Incendia and Combusta are two countries in the Flammable Region.

In 2019, Incendia was beset by devastating bush fires across most of the country. As the fires worsened, the Incendian government deployed military forces as part of the fire-fighting effort. The Incendian government invoked the Incendia National Emergency Law (the 'INEL'), under which the government is given authority to take action 'essential for the preservation of the safety of the community'. Relying on the INEL, the Incendia Army Engineers (the 'IAE'), the military engineers of the Incenian Army, were sent to the worst fireground in an area near the Oxida River. The Oxida River forms part of the border between Incendia and neighbouring Combusta, before turning south and flowing into the territory of Combusta.

The IAE sought to extinguish the fires by dropping laser guided bombs in order to generate pressure waves at the fire front. The Incendia Natural Disaster Minister explained that this would 'snuff out the fires in much the same way that candles on a birthday cake are blown out.' However, the plan did not produce the desired outcome. The fires continued to rage, and the bombing caused landslides which led to thousands of tonnes of sediment entering the Oxida River and flowing downstream into Combusta. As a result the capital of Combusta has now been deprived of its main source of drinking water, and the river is also no longer navigable due to heavy silting. This has affected trade between the two countries as cargo vessels are not able to use the river. The Combusta Foreign Minister issues a statement to the media saying that 'he is quite disappointed in what has occurred, and I look forward to speaking with my Incendian counterpart as soon as possible to ensure that this situation can be resolved amicably and that any further plans to conduct operations near the Oxida River are immediately suspended.'

The government of Combusta is exploring what options it has to take legal action against Incendia in international forums. There appear to be three main options:

1. (1) Under the 1975 Flammable Regional Environmental Protection Treaty, to which Combusta and Incendia are parties, states parties are required by Article 5 to 'refrain from activities that cause serious transboundary harm'. Article 10 of the Treaty provides that 'disputes concerning the interpretation or application of this Treaty may be referred to a conciliation commission established under Annex V of this Treaty unless the parties have agreed to utilise an alternative method of dispute settlement'.
2. (2) The 1978 Flammable Closer Economic Relations Agreement, to which Combusta and Incendia are parties, provides in Article 3 that the parties will take 'all measures to ensure that trade and commerce between members of the Flammable Region is open and free'. Article 20 of the Agreement states that 'disputes arising under the Agreement shall be referred to compulsory arbitration at the Permanent Court of Arbitration'.
3. (3) Both Combusta and Incendia have accepted as compulsory the jurisdiction of the International Court of Justice (ICJ) by declarations made under Article 36(2) of the Statute of the ICJ.

Incendia's declaration stipulates that:

'The Government of Incendia declares that it recognises as compulsoryipso factoand without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to the Secretary-General of the United Nations withdrawing this declaration. This declaration is effective immediately.'

Combusta's declaration provides: 'The Government of Combusta declares that it recognises as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to the Secretary-General of the United Nations withdrawing this declaration. This declaration is effective immediately.'

This declaration does not apply to:

(a) any dispute in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement;

(b) any dispute concerning military activities or any dispute with regard to matters which are essentially within the domestic jurisdiction of Combusta, as determined by the Government of Combusta.'

You are an officer in the Combusta Ministry of Foreign Affairs and have been asked to generate a memorandum on the jurisdictional and other dispute settlement issues that would need to be addressed when pursuing any or all of these three options.