As per the constitution, the mandate for military mobilisation lies with the President and the Supreme Commander of the country (Articles 61 and 63). The President is empowered to make such decisions with the parliament's approval and upon consultation with relevant organs of the government and the Prime Minister who holds executive authority of the state. Under the present set up, the PM also holds the defense ministry portfolio.

The precise interpretation of our constitution on this particular aspect has become urgent following the ordering to the navy on September 21 by the parliamentary standing committee on defence to ensure Bangladesh's sovereignty over the Talpatti Island. Experts believe a standing committee has no authority to dish out orders like this all and sundry.

The Island of discord

The procedural aspect of such an order becomes more crucial due to the serious implications it entails. The otherwise serene 2.5 sq. km Talpatti sits on the Hariabhanga river along Bangladesh's Western border with India (India calls it New Moore) and it had been a major source of irritation for the two South Asian neighbours since the 1970s. The controversy over the Island's sovereignty is well known and any military move, by either party, may provoke retaliation from the other.

The Talpatti became a flashpoint to impose major premiums on the bilateral relations of the two neighbours in May 1981 when the ownership claim of the Island propelled India to dispatch INS Sandhyak to the Island and Dhaka followed suit in self- defense.

The two navies then fixed eye-balls on each other after armed Indian soldiers encamped themselves, and, provocatively, raised the Indian flag to ascertain Indian sovereignty over the disputed Island.

Fortunately, an impending showdown was averted after Bangladesh maintained that the Indian move was in violation of the understanding reached between President Zia and Prime Minister Indira Gandhi during Zia's official visit to Delhi in 1980. During that meeting, the two leaders agreed to finalise the maritime boundaries pursuant to international laws and equitability. Indian forces later withdrew from the island and Delhi's explanation was wrapped with an usual pretext that the team was on a mission to conduct marine survey.

Bad, mad and dangerous

This time around, the parliamentary standing committee perhaps thought it prudent to pass such an order to deter India from taking over the Island by force, or, it might have had information of 'suspicious' Indian move in the Island's vicinity. But the politics surrounding this order was bad, mad and dangerous.

The timing of this order, followed by an unprecedented naval disaster within hours, could not be worse. The deterrent capability of the navy today is at an all time low after the damage of 18 naval vessals in an accident that remains suspicious. Worse still is that the Indian ire was raised at a time when the Joint River Commission (JRC) meeting of the two governments was barely a week off (it began on September 29 and ended in disappointment).

The order also compounded Dhaka's preparedness to institute an official protest against the Indian decision to inter-link major rivers, which sustain Bangladesh's agriculture, ecology and the very civilization of its 130 million people.

Besides, the two governments are slated to talk on a Free Trade Agreement (FTA) between October 20-22. The parliamentary order had imperiled the success of all these major bilateral discussions, say analysts.

A legal snarl

After the 1981 tension, India sent letters to a number of foreign oil companies asking them not to undertake exploration works in the Bay of Bengal due to the maritime boundaries not having been finalised. A few oil companies heeded to India's objections and withdrew from exploration in the Bay.

The Talpatti's sovereignty depends, from a juridical-legal viewpoint, on the demarcation of the Hariabangha's mainstream. The Radcliff award of the British era determined the maritime boundaries of bordering rivers using this simple formula, which corresponded with the Thalwag (mainstream) yardstick used by other countries.

But, over the decades, subsequent developments in the law of the seas clarified the nitty-gritty of conflicting claims. The United Nations Conference on Law of the Seas (UNCLOS) adopted a number of provisions in the 1970s and the 80s, incorporating the draft articles prepared by the International Law Association in 1966.

That aside, any maritime dispute among the littoral nations of the Bay of Bengal might distract our focus away from trade and development and pull the region toward a nagging geopolitical rivalry.

Should that occur, external powers might exploit that situation to our detriment amid a precarious geopolitical ambience fanned by conflicts in Iraq and Afghanistan in particular, and, the US' intent to extend its military sway toward the region of South East Asia to deal with global terrorism.

Island dispute amid oceanic collaborations

In 1993, Myanmar too protested Bangladesh's hydrographic survey over another Island in the Naff river. A decade on, Myanmar became Bangladesh's gateway to the ASEAN. This proves that friendship and enmity are two sides of the same diplomatic streak.

Sunk in an ocean of trouble, the Indian ocean littoral states can ill afford to be hostile to each other over some Islands' sovereignty when free trade and globalisation are the buzzwords around.

The leaders of the region must also remember that blatant disregards toward the dictates of International laws had already plunged the world into a serious trouble that shows little sign of abating. This has whitted an urge for increased regional cooperation that seems more intense than any time in the past. Asian nations are more worried about likely military challenges from without and the economic challenges of globalisation.

Hence, our concerns must be channeled through the UNCLOS regime, which had evolved to treat equally the competing claims of nations with respect to the territorial sea, contiguous zone, EEZ, continental shelf and islands. An Island is defined as a 'naturally formed area of land, surrounded by water, which is above water at high tide.'

Dhaka's unforgivable laxity

One of the major decisions of the 1982 UNCLOS was to inform signatory nations to submit their maritime claims by October 2004, excluding claims over the continental shelf which is datelined for 2011. Yet, in July 2000, India made a claim with the UN over 1 million square kilometers of undersea territory as an extension of its continental shelf.

Although Dhaka is yet to stake a claim likewise, India is aware that Bangladesh ratified the UNCLOS in 2001, pursuant to Article 76 of the Resolution that deals with maritime claims of sovereign nations.

Reportedly, Myanmar too had made submissions to the UN and both the Indian and Myanmar claims encompassed undersea basins that fall within Bangladesh's Exclusive Economic Zone (EEZ) that stretches up to 200 nautical miles from the baseline. Bangladesh is also entitled to a 350 miles long (from baseline) continental shelf.

Despite complications stemming from the uniquely indented shape of our coastline, a factor that makes maritime boundary demarcations more difficult, claims can also be staked on the basis of 'inheritance' as is applicable to land boundaries. One must wonder whether the delay in the submission is causing harm to Dhaka's claims on the nation's marine geography.

A splendid track record

Curiously, unlike the present, we have had splendid track records in staking claims in such matters and in knowing our problems. At the nation's birth, Bangladesh took little time to deal with its concerns over the maritime boundary and the baseline issues, incorporating provisions to resolve those issues in section 3 of Bangladesh's Territorial Waters and Maritime Zones Act of 1974.

And, in the Gazette of 16 April 1974, Bangladesh delineated its baselines, from where territorial waters to be measured. Finally, in December 1974, Bangladesh made a full claim over the Talpatty's sovereignty. This should be our forte as we move forward.

Taken aback by Dhaka's diplomatic briskness, India sought to counter Dhaka's move during the 1974-76 UNCLOS rounds held in Caracus, New York and Geneva; making an objection to Bangladesh's claimed baseline threshold.

Though the baseline demarcation too awaits acceptance by the UNCLOS regime, Dhaka's claim over Talpatti's sovereignty is likely to stick if the Hariabangha's mainstream flows to the west of the Island, as is claimed. Any decision on that might call for the involvement of international surveyors, which too must await the acceptance of, and arbitration over, all the competing regional claims by the UNCLOS.

Many also wonder why it was not until December 2002 that the government felt the necessity to constitute a 15- member committee to prepare Bangladesh's claims. Headed by Health Minister Khandaker Mosharraf Hossain, the committee placed its recommendations to the ECNEC, but the recommendations still await cabinet approval.

Precisely due to that, any military posture by either of the disputants until all legal formalities are exhausted might endanger their respective claims. And, with respect to our parliamentary order to the navy, one can only say that the order lacked requisite legal authority and was premature.

The complications enumerated above offer little reason for us to do anything more than guide our navy and coast guards to keep an eye on the Island until the sovereign status of it is resolved.

Author and columnist M. Shahidul Islam is a Senior Assistant Editor of The Daily Star.