply here.

Fifth, other factors, related to the particular judgment here at issue, make that judgment well suited to direct judicial enforcement. The specific issue before the ICJ concerned " `review and reconsideration' " of the "possible prejudice" caused in each of the 51 affected cases by an arresting State's failure to provide the defendant with rights guaranteed by the Vienna Convention. Avena, 2004 I.C. J., at 65, ¶ 138. This review will call for an understanding of how criminal procedure works, including whether, and how, a notification failure may work prejudice. Id., at 56-57. As the ICJ itself recognized, "it is the judicial process that is suited to this task." Id., at 66, ¶ 140. Courts frequently work with criminal procedure and related prejudice. Legislatures do not. Judicial standards are readily available for working in this technical area. Legislative standards are not readily available. Judges typically determine such matters, deciding, for example, whether further hearings are necessary, after reviewing a record in an individual case. Congress does not normally legislate in respect to individual cases. Indeed, to repeat what I said above, what kind of special legislation does the majority believe Congress ought to consider?

Sixth, to find the United States' treaty obligations self-executing as applied to the ICJ judgment (and consequently to find that judgment enforceable) does not threaten constitutional conflict with other branches; it does not require us to engage in nonjudicial activity; and it does not require us to create a new cause of action. The only question before us concerns the application of the ICJ judgment as binding law applicable to the parties in a particular criminal proceeding that Texas law creates independently of the treaty. I repeat that the question before us does not involve the creation of a private right of action (and the majority's reliance on authority regarding [1389] such a circumstance is misplaced, see ante, at 1357, n. 3).

Seventh, neither the President nor Congress has expressed concern about direct judicial enforcement of the ICJ decision. To the contrary, the President favors enforcement of this judgment. Thus, insofar as foreign policy impact, the interrelation of treaty provisions, or any other matter within the President's special treaty, military, and foreign affairs responsibilities might prove relevant, such factors favor, rather than militate against, enforcement of the judgment before us. See, e.g., Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 348, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) (noting Court's "customary policy of deference to the President in matters of foreign affairs").

For these seven reasons, I would find that the United States' treaty obligation to comply with the ICJ judgment in Avena is enforceable in court in this case without further congressional action beyond Senate ratification of the relevant treaties. The majority reaches a different conclusion because it looks for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language). Hunting for what the text cannot contain, it takes a wrong turn. It threatens to deprive individuals, including businesses, property owners, testamentary beneficiaries, consular officials, and others, of the workable dispute resolution procedures that many treaties, including commercially oriented treaties, provide. In a world where commerce, trade, and travel have become ever more international, that is a step in the wrong direction.

Were the Court for a moment to shift the direction of its legal gaze, looking instead to the Supremacy Clause and to the extensive case law interpreting that Clause as applied to treaties, I believe it would reach a better supported, more felicitous conclusion. That approach, well embedded in Court case law, leads to the conclusion that the ICJ judgment before us is judicially enforceable without further legislative action.

II

A determination that the ICJ judgment is enforceable does not quite end the matter, for the judgment itself requires us to make one further decision. It directs the United States to provide further judicial review of the 51 cases of Mexican nationals "by means of its own choosing." Avena, 2004 I.C. J., at 72, ¶ 153(9). As I have explained, I believe the judgment addresses itself to the Judicial Branch. This Court consequently must "choose" the means. And rather than, say, conducting the further review in this Court, or requiring Medellín to seek the review in another federal court, I believe that the proper forum for review would be the Texas-court proceedings that would follow a remand of this case.

Beyond the fact that a remand would be the normal course upon reversing a lower court judgment, there are additional reasons why further state-court review would be particularly appropriate here. The crime took place in Texas, and the prosecution at issue is a Texas prosecution. The President has specifically endorsed further Texas court review. See President's Memorandum. The ICJ judgment requires further hearings as to whether the police failure to inform Medellín of his Vienna Convention rights prejudiced Medellín, even if such hearings would not otherwise be available under Texas' procedural default rules. While Texas has already considered that matter, it did not consider fully, for example, whether appointed counsel's coterminous 6-month suspension from the practice of the law [1390] "caused actual prejudice to the defendant"—prejudice that would not have existed had Medellín known he could contact his consul and thereby find a different lawyer. Id., at 60, ¶ 121.

Finally, Texas law authorizes a criminal defendant to seek postjudgment review. See Tex.Code Crim. Proc. Ann., Art. 11.071, § 5(a)(1) (Vernon Supp.2006). And Texas law provides for further review where American law provides a "legal basis" that was previously "unavailable." See Ex parte Medellín, 223 S.W.3d 315, 352 (Tex.Crim.App.2006). Thus, I would send this case back to the Texas courts, which must then apply the Avena judgment as binding law. See U.S. Const., Art. VI, cl. 2; see also, e.g., Dominguez v. State, 90 Tex.Crim. 92, 99, 234 S.W. 79, 83 (1921) (recognizing that treaties are "part of the supreme law of the land" and that "it is the duty of the courts of the state to take cognizance of, construe and give effect" to them (internal quotation marks omitted)).

III

Because the majority concludes that the Nation's international legal obligation to enforce the ICJ's decision is not automatically a domestic legal obligation, it must then determine whether the President has the constitutional authority to enforce it. And the majority finds that he does not. See Part III, ante.

In my view, that second conclusion has broader implications than the majority suggests. The President here seeks to implement treaty provisions in which the United States agrees that the ICJ judgment is binding with respect to the Avena parties. Consequently, his actions draw upon his constitutional authority in the area of foreign affairs. In this case, his exercise of that power falls within that middle range of Presidential authority where Congress has neither specifically authorized nor specifically forbidden the Presidential action in question. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). At the same time, if the President were to have the authority he asserts here, it would require setting aside a state procedural law.

It is difficult to believe that in the exercise of his Article II powers pursuant to a ratified treaty, the President can never take action that would result in setting aside state law. Cf. United States v. Pink, 315 U.S. 203, 233, 62 S.Ct. 552, 86 L.Ed. 796 (1942) ("No State can rewrite our foreign policy to conform to its own domestic policies"). Suppose that the President believes it necessary that he implement a treaty provision requiring a prisoner exchange involving someone in state custody in order to avoid a proven military threat. Cf. Ware, 3 Dall., at 205. Or suppose he believes it necessary to secure a foreign consul's treaty-based rights to move freely or to contact an arrested foreign national. Cf. Vienna Convention, Art. 34, 21 U.S.T., at 98. Does the Constitution require the President in each and every such instance to obtain a special statute authorizing his action? On the other hand, the Constitution must impose significant restrictions upon the President's ability, by invoking Article II treaty-implementation authority, to circumvent ordinary legislative processes and to pre-empt state law as he does so.

Previously this Court has said little about this question. It has held that the President has a fair amount of authority to make and to implement executive agreements, at least in respect to international claims settlement, and that this authority can require contrary state law to be set aside. See, e.g., Pink, supra, at 223, 230-231, 233-234, 62 S.Ct. 552; United States [1391] v. Belmont, 301 U.S. 324, 326-327, 57 S.Ct. 758, 81 L.Ed. 1134 (1937). It has made clear that principles of foreign sovereign immunity trump state law and that the Executive, operating without explicit legislative authority, can assert those principles in state court. See Ex parte Peru, 318 U.S. 578, 588, 63 S.Ct. 793, 87 L.Ed. 1014 (1943). It has also made clear that the Executive has inherent power to bring a lawsuit "to carry out treaty obligations." Sanitary Dist. of Chicago v. United States, 266 U.S. 405, 425, 426, 45 S.Ct. 176, 69 L.Ed. 352 (1925). But it has reserved judgment as to "the scope of the President's power to preempt state law pursuant to authority delegated by ... a ratified treaty"—a fact that helps to explain the majority's inability to find support in precedent for its own conclusions. Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 329, 114 S.Ct. 2268, 129 L.Ed.2d 244 (1994).

Given the Court's comparative lack of expertise in foreign affairs; given the importance of the Nation's foreign relations; given the difficulty of finding the proper constitutional balance among state and federal, executive and legislative, powers in such matters; and given the likely future importance of this Court's efforts to do so, I would very much hesitate before concluding that the Constitution implicitly sets forth broad prohibitions (or permissions) in this area. Cf. ante, at 1367, n. 13 (stating that the Court's holding is "limited" by the facts that (1) this treaty is non-self-executing and (2) the judgment of an international tribunal is involved).

I would thus be content to leave the matter in the constitutional shade from which it has emerged. Given my view of this case, I need not answer the question. And I shall not try to do so. That silence, however, cannot be taken as agreement with the majority's Part III conclusion.

IV

The majority's two holdings taken together produce practical anomalies. They unnecessarily complicate the President's foreign affairs task insofar as, for example, they increase the likelihood of Security Council Avena enforcement proceedings, of worsening relations with our neighbor Mexico, of precipitating actions by other nations putting at risk American citizens who have the misfortune to be arrested while traveling abroad, or of diminishing our Nation's reputation abroad as a result of our failure to follow the "rule of law" principles that we preach. The holdings also encumber Congress with a task (postratification legislation) that, in respect to many decisions of international tribunals, it may not want and which it may find difficult to execute. See supra, at 1364-1365 (discussing the problems with case-by-case legislation). At the same time, insofar as today's holdings make it more difficult to enforce the judgments of international tribunals, including technical non-politically-controversial judgments, those holdings weaken that rule of law for which our Constitution stands. Compare Hughes Defends Foreign Policies in Plea for Lodge, N.Y. Times, Oct. 31, 1922, p. 1, col. 1, p. 4, col. 1 (then-Secretary of State Charles Evans Hughes stating that "we favor, and always have favored, an international court of justice for the determination according to judicial standards of justiciable international disputes"); Mr. Root Discusses International Problems, N.Y. Times, July 9, 1916, section 6, book review p. 276 (former Secretary of State and U.S. Senator Elihu Root stating that " `a court of international justice with a general obligation to submit all justiciable questions to its jurisdiction and to abide by its judgment is a primary requisite to any real [1392] restraint of law' "); Mills, The Obligation of the United States Toward the World Court, 114 Annals of the American Academy of Political and Social Science 128 (1924) (Congressman Ogden Mills describing the efforts of then—Secretary of State John Hay, and others, to establish a World Court, and the support therefor).

These institutional considerations make it difficult to reconcile the majority's holdings with the workable Constitution that the Founders envisaged. They reinforce the importance, in practice and in principle, of asking Chief Justice Marshall's question: Does a treaty provision address the "Judicial" Branch rather than the "Political Branches" of Government. See Foster, 2 Pet., at 314. And they show the wisdom of the well-established precedent that indicates that the answer to the question here is "yes." See Parts I and II, supra.

V

In sum, a strong line of precedent, likely reflecting the views of the Founders, indicates that the treaty provisions before us and the judgment of the International Court of Justice address themselves to the Judicial Branch and consequently are self-executing. In reaching a contrary conclusion, the Court has failed to take proper account of that precedent and, as a result, the Nation may well break its word even though the President seeks to live up to that word and Congress has done nothing to suggest the contrary.

For the reasons set forth, I respectfully dissent.

APPENDIXES TO OPINION OF BREYER, J.

A

Examples of Supreme Court decisions considering a treaty provision to be self-executing. Parentheticals indicate the subject matter; an asterisk indicates that the Court applied the provision to invalidate a contrary state or territorial law or policy.

1. Olympic Airways v. Husain, 540 U.S. 644, 649, 657, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004) (air carrier liability)

2. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161-163, 176, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) (same)*

3. Zicherman v. Korean Air Lines Co., 516 U.S. 217, 221, 231, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996) (same)

4. Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 524, 533, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987) (international discovery rules)

5. Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 181, 189-190, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (employment practices)

6. Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 245, 252, 104 S.Ct. 1776, 80 L.Ed.2d 273 (1984) (air carrier liability)

7. Kolovrat v. Oregon, 366 U.S. 187, 191, n. 6, 198, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961) (property rights and inheritance)*

8. Clark v. Allen, 331 U.S. 503, 507-508, 517-518, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947) (same)*

9. Bacardi Corp. of America v. Domenech, 311 U.S. 150, 160, and n. 9, 161, 61 S.Ct. 219, 85 L.Ed. 98 (1940) (trademark)*

10. Todok v. Union State Bank of Harvard, 281 U.S. 449, 453, 455, 50 [1393] S.Ct. 363, 74 L.Ed. 956 (1930) (property rights and inheritance)

11. Nielsen v. Johnson, 279 U.S. 47, 50, 58, 49 S.Ct. 223, 73 L.Ed. 607 (1929) (taxation)*

12. Jordan v. Tashiro, 278 U.S. 123, 126-127, n. 1, 128-129, 49 S.Ct. 47, 73 L.Ed. 214 (1928) (trade and commerce)

13. Asakura v. Seattle, 265 U.S. 332, 340, 343-344, 44 S.Ct. 515, 68 L.Ed. 1041 (1924) (same)*

14. Maiorano v. Baltimore & Ohio R. Co., 213 U.S. 268, 273-274, 29 S.Ct. 424, 53 L.Ed. 792 (1909) (travel, trade, access to courts)

15. Johnson v. Browne, 205 U.S. 309, 317-322, 27 S.Ct. 539, 51 L.Ed. 816 (1907) (extradition)

16. Geofroy v. Riggs, 133 U.S. 258, 267-268, 273, 10 S.Ct. 295, 33 L.Ed. 642 (1890) (inheritance)*

17. Wildenhus's Case, 120 U.S. 1, 11, 17-18, 7 S.Ct. 385, 30 L.Ed. 565 (1887) (criminal jurisdiction)

18. United States v. Rauscher, 119 U.S. 407, 410-411, 429-430, 7 S.Ct. 234, 30 L.Ed. 425 (1886) (extradition)

19. Hauenstein v. Lynham, 100 U.S. 483, 485-486, 490-491, 25 L.Ed. 628 (1880) (property rights and inheritance)*

20. American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542, 7 L.Ed. 242 (1828) (property)

21. United States v. Percheman, 7 Pet. 51, 88-89, 8 L.Ed. 604 (1833) (land ownership)

22. United States v. Arredondo, 6 Pet. 691, 697, 749, 8 L.Ed. 547 (1832) (same)

23. Orr v. Hodgson, 4 Wheat. 453, 462-465, 4 L.Ed. 613 (1819) (same)*

24. Chirac v. Lessee of Chirac, 2 Wheat. 259, 270-271, 274, 275, 4 L.Ed. 234 (1817) (land ownership and inheritance)*

25. Martin v. Hunter's Lessee, 1 Wheat. 304, 356-357, 4 L.Ed. 97 (1816) (land ownership)

26. Hannay v. Eve, 3 Cranch 242, 248, 2 L.Ed. 427 (1806) (monetary debts)

27. Hopkirk v. Bell, 3 Cranch 454, 457-458, 2 L.Ed. 497 (1806) (same)*

28. Ware v. Hylton, 3 Dall. 199, 203-204, 285, 1 L.Ed. 568 (1796) (same)*

29. Georgia v. Brailsford, 3 Dall. 1, 4, 1 L.Ed. 483 (1794) (same)

B

United States treaties in force containing provisions for the submission of treaty-based disputes to the International Court of Justice. Parentheticals indicate subject matters that can be the subject of ICJ adjudication that are of the sort that this Court has found self-executing.

Economic Cooperation Agreements

1. Economic Aid Agreement Between the United States of America and Spain, Sept. 26, 1953, [1953] 4 U.S.T. 1903, 1920-1921, T.I.A.S. No. 2851 (property and contract)

2. Agreement for Economic Assistance Between the Government of the United States of America and the Government of Israel Pursuant to the General Agreement for Technical Cooperation, May 9, 1952, [1952] 3 U.S.T. 4174, 4177, T.I.A.S. No. 2561 (same)

3. Economic Cooperation Agreement Between the United States of America [1394] and Portugal, 62 Stat. 2861-2862 (1948) (same)

4. Economic Cooperation Agreement Between the United States of America and the United Kingdom, 62 Stat. 2604 (1948) (same)

5. Economic Cooperation Agreement Between the United States of America and the Republic of Turkey, 62 Stat. 2572 (1948) (same)

6. Economic Cooperation Agreement Between the United States of America and Sweden, 62 Stat. 2557 (1948) (same)

7. Economic Cooperation Agreement Between the United States of America and Norway, 62 Stat. 2531 (1948) (same)

8. Economic Cooperation Agreement Between the Governments of the United States of America and the Kingdom of the Netherlands, 62 Stat. 2500 (1948) (same)

9. Economic Cooperation Agreement Between the United States of America and the Grand Duchy of Luxembourg, 62 Stat. 2468 (1948) (same)

10. Economic Cooperation Agreement Between the United States of America and Italy, 62 Stat. 2440 (1948) (same)

11. Economic Cooperation Agreement Between the United States of America and Iceland, 62 Stat. 2390 (1948) (same)

12. Economic Cooperation Agreement Between the United States of America and Greece, 62 Stat. 2344 (1948) (same)

13. Economic Cooperation Agreement Between the United States of America and France, 62 Stat. 2232, 2233 (1948) (same)

14. Economic Cooperation Agreement Between the United States of America and Denmark, 62 Stat. 2214 (1948) (same)

15. Economic Cooperation Agreement Between the United States of America and the Kingdom of Belgium, 62 Stat. 2190 (1948) (same)

16. Economic Cooperation Agreement Between the United States of America and Austria, 62 Stat. 2144 (1948) (same)

Bilateral Consular Conventions

1. Consular Convention Between the United States of America and the Kingdom of Belgium, Sept. 2, 1969, [1974] 25 U.S.T. 41, 47-49, 56-57, 60-61, 75, T.I.A.S. No. 7775 (domestic court jurisdiction and authority over consular officers, taxation of consular officers, consular notification)

2. Consular Convention Between the United States of America and the Republic of Korea, Jan. 8, 1963, [1963] 14 U.S.T. 1637, 1641, 1644-1648, T.I.A.S. No. 5469 (same)

Friendship, Commerce, and navigation Treaties

1. Treaty of Amity and Economic Relations Between the United States of America and the Togolese Republic, Feb. 8, 1966, [1967] 18 U.S.T. 1, 3-4, 10, T.I.A.S. No. 6193 (contracts and property)

2. Treaty of Friendship, Establishment and Navigation Between the United States of America and The Kingdom of Belgium, Feb. 21, 1961, [1963] 14 U.S.T. 1284, 1290-1291, 1307, T.I.A.S. No. 5432 (same)

3. Treaty of Friendship, Establishment and Navigation between the United [1395] States of America and the Grand Duchy of Luxembourg, Feb. 23, 1962, [1963] 14 U.S.T. 251, 254-255, 262, T.I.A.S. No. 5306 (consular notification; contracts and property)

4. Treaty of Friendship, Commerce and Navigation between the United States of America and the Kingdom of Denmark, Oct. 1, 1951, [1961] 12 U.S.T. 908, 912-913, 935, T.I.A.S. No. 4797 (contracts and property)

5. Treaty of Friendship and Commerce Between the United States of America and Pakistan, Nov. 12, 1959, [1961] 12 U.S.T. 110, 113, 123, T.I.A.S. No. 4863 (same)

6. Convention of Establishment Between the United States of America and France, Nov. 25, 1959, [1960] 11 U.S.T. 2398, 2401-2403, 2417, T.I.A.S. No. 4625 (same)

7. Treaty of Friendship, Commerce and Navigation Between the United States of America and the Republic of Korea, Nov. 28, 1956, [1957] 8 U.S.T. 2217, 2221-2222, 2233, T.I.A.S. No. 3947 (same)

8. Treaty of Friendship, Commerce and Navigation between the United States of America and the Kingdom of the Netherlands, Mar. 27, 1956, [1957] 8 U.S.T.2043, 2047-2050, 2082-2083, T.I.A.S. No. 3942 (freedom to travel, consular notification, contracts and property)

9. Treaty of Amity, Economic Relations, and Consular Rights Between the United States of America and Iran, Aug. 15, 1955, [1957] 8 U.S.T. 899, 903, 907, 913, T.I.A.S. No. 3853 (property and freedom of commerce)

10. Treaty of Friendship, Commerce and Navigation Between the United States of America and the Federal Republic of Germany, Oct. 29, 1954, [1956] 7 U.S.T. 1839, 1844-1846, 1867, T.I.A.S. No. 3593 (property and contract)

11. Treaty of Friendship, Commerce and Navigation Between the United States of America and Greece, Aug. 3, 1951, [1954] 5 U.S.T. 1829, 1841-1847, 1913-1915, T.I.A.S. No. 3057 (same)

12. Treaty of Friendship, Commerce and Navigation Between the United States of America and Israel, Aug. 23, 1951, [1954] 5 U.S.T. 550, 555-556, 575, T.I.A.S. No. 2948 (same)

13. Treaty of Amity and Economic Relations Between the United States of America and Ethiopia, Sept. 7, 1951, [1953] 4 U.S.T. 2134, 2141, 2145, 2147, T.I.A.S. No. 2864 (property and freedom of commerce)

14. Treaty of Friendship, Commerce and Navigation Between the United States of America and Japan, Apr. 2, 1953, [1953] 4 U.S.T.2063, 2067-2069, 2080, T.I.A.S. No. 2863 (property and contract)

15. Treaty of Friendship, Commerce and Navigation between the United States of America and Ireland, Jan. 21, 1950, [1950] 1 U.S.T. 785, 792-794, 801, T.I.A.S. No. 2155 (same)

16. Treaty of Friendship, Commerce and Navigation between the United States of America and the Italian Republic, 63 Stat. 2262, 2284, 2294 (1948) (property and freedom of commerce)

Multilateral Conventions

1. Patent Cooperation Treaty, June 19, 1970, [1976-77] 28 U.S.T. 7645, 7652-7676, 7708, T.I.A.S. No. 8733 (patents)

[1396] 2. Universal Copyright Convention, July 24, 1971, [1974] 25 U.S.T. 1341, 1345, 1366, T.I.A.S. No. 7868 (copyright)

3. Vienna Convention on Diplomatic Relations and Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 18, 1961, [1972] 23 U.S.T. 3227, 3240-3243, 3375, T.I.A.S. No. 7502 (rights of diplomats in foreign nations)

4. Paris Convention for the Protection of Industrial Property, July 14, 1967, [1970] 21 U.S.T. 1583, 1631-1639, 1665-1666, T.I.A.S. No. 6923 (patents)

5. Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, [1970] 21 U.S.T. 1418, 1426-1428, 1430-1432, 1438-1440, T.I.A.S. No. 6900 (rights of U.N. diplomats and officials)

6. Convention on Offences and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, [1969] 20 U.S.T. 2941, 2943-2947, 2952, T.I.A.S. No. 6768 (airlines' treatment of passengers)

7. Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character, July 15, 1949, [1966] 17 U.S.T. 1578, 1581, 1586, T.I.A.S. No. 6116 (customs duties on importation of films and recordings)

8. Universal Copyright Convention, Sept. 6, 1952, [1955] 6 U.S.T. 2731, 2733-2739, 2743, T.I.A.S. No. 3324 (copyright)

9. Treaty of Peace with Japan, Sept. 8, 1951, [1952] 3 U.S.T. 3169, 3181-3183, 3188, T.I.A.S. No. 2490 (property)

10. Convention on Road Traffic, Sept. 19, 1949, [1952] 3 U.S.T. 3008, 3012-3017, 3020, T.I.A.S. No. 2487 (rights and obligations of drivers)

11. Convention on International Civil Aviation, 61 Stat. 1204 (1944) (seizure of aircraft to satisfy patent claims)

[1] The requirement of Article 36(1)(b) of the Vienna Convention that the detaining state notify the detainee's consulate "without delay" is satisfied, according to the ICJ, where notice is provided within three working days. Avena, 2004 I.C.J. 12, 52, ¶ 97 (Judgment of Mar. 31). See Sanchez-Llamas v. Oregon, 548 U.S. 331, 362, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006) (GINSBURG, J., concurring in judgment). Here, Medellín confessed within three hours of his arrest—before there could be a violation of his Vienna Convention right to consulate notification. App. to Brief for Respondent 32-36. In a second state habeas application, Medellín sought to expand his claim of prejudice by contending that the State's noncompliance with the Vienna Convention deprived him of assistance in developing mitigation evidence during the capital phase of his trial. This argument, however, was likely waived: Medellín had the assistance of consulate counsel during the preparation of his first application for state postconviction relief, yet failed to raise this argument at that time. See Application for Writ of Habeas Corpus in Ex parte Medellín, No. 675430-A (Tex.Crim.App.), pp. 25-31. In light of our disposition of this case, we need not consider whether Medellín was prejudiced in any way by the violation of his Vienna Convention rights.

[2] The label "self-executing" has on occasion been used to convey different meanings. What we mean by "self-executing" is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a "non-self-executing" treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.

[3] Even when treaties are self-executing in the sense that they create federal law, the background presumption is that "[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts." 2 Restatement (Third) of Foreign Relations Law of the United States § 907, Comment a, p. 395 (1986) (hereinafter Restatement). Accordingly, a number of the Courts of Appeals have presumed that treaties do not create privately enforceable rights in the absence of express language to the contrary. See, e.g., United States v. Emuegbunam, 268 F.3d 377, 389 (C.A.6 2001); United States v. Jimenez-Nava, 243 F.3d 192, 195 (C.A.5 2001); United States v. Li, 206 F.3d 56, 60-61 (C.A.1 2000) (en banc); Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (C.A.4 1992); Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (C.A.D.C.1980); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (C.A.3 1979).

[4] The question is whether the Avena judgment has binding effect in domestic courts under the Optional Protocol, ICJ Statute, and U.N. Charter. Consequently, it is unnecessary to resolve whether the Vienna Convention is itself "self-executing" or whether it grants Medellín individually enforceable rights. See Reply Brief for Petitioner 5 (disclaiming reliance on the Vienna Convention). As in Sanchez-Llamas, 548 U.S., at 342-343, 126 S.Ct. 2669, we thus assume, without deciding, that Article 36 grants foreign nationals "an individually enforceable right to request that their consular officers be notified of their detention, and an accompanying right to be informed by authorities of the availability of consular notification."

[5] We do not read "undertakes" to mean that "`"[t]he United States ... shall be at liberty to make respecting th[e] matter, such laws as they think proper."'" Post, at 1384-1385 (BREYER, J., dissenting) (quoting Todok v. Union State Bank of Harvard, 281 U.S. 449, 453, 454, 50 S.Ct. 363, 74 L.Ed. 956 (1930) (holding that a treaty with Norway did not "operat[e] to override the law of [Nebraska] as to the disposition of homestead property")). Whether or not the United States "undertakes" to comply with a treaty says nothing about what laws it may enact. The United States is always "at liberty to make ... such laws as [it] think[s] proper." Id., at 453, 50 S.Ct. 363. Indeed, a later-in-time federal statute supersedes inconsistent treaty provisions. See, e.g., Cook v. United States, 288 U.S. 102, 119-120, 53 S.Ct. 305, 77 L.Ed. 641 (1933). Rather, the "undertakes to comply" language confirms that further action to give effect to an ICJ judgment was contemplated, contrary to the dissent's position that such judgments constitute directly enforceable federal law, without more. See also post, at 1372-1374 (STEVENS, J., concurring in judgment).

[6] Article 94(2) provides in full: "If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment." 59 Stat. 1051.

[7] Medellín alters this language in his brief to provide that the ICJ Statute makes the Avena judgment binding "in respect of [his] particular case." Brief for Petitioner 22 (internal quotation marks omitted). Medellín does not and cannot have a case before the ICJ under the terms of the ICJ Statute.

[8] The dissent concludes that the ICJ judgment is binding federal law based in large part on its belief that the Vienna Convention overrides contrary state procedural rules. See post, at 1385-1386, 1386, 1387. But not even Medellín relies on the Convention. See Reply Brief for Petitioner 5 (disclaiming reliance). For good reason: Such reliance is foreclosed by the decision of this Court in Sanchez-Llamas, 548 U.S., at 351, 126 S.Ct. 2669 (holding that the Convention does not preclude the application of state procedural bars); see also id., at 363, 126 S.Ct. 2669 (GINSBURG, J., concurring in judgment). There is no basis for relitigating the issue. Further, to rely on the Convention would elide the distinction between a treaty—negotiated by the President and signed by Congress— and a judgment rendered pursuant to those treaties.

[9] In interpreting our treaty obligations, we also consider the views of the ICJ itself, "giv[ing] respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret [the treaty]." Breard v. Greene, 523 U.S. 371, 375, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (per curiam); see Sanchez-Llamas, supra, at 355-356, 126 S.Ct. 2669. It is not clear whether that principle would apply when the question is the binding force of ICJ judgments themselves, rather than the substantive scope of a treaty the ICJ must interpret in resolving disputes. Cf. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 805, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) ("[A] court adjudicating a dispute may not be able to predetermine the res judicata effect of its own judgment"); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4405, p. 82 (2d ed. 2002) ("The first court does not get to dictate to other courts the preclusion consequences of its own judgment"). In any event, nothing suggests that the ICJ views its judgments as automatically enforceable in the domestic courts of signatory nations. The Avena judgment itself directs the United States to provide review and reconsideration of the affected convictions and sentences "by means of its own choosing." 2004 I.C. J., at 72 (emphasis added). This language, as well as the ICJ's mere suggestion that the "judicial process" is best suited to provide such review, id., at 65-66, confirm that domestic enforceability in court is not part and parcel of an ICJ judgment.

[10] The best that the ICJ experts as amici curiae can come up with is the contention that local Moroccan courts have referred to ICJ judgments as "dispositive." Brief for ICJ Experts as Amici Curiae 20, n. 31. Even the ICJ experts do not cite a case so holding, and Moroccan practice is at best inconsistent, for at least one local Moroccan court has held that ICJ judgments are not binding as a matter of municipal law. See, e.g., Mackay Radio & Tel. Co. v. Lal-La Fatma Bent si Mohamed el Khadar, [1954] 21 Int'l L. Rep. 136 (Tangier, Ct.App. Int'l Trib.) (holding that ICJ decisions are not binding on Morocco's domestic courts); see also "Socobel" v. Greek State, [1951] 18 Int'l L. Rep. 3 (Belg., Trib. Civ. de Bruxelles) (holding that judgments of the ICJ's predecessor, the Permanent Court of International Justice, were not domestically enforceable).

[11] The other case Medellín cites for the proposition that the judgments of international courts are binding, La Abra Silver Mining Co. v. United States, 175 U.S. 423, 35 Ct.Cl. 623, 20 S.Ct. 168, 44 L.Ed. 223 (1899), and the cases he cites for the proposition that this Court has routinely enforced treaties under which foreign nationals have asserted rights, similarly stand only for the principle that the terms of a treaty govern its enforcement. See Reply Brief for Petitioner 4, 5, n. 2. In each case, this Court first interpreted the treaty prior to finding it domestically enforceable. See, e.g., United States v. Rauscher, 119 U.S. 407, 422-423, 7 S.Ct. 234, 30 L.Ed. 425 (1886) (holding that the treaty required extradition only for specified offenses); Hopkirk v. Bell, 3 Cranch 454, 458, 2 L.Ed. 497 (1806) (holding that the treaty of peace between Great Britain and the United States prevented the operation of a state statute of limitations on British debts).

[12] That this Court has rarely had occasion to find a treaty non-self-executing is not all that surprising. See post, at 1379 (BREYER, J., dissenting). To begin with, the Courts of Appeals have regularly done so. See, e.g., Pierre v. Gonzales, 502 F.3d 109, 119-120 (C.A.2 2007) (holding that the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is non-self-executing); Singh v. Ashcroft, 398 F.3d 396, 404, n. 3 (C.A.6 2005) (same); Beazley v. Johnson, 242 F.3d 248, 267 (C.A.5 2001) (holding that the International Covenant on Civil and Political Rights is non-self-executing). Further, as noted, Congress has not hesitated to pass implementing legislation for treaties that in its view require such legislation.

[13] The dissent refrains from deciding the issue, but finds it "difficult to believe that in the exercise of his Article II powers pursuant to a ratified treaty, the President can never take action that would result in setting aside state law." Post, at 1390. We agree. The questions here are the far more limited ones of whether he may unilaterally create federal law by giving effect to the judgment of this international tribunal pursuant to this non-self-executing treaty, and, if not, whether he may rely on other authority under the Constitution to support the action taken in this particular case. Those are the only questions we decide.

[14] Rather, in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (Judgment of June 27), the President determined that the United States would not comply with the ICJ's conclusion that the United States owed reparations to Nicaragua. In the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 I.C.J. 246 (Judgment of Oct. 12), a federal agency—the National Oceanic and Atmospheric Administration—issued a final rule which complied with the ICJ's boundary determination. The Case Concerning Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), 1952 I.C.J. 176 (Judgment of Aug. 27), concerned the legal status of United States citizens living in Morocco; it was not enforced in United States courts.

The final two cases arose under the Vienna Convention. In the Lagrand Case (F.R. G. v. U.S.), 2001 I.C.J. 466 (Judgment of June 27), the ICJ ordered the review and reconsideration of convictions and sentences of German nationals denied consular notification. In response, the State Department sent letters to the States "encouraging" them to consider the Vienna Convention in the clemency process. Brief for United States as Amicus Curiae 20-21. Such encouragement did not give the ICJ judgment direct effect as domestic law; thus, it cannot serve as precedent for doing so in which Congress might be said to have acquiesced. In the Case Concerning the Vienna Convention on Consular Relations (Para. v. U.S.), 1998 I.C.J. 248 (Judgment of Apr. 9), the ICJ issued a provisional order, directing the United States to "take all measures at its disposal to ensure that [Breard] is not executed pending the final decision in [the ICJ's] proceedings." Breard, 523 U.S., at 374, 118 S.Ct. 1352 (internal quotation marks omitted). In response, the Secretary of State sent a letter to the Governor of Virginia requesting that he stay Breard's execution. Id., at 378, 118 S.Ct. 1352. When Paraguay sought a stay of execution from this Court, the United States argued that it had taken every measure at its disposal: because "our federal system imposes limits on the federal government's ability to interfere with the criminal justice systems of the States," those measures included "only persuasion," not "legal compulsion." Brief for United States as Amicus Curiae, O.T. 1997, No. 97-8214, p. 51. This of course is precedent contrary to the proposition asserted by the Solicitor General in this case.

[15] See, e.g., Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), Art. 54(1), Mar. 18, 1965, [1966] 17 U.S.T. 1291, T.I.A.S. No. 6090 ("Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State"); 22 U.S.C. § 1650a ("An award of an arbitral tribunal rendered pursuant to chapter IV of the [ICSID Convention] shall create a right arising under a treaty of the United States. The pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States").

[16] Cf., e.g., U.S. Reservations, Declarations and Understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. 8071 (1992) ("[T]he United States declares that the provisions of Articles 1 through 27 of the Covenant are not self-executing").

[17] Congress' implementation options are broader than the dissent suggests. In addition to legislating judgment-by-judgment, enforcing all judgments indiscriminately, and devising "legislative bright lines," post, at 1388, Congress could, for example, make ICJ judgments enforceable upon the expiration of a waiting period that gives the political branches an opportunity to intervene. Cf., e.g., 16 U.S.C. § 1823 (imposing a 120-day waiting period before international fishery agreements take effect).

[18] In Avena, the ICJ expressed "great concern" that Oklahoma had set the date of execution for one of the Mexican nationals involved in the judgment, Osbaldo Torres, for May 18, 2004. 2004 I.C. J., at 28, ¶ 21. Responding to Avena, the Oklahoma Court of Criminal Appeals stayed Torres' execution and ordered an evidentiary hearing on whether Torres had been prejudiced by the lack of consular notification. See Torres v. Oklahoma, No. PCD-04-442, 2004 WL 3711623 (May 13, 2004), 43 I.L.M. 1227. On the same day, the Governor of Oklahoma commuted Torres' death sentence to life without the possibility of parole, stressing that (1) the United States signed the Vienna Convention, (2) that treaty is "important in protecting the rights of American citizens abroad," (3) the ICJ ruled that Torres' rights had been violated, and (4) the U.S. State Department urged his office to give careful consideration to the United States' treaty obligations. See Office of Governor Brad Henry, Press Release: Gov. Henry Grants Clemency to Death Row Inmate Torres (May 13, 2004), online at http://www.ok. gov/governor/display_article.php?article_id= 301 & article_type=1 (as visited Mar. 20, 2008, and available in Clerk of Court's case file). After the evidentiary hearing, the Oklahoma Court of Criminal Appeals held that Torres had failed to establish prejudice with respect to the guilt phase of his trial, and that any prejudice with respect to the sentencing phase had been mooted by the commutation order. Torres v. Oklahoma, 120 P.3d 1184 (2005).

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA.

[678] Mr. J. Parker Kirlin for appellants.

Mr. Assistant Attorney General Hoyt for the United States.

Mr. Joseph K. McCammon and Mr. James H. Hayden filed a brief for the captors. Mr. George A. King and Mr. William B. King filed a brief "for certain captors."

MR. JUSTICE GRAY delivered the opinion of the court.

These are two appeals from decrees of the District Court of the United States for the Southern District of Florida, condemning two fishing vessels and their cargoes as prize of war.

Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of Cuban birth, living in the city of Havana; was commanded by a subject of Spain, also residing in Havana; and her master and crew had no interest in the vessel, but were entitled to shares, amounting in all to two thirds, of her catch, the other third belonging to her owner. Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Until stopped by the blockading squadron, she had no knowledge of the existence of the war, or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture.

The Paquete Habana was a sloop, 43 feet long on the keel, [679] and of 25 tons burden, and had a crew of three Cubans, including the master, who had a fishing license from the Spanish Government, and no other commission or license. She left Havana March 25, 1898; sailed along the coast of Cuba to Cape San Antonio at the western end of the island, and there fished for twenty-five days, lying between the reefs off the cape, within the territorial waters of Spain; and then started back for Havana, with a cargo of about 40 quintals of live fish. On April 25, 1898, about two miles off Mariel, and eleven miles from Havana, she was captured by the United States gunboat Castine.

The Lola was a schooner, 51 feet long on the keel, and of 35 tons burden, and had a crew of six Cubans, including the master, and no commission or license. She left Havana April 11, 1898, and proceeded to Campeachy Sound off Yucatan, fished there eight days, and started back for Havana with a cargo of about 10,000 pounds of live fish. On April 26, 1898, near Havana, she was stopped by the United States steamship Cincinnati, and was warned not to go into Havana, but was told that she would be allowed to land at Bahia Honda. She then changed her course, and put for Bahia Honda, but on the next morning, when near that port, was captured by the United States steamship Dolphin.

Both the fishing vessels were brought by their captors into Key West. A libel for the condemnation of each vessel and her cargo as prize of war was there filed on April 27, 1898; a claim was interposed by her master, on behalf of himself and the other members of the crew, and of her owner; evidence was taken, showing the facts above stated; and on May 30, 1898, a final decree of condemnation and sale was entered, "the court not being satisfied that as a matter of law, without any ordinance, treaty or proclamation, fishing vessels of this class are exempt from seizure."

Each vessel was thereupon sold by auction; the Paquete Habana for the sum of $490; and the Lola for the sum of $800. There was no other evidence in the record of the value of either vessel or of her cargo.

It has been suggested, in behalf of the United States, that [680] this court has no jurisdiction to hear and determine these appeals, because the matter in dispute in either case does not exceed the sum or value of $2000, and the District Judge has not certified that the adjudication involves a question of general importance.

The suggestion is founded on section 695 of the Revised Statutes, which provides that "an appeal shall be allowed to the Supreme Court from all final decrees of any District Court in prize causes where the matter in dispute, exclusive of costs, exceeds the sum or value of two thousand dollars; and shall be allowed, without reference to the matter in dispute, on the certificate of the District Judge that the adjudication involves a question of general importance."

The Judiciary Acts of the United States, for a century after the organization of the Government under the Constitution, did impose pecuniary limits upon appellate jurisdiction.

In actions at law and suits in equity, the pecuniary limit of the appellate jurisdiction of this court from the Circuit Courts of the United States was for a long time fixed at $2000. Acts of September 24, 1789, c. 20, § 22; 1 Stat. 84; March 3, 1803, c. 40; 2 Stat. 244; Gordon v. Ogden, 3 Pet. 33; Rev. Stat. §§ 691, 692. In 1875 it was raised to $5000. Act of February 16, 1875, c. 77, § 3; 18 Stat. 316. And in 1889 this was modified by providing that, where the judgment or decree did not exceed the sum of $5000, this court should have appellate jurisdiction upon the question of the jurisdiction of the Circuit Court, and upon that question only. Act of February 25, 1889, c. 236, § 1; 25 Stat. 693; Parker v. Ormsby, 141 U.S. 81.

As to cases of admiralty and maritime jurisdiction, including prize causes, the Judiciary Act of 1789, in § 9, vested the original jurisdiction in the District Courts, without regard to the sum or value in controversy; and in § 21, permitted an appeal from them to the Circuit Court where the matter in dispute exceeded the sum or value of $300. 1 Stat. 77, 83; The Betsey, 3 Dall. 6, 16; The Amiable Nancy, 3 Wheat. 546; Stratton v. Jarvis, 8 Pet. 4, 11. By the act of March 3, 1803, c. 40, appeals to the Circuit Court were permitted from all final decrees of a District Court where [681] the matter in dispute exceeded the sum or value of $50; and from the Circuit Courts to this court in all cases "of admiralty and maritime jurisdiction, and of prize or no prize," in which the matter in dispute exceeded the sum or value of $2000. 2 Stat. 244; Jenks v. Lewis, 3 Mason, 503; Stratton v. Jarvis, above cited; The Admiral, 3 Wall. 603, 612. The acts of March 3, 1863, c. 86, § 7, and June 30, 1864, c. 174, § 13, provided that appeals from the District Courts in prize causes should lie directly to this court, where the amount in controversy exceeded $2000, "or on the certificate of the District Judge that the adjudication involves a question of general importance." 12 Stat. 760; 13 Stat. 310. The provision of the act of 1803, omitting the words, "and of prize or no prize," was reenacted in section 692 of the Revised Statutes; and the provision of the act of 1864, concerning prize causes, was substantially reenacted in section 695 of the Revised Statutes, already quoted.

But all this has been changed by the act of March 3, 1891, c. 517, establishing the Circuit Courts of Appeals, and creating a new and complete scheme of appellate jurisdiction, depending upon the nature of the different cases, rather than upon the pecuniary amount involved. 26 Stat. 826.

By that act, as this court has declared, the entire appellate jurisdiction from the Circuit and District Courts of the United States was distributed, "according to the scheme of the act," between this court and the Circuit Courts of Appeals thereby established, "by designating the classes of cases" of which each of these courts was to have final jurisdiction. McLish v. Roff, 141 U.S. 661, 666; American Construction Co. v. Jacksonville Railway, 148 U.S. 372, 382; Carey v. Houston & Texas Railway, 150 U.S. 170, 179.

The intention of Congress, by the act of 1891, to make the nature of the case, and not the amount in dispute, the test of the appellate jurisdiction of this court from the District and Circuit Courts clearly appears upon examination of the leading provisions of the act.

Section 4 provides that no appeal, whether by writ of error or otherwise, shall hereafter be taken from a District Court [682] to a Circuit Court; but that all appeals, by writ of error or otherwise, from the District Courts, "shall only be subject to review" in this court, or in the Circuit Court of Appeals, "as is hereinafter provided," and "the review, by appeal, by writ of error, or otherwise," from the Circuit Courts, "shall be had only" in this court, or in the Circuit Court of Appeals, "according to the provisions of this act regulating the same."

Section 5 provides that "appeals or writs of error may be taken from the District Courts, or from the existing Circuit Courts, direct to the Supreme Court, in the following cases:"

First. "In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision." This clause includes "any case," without regard to amount, in which the jurisdiction of the court below is in issue; and differs in this respect from the act of 1889, above cited.

Second. "From the final sentences and decrees in prize causes." This clause includes the whole class of "the final sentences and decrees in prize causes," and omits all provisions of former acts regarding amount in controversy, or certificate of a District Judge.

Third. "In cases of conviction of a capital or otherwise infamous crime." This clause looks to the nature of the crime, and not to the extent of the punishment actually imposed. A crime which might have been punished by imprisonment in a penitentiary is an infamous crime, even if the sentence actually pronounced is of a small fine only. Ex parte Wilson, 114 U.S. 417, 426. Consequently, such a sentence for such a crime was subject to the appellate jurisdiction of this court, under this clause, until this jurisdiction, so far as regards crimes not capital, was transferred to the Circuit Court of Appeals by the act of January 20, 1897, c. 68. 29 Stat. 492.

Fourth. "In any case that involves the construction or application of the Constitution of the United States."

Fifth. "In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question."

[683] Sixth. "In any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States."

Each of these last three clauses, again, includes "any case" of the class mentioned. They all relate to what are commonly called Federal questions, and cannot reasonably be construed to have intended that the appellate jurisdiction of this court over such questions should be restricted by any pecuniary limit — especially in their connection with the succeeding sentence of the same section: "Nothing in this act shall affect the jurisdiction of the Supreme Court in cases appealed from the highest court of a State, nor the construction of the statute providing for review of such cases." Writs of error from this court to review the judgments of the highest court of a State upon such questions have never been subject to any pecuniary limit. Act of September 24, 1789, c. 20, § 25; 1 Stat. 85; Buel v. Van Ness, 8 Wheat. 312; act of February 5, 1867, c. 28, § 2; 14 Stat. 386; Rev. Stat. § 709.

By section 6 of the act of 1891, this court is relieved of much of the appellate jurisdiction that it had before; the appellate jurisdiction from the District and Circuit Courts "in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law," is vested in the Circuit Court of Appeals; and its decisions in admiralty cases, as well as in cases arising under the criminal laws, and in certain other classes of cases, are made final, except that that court may certify to this court questions of law, and that this court may order up the whole case by writ of certiorari. It is settled that the words "unless otherwise provided by law," in this section, refer only to provisions of the same act, or of contemporaneous or subsequent acts, and do not include provisions of earlier statutes. Lau Ow Bew v. United States, 144 U.S. 47, 57; Hubbard v. Soby, 146 U.S. 56; American Construction Co. v. Jacksonville Railway, 148 U.S. 372, 383.

The act of 1891 nowhere imposes a pecuniary limit upon the appellate jurisdiction, either of this court or of the Circuit Court of Appeals, from a District or Circuit Court of the United States. The only pecuniary limit imposed is one of [684] $1000 upon the appeal to this court of a case which has been once decided on appeal in the Circuit Court of Appeals, and in which the judgment of that court is not made final by section 6 of the act.

Section 14 of the act of 1891, after specifically repealing section 691 of the Revised Statutes and section 3 of the act of February 16, 1875, further provides that "all acts and parts of acts relating to appeals or writs of error, inconsistent with the provisions for review by appeals or writs of error in the preceding sections five and six of this act, are hereby repealed." 26 Stat. 829, 830. The object of the specific repeal, as this court has declared, was to get rid of the pecuniary limit in the acts referred to. McLish v. Roff, 141 U.S. 661, 667. And, although neither section 692 nor section 695 of the Revised Statutes is repealed by name, yet, taking into consideration the general repealing clause, together with the affirmative provisions of the act, the case comes within the reason of the decision in an analogous case, in which this court said: "The provisions relating to the subject-matter under consideration are, however, so comprehensive, as well as so variant from those of former acts, that we think the intention to substitute the one for the other is necessarily to be inferred and must prevail." Fisk v. Henarie, 142 U.S. 459, 468.

The decision of this court in the recent case of United States v. Rider, 163 U.S. 132, affords an important, if not controlling precedent. From the beginning of this century until the passage of the act of 1891, both in civil and in criminal cases, questions of law, upon which two judges of the Circuit Court were divided in opinion, might be certified by them to this court for decision. Acts of: April 29, 1802, c. 31, § 6; 2 Stat. 159; June 1, 1872, c. 255, § 1; 17 Stat. 196; Rev. Stat. §§ 650-652, 693, 697; Insurance Co. v. Dunham, 11 Wall. 1, 21; United States v. Sanges, 144 U.S. 310, 320. But in United States v. Rider, it was adjudged by this court that the act of 1891 had superseded and repealed the earlier acts authorizing questions of law to be certified from the Circuit Court to this court; and the grounds of that adjudication sufficiently appear by [685] the statement of the effect of the act of 1891 in two passages of the opinion: "Appellate jurisdiction was given in all criminal cases by writ of error, either from this court or from the Circuit Courts of Appeals, and in all civil cases by appeal or error, without regard to the amount in controversy, except as to appeals or writs of error to or from the Circuit Courts of Appeals in cases not made final, as specified in § 6." "It is true that repeals by implication are not favored, but we cannot escape the conclusion that, tested by its scope, its obvious purpose and its terms, the act of March 3, 1891, covers the whole subject-matter under consideration, and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error or certificate." 163 U.S. 138-140.

That judgment was thus rested upon two successive propositions: First, that the act of 1891 gives appellate jurisdiction, either to this court or to the Circuit Court of Appeals, in all criminal cases, and in all civil cases "without regard to the amount in controversy." Second, that the act, by its terms, its scope and its obvious purpose, "furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error or certificate."

As was long ago said by Chief Justice Marshall, "the spirit as well as the letter of a statute must be respected, and where the whole context of the law demonstrates a particular intent in the legislature to effect a certain object, some degree of implication may be called in to aid that intent." Durousseau v. United States, 6 Cranch, 307, 314. And it is a well settled rule in the construction of statutes, often affirmed and applied by this court, that, "even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act." United States v. Tynen, 11 Wall. 88, 92; King v. Cornell, 106 U.S. 395, 396; Tracy v. Tuffly, 134 U.S. 206, 223; Fisk v. Henarie, 142 U.S. 459, 468; District of Columbia v. Hutton, 143 U.S. 18, 27; United States v. Healey, 160 U.S. 136, 147.

We are of opinion that the act of 1891, upon its face, read [686] in the light of settled rules of statutory construction, and of the decisions of this court, clearly manifests the intention of Congress to cover the whole subject of the appellate jurisdiction from the District and Circuit Courts of the United States, so far as regards in what cases, as well as to what courts, appeals may be taken, and to supersede and repeal, to this extent, all the provisions of earlier acts of Congress, including those that imposed pecuniary limits upon such jurisdiction; and, as part of the new scheme, to confer upon this court jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute, and without any certificate of the District Judge as to the importance of the particular case.

We are then brought to the consideration of the question whether, upon the facts appearing in these records, the fishing smacks were subject to capture by the armed vessels of the United States during the recent war with Spain.

By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war.

This doctrine, however, has been earnestly contested at the bar; and no complete collection of the instances illustrating it is to be found, so far as we are aware, in a single published work, although many are referred to and discussed by the writers on international law, notably in 2 Ortolan, Regles Internationales et Diplomatic de la Mer, (4th ed.) lib. 3, c. 2, pp. 51-56; in 4 Calvo, Droit International, (5th ed.) §§ 2367-2373; in De Boeck, Propriete Privee Ennemie sous Pavillon Ennemi, §§ 191-196; and in Hall, International Law, (4th. ed.) § 148. It is therefore worth the while to trace the history of the rule, from the earliest accessible sources, through the increasing recognition of it, with occasional setbacks, to what we may now justly consider as its final establishment in our own country and generally throughout the civilized world.

The earliest acts of any government on the subject, mentioned [687] in the books, either emanated from, or were approved by, a King of England.

In 1403 and 1406, Henry IV issued orders to his admirals and other officers, entitled "Concerning Safety for Fishermen — De Securitate pro Piscatoribus." By an order of October 26, 1403, reciting that it was made pursuant to a treaty between himself and the King of France; and for the greater safety of the fishermen of either country, and so that they could be, and carry on their industry, the more safely on the sea, and deal with each other in peace; and that the French King had consented that English fishermen should be treated likewise; it was ordained that French fishermen might, during the then pending season for the herring fishery, safely fish for herrings and all other fish, from the harbor of Gravelines and the island of Thanet to the mouth of the Seine and the harbor of Hautoune. And by an order of October 5, 1406, he took into his safe conduct, and under his special protection, guardianship and defence, all and singular the fishermen of France, Flanders and Brittany, with their fishing vessels and boats, everywhere on the sea, through and within his dominions, jurisdictions and territories, in regard to their fishery, while sailing, coming and going, and, at their pleasure, freely and lawfully fishing, delaying or proceeding, and returning homeward with their catch of fish, without any molestation or hindrance whatever; and also their fish, nets, and other property and goods soever; and it was therefore ordered that such fishermen should not be interfered with, provided they should comport themselves well and properly, and should not, by color of these presents, do or attempt, or presume to do or attempt, anything that could prejudice the King, or his kingdom of England, or his subjects. 8 Rymer's Foedera, 336, 451.

The treaty made October 2, 1521, between the Emperor Charles V and Francis I of France, through their ambassadors, recited that a great and fierce war had arisen between them, because of which there had been, both by land and by sea, frequent depredations and incursions on either side, to the grave detriment and intolerable injury of the innocent [688] subjects of each; and that a suitable time for the herring fishery was at hand, and, by reason of the sea being beset by the enemy, the fishermen did not dare to go out, whereby the subject of their industry, bestowed by heaven to allay the hunger of the poor, would wholly fail for the year, unless it were otherwise provided — quo fit, ut piscaturoe commoditas, ad pauperum levandam famem a coelesti numine concessa, cessare hoc anno omnino debeat, nisi aliter provideatur. And it was therefore agreed that the subjects of each sovereign, fishing in the sea, or exercising the calling of fishermen, could and might, until the end of the next January, without incurring any attack, depredation, molestation, trouble or hindrance soever, safely and freely, everywhere in the sea, take herrings and every other kind of fish, the existing war by land and sea notwithstanding; and further that, during the time aforesaid, no subject of either sovereign should commit, or attempt or presume to commit, any depredation, force, violence, molestation or vexation, to or upon such fishermen, or their vessels, supplies, equipments, nets and fish, or other goods soever truly appertaining to fishing. The treaty was made at Calais, then an English possession. It recites that the ambassadors of the two sovereigns met there at the earnest request of Henry VIII, and with his countenance, and in the presence of Cardinal Wolsey, his chancellor and representative. And towards the end of the treaty it is agreed that the said King and his said representative, "by whose means the treaty stands concluded, shall be conservators of the agreements therein, as if thereto by both parties elected and chosen." 4 Dumont, Corps Diplomatique, pt. 1, pp. 352, 353.

The herring fishery was permitted, in time of war, by French and Dutch edicts in 1536. Bynkershoek, Quaestiones Juris Publicae, lib. 1, c. 3; 1 Emerigon des Assurances, c. 4, sect. 9; c. 12, sect. 19, § 8.

France, from remote times, set the example of alleviating the evils of war in favor of all coast fishermen. In the compilation entitled Us et Coutumes de la Mer, published by Cleirac in 1661, and in the third part thereof, containing "Maritime or Admiralty Jurisdiction — la Jurisdiction de la [689] Marine ou d'Admiraut'e — as well in time of peace as in time of war," article 80 is as follows: "The admiral may in time of war accord fishing truces — tresves pescheresses — to the enemy and to his subjects; provided that the enemy will likewise accord them to Frenchmen." Cleirac, 544. Under this article, reference is made to articles 49 and 79 respectively of the French ordinances concerning the Admiralty in 1543 and 1584, of which it is but a reproduction. 4 Pardessus, Collection de Lois Maritimes, 319; 2 Ortolan, 51. And Cleirac adds, in a note, this quotation from Froissart's Chronicles: "Fishermen on the sea, whatever war there were in France and England, never did harm to one another; so they are friends, and help one another at need — Pescheurs sur mer, quelque guerre qui soit en France et Angleterre, jamais ne se firent mal l'un a l'autre; aincois sont amis, et s'aydent l'un a l'autre au besoin."

The same custom would seem to have prevailed in France until towards the end of the seventeenth century. For example, in 1675, Louis XIV and the States General of Holland, by mutual agreement, granted to Dutch and French fishermen the liberty, undisturbed by their vessels of war, of fishing along the coasts of France, Holland and England. D'Hauterive et De Cussy, Traites de Commerce, pt. 1, vol. 2, p. 278. But by the ordinances of 1681 and 1692 the practice was discontinued, because, Valin says, of the faithless conduct of the enemies of France, who, abusing the good faith with which she had always observed the treaties, habitually carried off her fishermen, while their own fished in safety. 2 Valin sur l'Ordonnance de la Marine, (1776) 689, 690; 2 Ortolan, 52; De Boeck, § 192.

The doctrine which exempts coast fishermen with their vessels and cargoes from capture as prize of war has been familiar to the United States from the time of the War of Independence.

On June 5, 1779, Louis XVI, our ally in that war, addressed a letter to his admiral, informing him that the wish he had always had of alleviating, as far as he could, the hardships of war, had directed his attention to that class of his subjects [690] which devoted itself to the trade of fishing, and had no other means of livelihood; that he had thought that the example which he should give to his enemies, and which could have no other source than the sentiments of humanity which inspired him, would determine them to allow to fishermen the same facilities which he should consent to grant; and that he had therefore given orders to the commanders of all his ships not to disturb English fishermen, nor to arrest their vessels laden with fresh fish, even if not caught by those vessels; provided they had no offensive arms, and were not proved to have made any signals creating a suspicion of intelligence with the enemy; and the admiral was directed to communicate the King's intentions to all officers under his control. By a royal order in council of November 6, 1780, the former orders were confirmed; and the capture and ransom, by a French cruiser, of The John and Sarah, an English vessel, coming from Holland, laden with fresh fish, were pronounced to be illegal. 2 Code des Prises, (ed. 1784) 721, 901, 903.

Among the standing orders made by Sir James Marriott, Judge of the English High Court of Admiralty, was one of April 11, 1780, by which it was "ordered, that all causes of prize of fishing boats or vessels taken from the enemy may be consolidated in one monition, and one sentence or interlocutory, if under fifty tons burden, and not more than six in number." Marriott's Formulary, 4. But by the statements of his successor, and of both French and English writers, it appears that England, as well as France, during the American Revolutionary War, abstained from interfering with the coast fisheries. The Young Jacob and Johanna, 1 C. Rob. 20; 2 Ortolan, 53; Hall, § 148.

In the treaty of 1785 between the United States and Prussia, article 23, (which was proposed by the American Commissioners, John Adams, Benjamin Franklin and Thomas Jefferson, and is said to have been drawn up by Franklin,) provided that, if war should arise between the contracting parties, "all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers and fishermen, [691] unarmed and inhabiting unfortified towns, villages or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons; nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted, by the armed force of the enemy, into whose power, by the events of war, they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price." 8 Stat. 96; 1 Kent Com. 91 note; Wheaton's History of the Law of Nations, 306, 308. Here was the clearest exemption from hostile molestation or seizure of the persons, occupations, houses and goods of unarmed fishermen inhabiting unfortified places. The article was repeated in the later treaties between the United States and Prussia of 1799 and 1828. 8 Stat. 174, 384. And Dana, in a note to his edition of Wheaton's International Law, says: "In many treaties and decrees, fishermen catching fish as an article of food are added to the class of persons whose occupation is not to be disturbed in war." Wheaton's International Law, (8th ed.) § 345, note 168.

Since the United States became a nation, the only serious interruptions, so far as we are informed, of the general recognition of the exemption of coast fishing vessels from hostile capture, arose out of the mutual suspicions and recriminations of England and France during the wars of the French Revolution.

In the first years of those wars, England having authorized the capture of French fishermen, a decree of the French National Convention of October 2, 1793, directed the executive power "to protest against this conduct, theretofore without example; to reclaim the fishing boats seized; and, in case of refusal, to resort to reprisals." But in July, 1796, the Committee of Public Safety ordered the release of English fishermen seized under the former decree, "not considering them as prisoners of war." La Nostra Segnora de la Piedad, (1801) cited below; 2 De Cussy, Droit Maritime, 164, 165; 1 Masse, Droit Commercial, (2d ed.) 266, 267.

[692] On January 24, 1798, the English Government, by express order, instructed the commanders of its ships to seize French and Dutch fishermen with their boats. 6 Martens, Recueil des Traites, (2d ed.) 505; 6 Schoell, Histoire des Traites, 119; 2 Ortolan, 53. After the promulgation of that order, Lord Stowell (then Sir William Scott) in the High Court of Admiralty of England condemned small Dutch fishing vessels as prize of war. In one case, the capture was in April, 1798, and the decree was made November 13, 1798. The Young Jacob and Johanna, 1 C. Rob. 20. In another case, the decree was made August 23, 1799. The Noydt Gedacht, 2 C. Rob. 137, note.

For the year 1800, the orders of the English and French governments and the correspondence between them may be found in books already referred to. 6 Martens, 503-512; 6 Schoell, 118-120; 2 Ortolan, 53, 54. The doings for that year may be summed up as follows: On March 27, 1800, the French government, unwilling to resort to reprisals, reenacted the orders given by Louis XVI in 1780, above mentioned, prohibiting any seizure by the French ships of English fishermen, unless armed, or proved to have made signals to the enemy. On May 30, 1800, the English government, having received notice of that action of the French government, revoked its order of January 24, 1798. But, soon afterwards, the English government complained that French fishing boats had been made into fireboats at Flushing, as well as that the French government had impressed, and had sent to Brest, to serve in its flotilla, French fishermen and their boats, even those whom the English had released on condition of their not serving; and on January 21, 1801, summarily revoked its last order, and again put in force its order of January 24, 1798. On February 16, 1801, Napoleon Bonaparte, then First Consul, directed the French commissioner at London to return at once to France, first declaring to the English government that its conduct, "contrary to all the usages of civilized nations, and to the common law which governs them, even in time of war, gave to the existing war a character of rage and bitterness which destroyed even the relations usual in a loyal war," and [693] "tended only to exasperate the two nations, and to put off the term of peace;" and that the French government, having always made it "a maxim to alleviate as much as possible the evils of war, could not think, on its part, of rendering wretched fishermen victims of a prolongation of hostilities, and would abstain from all reprisals."

On March 16, 1801, the Addington Ministry, having come into power in England, revoked the orders of its predecessors against the French fishermen; maintaining, however, that "the freedom of fishing was nowise founded upon an agreement, but upon a simple concession;" that "this concession would be always subordinate to the convenience of the moment," and that "it was never extended to the great fishery, or to commerce in oysters or in fish." And the freedom of the coast fisheries was again allowed on both sides. 6 Martens, 514; 6 Schoell, 121; 2 Ortolan, 54; Manning, Law of Nations, (Amos ed.) 206.

Lord Stowell's judgment in The Young Jacob and Johanna, 1 C. Rob. 20, above cited, was much relied on by the counsel for the United States, and deserves careful consideration.

The vessel there condemned is described in the report as "a small Dutch fishing vessel taken April, 1798, on her return from the Dogger bank to Holland;" and Lord Stowell, in delivering judgment, said: "In former wars, it has not been usual to make captures of these small fishing vessels; but this rule was a rule of comity only, and not of legal decision; it has prevailed from views of mutual accommodation between neighboring countries, and from tenderness to a poor and industrious order of people. In the present war there has, I presume, been sufficient reason for changing this mode of treatment, and, as they are brought before me for my judgment, they must be referred to the general principles of this court; they fall under the character and description of the last class of cases; that is, of ships constantly and exclusively employed in the enemy's trade." And he added: "It is a farther satisfaction to me in giving this judgment to observe that the facts also bear strong marks of a false and fraudulent transaction."

[694] Both the capture and condemnation were within a year after the order of the English government of January 24, 1798, instructing the commanders of its ships to seize French and Dutch fishing vessels, and before any revocation of that order. Lord Stowell's judgment shows that his decision was based upon the order of 1798, as well as upon strong evidence of fraud. Nothing more was adjudged in the case.

But some expressions in his opinion have been given so much weight by English writers, that it may be well to examine them particularly. The opinion begins by admitting the known custom in former wars not to capture such vessels — adding, however, "but this was a rule of comity only, and not of legal decision." Assuming the phrase "legal decision" to have been there used, in the sense in which courts are accustomed to use it, as equivalent to "judicial decision," it is true that, so far as appears, there had been no such decision on the point in England. The word "comity" was apparently used by Lord Stowell as synonymous with courtesy or good will. But the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law. As well said by Sir James Mackintosh: "In the present century a slow and silent, but very substantial mitigation has taken place in the practice of war; and in proportion as that mitigated practice has received the sanction of time, it is raised from the rank of mere usage, and becomes part of the law of nations." Discourse on the Law of Nations, 38; 1 Miscellaneous Works, 360.

The French prize tribunals, both before and after Lord Stowell's decision, took a wholly different view of the general question. In 1780, as already mentioned, an order in council of Louis XVI had declared illegal the capture by a French cruiser of The John and Sarah, an English vessel, coming from Holland, laden with fresh fish. And on May 17, 1801, where a Portuguese fishing vessel, with her cargo of fish, having no more crew than was needed for her management, and for serving the nets, on a trip of several days, had been captured [695] in April, 1801, by a French cruiser, three leagues off the coast of Portugal, the Council of Prizes held that the capture was contrary to "the principles of humanity, and the maxims of international law," and decreed that the vessel, with the fish on board, or the net proceeds of any that had been sold, should be restored to her master. La Nostra Segnora de la Piedad, 25 Merlin, Jurisprudence, Prise Maritime, § 3, art. 1, 3; S.C. 1 Pistoye et Duverdy, Prises Maritimes, 331; 2 De Cussy, Droit Maritime, 166.

The English government, soon afterwards, more than once unqualifiedly prohibited the molestation of fishing vessels employed in catching and bringing to market fresh fish. On May 23, 1806, it was "ordered in council, that all fishing vessels under Prussian and other colors, and engaged for the purpose of catching fish and conveying them fresh to market, with their crews, cargoes and stores, shall not be molested on their fishing voyages and bringing the same to market; and that no fishing vessels of this description shall hereafter be molested. And the Right Honorable the Lords Commissioners of His Majesty's Treasury, the Lords Commissioners of the Admiralty and the Judge of the High Court of Admiralty are to give the necessary directions herein as to them may respectively appertain." 5 C. Rob. 408. Again, in the order in council of May 2, 1810, which directed that "all vessels which shall have cleared out from any port so far under the control of France or her allies as that British vessels may not freely trade thereat, and which are employed in the whale fishery, or other fishery of any description, save as hereinafter excepted, and are returning or destined to return either to the port from whence they cleared, or to any other port or place at which the British flag may not freely trade, shall be captured, and condemned together with their stores and cargoes, as prize to the captors," there were excepted "vessels employed in catching and conveying fish fresh to market, such vessels not being fitted or provided for the curing of fish." Edw. Adm. appx. L.

Wheaton, in his Digest of the Law of Maritime Captures and Prizes, published in 1815, wrote: "It has been usual [696] in maritime wars to exempt from capture fishing boats and their cargoes, both from views of mutual accommodation between neighboring countries, and from tenderness to a poor and industrious order of people. This custom, so honorable to the humanity of civilized nations, has fallen into disuse; and it is remarkable that both France and England mutually reproach each other with that breach of good faith which has finally abolished it." Wheaton on Captures, c. 2, § 18.

This statement clearly exhibits Wheaton's opinion that the custom had been a general one, as well as that it ought to remain so. His assumption that it had been abolished by the differences between France and England at the close of the last century was hardly justified by the state of things when he wrote, and has not since been borne out.

During the wars of the French Empire, as both French and English writers agree, the coast fisheries were left in peace. 2 Ortolan, 54; De Boeck, § 193; Hall, § 148. De Boeck quaintly and truly adds, "and the incidents of 1800 and of 1801 had no morrow — n'eurent pas de lendemain."

In the war with Mexico in 1846, the United States recognized the exemption of coast fishing boats from capture. In proof of this, counsel have referred to records of the Navy Department, which this court is clearly authorized to consult upon such a question. Jones v. United States, 137 U.S. 202; Underhill v. Hernandez, 168 U.S. 250, 253.

By those records it appears that Commodore Conner, commanding the Home Squadron blockading the east coast of Mexico, on May 14, 1846, wrote a letter from the ship Cumberland, off Brazos Santiago, near the southern point of Texas, to Mr. Bancroft, the Secretary of the Navy, enclosing a copy of the commodore's "instructions to the commanders of the vessels of the Home Squadron, showing the principles to be observed in the blockade of the Mexican ports," one of which was that "Mexican boats engaged in fishing on any part of the coast will be allowed to pursue their labors unmolested;" and that on June 10, 1846, those instructions were approved by the Navy Department, of which Mr. Bancroft was still the head, and continued to be until he was appointed Minister to [697] England in September following. Although Commodore Conner's instructions and the Department's approval thereof do not appear in any contemporary publication of the Government, they evidently became generally known at the time, or soon after; for it is stated in several treatises on international law (beginning with Ortolan's second edition, published in 1853) that the United States in the Mexican War permitted the coast fishermen of the enemy to continue the free exercise of their industry. 2 Ortolan, (2d ed.) 49 note; (4th ed.) 55; 4 Calvo, (5th ed.) § 2372; De Boeck, § 194; Hall, (4th ed.) § 148.

As qualifying the effect of those statements, the counsel for the United States relied on a proclamation of Commodore Stockton, commanding the Pacific Squadron, dated August 20, 1846, directing officers under his command to proceed immediately to blockade the ports of Mazatlan and San Blas on the west coast of Mexico, and saying to them, "All neutral vessels that you may find there you will allow twenty days to depart; and you will make the blockade absolute against all vessels, except armed vessels of neutral nations. You will capture all vessels under the Mexican flag that you may be able to take." Navy Report of 1846, pp. 673, 674. But there is nothing to show that Commodore Stockton intended, or that the Government approved, the capture of coast fishing vessels.

On the contrary, General Halleck, in the preface to his work on International Law or Rules Regulating the Intercourse of States in Peace and War, published in 1861, says that he began that work, during the war between the United States and Mexico, "while serving on the staff of the commander of the Pacific Squadron" and "often required to give opinions on questions of international law growing out of the operations of the war." Had the practice of the blockading squadron on the west coast of Mexico during that war, in regard to fishing vessels, differed from that approved by the Navy Department on the east coast, General Halleck could hardly have failed to mention it, when stating the prevailing doctrine upon the subject as follows:

[698] "Fishing boats have also, as a general rule, been exempted from the effects of hostilities. As early as 1521, while war was raging between Charles V and Francis, ambassadors from these two sovereigns met at Calais, then English, and agreed that, whereas the herring fishery was about to commence, the subjects of both belligerents, engaged in this pursuit, should be safe and unmolested by the other party, and should have leave to fish as in time of peace. In the war of 1800, the British and French governments issued formal instructions exempting the fishing boats of each other's subjects from seizure. This order was subsequently rescinded by the British government, on the alleged ground that some French fishing boats were equipped as gunboats, and that some French fishermen, who had been prisoners in England, had violated their parole not to serve, and had gone to join the French fleet at Brest. Such excuses were evidently mere pretexts, and, after some angry discussions had taken place on the subject, the British restriction was withdrawn, and the freedom of fishing was again allowed on both sides. French writers consider this exemption as an established principle of the modern law of war, and it has been so recognized in the French courts, which have restored such vessels when captured by French cruisers." Halleck, (1st ed.) c. 20, § 23.

That edition was the only one sent out under the author's own auspices, except an abridgment, entitled Elements of International Law and the Law of War, which he published in 1866, as he said in the preface, to supply a suitable text-book for instruction upon the subject, "not only in our colleges, but also in our two great national schools — the Military and Naval Academies." In that abridgment, the statement as to fishing boats was condensed, as follows: "Fishing boats have also, as a general rule, been exempted from the effects of hostilities. French writers consider this exemption as an established principle of the modern law of war, and it has been so recognized in the French courts, which have restored such vessels when captured by French cruisers." Halleck's Elements, c. 20, § 21.

In the treaty of peace between the United States and Mexico [699] in 1848 were inserted the very words of the earlier treaties with Prussia, already quoted, forbidding the hostile molestation or seizure in time of war of the persons, occupations, houses or goods of fishermen. 9 Stat. 939, 940.

Wharton's Digest of the International Law of the United States, published by authority of Congress in 1886 and 1887, embodies General Halleck's fuller statement, above quoted, and contains nothing else upon the subject. 3 Whart. Int. Law Dig. § 345, p. 315; 2 Halleck, (Eng. eds. 1873 and 1878) p. 151.

France, in the Crimean War in 1854, and in her wars with Austria in 1859 and with Germany in 1870, by general orders, forbade her cruisers to trouble the coast fisheries, or to seize any vessel or boat engaged therein, unless naval or military operations should make it necessary. Calvo, § 2372; Hall, § 148; 2 Ortolan, (4th ed.) 449; 10 Revue de Droit International, (1878) 399.

Calvo says that in the Crimean War, "notwithstanding her alliance with France and Italy, England did not follow the same line of conduct, and her cruisers in the Sea of Azof destroyed the fisheries, nets, fishing implements, provisions, boats, and even the cabins, of the inhabitants of the coast." Calvo, § 2372. And a Russian writer on Prize Law remarks that those depredations, "having brought ruin on poor fishermen and inoffensive traders, could not but leave a painful impression on the minds of the population, without impairing in the least the resources of the Russian government." Katchenovsky, (Pratt's ed.) 148. But the contemporaneous reports of the English naval officers put a different face on the matter, by stating that the destruction in question was part of a military measure, conducted with the cooperation of the French ships, and pursuant to instructions of the English admiral "to clear the seaboard of all fish stores, all fisheries and mills, on a scale beyond the wants of the neighboring population, and indeed of all things destined to contribute to the maintenance of the enemy's army in the Crimea;" and that the property destroyed consisted of large fishing establishments and storehouses of the Russian government, numbers of heavy launches, and enormous quantities of nets and gear, salted fish, corn [700] and other provisions, intended for the supply of the Russian army. United Service Journal of 1855, pt. 3, pp. 108-112.

Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing vessels employed in catching and bringing to market fresh fish, no instance has been found in which the exemption from capture of private coast fishing vessels, honestly pursuing their peaceful industry, has been denied by England, or by any other nation. And the Empire of Japan, (the last State admitted into the rank of civilized nations,) by an ordinance promulgated at the beginning of its war with China in August, 1894, established prize courts, and ordained that "the following enemy's vessels are exempt from detention" — including in the exemption "boats engaged in coast fisheries," as well as "ships engaged exclusively on a voyage of scientific discovery, philanthropy or religious mission." Takahashi, International Law, 11, 178.

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where 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 commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted 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. Hilton v. Guyot, 159 U.S. 113, 163, 164, 214, 215.

Wheaton places, among the principal sources of international law, "Text-writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent." As to these he forcibly observes: "Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally [701] impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles." Wheaton's International Law, (8th ed.) § 15.

Chancellor Kent says: " In the absence of higher and more authoritative sanctions, the ordinances of foreign States, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized nation, that does not arrogantly set all ordinary law and justice at defiance, will venture to disregard the uniform sense of the established writers on international law." 1 Kent Com. 18.

It will be convenient, in the first place, to refer to some leading French treatises on international law, which deal with the question now before us, not as one of the law of France only, but as one determined by the general consent of civilized nations.

"Enemy ships," say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in 1855, "are good prize. Not all, however; for it results from the unanimous accord of the maritime powers that an exception should be made in favor of coast fishermen. Such fishermen are respected by the enemy, so long as they devote themselves exclusively to fishing." 1 Pistoye et Duverdy, tit. 6, c. 1, p. 314.

De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of Nations — Phases et Causes Celebres du Droit Maritime des Nations — published in 1856, affirms in the clearest language the exemption from capture of fishing boats, saying, in lib. 1, tit. 3, § 36, that " in time of war the freedom of fishing is respected by belligerents; fishing boats are considered as neutral; in law, as in principle, they are not subject either to capture or to confiscation;" and that in lib. 2, c. 20, he will state "several facts and several decisions [702] which prove that the perfect freedom and neutrality of fishing boats are not illusory." 1 De Cussy, p. 291. And in the chapter referred to, entitled De la Liberte et de la Neutralite Parfaite de la Peche, besides references to the edicts and decisions in France during the French Revolution, is this general statement: "If one consulted only positive international law" — le droit des gens positif — (by which is evidently meant international law expressed in treaties, decrees or other public acts, as distinguished from what may be implied from custom or usage,) "fishing boats would be subject, like all other trading vessels, to the law of prize; a sort of tacit agreement among all European nations frees them from it, and several official declarations have confirmed this privilege in favor of `a class of men whose hard and ill rewarded labor, commonly performed by feeble and aged hands, is so foreign to the operations of war.'" 2 De Cussy, 164, 165.

Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer, published in 1864, after stating the general rule that the vessels and cargoes of subjects of the enemy are lawful prize, says: "Nevertheless, custom admits an exception in favor of boats engaged in the coast fishery; these boats, as well as their crews, are free from capture and exempt from all hostilities. The coast fishing industry is, in truth, wholly pacific, and of much less importance, in regard to the national wealth that it may produce, than maritime commerce or the great fisheries. Peaceful and wholly inoffensive, those who carry it on, among whom women are often seen, may be called the harvesters of the territorial seas, since they confine themselves to gathering in the products thereof; they are for the most part poor families who seek in this calling hardly more than the means of gaining their livelihood." 2 Ortolan, 51. Again, after observing that there are very few solemn public treaties which make mention of the immunity of fishing boats in time of war, he says: "From another point of view, the custom which sanctions this immunity is not so general that it can be considered as making an absolute international rule; but it has been so often put in practice, and, besides, it accords so well with the rule in use, in wars on [703] land, in regard to peasants and husbandmen, to whom coast fishermen may be likened, that it will doubtless continue to be followed in maritime wars to come." 2 Ortolan, 55.

No international jurist of the present day has a wider or more deserved reputation than Calvo, who, though writing in French, is a citizen of the Argentine Republic, employed in its diplomatic service abroad. In the fifth edition of his great work on international law, published in 1896, he observes, in § 2366, that the international authority of decisions in particular cases by the prize courts of France, of England, and of the United States, is lessened by the fact that the principles on which they are based are largely derived from the internal legislation of each country; and yet the peculiar character of maritime wars, with other considerations, gives to prize jurisprudence a force and importance reaching beyond the limits of the country in which it has prevailed. He therefore proposes here to group together a number of particular cases proper to serve as precedents for the solution of grave questions of maritime law in regard to the capture of private property as prize of war. Immediately, in § 2367, he goes on to say: "Notwithstanding the hardships to which maritime wars subject private property, notwithstanding the extent of the recognized rights of belligerents, there are generally exempted, from seizure and capture, fishing vessels." In the next section he adds: "This exception is perfectly justiciable — Cette exception est parfaitement justiciable" — that is to say, belonging to judicial jurisdiction or cognizance. Littre, Dict. voc. Justiciable; Hans v. Louisiana, 134 U.S. 1, 15. Calvo then quotes Ortolan's description, above cited, of the nature of the coast fishing industry; and proceeds to refer, in detail, to some of the French precedents, to the acts of the French and English governments in the times of Louis XVI and of the French Revolution, to the position of the United States in the war with Mexico, and of France in later wars, and to the action of British cruisers in the Crimean War. And he concludes his discussion of the subject, in § 2373, by affirming the exemption of the coast fishery, and pointing out the distinction in this regard between the coast fishery and [704] what he calls the great fishery, for cod, whales or seals, as follows: "The privilege of exemption from capture, which is generally acquired by fishing vessels plying their industry near the coasts, is not extended in any country to ships employed on the high sea in what is called the great fishery, such as that for the code, for the whale or the sperm whale, or for the seal or sea calf. These ships are, in effect, considered as devoted to operations which are at once commercial and industrial — Ces navires sont en effet consideres comme adonnes a des operations a la fois commerciales et industrielles."; The distinction is generally recognized. 2 Ortolan, 54; De Boeck, § 196; Hall, § 148. See also The Susa, 2 C. Rob. 251; The Johan, Edw. Adm. 275, and appx. L.

The modern German books on international law, cited by the counsel for the appellants, treat the custom, by which the vessels and implements of coast fishermen are exempt from seizure and capture, as well established by the practice of nations. Heffter, § 137; 2 Kaltenborn, § 237, p. 480; Bluntschli, § 667; Perels, § 37, p. 217.

De Boeck, in his work on Enemy Private Property under Enemy Flag — de la Propriete Privee Ennemie sous Pavillon Ennemi — published in 1882, and the only continental treatise cited by the counsel for the United States, says in § 191: "A usage very ancient, if not universal, withdraws from the right of capture enemy vessels engaged in the coast fishery. The reason of this exception is evident; it would have been too hard to snatch from poor fishermen the means of earning their bread." "The exemption includes the boats, the fishing implements and the cargo of fish." Again, in § 195: "It is to be observed that very few treaties sanction in due form this immunity of the coast fishery." "There is, then, only a custom. But what is its character? Is it so fixed and general that it can be raised to the rank of a positive and formal rule of international law?" After discussing the statements of other writers, he approves the opinion of Ortolan (as expressed in the last sentence above quoted from his work) and says that, at bottom, it differs by a shade only from that formulated by Calvo and by some of the German jurists, and that "it is more exact, [705] without ignoring the imperative character of the humane rule in question — elle est plus exacte, sans meconnaitre le caractere imperatif de la regle d'humanite dont il s'agit." And, in § 196, he defines the limits of the rule as follows: "But the immunity of the coast fishery must be limited by the reasons that justify it. The reasons of humanity and of harmlessness — les raisons d'humanite et d'innocuite — which militate in its favor do not exist in the great fishery, such as the cod fishery; ships engaged in that fishery devote themselves to truly commercial operations, which employ a large number of seamen. And these same reasons cease to be applicable to fishing vessels employed for a warlike purpose, to those which conceal arms, or which exchange signals of intelligence with ships of war; but only those taken in the fact can be rigorously treated; to allow seizure by way of prevention would open the door to every abuse, and would be equivalent to a suppression of the immunity."

Two recent English text-writers, cited at the bar, (influenced by what Lord Stowell said a century since,) hesitate to recognize that the exemption of coast fishing vessels from capture has now become a settled rule of international law. Yet they both admit that there is little real difference in the views, or in the practice, of England and of other maritime nations; and that no civilized nation at the present day would molest coast fishing vessels, so long as they were peaceably pursuing their calling, and there was no danger that they or their crews might be of military use to the enemy. Hall, in § 148 of the fourth edition of his Treatise on International Law, after briefly sketching the history of the positions occupied by France and England at different periods, and by the United States in the Mexican War, goes on to say: "In the foregoing facts there is nothing to show that much real difference has existed in the practice of the maritime countries. England does not seem to have been unwilling to spare fishing vessels so long as they are harmless, and it does not appear that any State has accorded them immunity under circumstances of inconvenience to itself. It is likely that all nations would now refrain from molesting them as a general rule, and would capture [706] them so soon as any danger arose that they or their crews might be of military use to the enemy; and it is also likely that it is impossible to grant them a more distinct exemption." So T.J. Lawrence, in § 206 of his Principles of International Law, says: "The difference between the English and the French view is more apparent than real; for no civilized belligerent would now capture the boats of fishermen plying their avocation peaceably in the territorial waters of their own State; and no jurist would seriously argue that their immunity must be respected if they were used for warlike purposes, as were the smacks belonging to the northern ports of France when Great Britain gave the order to capture them in 1800."

But there are writers of various maritime countries, not yet cited, too important to be passed by without notice.

Jan Helenus Ferguson, Netherlands Minister to China, and previously in the naval and in the colonial service of his country, in his Manual of International Law for the Use of Navies, Colonies and Consulates, published in 1882, writes: "An exception to the usage of capturing enemy's private vessels at sea is the coast fishery." "This principle of immunity from capture of fishing boats is generally adopted by all maritime powers, and in actual warfare they are universally spared so long as they remain harmless." 2 Ferguson, § 212.

Ferdinand Attlmayr, Captain in the Austrian Navy, in his Manual for Naval Officers, published at Vienna in 1872 under the auspices of Admiral Tegetthoff, says: "Regarding the capture of enemy property, an exception must be mentioned, which is a universal custom. Fishing vessels which belong to the adjacent coast, and whose business yields only a necessary livelihood, are, from considerations of humanity, universally excluded from capture." 1 Attlmayr, 61.

Ignacio de Negrin, First Official of the Spanish Board of Admiralty, in his Elementary Treatise on Maritime International Law, adopted by royal order as a text-book in the Naval Schools of Spain, and published at Madrid in 1873, concludes his chapter "Of the lawfulness of prizes" with these words: "It remains to be added that the custom of all civilized peoples excludes from capture, and from all kind of hostility, the [707] fishing vessels of the enemy's coasts, considering this industry as absolutely inoffensive, and deserving, from its hardships and usefulness, of this favorable exception. It has been thus expressed in very many international conventions, so that it can be deemed an incontestable principle of law, at least among enlightened nations." Negrin, tit. 3, c. 1, § 310.

Carlos Testa, Captain in the Portuguese Navy and Professor in the Naval School at Lisbon, in his work on Public International Law, published in French at Paris in 1886, when discussing the general right of capturing enemy ships, says: "Nevertheless, in this, customary law establishes an exception of immunity in favor of coast fishing vessels. Fishing is so peaceful an industry, and is generally carried on by so poor and so hardworking a class of men, that it is likened, in the territorial waters of the enemy's country, to the class of husbandmen who gather the fruits of the earth for their livelihood. The examples and practice generally followed establish this humane and beneficent exception as an international rule, and this rule may be considered as adopted by customary law and by all civilized nations." Testa, pt. 3, c. 2, in 18 Bibliotheque International et Diplomatique, pp. 152, 153.

No less clearly and decisively speaks the distinguished Italian jurist, Pasquale Fiore, in the enlarged edition of his exhaustive work on Public International Law, published at Paris in 1885-6, saying: "The vessels of fishermen have been generally declared exempt from confiscation, because of the eminently peaceful object of their humble industry, and of the principles of equity and humanity. The exemption includes the vessel, the implements of fishing, and the cargo resulting from the fishery. This usage, eminently humane, goes back to very ancient times; and although the immunity of fishery along the coasts may not have been sanctioned by treaties, yet it is considered to-day as so definitely established, that the inviolability of vessels devoted to that fishery is proclaimed by the publicists as a positive rule of international law, and is generally respected by the nations. Consequently, we shall lay down the following rule: (a) Vessels belonging to citizens of the enemy State, and devoted to fishing [708] along the coasts, cannot be subject to capture. (b) Such vessels, however, will lose all right of exemption, when employed for a warlike purpose. (c) There may, nevertheless, be subjected to capture vessels devoted to the great fishery in the ocean, such as those employed in the whale fishery, or in that for seals or sea calves." 3 Fiore, § 1421.

This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent States, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals, or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce.

This rule of international law is one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.

Calvo, in a passage already quoted, distinctly affirms that the exemption of coast fishing vessels from capture is perfectly justiciable, or, in other words, of judicial jurisdiction or cognizance. Calvo, § 2368. Nor are judicial precedents wanting in support of the view that this exemption, or a somewhat analogous one, should be recognized and declared by a prize court.

[709] By the practice of all civilized nations, vessels employed only for the purposes of discovery or science are considered as exempt from the contingencies of war, and therefore not subject to capture. It has been usual for the government sending out such an expedition to give notice to other powers; but it is not essential. 1 Kent Com. 91, note; Halleck, c. 20, § 22; Calvo, § 2376; Hall, § 138.

In 1813, while the United States were at war with England, an American vessel, on her voyage from Italy to the United States, was captured by an English ship, and brought into Halifax in Nova Scotia, and, with her cargo, condemned as lawful prize by the Court of Vice Admiralty there. But a petition for the restitution of a case of paintings and engravings, which had been presented to and were owned by the Academy of Arts in Philadelphia, was granted by Dr. Croke, the judge of that court, who said: "The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are admitted, amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favor and protection. They are considered not as the peculium of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species." And he added that there had been "innumerable cases of the mutual exercise of this courtesy between nations in former wars." The Marquis de Somerueles, Stewart Adm. (Nova Scotia) 445, 482.

In 1861, during the War of the Rebellion, a similar decision was made, in the District Court of the United States for the Eastern District of Pennsylvania, in regard to two cases of books belonging and consigned to a university in North Carolina. Judge Cadwalader, in ordering these books to be liberated from the custody of the marshal, and restored to the agent of the university, said: "Though this claimant, as the resident of a hostile district, would not be entitled to restitution of the subject of a commercial adventure in books, the purpose of the shipment in question gives to it a different [710] character. The United States, in prosecuting hostilities for the restoration of their constitutional authority, are compelled incidentally to confiscate property captured at sea, of which the proceeds would otherwise increase the wealth of that district. But the United States are not at war with literature in that part of their territory." He then referred to the decision in Nova Scotia, and to the French decisions upon cases of fishing vessels, as precedents for the decree which he was about to pronounce; and he added that, without any such precedents, he should have had no difficulty in liberating these books. The Amelia, 4 Philadelphia, 417.

In Brown v. United States, 8 Cranch, 110, there are expressions of Chief Justice Marshall which, taken by themselves, might seem inconsistent with the position above maintained of the duty of a prize court to take judicial notice of a rule of international law, established by the general usage of civilized nations, as to the kind of property subject to capture. But the actual decision in that case, and the leading reasons on which it was based, appear to us rather to confirm our position. The principal question there was whether personal property of a British subject, found on land in the United States at the beginning of the last war with Great Britain, could lawfully be condemned as enemy's property, on a libel filed by the attorney of the United States, without a positive act of Congress. The conclusion of the court was "that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war." 8 Cranch, 129. In showing that the declaration of war did not, of itself, vest the executive with authority to order such property to be confiscated, the Chief Justice relied on the modern usages of nations, saying: "The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation;" and again: "The modern rule then would seem to be that tangible property [711] belonging to an enemy, and found in the country at the commencement of war, ought not to be immediately confiscated; and in almost every commercial treaty an article is inserted stipulating for the right to withdraw such property." 8 Cranch, 123, 125. The decision that enemy property on land, which by the modern usage of nations is not subject to capture as prize of war, cannot be condemned by a prize court, even by direction of the executive, without express authority from Congress, appears to us to repel any inference that coast fishing vessels, which are exempt by the general consent of civilized nations from capture, and which no act of Congress or order of the President has expressly authorized to be taken and confiscated, must be condemned by a prize court, for want of a distinct exemption in a treaty or other public act of the Government.

To this subject, in more than one aspect, are singularly applicable the words uttered by Mr. Justice Strong, speaking for this court: "Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation, or in the ordinances of maritime States, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single State, which were at first of limited effect, but which, when generally accepted, became of universal obligation." "This is not giving to the statutes of any nation extra-territorial effect. It is not treating them as general maritime laws; but it is recognition of the historical fact that by common consent of mankind these rules have been acquiesced in as of general obligation. Of that fact, we think, we may take judicial notice. Foreign municipal laws [712] must indeed be proved as facts, but it is not so with the law of nations." The Scotia, 14 Wall. 170, 187, 188.

The position taken by the United States during the recent war with Spain was quite in accord with the rule of international law, now generally recognized by civilized nations, in regard to coast fishing vessels.

On April 21, 1898, the Secretary of the Navy gave instructions to Admiral Sampson, commanding the North Atlantic Squadron, to "immediately institute a blockade of the north coast of Cuba, extending from Cardenas on the east to Bahia Honda on the west." Bureau of Navigation Report of 1898, appx. 175. The blockade was immediately instituted accordingly. On April 22, the President issued a proclamation, declaring that the United States had instituted and would maintain that blockade, "in pursuance of the laws of the United States, and the law of nations applicable to such cases." 30 Stat. 1769. And by the act of Congress of April 25, 1898, c. 189, it was declared that the war between the United States and Spain existed on that day, and had existed since and including April 21. 30 Stat. 364.

On April 26, 1898, the President issued another proclamation, which, after reciting the existence of the war, as declared by Congress, contained this further recital: "It being desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice." This recital was followed by specific declarations of certain rules for the conduct of the war by sea, making no mention of fishing vessels. 30 Stat. 1770. But the proclamation clearly manifests the general policy of the Government to conduct the war in accordance with the principles of international law sanctioned by the recent practice of nations.

On April 28, 1898, (after the capture of the two fishing vessels now in question,) Admiral Sampson telegraphed to the Secretary of the Navy as follows: "I find that a large number of fishing schooners are attempting to get into Havana from their fishing grounds near the Florida reefs and coasts. They are generally manned by excellent seamen, belonging [713] to the maritime inscription of Spain, who have already served in the Spanish navy, and who are liable to further service. As these trained men are naval reserves, have a semi-military character, and would be most valuable to the Spaniards as artillerymen, either afloat or ashore, I recommend that they should be detained prisoners of war, and that I should be authorized to deliver them to the commanding officer of the army at Key West." To that communication the Secretary of the Navy, on April 30, 1898, guardedly answered: "Spanish fishing vessels attempting to violate blockade are subject, with crew, to capture, and any such vessel or crew considered likely to aid enemy may be detained." Bureau of Navigation Report of 1898, appx. 178. The Admiral's despatch assumed that he was not authorized, without express order, to arrest coast fishermen peaceably pursuing their calling; and the necessary implication and evident intent of the response of the Navy Department were that Spanish coast fishing vessels and their crews should not be interfered with, so long as they neither attempted to violate the blockade, nor were considered likely to aid the enemy.

The Paquete Habana, as the record shows, was a fishing sloop of 25 tons burden, sailing under the Spanish flag, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba. Her crew consisted of but three men, including the master; and, according to a common usage in coast fisheries, had no interest in the vessel, but were entitled to two thirds of her catch, the other third belonging to her Spanish owner, who, as well as the crew, resided in Havana. On her last voyage, she sailed from Havana along the coast of Cuba, about two hundred miles, and fished for twenty-five days off the cape at the west-end of the island, within the territorial waters of Spain; and was going back to Havana, with her cargo of live fish, when she was captured by one of the blockading squadron, on April 25, 1898. She had no arms or ammunition on board; she had no knowledge of the blockade, or even of the war, until she was stopped by a blockading vessel; she made no attempt to run the blockade, and no resistance at the time of the capture; nor was there any evidence [714] whatever of likelihood that she or her crew would aid the enemy.

In the case of the Lola, the only differences in the facts were that she was a schooner of 35 tons burden, and had a crew of six men, including the master; that after leaving Havana, and proceeding some two hundred miles along the coast of Cuba, she went on, about a hundred miles farther, to the coast of Yucatan, and there fished for eight days; and that, on her return, when near Bahia Honda, on the coast of Cuba, she was captured, with her cargo of live fish, on April 27, 1898. These differences afford no ground for distinguishing the two cases.

Each vessel was of a moderate size, such as is not unusual in coast fishing smacks, and was regularly engaged in fishing on the coast of Cuba. The crew of each were few in number, had no interest in the vessel, and received, in return for their toil and enterprise, two thirds of her catch, the other third going to her owner by way of compensation for her use. Each vessel went out from Havana to her fishing ground, and was captured when returning along the coast of Cuba. The cargo of each consisted of fresh fish, caught by her crew from the sea, and kept alive on board. Although one of the vessels extended her fishing trip across the Yucatan Channel and fished on the coast of Yucatan, we cannot doubt that each was engaged in the coast fishery, and not in a commercial adventure, within the rule of international law.

The two vessels and their cargoes were condemned by the District Court as prize of war; the vessels were sold under its decrees; and it does not appear what became of the fresh fish of which their cargoes consisted.

Upon the facts proved in either case, it is the duty of this court, sitting as the highest prize court of the United States, and administering the law of nations, to declare and adjudge that the capture was unlawful, and without probable cause; and it is therefore, in each case,

Ordered, that the decree of the District Court be reversed, and the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and costs.

[715] MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN and MR. JUSTICE McKENNA, dissenting.

The District Court held these vessels and their cargoes liable because not "satisfied that as a matter of law, without any ordinance, treaty or proclamation, fishing vessels of this class are exempt from seizure."

This court holds otherwise, not because such exemption is to be found in any treaty, legislation, proclamation or instruction, granting it, but on the ground that the vessels were exempt by reason of an established rule of international law applicable to them, which it is the duty of the court to enforce.

I am unable to conclude that there is any such established international rule, or that this court can properly revise action which must be treated as having been taken in the ordinary exercise of discretion in the conduct of war.

It cannot be maintained "that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power." That position was disallowed in Brown v. The United States, 8 Cranch, 110, 128, and Chief Justice Marshall said: "This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded. The rule is, in its nature, flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends on political considerations which may continually vary."

The question in that case related to the confiscation of the property of the enemy on land within our own territory, and it was held that property so situated could not be confiscated without an act of Congress. The Chief Justice continued: "Commercial nations, in the situation of the United States, have always a considerable quantity of property in the possession of their neighbors. When was breaks out, the question, what shall be done with enemy property in our country, is a [716] question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of our citizens. Like all other questions of policy, it is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary."

This case involves the capture of enemy's property on the sea, and executive action, and if the position that the alleged rule proprio vigore limits the sovereign power in war be rejected, then I understand the contention to be that, by reason of the existence of the rule, the proclamation of April 26 must be read as if it contained the exemption in terms, or the exemption must be allowed because the capture of fishing vessels of this class was not specifically authorized.

The preamble to the proclamation stated, it is true, that it was desirable that the war "should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice," but the reference was to the intention of the Government "not to resort to privateering, but to adhere to the rules of the Declaration of Paris;" and the proclamation spoke for itself. The language of the preamble did not carry the exemption in terms, and the real question is whether it must be allowed because not affirmatively withheld, or, in other words, because such captures were not in terms directed.

These records show that the Spanish sloop Paquete Habana "was captured as a prize of war by the U.S.S. Castine" on April 25, and "was delivered" by the Castine's commander "to Rear Admiral Wm. T. Sampson, (commanding the North Atlantic Squadron,)" and thereupon "turned over" to a prize master with instructions to proceed to Key West.

And that the Spanish schooner Lola "was captured as a prize of war by the U.S.S. Dolphin," April 27, and "was delivered" by the Dolphin's commander "to Rear Admiral Wm. T. Sampson, (commanding the North Atlantic Squadron,)" and thereupon "turned over" to a prize master with instructions to proceed to Key West.

[717] That the vessels were accordingly taken to Key West and there libelled, and that the decrees of condemnation were entered against them May 30.

It is impossible to concede that the Admiral ratified these captures in disregard of established international law and the proclamation, or that the President, if he had been of opinion that there was any infraction of law or proclamation, would not have intervened prior to condemnation.

The correspondence of April 28, 30, between the Admiral and the Secretary of the Navy, quoted from in the principal opinion, was entirely consistent with the validity of the captures.

The question put by the Admiral related to the detention as prisoners of war of the persons manning the fishing schooners "attempting to get into Havana." Non-combatants are not so detained except for special reasons. Sailors on board enemy's trading vessels are made prisoners because of their fitness for immediate use on ships of war. Therefore the Admiral pointed out the value of these fishing seamen to the enemy, and advised their detention. The Secretary replied that if the vessels referred to were "attempting to violate blockade" they were subject "with crew" to capture, and also that they might be detained if "considered likely to aid enemy." The point was whether these crews should be made prisoners of war. Of course they would be liable to be if involved in the guilt of blockade running, and the Secretary agreed that they might be on the other ground in the Admiral's discretion.

All this was in accordance with the rules and usages of international law, with which, whether in peace or war, the naval service has always been necessarily familiar.

I come then to examine the proposition "that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent States, that coast fishing vessels, with their implements and supplies, [718] cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in of fresh fish, are exempt from capture as prize of war."

This, it is said, is a rule "which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of treaty or other public act of their own government."

At the same time it is admitted that the alleged exemption does not apply "to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way;" and further that the exemption has not "been extended to ships or vessels employed on the high sea in taking whales or seals, or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce."

It will be perceived that the exceptions reduce the supposed rule to very narrow limits, requiring a careful examination of the facts in order to ascertain its applicability; and the decision appears to me to go altogether too far in respect of dealing with captures directed or ratified by the officer in command.

But were these two vessels within the alleged exemption? They were of twenty-five and thirty-five tons burden respectively. They carried large tanks, in which the fish taken were kept alive. They were owned by citizens of Havana, and the owners and the masters and crew were to be compensated by shares of the catch. One of them had been two hundred miles from Havana, off Cape San Antonio, for twenty-five days, and the other for eight days off the coast of Yucatan. They belonged, in short, to the class of fishing or coasting vessels of from five to twenty tons burden, and from twenty tons upwards, which, when licensed or enrolled as prescribed by the Revised Statutes, are declared to be vessels of the United States, and the shares of whose men, when the vessels are employed in fishing, are regulated by statute. They were engaged in what were substantially commercial ventures, and the mere fact that the fish were kept alive by contrivances [719] for that purpose — a practice of considerable antiquity — did not render them any the less an article of trade than if they had been brought in cured.

I do not think that, under the circumstances, the considerations which have operated to mitigate the evils of war in respect of individual harvesters of the soil can properly be invoked on behalf of these hired vessels, as being the implements of like harvesters of the sea. Not only so as to the owners but as to the masters and crews. The principle which exempts the husbandman and his instruments of labor, exempts the industry in which he is engaged, and is not applicable in protection of the continuance of transactions of such character and extent as these.

In truth, the exemption of fishing craft is essentially an act of grace, and not a matter of right, and it is extended or denied as the exigency is believed to demand.

It is, said Sir William Scott, "a rule of comity only, and not of legal decision."

The modern view is thus expressed by Mr. Hall: "England does not seem to have been unwilling to spare fishing vessels so long as they are harmless, and it does not appear that any State has accorded them immunity under circumstances of inconvenience to itself. It is likely that all nations would now refrain from molesting them as a general rule, and would capture them so soon as any danger arose that they or their crews might be of military use to the enemy; and it is also likely that it is impossible to grant them a more distinct exemption."

In the Crimean War, 1854-5, none of the orders in council, in terms, either exempted or included fishing vessels, yet the allied squadrons swept the Sea of Azof of all craft capable of furnishing the means of transportation, and the English admiral in the Gulf of Finland directed the destruction of all Russian coasting vessels, not of sufficient value to be detained as prizes, except "boats or small craft which may be found empty at anchor, and not trafficking."

It is difficult to conceive of a law of the sea of universal obligation to which Great Britain has not acceded. And I [720] am not aware of adequate foundation for imputing to this country the adoption of any other than the English rule.

In his Lectures on International Law at the Naval Law College the late Dr. Freeman Snow laid it down that the exemption could not be asserted as a rule of international law. These lectures were edited by Commodore Stockton and published under the direction of the Secretary of the Navy in 1895, and, by that department, in a second edition, in 1898, so that in addition to the well-known merits of their author they possess the weight to be attributed to the official imprimatur. Neither our treaties nor settled practice are opposed to that conclusion.

In view of the circumstances surrounding the breaking out of the Mexican War, Commodore Conner, commanding the Home Squadron, on May 14, 1846, directed his officers, in respect of blockade, not to molest "Mexican boats engaged exclusively in fishing on any part of the coast," presumably small boats in proximity to the shore; while on the Pacific coast Commodore Stockton in the succeeding August ordered the capture of "all vessels under the Mexican flag."

The treaties with Prussia of 1785, 1799 and 1828, and of 1848 with Mexico, in exempting fishermen, "unarmed and inhabiting unfortified towns, villages or places," did not exempt fishing vessels from seizure as prize; and these captures evidence the convictions entertained and acted on in the late war with Spain.

It is needless to review the speculations and repetitions of the writers on international law. Ortolan, De Boeck and others admit that the custom relied on as consecrating the immunity is not so general as to create an absolute international rule; Heffter, Calvo and others are to the contrary. Their lucubrations may be persuasive, but are not authoritative.

In my judgment, the rule is that exemption from the rigors of war is in the control of the Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended.

[721] Exemptions may be designated in advance, or granted according to circumstances, but carrying on war involves the infliction of the hardships of war at least to the extent that the seizure or destruction of enemy's property on sea need not be specifically authorized in order to be accomplished.

Being of opinion that these vessels were not exempt as matter of law, I am constrained to dissent from the opinion and judgment of the court; and my brothers Harlan and McKenna concur in this dissent.

On January 29, 1900, the court, in each case, on motion of the Solicitor General in behalf of the United States, and after argument of counsel thereon, and to secure the carrying out of the opinion and decree according to their true meaning and intent, ordered that the decree be so modified as to direct that the damages to be allowed shall be compensatory only, and not punitive.

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 relevant here, after his acquittal, Alvarez sued the United States for false arrest under the Federal Tort Claims Act (FTCA), which waives sovereign immunity in suits "for . . . personal injury . . . caused by the negligent 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 dismissed the FTCA claim, but awarded Alvarez summary judgment and damages on the ATS claim. The Ninth Circuit affirmed the ATS judgment, 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.

[693] (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 proximate 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 Alvarez'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 "arising under" in contemporary state borrowing statutes used to determine which State's limitations statute applied in cases with transjurisdictional 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 analysis. 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 [694] 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 international 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 reasonable 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 understood 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 particular 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 definite 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 common law has changed since 1790. When 1350 was enacted, the accepted 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 [695] for legislative guidance before exercising innovative authority over substantive 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 implications for the foreign relations of the United States of recognizing private 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 encouraged greater judicial creativity. Pp. 725-731.

(ii) The limit on judicial recognition adopted here is fatal to Alvarez'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 marshal 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 concurring in the judgment, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 739. GINSBURG, J., filed an opinion concurring in part and concurring [696] 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.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Deputy Solicitor General Clement argued the cause for the United States, as petitioner in No. 03-485, and respondent 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. Rosenbaum, Steven R. Shapiro, Douglas E. Mirell, and W. Allan Edmiston.

[697] JUSTICE SOUTER delivered the opinion of the Court.

The two issues are whether respondent Alvarez-Machain's allegation that the Drug Enforcement Administration instigated 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 murdered. Based in part on eyewitness testimony, DEA officials 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 torture and murder of Camarena-Salazar, and the United States District Court for the Central District of California issued a [698] 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 requests 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 jurisdiction of a federal court. The case was tried in 1992, and ended at the close of the Government's case, when the District 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 wrongful 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 [699] 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 international 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 liability 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 authority 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 decide on that ground.

[700] A

The FTCA "was designed primarily to remove the sovereign 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 circumstances." 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 wrongful 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 transmission 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 liability 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 extent that, it took place and endured in Mexico.^[1] The actions [701] 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 foreign country exception, the Ninth Circuit allowed the action to proceed under what has come to be known as the "headquarters 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 office within the United States of employees who cause damage 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.

[702] The reasoning of the Ninth Circuit here was that, since Alvarez's abduction in Mexico was the direct result of wrongful acts of planning and direction by DEA agents located in California, "Alvarez's abduction fits the headquarters doctrine 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 according 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 particular, 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 supervisionor even less than that, lack of careful training, selection or supervisionin 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), allegations 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 offering of bad advice, or the adoption of a negligent policy. If [703] we were to approve the headquarters exception to the foreign country exception, the "`headquarters claim' [would] become a standard part of FTCA litigation" in cases potentially implicating the foreign country exception. Beattie, supra, at 119 (Scalia, J., dissenting). The headquarters doctrine threatens to swallow the foreign country exception whole, certainly at the pleadings stage.

The need for skepticism is borne out by two considerations. One of them is pertinent to cases like this one, where harm was arguably caused both by individual action in a foreign 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 explicit analysis of proximate causation, this notion of cause is necessary to connect the domestic breach of duty (at headquarters) with the action in the foreign country (in a case like this) producing the foreign harm or injury. It is necessary, in other words, to conclude that the act or omission at home headquarters was sufficiently close to the ultimate injury, and sufficiently important in producing it, to make it reasonable to follow liability back to the headquarters behavior. 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 negligent acts in the United States proximately cause harm in a foreign country"); Eaglin, supra, at 983 (noting that headquarters cases require "a plausible proximate nexus or connection 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, however, sufficient of itself to bar application of the foreign country exception to a claim resting on that same foreign consequence. [704] 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 abduction, 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, recognition of additional domestic causation under the headquarters 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 foreign 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 doctrine. There is good reason, that is, to conclude that Congress 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 common usage in state borrowing statutes contemporary with the Act, which operated to determine which State's statute of limitations should apply in cases involving transjurisdictional 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 borrowing [705] 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 originated." 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 commentator 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 jurisdiction in which injury was received." Ester, Borrowing Statutes 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 injury 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 [706] 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 & Zimmermann, 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); Cameron [707] v. Vandegriff, 53 Ark. 381, 13 S. W. 1092 (1890) (Arkansas 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 Committee on the Judiciary considered an early draft of the FTCA that would have exempted all claims "arising in a foreign country in behalf of an alien." H. R. 5373, 77th Cong., 2d Sess., 303(12). The bill was then revised, at the suggestion 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 exempted 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 constitutes 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 foreign law, Congress evidently used the modifier "arising in a foreign country" to refer to claims based on foreign harm or [708] 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 headquarters doctrine has outgrown its tension with the exception. It is true that the traditional approach to choice of substantive tort law has lost favor, Simson, The Choice-of-Law Revolution 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 interest analysis, most significant relationship, and better rule of law have taken over center stage" (footnotes omitted)).^[6] [709] But a good many States still employ essentially the same choice-of-law analysis in tort cases that the First Restatement exemplified. Symeonides, Choice of Law in the American Courts, 51 Am. J. Comp. L. 1, 4-5 (2003) ("Ten states continue to adhere to the traditional method in tort conflicts"); 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 methodologies of choice point to the application of foreign law. The Second Restatement itself, encouraging the general shift toward using flexible balancing analysis to inform choice of law,^[7] includes a default rule for tort cases rooted in the traditional 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., Comment 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 issues involving the tort"). In practice, then, the new dispensation frequently leads to the traditional application of the [710] law of the jurisdiction of injury. See, e.g., Dorman v. Emerson 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 Vermont 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 jurisdiction over tort claims against the Government for foreign harm. Based on the experience just noted, the expectation 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, [711] a word is needed to answer an argument for selective application 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 injury 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 accordingly. The idea that Congress would have intended any [712] such jurisdictional variety is too implausible to drive the analysis to the point of grafting even a selective headquarters 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 supporting him) that there is no relief under the ATS because the statute does no more than vest federal courts with jurisdiction, neither creating nor authorizing the courts to recognize any particular right of action without further congressional 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 recognized at common law. We do not believe, however, that the limited, implicit sanction to entertain the handful of international 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 several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the [713] 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 historical 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 action, 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 "jurisdiction" interchangeably with "cognizance"). The fact that the ATS was placed in 9 of the Judiciary Act, a statute otherwise exclusively concerned with federal-court jurisdiction, is itself support for its strictly jurisdictional nature. Nor would the distinction between jurisdiction and cause of action 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 contrary suggestion is "simply frivolous." Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation 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 Observations on Text and Context, 42 Va. J. Int'l L. 687, 689 (2002). [714] In sum, we think the statute was intended as jurisdictional in the sense of addressing the power of the courts to entertain 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 authorizing adoption of causes of action. Amici professors of federal jurisdiction and legal history take a different tack, that federal 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 Curiae. 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 Republic, 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 obligations 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 James Kent Commentaries *1. This aspect of the law of nations thus occupied the executive and legislative domains, not the judicial. See 4 W. Blackstone, Commentaries on the Laws of England 68 (1769) (hereinafter Commentaries) ("[O]ffences against" the law of nations are "principally incident to whole states or nations").

[715] The law of nations included a second, more pedestrian element, 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 carrying an international savor. To Blackstone, the law of nations 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, bottomry . . .; [and] in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills." Id., at 67. The law merchant emerged from the customary practices of international 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 ambassadors, and piracy. 4 Commentaries 68. An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed 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 threatening 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 preoccupation with these hybrid international norms had taken [716] shape owing to the distribution of political power from independence through the period of confederation. The Continental Congress was hamstrung by its inability to "cause infractions of treaties, or of the law of nations to be punished," 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, exemplary 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 damage sustained by them from an injury done to a foreign power by a citizen." Id., at 1137; cf. Vattel 463-464 ("Whoever 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 Secretary of the French Legion in Philadelphia. See Respublica [717] v. De Longchamps, 1 Dall. 111 (O. T. Phila. 1784).^[11] Congress called again for state legislation addressing such matters, 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 constable produced a reprise of the Marbois affair and Secretary Jay reported to Congress on the Dutch Ambassador's protest, 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 Ambassadors, 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) (hereinafter [718] 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 History 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 jurisdictional 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, remarking 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 Nations 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 [719] 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 Congress 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, some day, 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 draftsman of the ATS was apparently Oliver Ellsworth,^[13] previously 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 jurisdiction to entertain civil causes brought by aliens alleging violations 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.

[720] The second inference to be drawn from the history is that Congress intended the ATS to furnish jurisdiction for a relatively 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 nations] are principally incident to whole states or nations," and not individuals seeking relief in court. 4 Commentaries 68.

4

The sparse contemporaneous cases and legal materials referring 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 mortgagee 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.

[721] Then there was the 1795 opinion of Attorney General William 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 individuals 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 prosecuted 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 underwrite litigation of a narrow set of common law actions derived from the law of nations, Sosa raises two main objections. 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 occasions for criminal remedies, against the statute's innovative reference to "tort," as evidence that there was no familiar [722] 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 Continental 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 standard expression to the "brooding omnipresence"^[14] of the common law then thought discoverable by reason. As Blackstone 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 facilitate 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. Notwithstanding 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]

[723] 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 relatively 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 becoming severity, that the peace of the world may be maintained," 4 Commentaries 68.^[16] But Vattel explicitly linked [724] the criminal sanction for offenses against ambassadors with the requirement that the state, "at the expense of the delinquent, 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 remedy 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 creating 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 jurisdictional 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 violations with a potential for personal liability at the time.

IV

We think it is correct, then, to assume that the First Congress 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 corresponding 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 [725] 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 restrained 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 international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized. This requirement is fatal to Alvarez's claim.

A

A series of reasons argue for judicial caution when considering 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 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) (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 secret root from which the law draws all the juices of life. [726] 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 withdrew 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 relations, 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 exercising 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.

[727] 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. Correctional 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 prosecutorial discretion. Accordingly, even when Congress has made it clear by statute that a rule applies to purely domestic conduct, we are reluctant to infer intent to provide a private cause of action where the statute does not supply one expressly. While the absence of congressional action addressing 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 consequences of making international rules privately actionable argue for judicial caution.

Fourth, the subject of those collateral consequences is itself 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 impinging 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 vindicating private interests in 1350 cases. Since many attempts by federal courts to craft remedies for the violation [728] of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, 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 encouraged greater judicial creativity. It is true that a clear mandate appears in the Torture Victim Protection Act of 1991, 106 Stat. 73, providing authority that "establish[es] an unambiguous 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 remark 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 international human rights law, as when its ratification of the International 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), concludes that caution is too hospitable, and a word is in order [729] 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 jurisdictional. 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 international norms that a federal court could properly recognize 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 international 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 limited judicial power first expressed in reorienting federal diversity 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 sufficient to close the door to further independent judicial recognition 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 vigilant doorkeeping, and thus open to a narrow class of international norms today. Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive 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 [730] courts apply international law as a part of our own in appropriate circumstances");^[18]The Paquete Habana, 175 U. S., at 700 ("International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate 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 foreign nations" are one of the "narrow areas" in which "federal common law" continues to exist). It would take some explaining 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, assumed that federal courts could properly identify some international norms as enforceable in the exercise of 1350 jurisdiction. 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 metaphysical cachet on the road to modern realism. Later Congresses [731] 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. Libyan 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 legislation 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 relations, 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 implicitly 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 standards for assessing the particular claim Alvarez raises, and [732] for this action it suffices to look to the historical antecedents. Whatever the ultimate criteria for accepting a cause of action 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 civilized 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 reasoning 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 section 1350's reach" be defined by "a handful of heinous actions each of which violates definable, universal and obligatory norms"); see also In re Estate of Marcos Human Rights Litigation, 25 F. 3d 1467, 1475 (CA9 1994) ("Actionable violations of international law must be of a norm that is specific, 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 [733] 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.

[734] "[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 commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted 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 obligations 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 common standard of achievement for all peoples and all nations'" [735] 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 understanding 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 attempts to show that prohibition of arbitrary arrest has attained 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 requisite 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: [736] that his arrest was arbitrary and as such forbidden by international 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 exceeding 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 [737] Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), that now provide damages remedies for such violations. 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 Relations Law of the United States (1986), which says in its discussion of customary international human rights law that a "state violates international law if, as a matter of state policy, it practices, encourages, or condones . . . prolonged arbitrary 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 credible invocation of a principle against arbitrary detention that the civilized world accepts as binding customary international law requires a factual basis beyond relatively brief detention in excess of positive authority. Even the Restatement'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]

[738] Whatever may be said for the broad principle Alvarez advances, in the present, imperfect world, it expresses an aspiration 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 common 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 authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.

The judgment of the Court of Appeals is Reversed.

[739] JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE 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 reservation 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 International Law, 42 Va. J. Int'l L. 365, 374 (2002); Bradley & Goldsmith, [740] 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 Curiae 12-13.

General common law was not federal law under the Supremacy Clause, which gave that effect only to the Constitution, 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 decision regarding "the effect, under the general public law, of a state of sectional civil war upon [a] contract of life insurance." 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 concluded: "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 necessarily 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," [741] 304 U. S., at 75, the Erie Court extirpated that law with its famous declaration that "[t]here is no federal general common 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 pronounced 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. Radcliff Materials, Inc., 451 U. S. 630, 640 (1981) (internal quotation marks and citations omitted). Unlike the general common 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 discovered, federal courts must possess some federal-common-law-making authority before undertaking to craft it. "Federal 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 [742] to formulate federal common law." This rule applies not only to applications of federal common law that would displace 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 damages assessed under the Equal Pay Act and Title VII).

The rule against finding a delegation of substantive lawmaking power in a grant of jurisdiction is subject to exceptions, some better established than others. The most firmly entrenched is admiralty law, derived from the grant of admiralty 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 federal 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).

[743] II

With these general principles in mind, I turn to the question 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 contrary 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 present 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 perhaps 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 underlying 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, Foreign Affairs, and Federal Common Law, 42 Va. J. Int'l L. 513, 519 (2002). In Benthamite terms, creating a federal command (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 nonsense upon stilts.

[744] 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 themselves grants of lawmaking authority." Meltzer, supra, at 541. On this point, the Court observes only that no development 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 nations as part of the general common law; it is what authorizes that peculiar exception from Erie's fundamental holding that a general common law does not exist.

The Court would apparently find authorization in the understanding of the Congress that enacted the ATS, that "district courts would recognize private causes of action for certain 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" decision heralding an avulsive change, wrought by "conceptual development in understanding common law . . . [and accompanied by an] equally significant rethinking of the role of the federal courts in making it." Ante, at 726. The Court's [745] 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 adjudication 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.

[746] Because today's federal common law is not our Framers' general common law, the question presented by the suggestion of discretionary authority to enforce the law of nations is not whether to extend old-school general-common-law adjudication. Rather, it is whether to create new federal common law. The Court masks the novelty of its approach when it suggests that the difference between us is that we 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 international 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 international rules privately actionable argue for judicial caution." Ante, at 727.

• "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 [747] 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, reasons 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 jurisdiction 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 jurisdiction, 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 reasoning 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, [748] like the decisions of other lower federal courts that receive passing attention in the Court's opinion, "reflects a more assertive 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 applied 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, obligatory, 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. Karadi, 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 endorses. 70 F. 3d, at 238-239, 241-242. The Court of Appeals then did something that is perfectly logical and yet truly remarkable: It dismissed the determination by Congress 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 [749] 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. Undeterred, 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 record 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 opinion leads the lower courts right down that perilous path.

Though it is not necessary to resolution of the present action, 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 Constitution would be entirely content with the post-Erie system I have described, and quite terrified by the "discretion" endorsed 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 sovereigns from suit, etc.) and with actors on the high seas hostile 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 statutory 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 [750] 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 confident, 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 Congress, 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. Today's opinion approves that process in principle, though urging the lower courts to be more restrained.

This Court seems incapable of admitting that some mattersany mattersare 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 formula the ambitious lower courts themselves have used invites 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 substitute for democratic election.) But in this illegitimate lawmaking endeavor, the lower federal courts will be the principal [751] 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 democratically 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 pursuant 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). Alvarez'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 Practice: Choice of Law in the Courts, 34 Mercer L. Rev. 521, 525-584 (1983). In particular, the Court's discussion of developments in choice of law after the FTCA's enactment hardly illuminates the meaning of that statute, and risks giving undue prominence to a jurisdiction-selecting approach the vast majority of States have long abandoned. See Symeonides, 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 [752] 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 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). 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 country." 2680(k). I agree with the Court, see ante, at 699-712, that this provision, the foreign-country exception, applies 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]

[753] A

On its face, the foreign-country exception appears to cover this litigation. See ante, at 700. Alvarez's suit is predicated on an arrest in Mexico alleged to be "false" only because it occurred there. Sosa's conduct in Mexico, implicating 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 analyzed 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 extent 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 confinement of a person, without lawful privilege, for an appreciable length of time, however short" (emphasis added and internal quotation marks omitted)); App. to Pet. for Cert. 184a in No. 03-339 (same). Once Alvarez arrived in El Paso, Texas, "the actions of domestic law enforcement set in motion [754] 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 necessarily 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, Mexican law equally could have provided or denied authority for such an arrest. Had Sosa and the arrest team been Mexican law enforcement officers, authorized by Mexican law to arrest Alvarez and to hand him over to United States authorities, for example, no false-arrest claim would have been tenable. 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 abduction was unique in that it involved neither the cooperation of local police nor the consent of a foreign government." Id., at 623, n. 23.

The interpretation of the FTCA adopted by the Ninth Circuit, 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 [755] 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" (internal 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 precedent. In construing 2680(k)'s reference to a "foreign country," 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 occurring in Antarctica" was barred by the foreign-country exception. Id., at 198-199. Were it not, the Court noted, " 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 Statessurely 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., dissenting) ("[A] claim `arises' for purposes of 2680(k) where there occurs the alleged [standard-of-care] violation ... (attributable 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 complained of occurred" in applying 2680(k)).

Harmonious construction of 1346(b) and 2680(k) accords with Congress' intent in enacting the foreign-country exception. Congress was "unwilling to subject the United States to liabilities depending upon the laws of a foreign power." [756] 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 omission 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 application 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 [757] 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 explore what choice of law a foreign court would make.^[4]

In 1948, when the FTCA was enacted, it is also true, Congress reasonably might have anticipated that the then prevailing choice-of-law methodology, reflected in the Restatement (First) of Conflicts, would lead mechanically to the law of the place of injury. See Restatement (First) of Conflicts 377 (1934) ("The place of wrong is in the state where the last event necessary to make an actor liable for an alleged 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 always, 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)).

[758] II

The Ninth Circuit concluded that the foreign-country exception 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 foreign 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 authorization, 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 supervisionor even less than that, lack of careful training, selection or supervisionin 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 involving acts or omissions in several states, the question is which acts count. "Neither the text of the FTCA nor Richards provides any guidance ... when the alleged acts or omissions occur in more than one state. Moreover, the legislative [759] 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 jurisdiction 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,' [760] 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 directing 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 preserves 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 arrest 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 exhaustion might apply, and that courts should give "serious weight" to the Executive Branch's view of the impact on foreign [761] 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 harmony 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 nationalwhere, say, an American 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, however, 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 necessarily apply even similar substantive laws similarly, workable harmony, in practice, depends upon more than substantive uniformity among the laws of those nations. That is to say, substantive uniformity does not automatically mean [762] that universal jurisdiction is appropriate. Thus, in the 18th century, nations reached consensus not only on the substantive 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 natives 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 condemned behavior but also procedural agreement that universal 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 Jurisdiction in Respect of Gross Human Rights Offences 2 (2000). That subset includes torture, genocide, crimes against humanity, 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 Responsible for Serious Violations of International Humanitarian 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 limited 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 criminal jurisdiction, but consensus as to universal criminal jurisdiction 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 combine civil and criminal proceedings, allowing those injured [763] by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. Brief for European Commission as Amicus Curiae 21, n. 48 (citing 3 Y. Donzallaz, La Convention de Lugano du 16 septembre 1988 concernant la comptence judiciaire et l'excution des dcisions en matire 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 necessarily contemplates a significant degree of civil tort recovery 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 consensus 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.

Notes:

[*] Together with No. 03-485, United States v. Alvarez-Machain et al., also on certiorari to the same court.

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. Petrocelli, M. Randall Oppenheimer, Walter E. Dellinger III, Pamela A. Harris, 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 Interests by Steve W. Berman, R. Brent Walton, Jonathan W. Cuneo, David W. Stanley, Michael Waldman, and Samuel J. Dubbin; for Amnesty International et al. by Beth Stephens; for the Center for Justice and Accountability 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 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. Collingsworth 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.

[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 suspect indicted in federal court in Los Angeles." 331 F. 3d, at 640. Once Alvarez arrived in the United States, "the actions of domestic law enforcement 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 country'" (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) (unpublished 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).

[3] See also Restatement (Second) of Conflict of Laws 412 (1969) (hereinafter 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 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., p. 31 (1946) ("With the expansion of governmental activities in recent years, it becomes 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").

[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, regardless 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 tortious 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 indicate 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 injury 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.

[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 (including 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 behind the foreign country exception).

[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 liability 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"); 2680(e) ("Any claim arising out of an act or omission of any employee of the Government in administering [certain portions of the Trading 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 assumes different meanings were intended." 2A N. Singer, Statutes and Statutory Construction 46:06, p. 194 (6th rev. ed. 2000).

[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.

[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 Members 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 directing 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.

[12] The restriction may have served the different purpose of putting foreigners 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).

[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.

[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 Congress received a confidential report, detailing negotiations between American representatives and Versailles. 21 Journals of the Continental Congress 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 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 continental readership.

[16] Petitioner says animadversion is "an archaic reference to the imposition of punishment." Reply Brief for Petitioner Sosa 4 (emphasis in original). 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 Oxford 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 animadvert 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).

[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).

[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 appropriate 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)).

[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 derived from the law of nations; and we know of no reason to think that federal-question jurisdiction was extended subject to any comparable congressional 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.

[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. Karadi, 70 F. 3d 232, 239-241 (CA2 1995) (sufficient consensus in 1995 that genocide by private actors violates international law).

[21] This requirement of clear definition is not meant to be the only principle limiting the availability of relief in the federal courts for violations of customary international law, though it disposes of this action. For example, the European Commission argues as amicus curiae that basic principles of international law require that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system, and perhaps in other forums such as international claims tribunals. 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 requirement 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 damages 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 interfere 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, informed 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 Shannen 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.).

[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.

[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 authoritative decision-makers").

[24] Alvarez's brief contains one footnote seeking to incorporate by reference his arguments on cross-border abductions before the Court of Appeals. 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 authorizes an arrest." Fed. Rule Crim. Proc. 4(c)(2).

[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 International Procedural Protections and Equivalent Protections in National Constitutions, 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 detention, 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 Alvarez'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, reflects a more assertive view of federal judicial discretion over claims based on customary international law than the position we take today.

[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 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 binding 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 arbitrary under the Declaration, the Covenant, and customary international law. See Report of the United Nations Working Group on Arbitrary Detention, 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.

Notes:

[*] The Court conjures the illusion of common-law-making continuity between 1789 and the present by ignoring fundamental differences. The Court's approach places the law of nations on a federal-law footing unknown 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 judicially 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 jurisdiction, combined with (2) some residual judicial power (from whence nobody knows) to create federal causes of action in cases implicating foreign relations, then a grant of federal-question jurisdiction would give rise to a power to create international-law-based federal common law just as effectively 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.

[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 letters 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 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.").

[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 Dictionary 1300 (7th ed. 1999).

[4] Reading renvoi into 1346(b)(1), even to determine which State supplies the governing law, moreover, is questionable. See Shapiro, Choice of Law Under the Federal Tort Claims Act: Richards and Renvoi Revisited, 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 [Richards'] 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 corporation," Feres v. United States, 340 U. S. 135, 139-140 (1950), such as vehicular 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.

[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 "relevant" 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) (applying 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).

[1662] Paul L. Hoffman, Venice, CA, for Petitioners.

Kathleen M. Sullivan, New York, NY, for Respondents.

Donald B. Verilli, Jr., Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the Respondents.

Carey R. D'Avino, Berger & Montague, P.C., Philadelphia, PA, Paul L. Hoffman, Counsel of Record, Erwin Chemerinsky, Adrienne J. Quarry, Victoria Don, Catherine E. Sweetser, Robert P. Baker, Schonbrun DeSimone, Seplow Harris Hoffman & Harrison LLP, Venice, CA, for Petitioners.

Kathleen M. Sullivan, Counsel of Record, Faith E. Gay, Sanford I. Weisburst, Isaac Nesser, Todd S. Anten, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Respondents.

Chief Justice ROBERTS delivered the opinion of the Court.

Petitioners, a group of Nigerian nationals residing in the United States, filed suit in federal court against certain Dutch, British, and Nigerian corporations. Petitioners sued under the Alien Tort Statute, 28 U.S.C. § 1350, alleging that the corporations aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria. The question presented is whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute, for violations of the law of nations occurring within the territory of a sovereign other than the United States.

I

Petitioners were residents of Ogoniland, an area of 250 square miles located in the Niger delta area of Nigeria and populated by roughly half a million people. When the complaint was filed, respondents Royal Dutch Petroleum Company and Shell Transport and Trading Company, p.l.c., were holding companies incorporated in the Netherlands and England, respectively. Their joint subsidiary, respondent Shell Petroleum Development Company of Nigeria, Ltd. (SPDC), was incorporated in Nigeria, and engaged in oil exploration and production in Ogoniland. According to the complaint, after concerned residents of Ogoniland began protesting the environmental effects of SPDC's practices, respondents enlisted the Nigerian Government to violently suppress the burgeoning demonstrations. Throughout the early 1990's, the complaint alleges, Nigerian military and police forces attacked Ogoni villages, beating, raping, killing, and arresting residents and destroying or looting property. Petitioners further allege that respondents aided and abetted these atrocities by, among other things, providing the [1663] Nigerian forces with food, transportation, and compensation, as well as by allowing the Nigerian military to use respondents' property as a staging ground for attacks.

Following the alleged atrocities, petitioners moved to the United States where they have been granted political asylum and now reside as legal residents. See Supp. Brief for Petitioners 3, and n. 2. They filed suit in the United States District Court for the Southern District of New York, alleging jurisdiction under the Alien Tort Statute and requesting relief under customary international law. The ATS provides, in full, that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. According to petitioners, respondents violated the law of nations by aiding and abetting the Nigerian Government in committing (1) extrajudicial killings; (2) crimes against humanity; (3) torture and cruel treatment; (4) arbitrary arrest and detention; (5) violations of the rights to life, liberty, security, and association; (6) forced exile; and (7) property destruction. The District Court dismissed the first, fifth, sixth, and seventh claims, reasoning that the facts alleged to support those claims did not give rise to a violation of the law of nations. The court denied respondents' motion to dismiss with respect to the remaining claims, but certified its order for interlocutory appeal pursuant to § 1292(b).

The Second Circuit dismissed the entire complaint, reasoning that the law of nations does not recognize corporate liability. 621 F.3d 111 (2010). We granted certiorari to consider that question. 565 U.S. ___, 132 S.Ct. 472, 181 L.Ed.2d 292 (2011). After oral argument, we directed the parties to file supplemental briefs addressing an additional question: "Whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." 565 U.S. ___, 132 S.Ct. 1738, 182 L.Ed.2d 270 (2012). We heard oral argument again and now affirm the judgment below, based on our answer to the second question.

II

Passed as part of the Judiciary Act of 1789, the ATS was invoked twice in the late 18th century, but then only once more over the next 167 years. Act of Sept. 24, 1789, § 9, 1 Stat. 77; see Moxon v. The Fanny, 17 F. Cas. 942 (No. 9,895) (D.C.Pa. 1793); Bolchos v. Darrel, 3 F. Cas. 810 (No. 1,607) (D.C.S.C.1795); O'Reilly de Camara v. Brooke, 209 U.S. 45, 28 S.Ct. 439, 52 L.Ed. 676 (1908); Khedivial Line, S.A.E. v. Seafarers' Int'l Union, 278 F.2d 49, 51-52 (C.A.2 1960) (per curiam). The statute provides district courts with jurisdiction to hear certain claims, but does not expressly provide any causes of action. We held in Sosa v. Alvarez-Machain, 542 U.S. 692, 714, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), however, that the First Congress did not intend the provision to be "stillborn." The grant of jurisdiction is instead "best read as having been enacted on the understanding that the common law would provide a cause of action for [a] modest number of international law violations." Id., at 724, 124 S.Ct. 2739. We thus held that federal courts may "recognize private claims [for such violations] under federal common law." Id., at 732, 124 S.Ct. 2739. The Court in Sosa rejected the plaintiff's claim in that case for "arbitrary arrest and detention," on the ground that it failed to state a violation of the law of nations with the requisite "definite content and acceptance among civilized nations." Id., at 699, 732, 124 S.Ct. 2739.

[1664] The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign. Respondents contend that claims under the ATS do not, relying primarily on a canon of statutory interpretation known as the presumption against extraterritorial application. That canon provides that "[w]hen a statute gives no clear indication of an extraterritorial application, it has none," Morrison v. National Australia Bank Ltd., 561 U.S. ___, ___, 130 S.Ct. 2869, 2878, 177 L.Ed.2d 535 (2010), and reflects the "presumption that United States law governs domestically but does not rule the world," Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 454, 127 S.Ct. 1746, 167 L.Ed.2d 737 (2007).

This presumption "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord." EEOC v. Arabian American Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (Aramco). As this Court has explained:

"For us to run interference in ... a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain." Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 [77 S.Ct. 699, 1 L.Ed.2d 709] (1957). The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.

We typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad. See, e.g., Aramco, supra, at 246, 111 S.Ct. 1227 ("These cases present the issue whether Title VII applies extraterritorially to regulate the employment practices of United States employers who employ United States citizens abroad"); Morrison, supra, at ___, 130 S.Ct., at 2876-2877 (noting that the question of extraterritorial application was a "merits question," not a question of jurisdiction). The ATS, on the other hand, is "strictly jurisdictional." Sosa, 542 U.S., at 713, 124 S.Ct. 2739. It does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law. But we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.

Indeed, the danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do. This Court in Sosa repeatedly stressed the need for judicial caution in considering which claims could be brought under the ATS, in light of foreign policy concerns. As the Court explained, "the potential [foreign policy] implications ... of recognizing.... causes [under the ATS] should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs." Id., at 727, 124 S.Ct. 2739; see also id., at 727-728, 124 S.Ct. 2739 ("Since many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution"); id., at 727, 124 [1665] S.Ct. 2739 ("[T]he possible collateral consequences of making international rules privately actionable argue for judicial caution"). These concerns, which are implicated in any case arising under the ATS, are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign.

These concerns are not diminished by the fact that Sosa limited federal courts to recognizing causes of action only for alleged violations of international law norms that are "`specific, universal, and obligatory.'" Id., at 732, 124 S.Ct. 2739 (quoting In re Estate of Marcos, Human Rights Litigation, 25 F.3d 1467, 1475 (C.A.9 1994)). As demonstrated by Congress's enactment of the Torture Victim Protection Act of 1991, 106 Stat. 73, note following 28 U.S.C. § 1350, identifying such a norm is only the beginning of defining a cause of action. See id., § 3 (providing detailed definitions for extrajudicial killing and torture); id., § 2 (specifying who may be liable, creating a rule of exhaustion, and establishing a statute of limitations). Each of these decisions carries with it significant foreign policy implications.

The principles underlying the presumption against extraterritoriality thus constrain courts exercising their power under the ATS.

III

Petitioners contend that even if the presumption applies, the text, history, and purposes of the ATS rebut it for causes of action brought under that statute. It is true that Congress, even in a jurisdictional provision, can indicate that it intends federal law to apply to conduct occurring abroad. See, e.g., 18 U.S.C. § 1091(e) (2006 ed., Supp. V) (providing jurisdiction over the offense of genocide "regardless of where the offense is committed" if the alleged offender is, among other things, "present in the United States"). But to rebut the presumption, the ATS would need to evince a "clear indication of extraterritoriality." Morrison, 561 U.S., at ___, 130 S.Ct., at 2883. It does not.

To begin, nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach — such violations affecting aliens can occur either within or outside the United States. Nor does the fact that the text reaches "any civil action" suggest application to torts committed abroad; it is well established that generic terms like "any" or "every" do not rebut the presumption against extraterritoriality. See, e.g., id., at ___, 130 S.Ct., at 2881-2882; Small v. United States, 544 U.S. 385, 388, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005); Aramco, 499 U.S., at 248-250, 111 S.Ct. 1227; Foley Bros., Inc. v. Filardo, 336 U.S. 281, 287, 69 S.Ct. 575, 93 L.Ed. 680 (1949).

Petitioners make much of the fact that the ATS provides jurisdiction over civil actions for "torts" in violation of the law of nations. They claim that in using that word, the First Congress "necessarily meant to provide for jurisdiction over extraterritorial transitory torts that could arise on foreign soil." Supp. Brief for Petitioners 18. For support, they cite the common-law doctrine that allowed courts to assume jurisdiction over such "transitory torts," including actions for personal injury, arising abroad. See Mostyn v. Fabrigas, 1 Cowp. 161, 177, 98 Eng. Rep. 1021, 1030 (1774) (Mansfield, L.) ("[A]ll actions of a transitory nature that arise abroad may be laid as happening in an English county"); Dennick v. Railroad Co., 103 U.S. 11, 18, 26 L.Ed. 439 (1881) [1666] ("Wherever, by either the common law or the statute law of a State, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties").

Under the transitory torts doctrine, however, "the only justification for allowing a party to recover when the cause of action arose in another civilized jurisdiction is a well founded belief that it was a cause of action in that place." Cuba R. Co. v. Crosby, 222 U.S. 473, 479, 32 S.Ct. 132, 56 L.Ed. 274 (1912) (majority opinion of Holmes, J.). The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law. The reference to "tort" does not demonstrate that the First Congress "necessarily meant" for those causes of action to reach conduct in the territory of a foreign sovereign. In the end, nothing in the text of the ATS evinces the requisite clear indication of extraterritoriality.

Nor does the historical background against which the ATS was enacted overcome the presumption against application to conduct in the territory of another sovereign. See Morrison, supra, at ___, 130 S.Ct., at 2883 (noting that "[a]ssuredly context can be consulted" in determining whether a cause of action applies abroad). We explained in Sosa that when Congress passed the ATS, "three principal offenses against the law of nations" had been identified by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy. 542 U.S., at 723, 724, 124 S.Ct. 2739; see 4 W. Blackstone, Commentaries on the Laws of England 68 (1769). The first two offenses have no necessary extraterritorial application. Indeed, Blackstone — in describing them — did so in terms of conduct occurring within the forum nation. See ibid. (describing the right of safe conducts for those "who are here"); 1 id., at 251 (1765) (explaining that safe conducts grant a member of one society "a right to intrude into another"); id., at 245-248 (recognizing the king's power to "receiv[e] ambassadors at home" and detailing their rights in the state "wherein they are appointed to reside"); see also E. De Vattel, Law of Nations 465 (J. Chitty et al. transl. and ed. 1883) ("[O]n his entering the country to which he is sent, and making himself known, [the ambassador] is under the protection of the law of nations...").

Two notorious episodes involving violations of the law of nations occurred in the United States shortly before passage of the ATS. Each concerned the rights of ambassadors, and each involved conduct within the Union. In 1784, a French adventurer verbally and physically assaulted Francis Barbe Marbois — the Secretary of the French Legion — in Philadelphia. The assault led the French Minister Plenipotentiary to lodge a formal protest with the Continental Congress and threaten to leave the country unless an adequate remedy were provided. Respublica v. De Longchamps, 1 Dall. 111, 1 L.Ed. 59 (O.T.Phila.1784); Sosa, supra, at 716-717, and n. 11, 124 S.Ct. 2739. And in 1787, a New York constable entered the Dutch Ambassador's house and arrested one of his domestic servants. See Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L.Rev. 467, 494 (1986). At the request of Secretary of Foreign Affairs John Jay, the Mayor of New York City arrested the constable in turn, but cautioned that because "`neither Congress nor our [State] Legislature have [1667] yet passed any act respecting a breach of the privileges of Ambassadors,'" the extent of any available relief would depend on the common law. See Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int'l L. 587, 641-642 (2002) (quoting 3 Dept. of State, The Diplomatic Correspondence of the United States of America 447 (1837)). The two cases in which the ATS was invoked shortly after its passage also concerned conduct within the territory of the United States. See Bolchos, 3 F. Cas. 810 (wrongful seizure of slaves from a vessel while in port in the United States); Moxon, 17 F. Cas. 942 (wrongful seizure in United States territorial waters).

These prominent contemporary examples — immediately before and after passage of the ATS — provide no support for the proposition that Congress expected causes of action to be brought under the statute for violations of the law of nations occurring abroad.

The third example of a violation of the law of nations familiar to the Congress that enacted the ATS was piracy. Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the United States or any other country. See 4 Blackstone, supra, at 72 ("The offence of piracy, by common law, consists of committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there"). This Court has generally treated the high seas the same as foreign soil for purposes of the presumption against extraterritorial application. See, e.g., Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 173-174, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993) (declining to apply a provision of the Immigration and Nationality Act to conduct occurring on the high seas); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (declining to apply a provision of the Foreign Sovereign Immunities Act of 1976 to the high seas). Petitioners contend that because Congress surely intended the ATS to provide jurisdiction for actions against pirates, it necessarily anticipated the statute would apply to conduct occurring abroad.

Applying U.S. law to pirates, however, does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction. See 4 Blackstone, supra, at 71. We do not think that the existence of a cause of action against them is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign; pirates may well be a category unto themselves. See Morrison, 561 U.S., at ___, 130 S.Ct., at 2883 ("[W]hen a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit that provision to its terms"); see also Microsoft Corp., 550 U.S., at 455-456, 127 S.Ct. 1746.

Petitioners also point to a 1795 opinion authored by Attorney General William Bradford. See Breach of Neutrality, 1 Op. Atty. Gen. 57. In 1794, in the midst of war between France and Great Britain, and notwithstanding the American official policy of neutrality, several U.S. citizens joined a French privateer fleet and attacked and plundered the British colony of Sierra Leone. In response to a protest from the British Ambassador, Attorney General Bradford responded as follows:

So far ... as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the [1668] actors be legally prosecuted or punished for them by the United States. But crimes committed on the high seas are within the jurisdiction of the ... courts of the United States; and, so far as the offence was committed thereon, I am inclined to think that it may be legally prosecuted in ... those courts.... But some doubt rests on this point, in consequence of the terms in which the [applicable criminal law] is expressed. But there can be no doubt that the company or individuals 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 58-59.

Petitioners read the last sentence as confirming that "the Founding generation understood the ATS to apply to law of nations violations committed on the territory of a foreign sovereign." Supp. Brief for Petitioners 33. Respondents counter that when Attorney General Bradford referred to "these acts of hostility," he meant the acts only insofar as they took place on the high seas, and even if his conclusion were broader, it was only because the applicable treaty had extraterritorial reach. See Supp. Brief for Respondents 28-30. The Solicitor General, having once read the opinion to stand for the proposition that an "ATS suit could be brought against American citizens for breaching neutrality with Britain only if acts did not take place in a foreign country," Supp. Brief for United States as Amicus Curiae 8, n. 1 (internal quotation marks and brackets omitted), now suggests the opinion "could have been meant to encompass ... conduct [occurring within the foreign territory]," id., at 8.

Attorney General Bradford's opinion defies a definitive reading and we need not adopt one here. Whatever its precise meaning, it deals with U.S. citizens who, by participating in an attack taking place both on the high seas and on a foreign shore, violated a treaty between the United States and Great Britain. The opinion hardly suffices to counter the weighty concerns underlying the presumption against extraterritoriality.

Finally, there is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms. As Justice Story put it, "No nation has ever yet pretended to be the custos morum of the whole world...." United States v. The La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (C.C.Mass.1822). It is implausible to suppose that the First Congress wanted their fledgling Republic — struggling to receive international recognition — to be the first. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.

The United States was, however, embarrassed by its potential inability to provide judicial relief to foreign officials injured in the United States. Bradley, 42 Va. J. Int'l L., at 641. Such offenses against ambassadors violated the law of nations, "and if not adequately redressed could rise to an issue of war." Sosa, 542 U.S., at 715, 124 S.Ct. 2739; cf. The Federalist No. 80, p. 536 (J. Cooke ed. 1961) (A. Hamilton) ("As the denial or perversion of justice ... is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned"). The ATS ensured that the United States could provide a forum for adjudicating such incidents. See Sosa, supra, at 715-718, and n. 11, 124 S.Ct. 2739. Nothing about this historical context suggests that Congress also intended federal common law under the ATS [1669] to provide a cause of action for conduct occurring in the territory of another sovereign.

Indeed, far from avoiding diplomatic strife, providing such a cause of action could have generated it. Recent experience bears this out. See Doe v. Exxon Mobil Corp., 654 F.3d 11, 77-78 (C.A.D.C. 2011) (Kavanaugh, J., dissenting in part) (listing recent objections to extraterritorial applications of the ATS by Canada, Germany, Indonesia, Papua New Guinea, South Africa, Switzerland, and the United Kingdom). Moreover, accepting petitioners' view would imply that other nations, also applying the law of nations, could hale our citizens into their courts for alleged violations of the law of nations occurring in the United States, or anywhere else in the world. The presumption against extraterritoriality guards against our courts triggering such serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches.

We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. "[T]here is no clear indication of extraterritoriality here," Morrison, 561 U.S., at ___, 130 S.Ct., at 2883, and petitioners' case seeking relief for violations of the law of nations occurring outside the United States is barred.

IV

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U.S. ___, 130 S.Ct., at 2883-2888. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice KENNEDY, concurring.

The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U.S.C. § 1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today's case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.

Justice ALITO, with whom Justice THOMAS joins, concurring.

I concur in the judgment and join the opinion of the Court as far as it goes. Specifically, I agree that when Alien Tort Statute (ATS) "claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application." Ante, at 1669. This formulation obviously leaves much unanswered, and perhaps there is wisdom in the Court's [1670] preference for this narrow approach. I write separately to set out the broader standard that leads me to the conclusion that this case falls within the scope of the presumption.

In Morrison v. National Australia Bank Ltd., 561 U.S. ___, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010), we explained that "the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case." Id., at ___, 130 S.Ct., at 2884. We also reiterated that a cause of action falls outside the scope of the presumption — and thus is not barred by the presumption — only if the event or relationship that was "the `focus' of congressional concern" under the relevant statute takes place within the United States. Ibid. (quoting EEOC v. Arabian American Oil Co., 499 U.S. 244, 255, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991)). For example, because "the focus of the [Securities] Exchange Act [of 1934] is not upon the place where the deception originated, but upon purchases and sales of securities in the United States," we held in Morrison that § 10(b) of the Exchange Act applies "only" to "transactions in securities listed on domestic exchanges, and domestic transactions in other securities." 561 U.S., at ___ - ___, 130 S.Ct., at 2883-2885.

The Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), makes clear that when the ATS was enacted, "congressional concern" was "`focus[ed],'" Morrison, supra, at ___, 130 S.Ct., at 2883-2884, on the "three principal offenses against the law of nations" that had been identified by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy, Sosa, 542 U.S., at 723-724, 124 S.Ct. 2739. The Court therefore held that "federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted." Id., at 732, 124 S.Ct. 2739. In other words, only conduct that satisfies Sosa's requirements of definiteness and acceptance among civilized nations can be said to have been "the `focus' of congressional concern," Morrison, supra, at ___, 130 S.Ct., at 2884, when Congress enacted the ATS. As a result, a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality — and will therefore be barred — unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa's requirements of definiteness and acceptance among civilized nations.

Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR and Justice KAGAN join, concurring in the judgment.

I agree with the Court's conclusion but not with its reasoning. The Court sets forth four key propositions of law: First, the "presumption against extraterritoriality applies to claims under" the Alien Tort Statute. Ante, at 1669. Second, "nothing in the statute rebuts that presumption." Ibid. Third, there "is no clear indication of extraterritoria[l application] here," where "all the relevant conduct took place outside the United States" and "where the claims" do not "touch and concern the territory of the United States ... with sufficient force to displace the presumption." Ante, at 1669 (internal quotation marks omitted). Fourth, that is in part because "[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices." Ante, at 1669.

[1671] Unlike the Court, I would not invoke the presumption against extraterritoriality. Rather, guided in part by principles and practices of foreign relations law, I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind. See Sosa v. Alvarez-Machain, 542 U.S. 692, 732, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) ("`[F]or purposes of civil liability, the torturer has become — like the pirate and slave trader before him — hostis humani generis, an enemy of all mankind.'" (quoting Filartiga v. Pena-Irala, 630 F.2d 876, 890 (C.A.2 1980) (alteration in original))). See also 1 Restatement (Third) of Foreign Relations Law of the United States §§ 402, 403, 404 (1986). In this case, however, the parties and relevant conduct lack sufficient ties to the United States for the ATS to provide jurisdiction.

I

A

Our decision in Sosa frames the question. In Sosa the Court specified that the Alien Tort Statute (ATS), when enacted in 1789, "was intended as jurisdictional." 542 U.S., at 714, 124 S.Ct. 2739. We added that the statute gives today's courts the power to apply certain "judge-made" damages law to victims of certain foreign affairs-related misconduct, including "three specific offenses" to which "Blackstone referred," namely "violation of safe conducts, infringement of the rights of ambassadors, and piracy." Id., at 715, 124 S.Ct. 2739. We held that the statute provides today's federal judges with the power to fashion "a cause of action" for a "modest number" of claims, "based on the present-day law of nations," and which "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features" of those three "18th-century paradigms." Id., at 724-725, 124 S.Ct. 2739.

We further said that, in doing so, a requirement of "exhaust[ion]" of "remedies" might apply. Id., at 733, n. 21, 124 S.Ct. 2739. We noted "a strong argument that federal courts should give serious weight to the Executive Branch's view of the case's impact on foreign policy." Ibid. Adjudicating any such claim must, in my view, also be consistent with those notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its own laws and their enforcement. Id., at 761, 124 S.Ct. 2739 (BREYER, J., concurring in part and concurring in judgment). See also F. Hoffmann-La Roche Ltd. v. Empagran S. A., 542 U.S. 155, 165-169, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004).

Recognizing that Congress enacted the ATS to permit recovery of damages from pirates and others who violated basic international law norms as understood in 1789, Sosa essentially leads today's judges to ask: Who are today's pirates? See 542 U.S., at 724-725, 124 S.Ct. 2739 (majority opinion). We provided a framework for answering that question by setting down principles drawn from international norms and designed to limit ATS claims to those that are similar in character and specificity to piracy. Id., at 725, 124 S.Ct. 2739.

In this case we must decide the extent to which this jurisdictional statute opens a federal court's doors to those harmed by activities belonging to the limited class that Sosa set forth when those activities take place abroad. To help answer this [1672] question here, I would refer both to Sosa and, as in Sosa, to norms of international law. See Part II, infra.

B

In my view the majority's effort to answer the question by referring to the "presumption against extraterritoriality" does not work well. That presumption "rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters." Morrison v. National Australia Bank Ltd., 561 U.S. ___, ___, 130 S.Ct. 2869, 2877-2888, 177 L.Ed.2d 535 (2010). See ante, at 1664. The ATS, however, was enacted with "foreign matters" in mind. The statute's text refers explicitly to "alien[s]," "treat[ies]," and "the law of nations." 28 U.S.C. § 1350. The statute's purpose was to address "violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs." Sosa, 542 U.S., at 715, 124 S.Ct. 2739. And at least one of the three kinds of activities that we found to fall within the statute's scope, namely piracy, ibid., normally takes place abroad. See 4 W. Blackstone, Commentaries on the Law of England 72 (1769).

The majority cannot wish this piracy example away by emphasizing that piracy takes place on the high seas. See ante, at 1667. That is because the robbery and murder that make up piracy do not normally take place in the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies. See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20-21, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963); 2 Restatement § 502, Comment d ("[F]lag state has jurisdiction to prescribe with respect to any activity aboard the ship"). Indeed, in the early 19th century Chief Justice Marshall described piracy as an "offenc[e] against the nation under whose flag the vessel sails, and within whose particular jurisdiction all on board the vessel are." United States v. Palmer, 3 Wheat. 610, 632, 4 L.Ed. 471 (1818). See United States v. Furlong, 5 Wheat. 184, 197, 5 L.Ed. 64 (1820) (a crime committed "within the jurisdiction" of a foreign state and a crime committed "in the vessel of another nation" are "the same thing").

The majority nonetheless tries to find a distinction between piracy at sea and similar cases on land. It writes, "Applying U.S. law to pirates ... does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign and therefore carries less direct foreign policy consequences." Ante, at 1667 (emphasis added). But, as I have just pointed out, "[a]pplying U.S. law to pirates" does typically involve applying our law to acts taking place within the jurisdiction of another sovereign. Nor can the majority's words "territorial jurisdiction" sensibly distinguish land from sea for purposes of isolating adverse foreign policy risks, as the Barbary Pirates, the War of 1812, the sinking of the Lusitania, and the Lockerbie bombing make all too clear.

The majority also writes, "Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction." Ibid. I very much agree that pirates were fair game "wherever found." Indeed, that is the point. That is why we asked, in Sosa, who are today's pirates? Certainly today's pirates include torturers and perpetrators of genocide. And today, like the pirates of old, they are "fair game" where they are found. Like those pirates, they are "common enemies of all mankind and all nations have an equal interest in their apprehension and punishment." 1 Restatement [1673] § 404 Reporters' Note 1, p. 256 (quoting In re Demjanjuk, 612 F.Supp. 544, 556 (N.D.Ohio 1985) (internal quotation marks omitted)). See Sosa, supra, at 732, 124 S.Ct. 2739. And just as a nation that harbored pirates provoked the concern of other nations in past centuries, see infra, at 1674, so harboring "common enemies of all mankind" provokes similar concerns today.

Thus the Court's reasoning, as applied to the narrow class of cases that Sosa described, fails to provide significant support for the use of any presumption against extraterritoriality; rather, it suggests the contrary. See also ante, at 1667 (conceding and citing cases showing that this Court has "generally treated the high seas the same as foreign soil for purposes of the presumption against extraterritorial application").

In any event, as the Court uses its "presumption against extraterritorial application," it offers only limited help in deciding the question presented, namely "`under what circumstances the Alien Tort Statute... allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.'" 565 U.S. ___, 132 S.Ct. 472, 181 L.Ed.2d 292 (2012). The majority echoes in this jurisdictional context Sosa's warning to use "caution" in shaping federal common-law causes of action. Ante, at 1664. But it also makes clear that a statutory claim might sometimes "touch and concern the territory of the United States ... with sufficient force to displace the presumption." Ante, at 1669. It leaves for another day the determination of just when the presumption against extraterritoriality might be "overcome." Ante, at 1666.

II

In applying the ATS to acts "occurring within the territory of a[nother] sovereign," I would assume that Congress intended the statute's jurisdictional reach to match the statute's underlying substantive grasp. That grasp, defined by the statute's purposes set forth in Sosa, includes compensation for those injured by piracy and its modern-day equivalents, at least where allowing such compensation avoids "serious" negative international "consequences" for the United States. 542 U.S., at 715, 124 S.Ct. 2739. And just as we have looked to established international substantive norms to help determine the statute's substantive reach, id., at 729, 124 S.Ct. 2739, so we should look to international jurisdictional norms to help determine the statute's jurisdictional scope.

The Restatement (Third) of Foreign Relations Law is helpful. Section 402 recognizes that, subject to § 403's "reasonableness" requirement, a nation may apply its law (for example, federal common law, see 542 U.S., at 729-730, 124 S.Ct. 2739) not only (1) to "conduct" that "takes place [or to persons or things] within its territory" but also (2) to the "activities, interests, status, or relations of its nationals outside as well as within its territory," (3) to "conduct outside its territory that has or is intended to have substantial effect within its territory," and (4) to certain foreign "conduct outside its territory ... that is directed against the security of the state or against a limited class of other state interests." In addition, § 404 of the Restatement explains that a "state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade," and analogous behavior.

Considering these jurisdictional norms in light of both the ATS's basic purpose (to provide compensation for those injured by today's pirates) and Sosa's basic caution [1674] (to avoid international friction), I believe that the statute provides jurisdiction where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.

I would interpret the statute as providing jurisdiction only where distinct American interests are at issue. Doing so reflects the fact that Congress adopted the present statute at a time when, as Justice Story put it, "No nation ha[d] ever yet pretended to be the custos morum of the whole world." United States v. La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (C.C.D.Mass.1822). That restriction also should help to minimize international friction. Further limiting principles such as exhaustion, forum non conveniens, and comity would do the same. So would a practice of courts giving weight to the views of the Executive Branch. See Sosa, 542 U.S., at 733, n. 21, 124 S.Ct. 2739; id., at 761, 124 S.Ct. 2739 (opinion of BREYER, J.).

As I have indicated, we should treat this Nation's interest in not becoming a safe harbor for violators of the most fundamental international norms as an important jurisdiction-related interest justifying application of the ATS in light of the statute's basic purposes — in particular that of compensating those who have suffered harm at the hands of, e.g., torturers or other modern pirates. Nothing in the statute or its history suggests that our courts should turn a blind eye to the plight of victims in that "handful of heinous actions." Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 (C.A.D.C. 1984) (Edwards, J., concurring). See generally Leval, The Long Arm of International Law: Giving Victims of Human Rights Abuses Their Day in Court, 92 Foreign Affairs 16 (Mar. / Apr. 2013). To the contrary, the statute's language, history, and purposes suggest that the statute was to be a weapon in the "war" against those modern pirates who, by their conduct, have "declar[ed] war against all mankind." 4 Blackstone 71.

International norms have long included a duty not to permit a nation to become a safe harbor for pirates (or their equivalent). See generally A. Bradford, Flying the Black Flag: A Brief History of Piracy 19 (2007) ("Every polis by the sea ... which was suspected of sponsoring piracy or harboring pirates could be attacked and destroyed by the Athenians"); F. Sanborn, Origins of the Early English Maritime and Commercial Law 313 (1930) ("In 1490 Henry VII made a proclamation against harboring pirates or purchasing goods from them"); N. Risjord, Representative Americans: The Colonists 146 (1981) ("William Markham, Penn's lieutenant governor in the 1690s, was accused of harboring pirates in Philadelphia.... Governor Benjamin Fletcher of New York became the target of a royal inquiry after he issued privateering commissions to a band of notorious pirates"); 3 C. Yonge, A Pictorial History of the World's Great Nations 954 (1882) ("[In the early 18th century, t]he government of Connecticut was accused of harboring pirates"); S. Menefee, Piracy, Terrorism, and the Insurgent Passenger: A Historical and Legal Perspective, in Maritime Terrorism and International Law 51 (N. Ronzitti ed. 1990) (quoting the judge who handled the seizure of the Chesapeake during the Civil War as stating that "`piracy jure gentium was justiciable by the court of New Brunswick, wherever committed'"); D. Field, Outlines of an International Code 33, Art. [1675] 84 (2d ed. 1876) (citing the 1794 treaty between the United States and Great Britain ("Harboring pirates forbidden. No nation can receive pirates into its territory, or permit any person within the same to receive, protect, conceal or assist them in any manner; but must punish all persons guilty of such acts")).

More recently two lower American courts have, in effect, rested jurisdiction primarily upon that kind of concern. In Filartiga, 630 F.2d 876, an alien plaintiff brought a lawsuit against an alien defendant for damages suffered through acts of torture that the defendant allegedly inflicted in a foreign nation, Paraguay. Neither plaintiff nor defendant was an American national and the actions underlying the lawsuit took place abroad. The defendant, however, "had ... resided in the United States for more than ninth months" before being sued, having overstayed his visitor's visa. Id., at 878-879. Jurisdiction was deemed proper because the defendant's alleged conduct violated a well-established international law norm, and the suit vindicated our Nation's interest in not providing a safe harbor, free of damages claims, for those defendants who commit such conduct.

In Marcos, the plaintiffs were nationals of the Philippines, the defendant was a Philippine national, and the alleged wrongful act, death by torture, took place abroad. In re Estate of Marcos, Human Rights Litigation, 25 F.3d 1467, 1469, 1475 (C.A.9 1994); In re Estate of Marcos Human Rights Litigation, 978 F.2d 493, 495-496, 500 (C.A.9 1992). A month before being sued, the defendant, "his family, ... and others loyal to [him] fled to Hawaii," where the ATS case was heard. Marcos, 25 F.3d, at 1469. As in Filartiga, the court found ATS jurisdiction.

And in Sosa we referred to both cases with approval, suggesting that the ATS allowed a claim for relief in such circumstances. 542 U.S., at 732, 124 S.Ct. 2739. See also Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1025 (C.A.7 2011) (Posner, J.) ("Sosa was a case of nonmaritime extraterritorial conduct yet no Justice suggested that therefore it couldn't be maintained"). Not surprisingly, both before and after Sosa, courts have consistently rejected the notion that the ATS is categorically barred from extraterritorial application. See, e.g., 643 F.3d, at 1025 ("[N]o court to our knowledge has ever held that it doesn't apply extraterritorially"); Sarei v. Rio Tinto, PLC, 671 F.3d 736, 747 (C.A.9 2011) (en banc) ("We therefore conclude that the ATS is not limited to conduct occurring within the United States"); Doe v. Exxon Mobil Corp., 654 F.3d 11, 20 (C.A.D.C.2011) ("[W]e hold that there is no extraterritoriality bar").

Application of the statute in the way I have suggested is consistent with international law and foreign practice. Nations have long been obliged not to provide safe harbors for their own nationals who commit such serious crimes abroad. See E. de Vattel, Law of Nations, Book II, p. 163 (§ 76) ("pretty generally observed" practice in "respect to great crimes, which are equally contrary to the laws and safety of all nations," that a sovereign should not "suffer his subjects to molest the subjects of other states, or to do them an injury," but should "compel the transgressor to make reparation for the damage or injury," or be "deliver[ed] ... up to the offended state, to be there brought to justice").

Many countries permit foreign plaintiffs to bring suits against their own nationals based on unlawful conduct that took place abroad. See, e.g., Brief for Government of the Kingdom of the Netherlands et al. as Amici Curiae 19-23 (hereinafter Netherlands Brief) (citing inter alia Guerrero v. [1676] Monterrico Metals PLc [2009] EWHC (QB) 2475 (Eng.) (attacking conduct of U.K. companies in Peru); Lubbe and Others v. Cape PLc [2000] UKHL 41 (attacking conduct of U.K. companies in South Africa); Rb. Gravenhage [Court of the Hague], 30 December 2009, JOR 2010, 41 m.nt. Mr. RGJ de Haan (Oguro/Royal Dutch Shell PLC) (Neth.) (attacking conduct of Dutch respondent in Nigeria)). See also Brief for European Commission as Amicus Curiae 11 (It is "uncontroversial" that the "United States may ... exercise jurisdiction over ATS claims involving conduct committed by its own nationals within the territory of another sovereign, consistent with international law").

Other countries permit some form of lawsuit brought by a foreign national against a foreign national, based upon conduct taking place abroad and seeking damages. Certain countries, which find "universal" criminal "jurisdiction" to try perpetrators of particularly heinous crimes such as piracy and genocide, see Restatement § 404, also permit private persons injured by that conduct to pursue "actions civiles," seeking civil damages in the criminal proceeding. Thompson, Ramasastry, & Taylor, Translating Unocal: The Expanding Web of Liability for Business Entities Implicated in International Crimes, 40 Geo. Wash. Int'l L.Rev. 841, 886 (2009). See, e.g., Ely Ould Dah v. France, App. No. 13113/03 (Eur. Ct. H. R.; Mar 30, 2009), 48 Int'l Legal Materials 884; Metcalf, Reparations for Displaced Torture Victims, 19 Cardozo J. Int'l & Comp. L. 451, 468-470 (2011). Moreover, the United Kingdom and the Netherlands, while not authorizing such damages actions themselves, tell us that they would have no objection to the exercise of American jurisdiction in cases such as Filartiga and Marcos. Netherlands Brief 15-16, and n. 23.

At the same time Congress has ratified treaties obliging the United States to find and punish foreign perpetrators of serious crimes committed against foreign persons abroad. See Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 28, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 565, T.I.A.S. No. 7570; Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192; Restatement § 404 Reporters' Note 1, at 257 ("These agreements include an obligation on the parties to punish or extradite offenders, even when the offense was not committed within their territory or by a national"). See also International Convention for the Protection of All Persons from Enforced Disappearance, Art. 9(2) (2006) (state parties must take measures to establish jurisdiction "when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her"); http://www.unhcr.org/refworld/docid/47fdfaeb0.pdf (as visited Apr. 1, 2013, and available in Clerk of Court's case file); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Dec. 10, 1984, 1465 U. N. T. S. 85, Arts. 5(2), 7(1) (similar); Geneva Convention (III) Relative to the Treatment of Prisoners of War, Art. 129, Aug. 12, 1949, [1955] 6 U.S. T. 3316, T. I. A. S. No. 3364 (signatories must "search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts" or "hand such persons over for trial").

And Congress has sometimes authorized civil damages in such cases. See generally note following 28 U.S.C. § 1350 (Torture [1677] Victim Protection Act of 1991 (TVPA) (private damages action for torture or extrajudicial killing committed under authority of a foreign nation)); S.Rep. No. 102-249, p. 4 (1991) (ATS "should not be replaced" by TVPA); H.R.Rep. No. 102-367, pt. 1, p. 4 (TVPA intended to "enhance the remedy already available under" the ATS). But cf. Mohamad v. Palestinian Authority, 566 U.S. ___, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012) (TVPA allows suits against only natural persons).

Congress, while aware of the award of civil damages under the ATS — including cases such as Filartiga with foreign plaintiffs, defendants, and conduct — has not sought to limit the statute's jurisdictional or substantive reach. Rather, Congress has enacted other statutes, and not only criminal statutes, that allow the United States to prosecute (or allow victims to obtain damages from) foreign persons who injure foreign victims by committing abroad torture, genocide, and other heinous acts. See, e.g., 18 U.S.C. § 2340A(b)(2) (authorizing prosecution of torturers if "the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender"); § 1091(e)(2)(D) (2006 ed., Supp. V) (genocide prosecution authorized when, "regardless of where the offense is committed, the alleged offender is ... present in the United States"); note following 28 U.S.C. § 1350, § 2(a) (private right of action on behalf of individuals harmed by an act of torture or extrajudicial killing committed "under actual or apparent authority, or color of law, of any foreign nation"). See also S.Rep. No. 102-249, supra, at 1671-1672 (purpose to "mak[e] sure that torturers and death squads will no longer have a safe haven in the United States," by "providing a civil cause of action in U.S. courts for torture committed abroad").

Thus, the jurisdictional approach that I would use is analogous to, and consistent with, the approaches of a number of other nations. It is consistent with the approaches set forth in the Restatement. Its insistence upon the presence of some distinct American interest, its reliance upon courts also invoking other related doctrines such as comity, exhaustion, and forum non conveniens, along with its dependence (for its workability) upon courts obtaining, and paying particular attention to, the views of the Executive Branch, all should obviate the majority's concern that our jurisdictional example would lead "other nations, also applying the law of nations," to "hale our citizens into their courts for alleged violations of the law of nations occurring in the United States, or anywhere else in the world." Ante, at 1669.

Most importantly, this jurisdictional view is consistent with the substantive view of the statute that we took in Sosa. This approach would avoid placing the statute's jurisdictional scope at odds with its substantive objectives, holding out "the word of promise" of compensation for victims of the torturer, while "break[ing] it to the hope."

III

Applying these jurisdictional principles to this case, however, I agree with the Court that jurisdiction does not lie. The defendants are two foreign corporations. Their shares, like those of many foreign corporations, are traded on the New York Stock Exchange. Their only presence in the United States consists of an office in New York City (actually owned by a separate but affiliated company) that helps to explain their business to potential investors. See Supp. Brief for Petitioners 4, n. 3 (citing Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 94 (C.A.2 2000)); App. 55. [1678] The plaintiffs are not United States nationals but nationals of other nations. The conduct at issue took place abroad. And the plaintiffs allege, not that the defendants directly engaged in acts of torture, genocide, or the equivalent, but that they helped others (who are not American nationals) to do so.

Under these circumstances, even if the New York office were a sufficient basis for asserting general jurisdiction, but see Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ___, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011), it would be farfetched to believe, based solely upon the defendants' minimal and indirect American presence, that this legal action helps to vindicate a distinct American interest, such as in not providing a safe harbor for an "enemy of all mankind." Thus I agree with the Court that here it would "reach too far to say" that such "mere corporate presence suffices." Ante, at 1669.

I consequently join the Court's judgment but not its opinion.