SUPREME COURT OF THE UNITED STATES
_________________
No. 16–499
_________________
JOSEPH JESNER, et al., PETITIONERS
v. ARAB BANK, PLC
on writ of certiorari to the united states
court of appeals for the second circuit
[April 24, 2018]
Justice Sotomayor, with whom Justice Ginsburg,
Justice Breyer, and Justice Kagan join, dissenting.
The Court today holds that the Alien Tort
Statute (ATS), 28 U. S. C. §1350, categorically
forecloses foreign corporate liability. In so doing, it absolves
corporations from responsibility under the ATS for
conscience-shocking behavior. I disagree both with the Court’s
conclusion and its analytic approach. The text, history, and
purpose of the ATS, as well as the long and consistent history of
corporate liability in tort, confirm that tort claims for
law-of-nations violations may be brought against corporations under
the ATS. Nothing about the corporate form in itself raises
foreign-policy concerns that require the Court, as a matter of
common-law discretion, to immunize all foreign corporations from
liability under the ATS, regardless of the specific law-of-nations
violations alleged. I respectfully dissent.
I
The plurality assumes without deciding that
whether corporations can be permissible defendants under the ATS
turns on the first step of the two-part inquiry set out in
Sosa v.
Alvarez-Machain, 542 U. S. 692 (2004) .
But by asking whether there is “a specific, universal, and
obligatory norm of liability for corporations” in international
law,
ante, at 13, the plurality fundamentally misconceives
how international law works and so misapplies the first step of
Sosa.
A
In
Sosa, the Court considered whether a
Mexican citizen could recover under the ATS for a claim of
arbitrary detention by a Mexican national who had been hired by the
Drug Enforcement Administration to seize and transport him to the
United States. See 542 U. S., at 697–698. The Court held that
the ATS permits federal courts to “recognize private causes of
action for certain torts in violation of the law of nations,”
id., at 724, without the need for any “further congressional
action,”
id., at 712. The Court then articulated a two-step
framework to guide that inquiry. First, a court must determine
whether the particular international-law norm alleged to have been
violated is “accepted by the civilized world and defined with a
specificity comparable to the features of the 18th-century
paradigms,”
i.e., “violation of safe conducts, infringement
of the rights of ambassadors, and piracy.”
Id., at 724–725.
Only if the norm is “ ‘specific, universal, and
obligatory’ ” may federal courts recognize a cause of action
for its violation.
Kiobel v.
Royal Dutch Petroleum
Co., 569 U. S. 108, 117 (2013) (quoting
Sosa, 542
U. S., at 732). Second, if that threshold hurdle is satisfied,
a court should consider whether allowing a particular case to
proceed is an appropriate exercise of judicial discretion.
Sosa, 542 U. S., at 727–728, 732–733, 738. Applying
that framework,
Sosa held that the alleged arbitrary
detention claim at issue failed at step one because “a single
illegal detention of less than a day, followed by the transfer of
custody to lawful authorities and a prompt arraignment, violates no
norm of customary international law so well defined as to support
the creation of a federal remedy.”
Id., at 738.
Sosa’s norm-specific first step is
inapposite to the categorical question whether corporations may be
sued under the ATS as a general matter. International law imposes
certain obligations that are intended to govern the behavior of
states and private actors. See
id., at 714–715; 1
Restatement (Third) of Foreign Relations Law of the United States,
pt. II, Introductory Note, pp. 70–71 (1987) (Restatement). Among
those obligations are substantive prohibitions on certain conduct
thought to violate human rights, such as genocide, slavery,
extrajudicial killing, and torture. See 2 Restatement §702.
Substantive prohibitions like these are the norms at which
Sosa’s step-one inquiry is aimed and for which
Sosa
requires that there be sufficient international consensus.
Sosa does not, however, demand that there
be sufficient international consensus with regard to the mechanisms
of enforcing these norms, for enforcement is not a question with
which customary international law is concerned. Although
international law determines what substantive conduct violates the
law of nations, it leaves the specific rules of how to enforce
international-law norms and remedy their violation to states, which
may act to impose liability collectively through treaties or
independently via their domestic legal systems. See,
e.g.,
L. Henkin, Foreign Affairs and the United States Constitution 245
(2d ed. 1996) (“International law itself . . . does not
require any particular reaction to violations of law”); Denza, The
Relationship Between International and National Law, in
International Law 423 (M. Evans ed. 2006) (“[I]nternational law
does not itself prescribe how it should be applied or enforced at
the national level”); 1 Restatement §111, Comment
h (“In the
absence of special agreement, it is ordinarily for the United
States to decide how it will carry out its international
obligations”); Brief for International Law Scholars as
Amici
Curiae 9–10.
In keeping with the nature of international law,
Sosa consistently used the word “norm” to refer to
substantive conduct. For example,
Sosa commands that
“federal courts should not recognize private claims under federal
common law for violations of any international law norm with less
definite content and acceptance among civilized nations than the
historical paradigms familiar when §1350 was enacted.” 542
U. S., at 732. That statement would make little sense if
“norm” encompassed enforcement mechanisms like “corporate
liability.” Unlike “the prohibition on genocide,” “corporate
liability” cannot be violated. Moreover, “the historical paradigms
familiar when §1350 was enacted” are all prohibitions on conduct,
and
Sosa clearly contemplated that courts should compare the
charged conduct with the historical conduct. See
ibid.
(quoting
Filartiga v.
Pena-Irala, 630 F. 2d 876
(1980), where the Court of Appeals for the Second Circuit compared
a “ ‘torturer’ ” to “ ‘the pirate and slave trader
before him,’ ”
id., at 890, and Judge Edwards’
concurrence in
Tel-Oren v.
Libyan Arab Republic, 726
F. 2d 774 (CADC 1984), which suggested that the “ ‘limits
of section 1350’s reach’ ” be defined by “ ‘a handful of
heinous actions—each of which violates definable, universal and
obligatory norms,’ ”
id., at 781). There is no
indication in
Sosa that the Court also intended for courts
to undertake the apples-to-oranges comparison of the conduct
proscribed under customary international law and the forms of
liability available under domestic law.
The text of the ATS also reflects this
distinction between prohibiting conduct and determining
enforcement. The statute provides: “The district courts shall have
original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of
the United States.” 28 U. S. C. §1350. The phrase “of the
law of nations” modifies “violation,” not “civil action.” The
statutory text thus requires only that the alleged conduct be
specifically and universally condemned under international law, not
that the civil action be of a type that the international community
specifically and universally practices or endorses.
B
1
The plurality nonetheless allies itself with
the view that international law supplies the rule of decision in
this case based on its reading of footnote 20 in
Sosa. That
footnote sets out “[a] related consideration” to “the determination
whether a norm is sufficiently definite to support a cause of
action.” 542 U. S., at 732, and n. 20. In full, it
states:
“A related consideration is whether
international law extends the scope of liability for a violation of
a given norm to the perpetrator being sued, if the defendant is a
private actor such as a corporation or individual. Compare
Tel-Oren v.
Libyan Arab Republic, 726 F. 2d 774,
791–795 (CADC 1984) (Edwards, J., concurring) (insufficient
consensus in 1984 that torture by private actors violates
international law), with
Kadic v.
Karadžić, 70
F. 3d 232, 239–241 (CA2 1995) (sufficient consensus in 1995
that genocide by private actors violates international law).” 542
U. S., at 732, n. 20.
In the Second Circuit’s decision in
Kiobel v.
Royal Dutch Petroleum, 621 F. 3d 111
(2010), the majority opinion read footnote 20 to “requir[e] that
[courts] look to
international law to determine [their]
jurisdiction over ATS claims against a particular class of
defendant, such as corporations.”
Id., at 127 (emphasis in
original). The plurality today accords “considerable force and
weight to [that] position,”
ante, at 13, and so proceeds to
assess whether there exists a specific, universal, and obligatory
norm of liability for corporations in international law,
ante, at 13–17. But the Court of Appeals mistook the meaning
of footnote 20, which simply draws attention to the fact that,
under international law, “the distinction between conduct that does
and conduct that does not violate the law of nations can turn on
whether the conduct is done by or on behalf of a State or by a
private actor independently of a State.”
Kiobel, 621
F. 3d, at 177 (Leval, J., concurring in judgment).
The international-law norm against genocide, for
example, imposes obligations on all actors. Acts of genocide thus
violate the norm irrespective of whether they are committed
privately or in concert with the state. See Convention on the
Prevention and Punishment of the Crime of Genocide, Art. II, Dec.
9, 1948, 102Stat. 3045 (defining “genocide” as “any of the
following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group”); see also
18 U. S. C. §1091(a) (“Whoever” commits genocide “shall
be punished as provided in subsection (b)”). In contrast, other
norms, like the prohibition on torture, require state action.
Conduct thus qualifies as torture and violates the norm only when
done “by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Art. 1, Dec. 10,
1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S.
114 (Torture Convention).[
1]
Footnote 20 in
Sosa flags this
distinction and instructs courts to consider whether there is
“sufficient consensus” that, with respect to the particular conduct
prohibited under “a given norm,” the type of defendant being sued
can be alleged to have violated that specific norm. 542 U. S.,
at 732, n. 20. Because footnote 20 contemplates a
norm-specific inquiry, not a categorical one, it is irrelevant to
the categorical question presented here. Assuming the prohibition
against financing of terrorism is sufficiently “specific,
universal, and obligatory” to satisfy the first step of
Sosa, a question on which I would remand to the Court of
Appeals, nothing in international law suggests a corporation may
not violate it.[
2]
2
The plurality briefly acknowledges this
critique of its reading of footnote 20, but nonetheless assumes the
correctness of its approach because of its view that there exists a
“distinction in international law between corporations and natural
persons.”
Ante, at 17. The plurality attempts to
substantiate this proposition by pointing to the charters of
certain international criminal tribunals and noting that none was
given jurisdiction over corporate defendants. That argument,
however, confuses the substance of international law with how it
has been enforced in particular contexts.
Again, the question of who must undertake the
prohibited conduct for there to be a violation of an
international-law norm is one of international law, but how a
particular actor is held liable for a given law-of-nations
violation generally is a question of enforcement left up to
individual states. Sometimes, states act collectively and establish
international tribunals to punish certain international-law
violations. Each such tribunal is individually negotiated, and the
limitations placed on its jurisdiction are typi- cally driven by
strategic considerations and resource constraints.
For example, the Allies elected not to prosecute
corporations at Nuremberg because of pragmatic factors. Those
factors included scarce judicial resources, a preference of the
occupation governments to swiftly dismantle the most culpable
German companies without destroying Germany’s postwar economy, and
a desire to focus on establishing the principle of nonstate
criminal responsibility for human-rights violations. See Brief for
Nuremberg Scholars as
Amici Curiae 4, 11–13.
More recently, the delegations that negotiated
the Rome Statute of the International Criminal Court in the 1990’s
elected not to extend that tribunal’s jurisdiction to corporations
in part because states had varying domestic practices as to whether
and how to impose criminal liability on corporations. See Frulli,
Jurisdiction
Ratione Personae, in 1 Rome Statute of the
International Criminal Court 527, 532–533 (A. Cassese et al.
eds. 2002); Brief for Ambassador David J. Scheffer as
Amicus
Curiae 8–10.
Taken to its natural conclusion, the plurality’s
focus on the practice of international criminal tribunals would
prove too much. No international tribunal has been created and
endowed with the jurisdiction to hold natural persons civilly (as
opposed to criminally) liable, yet the majority and respondent
accept that natural persons can be held liable under the ATS. See
ante, at 26; Tr. of Oral Arg. 62. It cannot be persuasive
evidence for purposes of ascertaining the availability of corporate
civil liability under the ATS, then, that the jurisdiction of the
handful of international criminal tribunals that states have seen
fit to create in the last 75 years has not extended to corporate
defendants.
Ultimately, the evidence on which the plurality
relies does not prove that international law distinguishes between
corporations and natural persons as a categorical matter. To the
contrary, it proves only that states’ collective efforts to enforce
various international-law norms have, to date, often focused on
natural rather than corporate defendants.
In fact, careful review of states’ collective
and individual enforcement efforts makes clear that corporations
are subject to certain obligations under international law. For
instance, the United States Military Tribunal that prosecuted
several corporate executives of IG Farben declared that
corporations could violate international law. See 8 Trials of War
Criminals Before the Nuernberg Military Tribunals Under Council
Control Law No. 10, p. 1132 (1952) (“Where private individuals,
including juristic persons, proceed to exploit the military
occupancy by acquiring private property against the will and
consent of the former owner, such action . . . is in
violation of international law”).[
3] Similarly, the International Criminal Tribunal for
Rwanda found that three nonnatural entities—a private radio
station, newspaper, and political party—were responsible for
genocide. See
Prosecutor v.
Nahimana, Case No.
ICTR–99–52–T, Judgment and Sentence ¶953 (Dec. 3, 2003). Most
recently, the appeals panel of the Special Tribunal for Lebanon
held that corporations may be prosecuted for contempt. See
Prosecutor v.
New TV
S. A. L., Case No.
STL–14–05/PT/AP/AR126.1, Decision on Interlocutory Appeal
Concerning Personal Jurisdiction in Contempt Proceedings ¶74 (Oct.
2, 2014).
In addition, various international agreements
require signatory states to impose liability on corporations for
certain conduct.[
4] Of
particular relevance here, the International Convention for the
Suppression of the Financing of Terrorism provides: “Any person
commits an offence within the meaning of this Convention if that
person by any means, directly or indirectly, unlawfully and
wilfully, provides or collects funds with the intention that they
should be used or in the knowledge that they are to be used, in
full or in part, in order to carry out” an act of terrorism. Dec.
9, 1999, Art. 2, S. Treaty Doc. No. 106–49, 2178
U. N. T. S. 230. It then requires each signatory
state, “in accordance with its domestic legal principles,” to “take
the necessary measures to enable a legal entity located in its
territory or organized under its laws to be held liable when a
person responsible for the management or control of that legal
entity has, in that capacity,” violated the Convention.
Id.,
Art. 5(1). The Convention provides that “[s]uch liability may be
criminal, civil, or administrative,”
ibid., so long as the
penalties, which can include monetary sanctions, are “effective,
proportionate and dissuasive.”
Id., Art. 5(3). The United
States is a party to the Convention, along with 131 other
states.[
5]
The plurality dismisses the relevance of this
Convention because it does not require states parties to hold
corporations liable in common-law tort actions, but rather permits
them to “fulfill their obligations . . . by adopting
detailed regulatory regimes governing financial institutions.”
Ante, at 16. That critique misses the point. The
significance of the Convention is that the international community
agreed that financing terrorism is unacceptable conduct and that
such conduct violates the Convention when undertaken by
corporations. That the Convention leaves up to each state party how
to impose liability on corporations,
e.g., via erecting a
regulatory regime, providing for tort actions, or imposing criminal
sanctions, is unremarkable,[
6]
and simply reflects that international law sets out standards of
conduct and leaves it to individual states to determine how best to
enforce those standards.
Finally, a number of states, acting
individually, have imposed criminal and civil liability on
corporations for law-of-nations violations through their domestic
legal systems. See,
e.g., New
TV S. A. L., Case No.
STL–14–05/PT/AP/AR126.1, ¶¶52–55 (listing more than 40 countries
that provide for corporate criminal liability); A. Ramasastry &
R. Thompson, Commerce, Crime and Conflict: Legal Remedies for
Private Sector Liability for Grave Breaches of International Law
22–24 (2006), available at https://www.biicl.org/files/4364_536.pdf
(noting that 15 of 16 countries surveyed permit civil claims
against corporations for human rights violations); Brief for
Comparative Law Scholars and Practitioners as
Amici Curiae
15–19 (detailing provisions creating corporate civil liability for
international-law violations in England, France, the Netherlands,
and Canada).
C
Instead of asking whether there exists a
specific, universal, and obligatory norm of corporate liability
under international law, the relevant inquiry in response to the
question presented here is whether there is any reason—under either
international law or our domestic law—to distinguish between a
corporation and a natural person who is alleged to have violated
the law of nations under the ATS. As explained above, international
law provides no such reason. See
Kiobel, 621 F. 3d, at
175 (Leval, J., concurring in judgment) (“[T]he answer
international law furnishes is that it takes no position on the
question”). Nor does domestic law. The text, history, and purpose
of the ATS plainly support the conclusion that corporations may be
held liable.
Beginning “with the language of the statute
itself,”
United States v.
Ron Pair Enterprises, Inc.,
489 U. S. 235 , 241 (1989), two aspects of the text of the ATS
make clear that the statute allows corporate liability. First, the
text confers jurisdiction on federal district courts to hear “civil
action[s]” for “tort[s].” 28 U. S. C. §1350. Where
Congress uses a term of art like tort, “it presumably knows and
adopts the cluster of ideas that were attached to [the] borrowed
word in the body of learning from which it was taken and the
meaning its use will convey to the judicial mind unless otherwise
instructed.”
Morissette v.
United States, 342
U. S. 246, 263 (1952) .
Corporations have long been held liable in tort
under the federal common law. See
Philadelphia, W., &
B. R. Co. v.
Quigley, 21 How. 202, 210 (1859) (“At
a very early period, it was decided in Great Britain, as well as in
the United States, that actions might be maintained against
corporations for torts; and instances may be found, in the judicial
annals of both countries, of suits for torts arising from the acts
of their agents, of nearly every variety”);
Chestnut Hill &
Spring House Turnpike Co. v.
Rutter, 4 Serg. & Rawle
6, 17 (Pa. 1818) (“[F]rom the earliest times to the present,
corporations have been held liable for torts”). This Court “has
assumed that, when Congress creates a tort action, it legislates
against a legal background of ordinary tort-related . . .
rules and consequently intends its legislation to incorporate those
rules.”
Meyer v.
Holley, 537 U. S. 280, 285
(2003) . The presumption, then, is that, in providing for “tort”
liability, the ATS provides for corporate liability.
Second, whereas the ATS expressly limits the
class of permissible plaintiffs to “alien[s],” §1350, it “does not
distinguish among classes of defendants,”
Argentine Republic
v.
Amerada Hess Shipping Corp., 488 U. S. 428, 438
(1989) . That silence as to defendants cannot be presumed to be
inadvertent. That is because in the same section of the Judiciary
Act of 1789 as what is now the ATS, Congress provided the federal
district courts with jurisdiction over “all suits against consuls
or vice-consuls.” §9, 1Stat. 76–77. Where Congress wanted to limit
the range of permissible defendants, then, it clearly knew how to
do so.
Russello v.
United States, 464 U. S. 16,
23 (1983) (“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion” (internal
quotation marks omitted)).
Nothing about the historical background against
which the ATS was enacted rebuts the presumption that the statute
incorporated the accepted principle of corporate liability for
tortious conduct. Under the Articles of Confederation, the
Continental Congress was unable to provide redress to foreign
citizens for violations of treaties or the law of nations, which
threatened to undermine the United States’ relationships with other
nations. See
Kiobel, 569 U. S., at 123. The First
Congress responded with,
inter alia, the ATS. Although the
two incidents that highlighted the need to provide foreign citizens
with a federal forum in which to pursue their grievances involved
conflicts between natural persons, see
ante, at 7 (majority
opinion) (describing the assault by a French adventurer on the
Secretary of the French Legation and the arrest of one of the Dutch
Ambassador’s servants by a New York constable), there is “no reason
to conclude that the First Congress was supremely concerned with
the risk that natural persons would cause the United States to be
drawn into foreign entanglements, but was content to allow formal
legal associations of individuals, i.e., corporations, to do so,”
Doe v.
Exxon Mobil Corp., 654 F. 3d 11, 47 (CADC
2011), vacated on other grounds, 527 Fed. Appx. 7 (CADC 2013); see
also Brief for United States as
Amicus Curiae 6 (“The ATS
was enacted to ensure a private damages remedy for incidents with
the potential for serious diplomatic consequences, and Congress had
no good reason to limit the set of possible defendants in such
actions to potentially judgment-proof individuals”). Indeed,
foreclosing corporations from liability under the ATS would have
been at odds with the contemporaneous practice of imposing
liability for piracy on ships, juridical entities. See,
e.g.,
Skinner v.
East India Co., 6 State Trials 710, 711
(1666);
The Marianna Flora, 11 Wheat. 1, 40–41 (1826);
Harmony v.
United States, 2 How. 210, 233 (1844).
Finally, the conclusion that corporations may be
held liable under the ATS for violations of the law of nations is
not of recent vintage. More than a century ago, the Attorney
General acknowledged that corporations could be held liable under
the ATS. See 26 Op. Atty. Gen. 250, 252 (1907) (stating that
citizens of Mexico could bring a claim under the ATS against a
corporation, the American Rio Grande Land and Irrigation Company,
for violating provisions of a treaty between the United States and
Mexico).
D
In his concurrence, Justice Gorsuch urges
courts to exercise restraint in recognizing causes of action under
the ATS. But whether the ATS provides a cause of action for
violations of the norms against genocide, crimes against humanity,
and financing of terrorism is not the question the parties have
asked the Court to decide. I therefore see no reason why it is
necessary to delve into the propriety of creating new causes of
action. Nevertheless, because I disagree with the premises on which
the concurrence relies, I offer two brief observations.
First, Justice Gorsuch says it “pass[es]
understanding” why federal courts have exercised jurisdiction over
ATS claims raised by foreign plaintiffs against foreign defendants
for breaches of international norms. See
ante, at 1 (opinion
concurring in part and concurring in judgment). Modern ATS cases,
however, are not being litigated against a blank slate. The Court
held in
Sosa that Congress authorized the federal courts to
“recognize private causes of action for certain torts in violation
of the law of nations,” 542 U. S., at 724, so long as the
underlying norm had no “less definite content and acceptance among
civilized nations than the historical paradigms familiar when §1350
was enacted,”
id., at 732. That holding was no mere
“suggestion,”
ante, at 2 (opinion of Gorsuch, J.), as this
Court has made clear. See
Kiobel, 569 U. S., at
116–117.
Given that the First Congress authorized suit
for violations based on “the law of nations” and “treat[ies] of the
United States,” 28 U. S. C. §1350, it is natural to
conclude that Congress intended the district courts to consider new
claims under the law of nations as that law and our Nation’s treaty
obligations continued to develop. If Congress intended to limit
such cases to violations of safe conduct, assaults against
ambassadors, piracy, and—as Justice Gorsuch suggests may have been
the case—“ ‘personal injuries that US citizens inflicted upon
aliens resulting in less than $500 in damages,’ ”
ante,
at 10 (quoting Bellia & Clark, The Alien Tort Statute and the
Law of Nations, 78 U. Chi. L. Rev. 445, 509 (2011)), it easily
could have said so. Instead, it granted the federal courts
jurisdiction over claims based on “the law of nations,” a body of
law that Congress did not understand to be static. See
United
States v.
The La Jeune Eugenie, 26 F. Cas. 832, 846
(No. 15,551) (CC Mass. 1822) (Story, J.) (“What, therefore, the law
of nations is . . . may be considered as modified by
practice, or ascertained by the treaties of nations at different
periods. It does not follow . . . that because a
principle cannot be found settled by the consent or practice of
nations at one time, it is to be concluded, that at no subsequent
period the principle can be considered as incorporated into the
public code of nations”).
The question for courts considering new ATS
claims is, “Who are today’s pirates?”
Kiobel, 569
U. S., at 129 (Breyer, J., concurring in judgment). Torturers
and those who commit genocide are now fairly viewed, like pirates,
as “common enemies of all mankind.”
Id., at 131 (internal
quotation marks omitted). On remand, the Court of Appeals would
decide whether the financiers of terrorism are the same. The fact
that few norms have overcome
Sosa’s high hurdle is strong
evidence that the carefully considered standard set forth in that
case is generating exactly the kind of “judicial caution” the Court
stressed as necessary. See 542 U. S., at 725.
Second, the concurrence suggests that federal
courts may lack jurisdiction to entertain suits between aliens
based solely on a violation of the law of nations. It contends that
ATS suits between aliens fall under neither the federal courts’
diversity jurisdiction nor our federal question jurisdiction. The
Court was not unaware of this argument when it decided
Sosa.
As noted, that case involved an ATS suit brought by a citizen of
Mexico against a citizen of Mexico, and various
amici argued
that the Court lacked Article III jurisdiction over such suits. See
Brief for National Foreign Trade Counsel et al. as
Amici
Curiae in
Sosa v.
Alvarez-Machain, O. T.
2003, No. 03–339, pp. 24–25; see also Brief for Washington Legal
Foundation et al. as
Amici Curiae in No. 03–339, pp.
14–21. The Court nonetheless proceeded to decide the case, which it
could not have done had it been concerned about its Article III
power to do so. See
Arbaugh v.
Y & H Corp., 546
U. S. 500, 514 (2006) . That decision forecloses the argument
the concurrence now makes, as
Sosa authorized courts to
“recognize private claims
under federal common law for
violations of” certain international law norms. 542 U. S., at
732 (emphasis added); see also
id., at 729–730 (explaining
that, post-
Erie R. Co. v.
Tompkins, 304 U. S. 64
(1938) , there are “limited enclaves in which federal courts may
derive from substantive law in a common law way,” including the law
of nations, and that “it would be unreasonable to assume that the
First Congress would have expected federal courts to lose all
capacity to recognize enforceable international norms simply
because the common law might lose some metaphysical cachet on the
road to modern realism”);
Sarei v.
Rio Tinto, 671
F. 3d 736, 749–754 (CA9 2011) (en banc) (discussing
Sosa and concluding that federal courts have Article III
jurisdiction to hear ATS cases between aliens), vacated and
remanded, 569 U. S. 945 (2013) (remanding for further
consideration in light of
Kiobel).
Sosa was correct as a legal matter.
Moreover, our Nation has an interest not only in providing a remedy
when our own citizens commit law of nations violations, but also in
preventing our Nation from serving as a safe harbor for today’s
pirates. See
Kiobel, 569 U. S., at 133–134 (Breyer, J.,
concurring in judgment). To that end, Congress has ratified
treaties requiring the United States “to punish or extradite
offenders, even when the offense was not committed . . .
by a national.” 1 Restatement §404, Reporters’ Note 1, at 255–257;
see Torture Convention, Arts. 5, 7; Convention on the Prevention
and Punishment of Crimes Against Internationally Protected Persons,
Including Diplomatic Agents, Art. 3, Dec. 14, 1973, 28
U. S. T. 1975, T. I. A. S. No. 8532;
Convention for the Suppression of Unlawful Acts Against the Safety
of Civil Aviation, Sept. 23, 1971, 24 U. S. T. 565,
T. I. A. S. No. 7570; Convention for the Suppression
of Unlawful Seizure of Aircraft, Art. 4, Dec. 16, 1970, 22
U. S. T. 1641, T. I. A. S. No. 7192;
Geneva Convention Relative to the Treatment of Prisoners of War,
Art. 129, Aug. 12, 1949, 6 U. S. T. 3316,
T. I. A. S. No. 3364. To the extent suits against
foreign defendants may lead to international friction, that concern
is better addressed under the presumption the Court established in
Kiobel against extraterritorial application of the ATS, see
569 U. S., at 124–125, than it is by relitigating settled
precedent.
II
At its second step,
Sosa cautions that
courts should consider whether permitting a case to proceed is an
appropriate exercise of judicial discretion in light of potential
foreign-policy implications. See 542 U. S., at 727–728,
732–733, 738. The plurality only assumes without deciding that
international law does not impose liability on corporations, so it
necessarily proceeds to
Sosa’s second step. Here, too, its
analysis is flawed.
A
Nothing about the corporate form in itself
justifies categorically foreclosing corporate liability in all ATS
actions. Each source of diplomatic friction that respondent Arab
Bank and the plurality identify can be addressed with a tool more
tailored to the source of the problem than a blanket ban on
corporate liability.
Arab Bank contends that foreign citizens should
not be able “to sue a Jordanian corporation in New York for events
taking place in the Middle East.” Brief for Respondent 42. The
heart of that qualm was already addressed in
Kiobel, which
held that the presumption against extraterritoriality applies to
the ATS. 569 U. S., at 124. Only where the claims “touch and
concern the territory of the United States . . . with
sufficient force” can the presumption be displaced.
Id., at
124–125. “[M]ere corporate presence” does not suffice.
Id.,
at 125. Thus, contrary to the majority’s contention, “the
relatively minor connection between the terrorist attacks at issue
in this case and the alleged conduct in the United States” does not
“well illustrat[e] the perils of extending the scope of ATS
liability to foreign multinational corporations,”
ante, at
25, but merely illustrates the risks of extending the scope of ATS
liability extraterritorially absent sufficient connection to the
United States.
Arab Bank also bemoans the unfairness of being
sued when others—namely, the individuals and organizations that
carried out the terrorist attacks—were “the direct cause” of the
harm petitioners here suffered. Brief for Respondent 41. That
complaint, though, is a critique of the imposition of liability for
financing terrorism, not an argument that ATS suits against
corporations generally necessarily cause diplomatic tensions.
Arab Bank further expresses concern that ATS
suits are being filed against corporations in an effort to recover
for the bad acts of foreign governments or officials. See
id., at 40. But the Bank’s explanation of this problem
reveals that the true source of its grievance is the availability
of aiding and abetting liability. See
ibid. (“[N]umerous ATS
suits have alleged that a corporation has aided or abetted bad acts
committed by a
foreign government and its officials”
(emphasis in original));
id., at 41 (“[A]iding and abetting
suits under the ATS have given plaintiffs ‘a clear means for
effectively circumventing’ critical limits on foreign sovereign
immunity” (quoting Brief for United States as
Amicus Curiae
in
American Isuzu Motors, Inc. v.
Ntsebeza,
O. T. 2007, No. 07–919, p. 15)). The plurality too points
to an aiding and abetting case to support its contention that
plaintiffs “use corporations as surrogate defendants to challenge
the conduct of foreign governments.”
Ante, at 21 (discussing
Kiobel, in which plaintiffs sought to hold a corporate
defendant liable for “ ‘aiding and abetting the Nigerian
Government in committing’ ” law-of-nations violations (quoting
569 U. S., at 114)). Yet not all law-of-nations violations
asserted against corporations are premised on aiding and abetting
liability; it is possible for a corporation to violate
international-law norms independent of a foreign state or foreign
state officials. In this respect, too, the Court’s rule is ill
fitted to the problem identified.
Notably, even the Hashemite Kingdom of Jordan
does not argue that there are foreign-policy tensions inherent in
suing a corporation generally. Instead, Jordan contends that this
particular suit is an affront to its sovereignty because of its
extraterritorial character and because of the role that Arab Bank
specifically plays in the Jordanian economy. See Brief for
Hashemite Kingdom of Jordan as
Amicus Curiae 6–12.[
7]
The majority also cites to instances in which
other foreign sovereigns have “appeared in this Court to note
[their] objections to ATS litigation,”
ante, at 26, but none
of those objections was about the availability of corporate
liability as a general matter. See
Sosa, 542 U. S., at
733, n. 21 (noting argument of the European Commission that “basic
principles of international law require that before asserting a
claim in a foreign forum, the claimant must have exhausted any
remedies available in the domestic legal system, and perhaps in
other forums such as international claims tribunals”);
ibid.
(noting objections by South Africa to “several class actions
seeking damages from various corporations alleged to have
participated in, or abetted, the regime of apartheid” on the basis
that the cases “interfere[d] with the policy embodied by its Truth
and Reconciliation Commission”); Brief for Federal Republic of
Germany as
Amicus Curiae in
Kiobel v.
Royal Dutch
Petroleum Co., O. T. 2012, No. 10–1491, p. 1 (“The
Federal Republic of Germany has consistently maintained its
opposition to overly broad assertions of extraterritorial civil
jurisdiction arising out of aliens’ claims against foreign
defendants for alleged foreign activities that caused injury on
foreign soil”); Brief for Government of the United Kingdom of Great
Britain and Northern Ireland et al. as
Amici Curiae in
No. 10–1491, p. 3 (“The Governments remain deeply concerned
about . . . suits by foreign plaintiffs against foreign
defendants for conduct that entirely took place in the territory of
a foreign sovereign”).
As the United States urged at oral argument,
when international friction arises, a court should respond with the
doctrine that speaks directly to the friction’s source. See Tr. of
Oral. Arg. 28 (acknowledging that “ATS litigation in recent decades
has raised international friction” and explaining that “the way to
deal with that friction is with a doctrine that speaks directly to
the international entanglement . . . as those questions
arise”). In addition to the presumption against
extraterritoriality, federal courts have at their disposal a number
of tools to address any foreign-relations concerns that an ATS case
may raise. This Court has held that a federal court may exercise
personal jurisdiction over a foreign corporate defendant only if
the corporation is incorporated in the United States, has its
principal place of business or is otherwise at home here, or if the
activities giving rise to the lawsuit occurred or had their impact
here. See
Daimler AG v.
Bauman, 571 U. S. 117
(2014) . Courts also can dismiss ATS suits for a plaintiff’s
failure to exhaust the remedies available in her domestic forum, on
forum non conveniens grounds, for reasons of international
comity, or when asked to do so by the State Department. See
Kiobel, 569 U. S., at 133 (Breyer, J., concurring in
judgment);
Sosa, 542 U. S., at 733, n. 21.
Several of these doctrines might be implicated
in this case, and I would remand for the Second Circuit to address
them in the first instance.[
8]
The majority, however, prefers to use a sledgehammer to crack a
nut. I see no need for such an ill-fitting and disproportionate
response. Foreclosing foreign corporate liability in all ATS
actions, irrespective of circumstance or norm, is simply too broad
a response to case-specific concerns that can be addressed via
other means.[
9]
B
1
The Court urges that “[t]he political
branches, not the Judiciary, have the responsibility and
institutional capacity to weigh foreign-policy concerns.”
Ante, at 19. I agree that the political branches are well
poised to assess the foreign-policy concerns attending ATS
litigation, which is why I give significant weight to the fact that
the Executive Branch, in briefs signed by the Solicitor General and
State Department Legal Advisor, has twice urged the Court to reach
exactly the opposite conclusion of the one embraced by the
majority. See Brief for United States as
Amicus Curiae 5
(“This Court should vacate the decision below, which rests on the
mistaken premise that a federal common-law claim under the ATS may
never be brought against a corporation”); Brief for United States
as
Amicus Curiae in
Kiobel v.
Royal Dutch
Petroleum Co., O. T. 2012, No. 10–1491, p. 7 (“Courts may
recognize corporate liability in actions under the ATS as a matter
of federal common law. . . .
Sosa’s
cautionary admonitions provide no reason to depart from the common
law on this issue”). At oral argument in this case, the United
States told the Court that it saw no “sound reason to categorically
exclude corporate liability.” Tr. of Oral Arg. 29. It explained
that another country would hold the United States accountable for
not providing a remedy against a corporate defendant in a “classic”
ATS case, such as one involving a “foreign officia[l] injured in
the United States,”
id., at 32–33, and suggested that
foreclosing the ability to recover from a corporation actually
would raise “the possibility of friction,”
id., at 33.
Notably, the Government’s position that categorically barring
corporate liability under the ATS is wrong has been consistent
across two administrations led by Presidents of different political
parties.
Likewise, when Members of Congress have weighed
in on the question whether corporations can be proper defendants in
an ATS suit, it has been to advise the Court against the rule it
now adopts. See Brief for Sen. Sheldon Whitehouse et al. as
Amici Curiae 7–11; Brief for Former Sen. Arlen Specter
et al. as
Amici Curiae in
Kiobel v.
Royal
Dutch Petroleum Co., O. T. 2012, No. 10–1491,
pp. 17–18. Congress has also never seen it necessary to
immunize corporations from ATS liability even though corporations
have been named as defendants in ATS suits for years. See
Monessen Southwestern R. Co. v.
Morgan, 486
U. S. 330, 338 (1988) (“Congress’ failure to disturb a
consistent judicial interpretation of a statute may provide some
indication that ‘Congress at least acquiesces in, and apparently
affirms, that [interpretation]’ ” (quoting
Cannon v.
University of Chicago, 441 U. S. 677, 703 (1979)
)).
Given the deference to the political branches
that
Sosa encourages, I find it puzzling that the Court so
eagerly departs from the express assessment of the Executive Branch
and Members of Congress that corporations can be defendants in ATS
actions.
2
The plurality instead purports to defer to
Congress by relying heavily on the Torture Victim Protection Act of
1991 (TVPA), 106Stat. 73, note following 28 U. S. C.
§1350, to support its categorical bar. See
ante, at 20. The
TVPA makes available to all individuals, not just foreign citizens,
a civil cause of action for torture and extrajudicial killing that
may be brought against natural persons. See
Mohamad v.
Palestinian Authority, 566 U. S. 449, 451 –452, 454
(2012). The plurality extrapolates from Congress’ decision
regarding the scope of liability under the TVPA a rule that it
contends should govern all ATS suits. See
ante, at 20. But
there is no reason to think that because Congress saw fit to permit
suits only against natural persons for two specific law-of-nations
violations, Congress meant to foreclose corporate liability for all
law-of-nations violations. The plurality’s contrary conclusion
ignores the critical textual differences between the ATS and TVPA,
as well as the TVPA’s legislative history, which emphasizes
Congress’ intent to leave the ATS undisturbed.
On its face, the TVPA is different from the ATS
in several significant ways: It is focused on only two
law-of-nations violations, torture and extrajudicial killing; it
makes a cause of action available to all individuals, not just
foreign citizens; and it uses the word “individual” to delineate
who may be liable. See 28 U. S. C. §1350 note. The ATS,
by contrast, is concerned with all law-of-nations violations
generally, makes a cause of action available only to foreign
citizens, and is silent as to who may be liable. Because of the
textual differences between the two statutes, the Court unanimously
concluded in
Mohamad that the ATS “offers no comparative
value” in ascertaining the scope of liability under the TVPA. 566
U. S., at 458. It makes little sense, then, to conclude that
the TVPA has dispositive comparative value in discerning the scope
of liability under the ATS.
Furthermore, Congress repeatedly emphasized in
the House and Senate Reports on the TVPA that the statute was meant
to supplement the ATS, not replace or cabin it. See H. R. Rep.
No. 102–367, pt. 1, p. 3 (1991) (“Section 1350 has other
important uses and should not be replaced. There should also,
however, be a clear and specific rem-edy, not limited to aliens,
for torture and extrajudicial killing”);
id., at 4 (“The
TVPA . . . would also enhance the remedy already
available under section 1350 in an important respect: While the
[ATS] provides a remedy to aliens only, the TVPA would extend a
civil remedy also to U. S. citizens who may have been tortured
abroad”);
ibid. (“[C]laims based on torture or summary
executions do not exhaust the list of actions that may
appropriately be covered b[y] section 1350. That statute should
remain intact to permit suits based on other norms that already
exist or may ripen in the future into rules of customary
international law”); S. Rep. No. 102–249, pp. 4–5 (1991);
see also
Sosa, 542 U. S., at 731 (explaining that the
TVPA “supplement[ed] the judicial determination” in
Filartiga).
Lacking any affirmative evidence that Congress’
decision to limit liability under the TVPA to natural persons
indicates a legislative judgment about the proper scope of
liability in all ATS suits, the plurality focuses its efforts on
dismissing petitioners’ argument that Congress limited TVPA
liability to natural persons to harmonize the statute with the
Foreign Sovereign Immunities Act of 1976 (FSIA), which generally
immunizes foreign states from suit. See
ante, at
21.[
10] Contrary to the
plurality’s contention, however, this Court did not reject
petitioners’ account of the TVPA’s legislative history in
Mohamad. In fact, that decision agreed that the legislative
history “clarifi[es] that the Act does not encompass liability
against foreign states.” 566 U. S., at 459. What
Mohamad rejected was the argument that because the TVPA
forecloses liability against foreign states, it necessarily permits
liability against corporations. In concluding that the TVPA
encompasses only natural persons,
Mohamad took no position
on why Congress excluded organizations from its reach.[
11]
To infer from the TVPA that no corporation may
ever be held liable under the ATS for any violation of any
international-law norm, moreover, ignores that Congress has
elsewhere imposed liability on corporations for conduct prohibited
by customary international law. For instance, the Antiterrorism Act
of 1990 (ATA) created a civil cause of action for U. S.
nationals injured by an act of international terrorism and
expressly provides for corporate liability. 18 U. S. C.
§2333. That Congress foreclosed corporate liability for torture and
extrajudicial killing claims under the TVPA but permitted corporate
liability for terrorism-related claims under the ATA is strong
evidence that Congress exercises its judgment as to the
appropriateness of corporate liability on a norm-by-norm basis, and
that courts should do the same when considering whether to permit
causes of action against corporations for law-of-nations violations
under the ATS.
The plurality dismisses the ATA as “an inapt
analogy” because the ATA “provides a cause of action only to
‘national[s] of the United States,’ ” whereas the ATS
“provides a remedy for foreign nationals only.”
Ante, at 22
(quoting 18 U. S. C. §2333(a)). But if encompassing
different groups of plaintiffs is what makes two statutes poor
comparators for each other, the TVPA, too, is an inapt analogy, for
it permits suits by all individuals, U. S. and foreign
nationals alike.
The plurality also posits that the ATA “suggests
that there should be no common-law action under the ATS for
allegations like petitioners’,”
ante, at 22, because
permitting such suits would allow foreign plaintiffs to “bypass
Congress’ express limitations on liability under the [ATA] simply
by bringing an ATS lawsuit,”
ibid. Yet an ATS suit alleging
terrorism-related conduct does not “bypass” or “displace” any
“statutory and regulatory structure,”
ibid., any more than
an ATA suit does. As this case demonstrates, U. S. nationals
and foreign citizens may bring ATA and ATS suits in the same court,
at the same time, for the same underlying conduct. To the extent
the plurality is suggesting that Congress, in enacting the ATA,
meant to foreclose ATS suits based on terrorism financing, the
plurality offers no evidence to support that hypothesis, and the
legislative history suggests that Congress enacted the ATA to
provide U. S. citizens with the same remedy already available
to foreign citizens under the ATS. See Hearing on S. 2465 before
the Subcommittee on Courts and Administrative Practice of the
Senate Committee on the Judiciary, 101st Cong., 1st Sess., 90
(1990) (testimony of Joseph A. Morris) (noting that ATS actions for
terrorism “would be preserved”).
At bottom, the ATS and TVPA are related but
distinct statutes that coexist independently. There is no basis to
conclude that the considered judgment Congress made about who
should be liable under the TVPA for torture and extrajudicial
killing should restrict who can be held liable under the ATS for
other law-of-nations violations, particularly where Congress made a
different judgment about the scope of liability under the ATA for
terrorism.
C
Finally, the plurality offers a set of
“[o]ther considerations relevant to the exercise of judicial
discretion” that it concludes “counsel against allowing liability
under the ATS for foreign corporations.”
Ante, at 23. None
is persuasive.
First, the plurality asserts that “[i]t has not
been shown that corporate liability under the ATS is essential to
serve the goals of the statute” because “the ATS will seldom be the
only way for plaintiffs to hold the perpetrators liable,” and
because “plaintiffs still can sue the individual corporate
employees responsible for a violation of international law under
the ATS.”
Ibid. This Court has never previously required
that, to maintain an ATS action, a plaintiff must show that the ATS
is the exclusive means by which to hold the alleged perpetrator
liable and that no relief can be had from other parties. Such
requirements extend far beyond the inquiry
Sosa contemplated
and are without any basis in the statutory text.
Moreover, even if there are other grounds on
which a suit alleging conduct constituting a law-of-nations
violation can be brought, such as a state-law tort claim, the First
Congress created the ATS because it wanted foreign plaintiffs to be
able to bring their claims in federal court and sue for
law-of-nations violations. A suit for state-law battery, even if
based on the same alleged conduct, is not the equivalent of a
federal suit for torture; the latter contributes to the uptake of
international human rights norms, and the former does not.[
12]
Furthermore, holding corporations accountable
for violating the human rights of foreign citizens when those
violations touch and concern the United States may well be
necessary to avoid the international tension with which the First
Congress was concerned. Consider again the assault on the Secretary
of the French Legation in Philadelphia by a French adventurer. See
supra, at 14;
ante, at 7 (majority opinion). Would
the diplomatic strife that followed really have been any less
charged if a corporation had sent its agent to accost the
Secretary? Or, consider piracy. If a corporation owned a fleet of
vessels and directed them to seize other ships in U. S.
waters, there no doubt would be calls to hold the corporation to
account. See
Kiobel, 621 F. 3d, at 156, and n. 10
(observing that “Somali pirates essentially operate as limited
partnerships”). Finally, take, for example, a corporation posing as
a job-placement agency that actually traffics in persons, forcibly
transporting foreign nationals to the United States for
exploitation and profiting from their abuse. Not only are the
individual employees of that business less likely to be able fully
to compensate successful ATS plaintiffs, but holding only
individual employees liable does not impose accountability for the
institution-wide disregard for human rights. Absent a corporate
sanction, that harm will persist unremedied. Immunizing the
corporation from suit under the ATS merely because it is a
corporation, even though the violations stemmed directly from
corporate policy and practice, might cause serious diplomatic
friction.[
13]
Second, the plurality expresses concern that if
foreign corporations are subject to liability under the ATS, other
nations could hale American corporations into court and subject
them “to an immediate, constant risk of claims seeking to impose
massive liability for the alleged conduct of their employees and
subsidiaries around the world,” a prospect that will deter American
corporations from investing in developing economies.
Ante,
at 24. The plurality offers no empirical evidence to support these
alarmist conjectures, which is especially telling given that
plaintiffs have been filing ATS suits against foreign corporations
in United States courts for years. It does cite to an
amicus
brief for the United States in
American Isuzu Motors, Inc.
v.
Ntsebeza, see
ante, at 24, but that case was
concerned with the availability of civil aiding and abetting
liability, not corporate liability generally, and the United States
never contended that permitting corporate liability under the ATS
would undermine global investment. Instead, it argued that
permitting extraterritorial aiding and abetting cases would
interfere with foreign relations and deter “the free flow of trade
and investment.” See Brief for United States as
Amicus
Curiae, O. T. 2007, No. 07–919, pp. 12–16, 20. Driven
by hypothetical worry about besieged American corporations, today’s
decision needlessly goes much further, encompassing all ATS suits
against all foreign corporations, not just those cases with
extraterritorial dimensions premised on an aiding and abetting
theory.
* * *
In sum, international law establishes what
conduct violates the law of nations, and specifies whether, to
constitute a law-of-nations violation, the alleged conduct must be
undertaken by a particular type of actor. But it is federal common
law that determines whether corporations may, as a general matter,
be held liable in tort for law-of-nations violations. Applying that
framework here, I would hold that the ATS does not categorically
foreclose corporate liability. Tort actions against corporations
have long been available under federal common law. Whatever the
majority might think of the value of modern-day ATS litigation, it
has identified nothing to support its conclusion that “foreign
corporate defendants create unique problems” that necessitate a
categorical rule barring all foreign corporate liability.
Ante, at 26.
Absent any reason to believe that the corporate
form in itself raises serious foreign-policy concerns, and given
the repeated urging from the Executive Branch and Members of
Congress that the Court need not and should not foreclose corporate
liability, I would reverse the decision of the Court of Appeals for
the Second Circuit and remand for further proceedings, including
whether the allegations here sufficiently touch and concern the
United States, see
Kiobel, 569 U. S., at 124–125, and
whether the international-law norms alleged to have been violated
by Arab Bank—the prohibitions on genocide, crimes against humanity,
and financing of terrorism—are of sufficiently definite content and
universal acceptance to give rise to a cause of action under the
ATS.
III
In categorically barring all suits against
foreign corporations under the ATS, the Court ensures that foreign
corporations—entities capable of wrongdoing under our domestic
law—remain immune from liability for human rights abuses, however
egregious they may be.
Corporations can be and often are a force for
innovation and growth. Many of their contributions to society
should be celebrated. But the unique power that corporations wield
can be used both for good and for bad. Just as corporations can
increase the capacity for production, so, too, some can increase
the capacity for suffering. Consider the genocide that took upwards
of 800,000 lives in Rwanda in 1994, which was fueled by incendiary
rhetoric delivered via a private radio station, the Radio
Télévision Libre des Mille Collines (RTLM). Men spoke the hateful
words, but the RTLM made their widespread influence
possible.[
14]
There can be, and sometimes is, a profit motive
for these types of abuses. Although the market does not price all
externalities, the law does. We recognize as much when we permit a
civil suit to proceed against a paint company that long knew its
product contained lead yet continued to sell it to families, or
against an oil company that failed to undertake the requisite
safety checks on a pipeline that subsequently burst. There is no
reason why a different approach should obtain in the human rights
context.
Immunizing corporations that violate human
rights from liability under the ATS undermines the system of
accountability for law-of-nations violations that the First
Congress endeavored to impose. It allows these entities to take
advantage of the significant benefits of the corporate form and
enjoy fundamental rights, see,
e.g., Citizens United
v.
Federal Election Comm’n, 558 U. S. 310 (2010) ;
Burwell v.
Hobby Lobby Stores, Inc., 573 U. S.
___ (2014), without having to shoulder attendant fundamental
responsibilities.
I respectfully dissent.