The previous chapter described the extent of a state’s physical territory; this chapter looks at how far a state’s legal power extends. As will be seen, international law places certain limits on the right of a state to make, apply and enforce its laws – its jurisdiction – and these limits are considered in Section 6.2. International law also recognises two principal bars to the exercise of that jurisdiction: diplomatic immunity and state immunity; these are covered in Sections 6.3 and 6.4. Two other bars to jurisdiction, namely special mission immunity and the foreign act of state doctrine, are also briefly covered in Sections 6.6 and 6.7.

Used wisely, inside and outside the courtroom, strategic litigation may be an important vehicle for achieving accountability. To show how communities and advocates sparked the life of a movement seeking accountability of corporate actors under international law, this chapter will provide a chronological account of developments and setbacks that the movement has faced. Using Chiquita as a case study, the chapter distils the recent history of corporate accountability under international law. It follows a linear approach, explaining the developments and set-backs in corporate criminal responsibility under international law. It starts with Nuremberg as a milestone, and goes on to analyze subsequent approaches supporting or rejecting the accountability of corporate officers and corporations. Passing through domestic litigation that emanated from Nuremberg precedents, as well as the subsequent developments, the chapter tells the recent history of corporate accountability under international criminal law.

This chapter addresses the legal framework used by the plaintiffs to seek accountability and the evolving jurisprudence under the Alien Tort Statute (ATS); the current status of civil corporate liability for international law violations in US courts; and the particular defenses raised by the contractors to avoid liability, including the government contractor defense, battlefield preemption, derivative immunity and the political question doctrine. Notably, the doctrines or principles relied upon by courts to block adjudication are more often grounded in prudential concerns related to domestic enforcement of international law – arguably an expression of a conservative strand of ‘judicial activism’ – rather than a normative bar to corporate liability. As part of this assessment, the chapter surfaces some of the issues relevant to negotiations of an international treaty applicable to transnational business entities, including the threshold question of corporate liability for international law violations and extra-territorial jurisdiction, and comments on certain ‘soft law’ mechanisms that have emerged in response to the rising use of private military and security contractors.

The limitations of subject matter jurisdiction present significant barriers to victims seeking a remedy for business-related human rights violations. Even if courts can assert personal jurisdiction over a corporate defendant, the government of any particular country may not give its courts permission to hear and adjudicate the types of claims that arise from human rights or severe environmental torts. In order to bring a lawsuit, a person has to be able to have a legal claim. Sometimes these claims, which are called causes of action, come from the parliament, legislature, or other legislative body, which decides what sort of claim its citizenry can bring before court. In some systems, typically the common law system, courts can also recognize a claim based on the common law.

This chapter presents the book's argument that the early Alien Tort Statute cases filed in US courts in the 1970s and 1980s constitute American transitional justice in two senses: first, a legal mechanism enacting the transition of the United States and its former allies out of the Cold War order; and second, an approach to transitional justice drawing on the US tradition of privatizing public interest litigation. It distinguishes Alien Tort Litigation from other legal mechanisms in the United States, which scholars have interpreted as transitional justice conducted under other names, and situates Alien Tort litigation in the literature on the Cold War in US courts, the history of human rights, the study of law's historical narratives, critical approaches to human rights, and the sociology of human rights.

This chapter presents the dominant account of Alien Tort Statute litigation, which the remainder of the book challenges, providing at the same time some legal background necessary to understanding the book’s analysis. It outlines the development of human rights litigation under the statute, the law, and practice of such litigation, and the dominant terms of the scholarly and policy debate surrounding this form of litigation. It explains that the debate has pit human rights advocates seeking to promote international norms and human rights accountability beyond borders against conservatives seeking to avoid judicial interference in foreign policy. It highlights the assumptions and blind spots in that debate, in particular the striking indifference to the meaning of the litigation for the societies in which the litigated abuses occurred, at the same time as the United States itself has been viewed as disconnected from the litigated violence.