In Conversation With Monica Feria-Tinta
Barrister at Twenty Essex
Mónica Feria-Tinta is a barrister at Twenty Essex, a London-based barristers’ chambers at the forefront of public international law for 70 years. Mónica’s expertise covers many areas of public international law, including dispute resolution, law of the sea, State responsibility, immunities, international humanitarian and environmental law, as well as international investment arbitration.
She has worked for international tribunals such as the International Court of Justice (ICJ) and the International Criminal Tribunal for the former Yugoslavia (ICTY) and has served as Assistant Legal Adviser to the Foreign & Commonwealth Office. She acts as counsel and adviser to States, international organisations and private parties. She also serves as arbitrator, and is a member of the Chartered Institute of Arbitrators.
Her work as an international litigator in the field of human rights has earned her the prestigious Inge Genefke International Award in 2006. In 2007, she was a co-recipient of the Gruber Justice Prize for her efforts in the Castro-Castro prison case v Peru before the Inter-American Court.
It is with great pleasure and admiration that Jus Mundi interviews Mónica Feria-Tinta.
Your expertise in public international law covers a large spectrum of fields, ranging from international humanitarian and criminal law to international economic law. Where did you start? Do you think that an internationalist should be a specialist or a generalist?
You start by developing a strong foundational basis in international law. I do not believe that someone can intend to practice public international law without studying first the foundational areas in international law: sources, the relationship between international law and municipal law, Statehood, State Responsibility, Jurisdiction, Use of force, international criminal law, Law of the Sea, UN law, Immunities, etc. I spent two years teaching Public International Law as a generalist, assisting H.E. Christopher Greenwood former ICJ judge, at the time, Professor at LSE. It was a time when I would study judgments to explain them to students. Students asked often questions that appeared simple but that because of their simplicity had the beauty of going right into the complexity of international law. It forced me to penetrate the subject more and more.
At the end of this period I decided to attempt The Hague Academy Diploma. I succeeded. It was then that I started to see the connections between areas of law that appeared in principle separate. The exam, as you know, is set out in a manner that any question of international law can be asked, including questions of private international law. Professor Pierre-Marie Dupuy delivered the General Course that year. His teachings ranged from discussing the jurisprudence of the ICJ or ITLOS to discussing WTO decisions or awards in PCA arbitration. In The Hague Academy exam, I addressed the topic of the fragmentation of international law. This required discussing the concept through the analysis of jurisprudence across the entire field of international law. This was a formative period which made me look at international law as a system.
I also had the opportunity to immerse myself in the work of the International Law Commission in Geneva at a time when the Draft Articles on State Responsibility, and the topic of Diplomatic Protection were being discussed. My teachers there were James Crawford, Ian Brownlie, Bruno Simma, Alain Pellet, John Dugard; in short, towering figures whose knowledge of international law was not restricted to one area only.
A strong foundation in general international law was tremendously helpful when it came to practising international law.
I found that the solution of human rights cases lay on points of state responsibility doctrine or pure treaty interpretation and that areas traditionally believed to be the realm of States only, had illuminating aspects in which individual rights (if one penetrated such areas sufficiently) were key to their proper understanding. This, for example, I found when advising Germany in the LaGrand case, namely on the interpretation of Article 36 of the Vienna Convention on Consular Relations. It was the first time that the right to consular assistance as part of an individual right to due process was upheld. I don’t think I would have been able to see the connections if I had had a compartmentalized approach to international law.
In real life, different areas of international law come together. If you take the recent Al-Bashir case. There is the issue of international criminal law, but it is fundamentally an issue of treaty interpretation, its relation to customary international law, and a sound understanding of the laws of immunities.
If you are legal adviser to a State for example, as a recent experience advising government at the Foreign & Commonwealth Office taught me, you will have to look at situations which raise a complexity of legal issues. You will need a broad understanding of international law, a good grasp of the fundamental principles. Knowing about one area alone would not do; you would simply be unequipped.
I believe that often people specialize too early. For example, jumping into human rights (an area that appears exciting and interesting, for example) without doing sources or general international law (which many felt “abstract”, hard and vast). Sometimes people want to focus on one right only within human rights. In my view, however, if you just look at say one right, you are entering the field narrow-mindedly. You are going to lose the context and lose all the principles that have to be looked at, and you are going to have a weak approach. So in a way I would say one of the elements that helped me to have success when it came to practice was to have that strong foundation. Spending time learning all the areas is a valuable process.
So yes, I believe that the field need generalists. A sort of “renaissance man or woman” of international law who may also have specialist areas of interest.
But a true internationalist has to start with the basics and has to learn them well.
What attracted you to the English Bar and why did you choose to be a barrister at Twenty Essex?
I specialized and practised in international law for a number of years prior to coming to the bar. I come from Latin America and trained originally as an advocate in a civil law system. To a civil law trained lawyer, the common law system appears at first sight to be a pragmatic, case-law driven system of law, strongly contrasting with a legal system geared essentially by Codes and where there is no doctrine of precedent. My gateway to the common law though was international law, because international Law draws from both realms, civil law and common law. For example, both systems come together and are reflected in procedural rules developed by international tribunals such as the International Court of Justice, or even International criminal tribunals such as the International Criminal Court. So perhaps working in international law prepared me mentally for the possibility of practising in a common law system.
I was very fortunate to have been exposed, in the course of my practice as a public international lawyer, to the work of outstanding members of the Bar in England. I had the opportunity, for instance, of working on a large case with Vaughan Lowe QC, then Chichele Professor of Public International Law at the University of Oxford. Observing the way he prepared the case, made me aware of how sophisticated the advocacy tools, specific to the Bar, were. I found this attractive -this specialization in courtroom advocacy. Advocacy is part of the training of any advocate in any legal system but in Latin America –for instance– there is nothing like a year of studies where the sole focus is court-advocacy. It is no wonder therefore, that the Bar of England is in high demand when it comes to international litigation. I think it was a logical progression therefore to feel attracted to join the Bar in England.
Perhaps a defining moment to aspire to become a barrister was when attending the Pinochet case before the House of Lords (there was no Supreme Court at that time). I had just completed my LLM and had different paths open to me: I could become an academic, or an international civil servant, or an independent practitioner. I did some work on the Pinochet case for a Non Governmental Organisation acting as a third party intervener on the case and was given a pass to attend the hearings. I heard Christopher Greenwood and the late Ian Brownlie pleading against the immunity of the former Chilean dictator, Pinochet, in the case. It was my first experience with the English bar because it was the first time that I saw barristers at work, in action, perhaps in one of the most extraordinary and ground-breaking cases to reach the highest court in the land in recent years.
Pinochet encapsulated an entire era in Latin America: the Latin America of the dictatorships. And it was here in England where his destiny was to be decided.
What was being decided before the Lords was whether he enjoyed immunity and therefore could not be extradited to Spain to face charges for human rights violations committed during his regime in territory that was neither English nor Spanish or whether he did not enjoy immunity and should face trial. The question of whether someone like Pinochet could be held accountable for crimes under international law in domestic courts was important for Latin America but equally important for English law and for international law. It was of great momentum because the case was to set a world precedent. I observed how things were argued and how interactive the hearings were because the judges could interrupt at anytime. They could ask questions, they could put the barrister on the spot. To me this was amazing. The array of questions was really broad. Essentially, they covered jurisprudence arising throughout the whole of the last century coming from any common law jurisdiction, on crimes against humanity. A vast amount of facts, details, principles, had to be at the tips of the fingers of those answering such questions. It was quite powerful and one of the best advocacy lessons I have ever had. We are talking about 1998.
I felt part of history; just witnessing this and sitting down there, sharing the experience with lots of people who had been queuing for a long time to be able to be in the gallery. Some of these people were coming from all over: from Sweden to Chile. These were lay people, some of them refugees from Chile, who wanted to see justice being done. They wanted to be in the place where things were being decided, although they understood very little of the technical aspects of the case on a legal level. They felt they were part of history. And I had a sense that it was a very key moment for International law where crucial principles were put to the test in domestic courts. It was a very significant moment and it was when I thought yes I would like to be doing that; I’d like to be assisting in delivering justice to so many people. It was a very clear feeling.
As to why I chose Twenty Essex as my chambers; I wanted to practise from a chambers with a strong tradition in public international law, with a practice across all areas of international law, from law of the sea to investment arbitration. Twenty Essex continues to be home to leaders in the field, building on the foundations laid by former members, luminaries such as Lord (Arnold) McNair, Sir Hersch Lauterpacht, Sir Elihu Lauterpacht and Sir ArthurWatts.
You represented victims of unlawful killing and torture amounting to crimes against humanity during the Miguel Castro-Castro prison v Peru case before the Inter-American Court of Human Rights. Your extraordinary work has made this case an important precedent against impunity of State representatives and for the protection of human rights. What was the most challenging aspect of this case? What have you learned?
There were many extremely challenging aspects. To start with, it was a claim concerning hundreds of victims. It was brought on behalf of an entire prison population, around 600 security prisoners (men and women) and their relatives. I did the case from London. The Inter-American Commission on Human Rights requested very detailed information, that not only the general facts of the case be proven but also that each fact (each killing of a prisoner) during a bombardment of the prison by state forces, be documented in a manner that it be known (i) specific cause of death/ or injury (ii) evidence of that (iii) witnesses to that. So it was not sufficient to demonstrate that the prison (specific cell blocks) had been subjected to a frontal armed attack but I needed to prove every incident leading to an injury/death of a prisoner (with corroborating witnesses). Logistically, managing such a case from London, alone; investigating the case while Fujimori was still in power, was almost an impossible task.
But I had first-hand information that the massacre had taken place. So I persisted. I had been given by the Inter-American Commission the task to prove the allegations. In fact there were many obstacles that I needed to overcome. There had not only been a massacre but also a cover-up. As in denied massacres taking place in the books of Gabriel García Márquez, nobody in Peru remembered it as a massacre. The official “truth” was that it was a “riot”. This was in addition, a very unpopular case in Peru. As in the Guantanamo Bay case, this was a case of security prisoners, unpopular victims. How do you represent unpopular victims when all doors close when you seek cooperation to ascertain the facts? How do you finance a case of crimes against humanity? How do you find witnesses if the events happened on another continent? The legal issues were complex and required a detailed forensic approach which needed a counsel team of many lawyers, but it was essentially me alone, working on this. It was a David v Goliath type of legal fight.
At first I asked Human Rights Watch to take up the case but they declined. So I had to take it up myself; and to investigate it alone. I had just completed my LLM. In retrospective, this was the best thing that could have happened, to have to work on this myself. Because I got the law right. The violations in question took place in the context of an internal armed conflict, so the relationship of human rights law and international humanitarian law was at the core of the case. This involved understanding the effect that a series of weapons (i.e. type of gases) had on the victims during the siege. It was the first case in which rape was held to be a violation of the American Convention on Human Rights because I took it upon myself to address the full range of violations that had taken place, including sexual violence. It was the first time that an array of torture practices were examined by an international court and held to constitute torture, including falanga beatings, the use of dogs on defenceless detainees, and many more practices that have later featured in cases arising from the war on terror.
This became the first international human rights case in which a court ordered the prosecution of a former head of state for crimes against humanity. I had worked on issues of command responsibility in international law in The Hague and used all that I had learned in international law to plead the case. I did not see the point of ordering prosecutions against lower-ranking state officials if those who had ordered it were to escape justice.
Impunity had been a serious pervading problem in Latin America. Legal consequences for atrocities had rarely happened. So, breaking with that feature was extremely rewarding.
To me international law is a civilizing force. I take that with me from the case.
You are also very active in international environmental law. International tribunals such as the ICJ and ITLOS are rendering landmark decisions, allowing for compensation and provisional measures. Do you think that this opens the way for more decisions of its kind?
I do. I recently wrote a short piece in EJIL Talk, and a more developed analysis entitled “The Rise of environmental law in International Dispute Resolution”, in the Yearbook of International Environmental Law in which I argued that this is a time in which environmental protection is on the rise, with a series of high profile international judicial rulings acknowledging legal consequences for environmental harm. The International Court of Justice in Costa Rica v. Nicaragua / Nicaragua v. Costa Rica cases ordered Nicaragua to pay compensation to Costa Rica for environmental damage, its first ever order for such compensation. Earlier, ITLOS issued a landmark provisional measures order in a maritime boundary delimitation case between Ghana and Côte d’Ivoire (Case 23), prescribing provisional measures protecting the marine environment, inter alia suspending all ongoing oil exploration and exploitation operations in a disputed area. To that list one could add the 2017 decision of an ICSID tribunal in Burlington Resources, Inc. v Republic of Ecuador to award some US$39 million in damages in favour of Ecuador for environmental remediation costs (to clean-up oil spill).
International Environmental Law is becoming key to deal with some of the most defining problems of our times, environmental pollution being one of them.
Similarly, Torres Straight Islanders have just filed a complaint before the United Nations Human Rights Committee against Australia for climate inaction. How is it that you got to work on this case?
Climate change has been a subject I have reflected on, in academic writing, for some time. Recently, I gave a presentation entitled “Melting glaciers, disappearing States and endangered populations: International Dispute Resolution for Climate Change” at a conference. I argued therein that courts of limited jurisdiction, such as international human rights courts, would have an important role to play in climate change related dispute resolution, and that climate change is also a human rights issue.
I was instructed shortly after in the case.
Taking into consideration the non-binding nature of the Committee’s rulings, do you think that the outcome of this ruling can contribute to the evolution of international environmental law?
I do. The Committee’s views are authoritative legal pronouncements. What matters is the reasoning, which is an authoritative interpretation of the International Covenant on Civil and Political Rights. The Committee has been tasked with this interpretation by State consent.
Cross-fertilisation on the other hand is a common feature of the development of jurisprudence in international law. I believe this case will potentially contribute not only to the evolution of international environmental law but also to human rights law in its interrelation to the environment. It will also be an important precedent in enforcing the Paris Agreement.
Jus Mundi’s objective is to help practitioners like you spend less time on legal research. How do you think technology can help make your legal research easier, especially in international environmental law? What legal documents would you like seen added to Jus Mundi?
Technology is very important. I’d like to see also some key domestic law cases, particularly in those areas that are relevant to areas of international law, available on the search engine.
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