International Law’s Lessons for the Law of the Lakes

The eight Governors of the Great Lakes States signed a proposed new compact for the Great Lakes and St. Lawrence basin on December 13, 2005, and they joined with the Premiers of Ontario and Québec in a parallel agreement on the same topic on the same day. Neither document is legally binding-the proposed new compact because it has not yet been ratified by any State nor consented to by Congress; the parallel agreement because it is not intended to be legally binding. Both documents are designed to preclude the export of water from the Great Lakes-St. Lawrence basin apart from certain limited exceptions. The documents do little to promote rational resource management apart from limiting exports. There is debate over whether the two documents are adequate to achieve their announced goals and over whether the goals are the right ones. The lessons found in the well developed body of customary international law applicable to water resources, most recently summarized in the Berlin Rules on Water Resources, have largely been ignored. Comparison of the two documents with the Berlin Rules suggests that the documents will not provide satisfactory solutions to the challenges of managing the Great Lakes, even in the near future, given the broad ecological concerns that are not addressed in the two documents.