The Great Lakes

The Great Lakes are a series of interconnected freshwater lakes located in northeastern North America, on the Canada–United States border, which connect to the Atlantic Ocean via the St. Lawrence Seaway and the Gulf of the St. Lawrence. Under customary international law as reflected in the 1982 Law of the Sea Convention, they may be considered internal waters  as they are landward of the baseline from which the breadth of the territorial sea is measured.  However a number of U.S. federal court decisions have treated the Great Lakes as “high seas” for purposes of federal admiralty and maritime jurisdiction as well as for federal criminal jurisdiction.    

Under the Submerged Lands Act, 43 U.S.C. § 1301 et seq., the seaward limit of the lands and waters of the eight U.S. states that border the Great Lakes (Illinois, Indiana, Ohio, Michigan, Minnesota, New York, Pennsylvania and Wisconsin) extend to the international maritime boundary with Canada.  The United States retains the right to regulate offshore activities in this area for the constitutional purposes of navigation, national defense, international affairs, and commerce. 43 U.S.C. § 1314(a). Although U.S. states manage fisheries in the Great Lakes up to the international maritime boundary with Canada, the federal Magnuson-Stevens Fishery Conservation and Management Act may be applied to protect such fisheries from foreign flagged vessels. See 16 USC § 1857(2) (it is unlawful for a foreign vessel to “engage in fishing within the boundaries of any State”) & (4) (it is unlawful for a foreign fishing vessel to operate “within the boundaries of any State” without its gear stowed or otherwise rendered unusable for fishing).

For issues affecting waters of the Great Lakes on both sides of the international maritime boundary, the Boundary Waters Treaty of 1909 serves as the foundation for binational management of the region and continues to provide a framework for addressing joint U.S.-Canada management issues. Subsequent agreements between the United States and Canada have built upon the Boundary Waters Treaty to advance environmental protection. For example, the Great Lakes Water Quality Agreement seeks to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes.  To achieve this purpose the U.S. and Canada agreed to cooperate and develop programs, practices and technology for a better understanding of the Great Lakes ecosystem, and to eliminate or reduce, to the maximum extent practicable, environmental threats to the waters of the Great Lakes, including concentrations of specific pollutants, discharges from shipping, and to monitor the heath of the Great Lakes ecosystem.

Under the Boundary Waters Treaty of 1909 and in accordance with customary international law, vessels flagged by the United States and Canada enjoy the right to freely navigate the entirety of the Great Lakes system, subject to reasonable, nondiscriminatory regulation by either State. This right is not extended to vessels flagged by third party States. Under customary international law, vessels flagged by third party States do not enjoy a right of access to another State’s internal waters. As the Great Lakes are internal waters, vessels flagged by States other than the U.S. or Canada do not enjoy a right of access to the Great Lakes nor do they have any navigational rights or freedoms on the Great Lakes. 

Additional Reference Information:

Boundary Waters Treaty of 1909 (Treaty Relating to Boundary Waters and Questions Arising Between the United States and Canada, U.S.-U.K., Jan. 11, 1909, 36 Stat. 2448, T.S. No. 548).

Great Lakes Water Quality Agreement (Agreement Between the United States of America and Canada on Great Lakes Water Quality, U.S.-Can., Apr. 15, 1972, 23 U.S.T. 1384) as amended.

Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851) (noting that the Great Lakes are “high seas” for purposes of Federal admiralty and maritime jurisdiction, and holding that the admiralty and maritime jurisdiction granted to the Federal government by the Constitution extends to all public navigable lakes and rivers where interstate or international commerce occurs).

United States v. Rodgers, 150 U.S. 249 (1893) (holding that the Great Lakes are “high seas” for purposes of applying federal criminal jurisdiction under 18 U.S.C. § 113).  

18 U.S.C. § 7(2) (defining “special maritime and territorial jurisdiction of the United States” to include the Great Lakes, waters connecting them, and the St. Lawrence River for the purposes of federal criminal jurisdiction).

Submerged Lands Act, 43 U.S.C. § 1301 et seq.