* This document was reproduced and reformatted from the text appearing at the U.S. Supreme Court website (visited October 4, 2004) http://www.supremecourtus.gov>.

1 In the Ninth Circuit's view, it was critical that “DEA agents had no authority under federal law to execute an extraterritorial arrest of a suspect indicted in federal court in Los Angeles.” 331 F. 3d, at 640. Once Alvarez arrived in the United States, “the actions of domestic law enforcement set in motion a supervening prosecutorial mechanism which met all of the procedural requisites of federal due process.” Id., at 637.

2 See also Couzado v. United States, 105 F. 3d 1389, 1396 (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. 45,47 (SDNY 1990)); Martinez v. Lamagno, No. 93-1573,1994 WL 159771, *2, judgt. order reported at 23 F. 3d 402 (CA4 1994) (per curiam) (unpublished opinion) (“A headquarters claim exists where negligent acts in the United States proximately cause harm in a foreign country“), rev'd on other grounds, 515 U. S. 417 (1995); Leaf v . United States, 588 F. 2d 733,736(CA9 1978) (“A claim'arises', as that term is used in … 2680(k), where the acts or omissions that proximately cause the loss take place“); cf. Eaglin v. United States, Dept. of Army, 794 F. 2d 981, 983 (CA5 1986) (assuming, arguendo, that headquarters doctrine is valid).

3 See also Restatement (Second) of Conflict of Laws 412 (1969) (“The original Restatement stated that, with minor exceptions, all substantive questions relating to the existence of a tort claim are governed by the local law of the ‘place of wrong. This was described … as ‘the state where the last event necessary to make an actor liable for an alleged tort takes place.’ Since a tort is the product of wrongful conduct and of resulting injury and since the injury follows the conduct, the state of the ‘last event’ is the state where the injury occurred“).

4 The FTC A was passed with precisely these kinds of garden-variety torts in mind. See S. Rep. No. 1400, 79th Cong., 2d Sess., p. 31 (1946) (“With the expansion of governmental activities in recent years, it becomes especially important to grant to private individuals the right to sue the Government in respect to such torts as negligence in the operation of vehicles“); see generally Feres v. United States, 340 U. S. 135, 139-140 (1950) (Congress was principally concerned with making the Government liable for ordinary torts that “would have been actionable if inflicted by an individual or a corporation“).

5 The application of foreign law might nonetheless have been avoided in headquarters cases if courts had been instructed to apply the substantive tort law of the State where the federal act or omission occurred, regardless of where the ultimate harm transpired. But in Richards v. United States, 369 U. S. 1 (1962), we held that the Act requires “the whole law (including choice-of-law rules)… of the State where the [allegedly tortious federal] act or omission occurred,” id., at 3,11. Given the dominant American choice-of-law approach at the time the Act was passed, that would have resulted in the application of foreign law in virtually any case where the plaintiff suffered injury overseas.

6 See also Rydstrom, , Modern Status of Rule that Substantive Rights of Parties to a Tort Action are Governed by the Law of the Place of the Wrong, 29 A.L.R. 3d 603, 42 (1970)Google Scholar (“Many 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“). We express no opinion on the relative merits of the various approaches to choice questions; our discussion of the subject is intended only to indicate how, as a positive matter, transjurisdictional cases are likely to be treated today.

7 Under the Second Restatement, tort liability is determined “by the local law of the state which… has the most significant relationship to the occurrence and the parties,” taking into account “the place where the injury occurred,” “the place where the conduct causing the injury occurred,” “the domicil, residence, nationality, place of incorporation and place of business of the parties,” and “the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws §145 (1969).

8 The courts that have applied the headquarters doctrine, believing it to be intimated by our emphasis, in Richards v. United States, supra, on the place of the occurrence of the negligent act, have acknowledged the possibility that foreign law may govern FTCA claims as a function of Richards's further holding that the whole law of the pertinent State (including its choice-of-law provisions) is to be applied. See, e.g., Leaf, 588 F. 2d, at 736, n. 3. Some courts have attempted to defuse the resulting tension with the object behind the foreign country exception. See, e.g.,Sami v. United States 617 F. 2d 755,763 (CADC 1979) (believing that norm against application of foreign law when contrary to forum policy is sufficient to overcome possible conflict). We think that these attempts to resolve the tension give short shrift to the clear congressional mandate embodied by the foreign country exception. Cf. Shapiro, Choice of Law Under the Federal Tort Claims Act: Richards and Renvoi Revisited, 70 N. C. L. Rev. 641, 659-660 (1992) (noting that the Richards rule that the totality of a State's law is to be consulted may undermine the object behind the foreign country exception).

9 It is difficult to reconcile the Government's contrary reading with the fact that two of the Act's other exceptions specifically reference an “act or omission.” See 28 U. S. C. §2680(a) (exempting United States from liability for “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation“); §2680(e) (“Any claim arising out of an act or omission of any employee of the Government in administering [certain portions of the Trading with the Enemy Act of 1917]“). The Government's request that we read that phrase into the foreign country exception, when it is clear that Congress knew how to specify “act or omission” when it wanted to, runs afoul of the usual rule that “when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” 2 A N. Singer, Statutes and Statutory Construction §46:06, p. 194 (6th ed. 2000).

10 The statute has been slightly modified on a number of occasions since its original enactment. It now reads in its entirety: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U. S. C. §1350.

11 The French minister plenipotentiary lodged a formal protest with the Continental Congress, 27 Journals of the Continental Congress 478, and threatened to leave Pennsylvania “unless the decision on Longchamps Case should give them full satisfaction.” Letter from Samuel Hardy to Gov. Benjamin Harrison of Virginia, June 24,1784, in 7 Letters of Members of the Continental Congress 558, 559 (E. Burnett ed. 1934). 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 Journals of the Continental Congress 314, and to explain to the representative of Louis XVI that “many allowances are to be made for” the young Nation. Ibid.

12 The restriction may have served the different purpose of putting foreigners on notice that they would no longer be able to prosecute their own criminal cases in federal court. Compare, e.g., 3 Commentaries 160 (victims could start prosecutions) with the Judiciary Act §35. (creating the office of the district attorney). Cf. 1 Op. Atty. Gen. 41, 42 (1794) (British consul could not himself initiate criminal prosecution, but could provide evidence to the grand jury.)

13 The ATS appears in Ellsworth's handwriting in the original version of the bill in the National Archives. Casto, Law of Nations 498, n. 169.

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

15 Being consistent with the prevailing understanding of international law, the 1781 resolution is sensibly understood as an act of international politics, for the recommendation was part of a program to assure the world that the new Republic would observe the law of nations. On the same day it made its recommendation to state legislatures, the Continental Congress received a confidential report, detailing negotiations between American representatives and Versailles. 21 Journals of the Continental Congress 1137-1140. The King was concerned about the British capture of the ship Marquis de la Fayette on its way to Boston, id., at 1139, and he “expresse[d] a desire that the plan for the appointment of consuls should be digested and adopted, as the Court of France wished to make it the basis of some commercial arrangements between France and the United States.” Id., at 1140. The congressional resolution would not have been all that Louis XVI wished for, but it was calculated to assure foreign powers that Congress at least intended their concerns to be addressed in the way mey 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 ajust idea of that which is established by the law, and that it not be left free for every one to frame the law as he himself is pleased to understand it….“ 1 J. Domat, The Civil Law in its Natural Order 108, (W. Strahan transl. and L. Cushing ed. 1861). A congressional statement that common law was up to the task at hand might well have fallen short of impressing a continental readership.

16 Petitioner says animadversion is “an archaic reference to the imposition of punishment.” Reply Brief for Petitioner Sosa 4 (emphasis in original). That claim is somewhat exaggerated, however. To animadvert carried the broader implication of “turn[ing] the attention officially or judicially, tak[ing] legal cognizance of anything deserving of chastisement or censure; hence, to proceed by way of punishment or censure.” 1 Oxford English Dictionary 474 (2d ed. 1989). Blackstone in fact used the term in the context of property rights and damages. Of a man who is disturbed in his enjoyment of “qualified property” “the law will animadvert hereon as an injury.“ 2 Commentaries 395. See also 9 Papers of James Madison 349 (R. Rutland ed. 1975) (“As yet foreign powers have not been rigorous in animadverting on us” for violations of the law of nations).

17 See generally Fallon, R., Meltzer, D., Shapiro, D., Hart and Wechsler's The Federal Courts and the Federal System ch. 7 (5th ed. 2003)Google Scholar; Friendly, , In Praise of Erie — and of the New Federal Common Law, 39 N.Y.U.L. Rev. 383, 405–422 (1964).Google Scholar

18 Sabbatino itself did not directly apply international law, see 376 U. S., at 421-423, but neither did it question the application of that law in appropriate cases, and it further endorsed the reasoning of a noted commentator who had argued that Erie should not preclude the continued application of international law in federal courts. 376 U. S., at 425 (citing Jessup, , The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Int'l L. 740 (1939)CrossRefGoogle Scholar).

19 Our position does not, as Justice Scalia suggests, imply that every grant of jurisdiction to a federal court carries with it an opportunity to develop common law (so that the grant of federal-question jurisdiction would be equally as good for our purposes as § 1350), see post, at 8, n. 1. 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 32, 35-36, as a more expansive common law power related to 28 U.S.C. §1331 might not be.

20 A related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual. Compare Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 791-795 (CADC 1984) (Edwards, J., concurring) (insufficient consensus in 1984 that torture by private actors violates international law), with Kadic v. Karadzic, 70 F. 3d 232, 239-241 (CA2 1995) (sufficient consensus in 1995 that genocide by private actors violates international law).

21 This requirement of clear definition is not meant to be the only principle limiting the availability of relief in the federal courts for violations of customary international law, though it disposes of this case. For example, the European Commission argues as amicus curiae that basic principles of international law require that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system, and perhaps in other fora 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. 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., (2004) (slip op., at 23-24) (discussing the State Department's use of statements of interest in cases involving the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §1602 et seq.).

22 Article nine provides that “[n]o one shall be subjected to arbitrary arrest or detention,” that “[n]o one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law,” and that” [a]nyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” 999 U.N.T.S., at 175-176.

23 It has nevertheless had substantial indirect effect on international law. See Brownlie, supra, at 535 (calling the Declaration a “good example of an informal prescription given legal significance by the actions of authoritative decision-makers“).

24 Alvarez's brief contains one footnote seeking to incorporate by reference his arguments on cross-border abductions before the Court of Appeals. Brief for Respondent Alvarez-Machain 47, n. 46. That is not enough to raise the question fairly, and we do not consider it.

25 The Rule has since been moved and amended and now provides that a warrant may also be executed “anywhere else a federal statute authorizes an arrest.” Fed. Rule Crim. Proc. 4(c)(2).

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

27 Specifically, he relies on a survey of national constitutions, Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int'l L. 235,260-261 (1993); a case from the International Court of Justice, United States v. Iran, 19801. 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 19801. C. J., at 42, ¶ 91 (“detention of [United States] staff by a group of armed militants” lasted “many months“). And the authority from the federal courts, to the extent it supports Alvarez's position, reflects a more assertive view of federal judicial discretion over claims based on customary international law than the position we take today.

28 In this case, Sosa might well have been liable under Mexican law. Alvarez asserted such a claim, but the District Court concluded that the applicable law was the law of California, and that under California law Sosa had been privileged to make a citizen's arrest in Mexico. Whether this was correct is not now before us, though we discern tension between the court's simultaneous conclusions that the detention so lacked any legal basis as to violate international law, yet was privileged by state law against ordinary tort recovery.

29 It is not that violations of a rule logically foreclose the existence of that rule as international law. Cf. Filartiga v. Pena-Irala, 630 F. 2d 876, 884, n. 15 (CA2 1980) (“The fact that the prohibition of torture is often honored in the breach does not diminish its binding effect as a norm of international law“). Nevertheless, that a rule as stated is as far from full realization as the one Alvarez urges is evidence against its status as binding law; and an even clearer point against the creation by judges of a private cause of action to enforce the aspiration behind the rule claimed.

30 Alvarez also cites, Brief for Respondent Alvarez-Machain 49-50, a finding by a United Nations working group that his detention was arbitrary under the Declaration, the Covenant, and customary international law. See Report of the United Nations Working Group on Arbitrary Detention, U. N. Doc. E/CN.4/1994/27, pp. 139-140 (Dec. 17, 1993). That finding is not addressed, however, to our demanding standard of definition, which must be met to raise even the possibility of a private cause of action. If Alvarez wishes to seek compensation on the basis of the working group's finding, he must address his request to Congress. * The Court conjures the illusion of common-law-making continuity between 1789 and the present by ignoring fundamental differences. The Court's approach places the law of nations on a federal-law footing unknown to the First Congress. At the time of the ATS's enactment, the law of nations, being part of general common law, was not supreme federal law that could displace state law. Supra, at 2-3. 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 (I) 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.