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<p>As the international community grapples with the complex challenges posed by climate change and its implications on transboundary agreements, questions surrounding the modification and termination of treaties gain importance. This article investigates the complexities surrounding the application of Article 62 of the Vienna Convention on the Law of Treaties, 1969 — which permits withdrawal from a treaty due to “unforeseen fundamental changes of circumstances”— in the context of the Indus Waters Treaty, 1960. Existing literature on Article 62 is influenced by the <i>Gabčíkovo–Nagymaros</i> decision, which dismisses climate change as a valid ground for terminating a treaty. This is by virtue of climate change not being “unforeseen” and leads to potential limitations in addressing the dynamic challenges faced by treaties. This article highlights the lacunae in existing scholarship. We argue that the stringency in the determination of “unforeseen” as set by the International Court of Justice in the <i>Gabčíkovo–Nagymaros</i> decision significantly limits the practical application of Article 62; the judgment must be read in the context in which it was made; and propose a more attainable threshold of unforeseeability. We argue that a lower, more practicable threshold is a pragmatic alternative to the high threshold, which makes Article 62 redundant as it currently stands. In doing so, we also address concerns this standard may raise regarding treaty stability. Subsequently, we apply this lower threshold to the Indus Waters Treaty. We argue that changes to the Indus Basin’s hydrological landscape, attributed to factors like glacial melt and changing precipitation patterns, necessitate a re-evaluation of the long-term interstate water-sharing agreement. In doing so, we address additional concerns, such as India’s duties as an upper-riparian state under customary international law. The implications of this article extend beyond the legal field: they highlight the urgency of adapting international agreements to the evolving realities of climate change.</p>

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Rationalising Gabčíkovo–Nagymaros as India’s Basis to Terminate the Indus Waters Treaty: Revisiting the ‘Standard’ of Unforeseeability in Article 62 of the Vienna Convention on the Law of Treaties

  • 期刊论文

  • 发表日期：

    2026年3月14日

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  • Akash Nath,
  • Manuj Gupta

摘要

As the international community grapples with the complex challenges posed by climate change and its implications on transboundary agreements, questions surrounding the modification and termination of treaties gain importance. This article investigates the complexities surrounding the application of Article 62 of the Vienna Convention on the Law of Treaties, 1969 — which permits withdrawal from a treaty due to “unforeseen fundamental changes of circumstances”— in the context of the Indus Waters Treaty, 1960. Existing literature on Article 62 is influenced by the Gabčíkovo–Nagymaros decision, which dismisses climate change as a valid ground for terminating a treaty. This is by virtue of climate change not being “unforeseen” and leads to potential limitations in addressing the dynamic challenges faced by treaties. This article highlights the lacunae in existing scholarship. We argue that the stringency in the determination of “unforeseen” as set by the International Court of Justice in the Gabčíkovo–Nagymaros decision significantly limits the practical application of Article 62; the judgment must be read in the context in which it was made; and propose a more attainable threshold of unforeseeability. We argue that a lower, more practicable threshold is a pragmatic alternative to the high threshold, which makes Article 62 redundant as it currently stands. In doing so, we also address concerns this standard may raise regarding treaty stability. Subsequently, we apply this lower threshold to the Indus Waters Treaty. We argue that changes to the Indus Basin’s hydrological landscape, attributed to factors like glacial melt and changing precipitation patterns, necessitate a re-evaluation of the long-term interstate water-sharing agreement. In doing so, we address additional concerns, such as India’s duties as an upper-riparian state under customary international law. The implications of this article extend beyond the legal field: they highlight the urgency of adapting international agreements to the evolving realities of climate change.