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3 The Law of State-State Relations and the Constitution
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Published:April 2017
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Abstract
This chapter explains how the Constitution was designed to interact with the law of state-state relations. The Constitution established two default rules governing the application of the law of state-state relations in U.S. courts. First, the Constitution’s exclusive allocation of power to the political branches to confer recognition on foreign nations, and thereby commit the United States as a whole to respect their rights under the law of state-state relations, required courts and states to uphold the rights of recognized foreign nations under the law of state-state relations. Second, the Constitution’s exclusive allocation of power to the political branches to decide whether, when, and how to hold foreign nations accountable for their violations of the law of nations—including through reprisals, captures, and war—precluded courts from attempting to hold foreign nations accountable for such violations without authorization from the political branches to do so.
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