Statutory Rape and the ATS

[C]riminalization of conduct by the United States does not mean that the conduct violates the law of nations. Such criminalization may be relevant evidence, but the controlling consideration is whether the claimed wrongdoing “rest[s] on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms [that the Supreme Court has] recognized.” Sosa, 542 U.S. at 725. A United States statute may or may not express “ a norm of international character.” Consequently, jurisdiction under § 1350 cannot be based solely on a violation of our criminal code.

For her second contention Ms. Cisneros relies on an Interpol website titled “Legislation of Interpol Member States on Sexual Offences against Children,” and on Articles 16 and 34 of the United Nations Convention on the Rights of the Child. But neither source states norms of international law that satisfy the “requirement of clear definition” set forth in Sosa. See Sosa, 542 U.S. at 733 n. 21. The Interpol website simply summarizes pertinent statutes provided by member states. It does not purport to express any consensus among nations. And Ms. Cisneros makes no effort to extract or identify from the site any data that would support her view. We have not attempted to do that work for her but there is reason to doubt her conclusion. For example, as Mr. Aragon points out, it is hardly clear that his alleged acts would even be criminal in her native Mexico.

Articles 16 and 34 of the United Nations Convention on the Rights of the Child likewise provide Ms. Cisneros with no support. Article 16 states:

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.

And Article 34 provides:

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitive use of children in prostitution or other unlawful sexual practices;
(c) The exploitive use of children in pornographic performances and materials.

This language hardly describes sexual misconduct “with a specificity comparable to the features of the 18th-century paradigms [that the Supreme Court has] recognized.” Sosa, 542 U.S. at 725. The two articles are simply aspirational goals stated in imprecise language.

Moreover, the law of nations, particularly the subset of that law enforceable under the ATS, does not include a norm simply because the norm is enshrined in the domestic law of all civilized societies. Auto theft is not a violation of international law. As the Supreme Court said in Sosa, the drafters of the ATS probably had in mind only rules of international law regulating the conduct of individuals that “overlapped with the norms of state relationships,” 542 U.S. at 715, that is, a “narrow set of violations of the law of nations [ ] admitting of a judicial remedy and at the same time threatening serious consequences in international affairs,” id. The Court’s requirement that the law-of-nations norm be defined with precision is not a substitute for the requirement that the violation be of a type that can substantially impact international affairs, but is an additional requirement. A pre-Sosa circuit-court opinion reflected this limitation when it recognized ATS causes of action for war crimes and genocide but not “torture and summary execution-when not perpetrated in the course of genocide or war crimes.” Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir.1995). There can be no doubt that the alleged misconduct of Mr. Aragon was not of the sort that comes close to “threatening serious consequences in international affairs.” Sosa at 715. We therefore affirm the district court’s rejection of Ms. Cisneros’s ATS claims.

There was, finally, a sphere in which these rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships. Blackstone referred to it when he mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of war. It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort.