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.

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.

See alsoCouzado 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).

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")

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 generallyFeres 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").

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 inRichards 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.

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

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

The courts that have applied the headquarters doctrine, believing it to be intimated by our emphasis, inRichards 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).

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)

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

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.

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).

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

SeeSouthern Pacific Co. v. Jensen, 244 U. S. 205, 222 (1917) (Holmes, J., dissenting).

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 shipMarquis 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.

Petitioner says animadversion is "an archaic reference to the imposition ofpunishment." 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).

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 ofErie — and of the New Federal Common Law, 39 N.Y. U. L. Rev. 383, 405-422 (1964).

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)).

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), seepost, 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.

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

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 asamicus 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.).

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

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").

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

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)

We have no occasion to decide whether Alvarez is right that 21 U. S. C. § 878 did not authorize the arrest

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.

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

It is not that violations of a rule logically foreclose the existence of that rule as international law. CfFilartiga 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.

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

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.

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, 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," 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 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).

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.

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 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.

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 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, 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. Karadžić, 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 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 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 matters—any matters—are none of its business. See, e.g., Rasul v. Bush, ante, p. 466; INS v. St. Cyr, 533 U. S. 289 (2001). In today's latest victory for its Never Say Never Jurisprudence, the Court ignores its own conclusion that the ATS provides only jurisdiction, wags a finger at the lower courts for going too far, and then — repeating the same 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 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.

join in full the Court's disposition of Alvarez's claim pursuant to 28 U. S. C. § 1350. Seeante, 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).

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 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, seeante, 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

On its face, the foreign-country exception appears to cover this litigation. Seeante, 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 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).

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 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 States—surely a bizarre result." Id., at 201-202. Thus, in Smith, the Court presumed that the place "where the act or omission occurred" for purposes of the sovereign-immunity waiver, § 1346(b)(1), coincided with the place where the "claim ar[ose]" for purposes of the foreign-country exception, § 2680(k). See also Beattie v. United States, 756 F. 2d 91, 122 (CADC 1984) (Scalia, J., 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." 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 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)).

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 supervision—or even less than that, lack of careful training, selection or supervision—in the United States." Beattie, 756 F. 2d, at 119 (Scalia, J., dissenting); see ante, at 702-703 (same). Hence the headquarters doctrine, which considers whether steps toward the commission of the tort occurred within the United States, risks swallowing up the foreign-country exception.

Furthermore, the Court of Appeals failed to address the choice-of-law question implicated by both §§ 1346(b) and 2680(k) whenever tortious acts are committed in multiple states. Both those provisions direct federal courts "in multistate tort actions, to look in the first instance to the law of the place where the acts of negligence [or the intentional tort] took place." Richards, 369 U. S., at 10. In cases 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 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,' while also avoiding the conjecture that [alternative] inquires often entail." Ibid. I agree.

"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.

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, wasnot 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.

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.").

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 whocommitted 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.

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).

Readingrenvoi 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.").

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.

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).

JUSTICE BREYER, concurring in part and concurring in the judgment.

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 piracyAnte, 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 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.

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 worldF. 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 national—where, 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 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 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 compétence judiciaire et l'exécution des décisions en matière 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.