Page:New York v. New Jersey (2023).pdf/9

Rh for the agreement to be perpetual, it would not make much sense to conclude that each State implicitly conferred on the other a perpetual veto of withdrawal.

In sum, background principles of contract law, reinforced here by principles of state sovereignty and the fact that the States did not intend for the Compact to operate forever, indicate that New Jersey may unilaterally withdraw from the Waterfront Commission Compact. To be clear, the contract-law rule that we apply today governs compacts (like this Compact) that are silent as to unilateral withdrawal and that exclusively call for ongoing performance on an indefinite basis. But that rule does not apply to other kinds of compacts that do not exclusively call for ongoing performance on an indefinite basis—such as compacts setting boundaries, apportioning water rights, or otherwise conveying property interests. Both New York and New Jersey agree that States may not unilaterally withdraw from compacts that are silent as to withdrawal and that set boundaries, apportion water rights, or otherwise convey property interests. See Brief for New York 3–4, 30, 38; Brief for New Jersey 27–29; Tr. of Oral Arg. 30, 44, 55.

New York advances several additional arguments in support of its view that the Compact nonetheless should be read to prohibit unilateral withdrawal. But none is persuasive.

First, New York invokes the history of compacts before 1953. In New York’s view, many pre-1953 compacts were silent on unilateral withdrawal but nonetheless were understood to forbid it. New York says that when States at that time wanted to allow unilateral withdrawal, the compacts would expressly provide for it. And New York adds that we should interpret the 1953 Compact in light of that practice.