Framing the Murillo Map properly

The 501-page 2016 South China Sea (SCS) Arbitral Award does not mention the Murillo Map at all. There are two reasons for this.

Firstly, a map has no value in territorial and maritime disputes. In international law, there are recognized modes for the acquisition of territory, and map-making is not one of them (Burkina Faso/Mali). The primary modes that are relevant to the territorial dispute over Bajo de Masinloc (BDM) are discovery accompanied by actual occupation and exercise of sovereignty, transfer of territory such as by Spain to the United States in 1898-1900, and continued acts of peaceful possession and control to the exclusion of other states.

A map may serve as basis of territorial title only when it is annexed to a treaty.

Alas, the Murillo Map is none of the above.

A map does not qualify as evidence of territorial title. The Island of Palmas was depicted as part of the Philippines in the official map published by the United States colonial government. Yet, the sole arbitrator in US v. The Netherlands (1928) awarded the Island of Palmas to the Netherlands.

A map would be relevant when it is averse to the interest of the claimant state that produced it, as when it depicts a disputed territory to be under the sovereignty of the opposing claimant state (Malaysia/Singapore; Eritrea/Ethiopia). It also works where both claimants have used the same map (Preah Vihear Temple Case).

What about a map that is silent on the status of a disputed territory, such as the US official map that situated the BDM outside the limits of the Philippine territory? What about the 1933 British Consulate dispatch stating that “school geographies in China showed the limit of China’s boundaries well north of the position of [the Spratlys]” and BDM?

In international law, silence does not mean that one claimant lacks title or that the other claimant gains title to the BDM. It simply means that both claimants must now establish title through positive acts of “effective control” (US v. The Netherlands).

Secondly, in the SCS arbitration, the Philippine Memorial referred to the Murillo Map as evidence not of territorial title to the BDM but of “traditional fishing by Filipino fishermen [extending] well back into the Spanish colonial period” (para. 6.41). Without mentioning the Murillo Map, the SCS Arbitral Award noted that “historical cartography evidences a connection between Scarborough Shoal and the Philippine mainland”(para. 762). And without China or Vietnam proffering evidence similar to the Murillo Map, the Arbitral Award held that “Scarborough Shoal has been a traditional fishing ground… of many nationalities, including the Philippines, China (including from Taiwan), and Viet Nam” (para. 805).

In effect, by declaring BDM as a common traditional fishing ground, the Arbitral Award virtually precluded evidence that any single claimant state, such as the Philippines, has exercised territorial sovereignty or possession and control to the exclusion of other states, including their fishermen.

What then is the value of the Murillo Map? In 2012, Sotheby’s auctioned one of 15 known copies for 170,500 British pound sterling, from an estimated value of between 20,000 and 30,000 British pound sterling. After the map was falsely touted as a pivotal piece of evidence in the SCS Arbitration, another copy sold for 260,000 British pound sterling. The original owners must have laughed their way to the bank.

Strange market forces may have propelled the Murillo Map into prominence in the world of antiques. But under international law, the stringent rules of territorial acquisition reduced the map into a mere oblique footnote (Footnote 775) of the Arbitral Award.

Framing the Murillo Map properly means building a Filipino case for BDM based on acts of sovereignty, such as the West Philippine Sea baselines law being proposed by retired justice Francis H. Jardeleza.

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Melissa Loja holds a Ph.D. in public international law. Romel Bagares teaches public international law in three universities.