PUBLIC INTERNATIONAL LAW BARRISTER | 20 ESSEX STREET CHAMBERS
You’re initially from Peru, which operates a civil law system, but you are practicing in the UK, which uses a common law system. How does that work?
I am trained in both systems. I originally studied law in Latin America. I then practised international law for a number of years before becoming a barrister. I was called to the Bar in 2014, becoming the first Latin American lawyer to be practising at the Bar of England and Wales.
To a civil law trained lawyer, the common law system appears at first sight as 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 mentally prepared me for the possibility of practising in a common law system.
My dual training has come as an advantage at a time that we are increasingly experiencing multi-jurisdictional, cross-border disputes both in litigation and arbitration. Most of the cases 20 Essex Street deals with have an international component. We live in an era of the internationalisation of law.
When did you start studying international law?
Public international law is not a subject you study from the beginning. For example, in England, it's an optional subject. In Latin America, it was compulsory towards the end of your studies because it assumes already that you have a very strong grounding on a number of subjects such as contracts and tort. Obviously, what you touch on is still very superficial. If you want to go into practice as a public international lawyer, then you will have to do postgraduate studies to go deep into the subject. In my case, I did an LLM at the London School of Economics and was awarded the Diploma of The Hague Academy in International Law. I received further training in International Law under a United Nations Fellowship at the 36th international Law Seminar (International Law Commission, Geneva); at the Institute of Human Rights of the Abo Academy, Finland under a fellowship by the European Commission and the Finish Ministry of Foreign Affairs, and at the Institut International des Droits de l’Homme in Strasbourg.
You left Peru when you started more in-depth public international law studies...
I left Peru not just because I wanted to do a postgraduate degree, but because of the Fujimori dictatorship. So in a way that opened my horizons - perhaps if I had stayed in Peru, I would not have had the possibility to develop as a public international lawyer.
How did your life in Peru influence your practice?
What I experienced growing up in Peru certainly informed my practice, my views, and my interest in international justice. It helped me understand aspects of the reality of the world. People are not often exposed to areas of conflict, areas where human rights are grossly violated or where the rule of law is seriously threatened. When you are exposed to that, you develop an understanding of what life in a context of war or with no rights is and a deep understanding of what the core values of a functioning system of law means for humanity. My experiences in Peru were profoundly educational. It made me a better jurist.
You are a recipient of the prestigious Gruber Justice Prize, for work you did about human rights violations in Peru.
The Justice Prize came as a surprise for me. It was awarded to me for obtaining landmarks in international litigation including litigation I carried out on a case that led to the prosecution of Alberto Fujimori, a former Head of State. The case related to a massacre in a prison affecting a considerable amount of people, both those who were in that prison and their relatives. I had first-hand experience of what had happened, and I denounced these facts before the Inter-American Commission on Human Rights (IACHR) just after finishing my LLM at the LSE.
It came as an initiative of denouncing, because I was quite shocked to realise that there was no acknowledgement in records, even when you read international NGO records, of such a massacre. It made me realise that perhaps there are a lot of things that go on in the world that are not recorded.
Recording human rights violations is such an important step in getting them recognised.
When atrocities and injustices happen but don't get recorded, we are unaware of them, and that shocked me as a young scholar. I thought: "If I'm ever going to be doing anything in this field, I owe this to my own sense of right and wrong, to actually put the records right." I did not want to conform to the practice of silencing atrocities. I wanted to go against impunity for atrocities, which at the time was total in Peruvian society and widespread in Latin America. Next, I found myself plunging into the facts so that I could present my position.
When you are young, you think international organisations work perfectly, that they are going to make justice, they are going to throw the facts in this amazing machinery, that they will just per se assert themselves and produce a result - and sometimes it doesn't happen. On the Fujimori case, I was required to produce an amazing amount of evidence that at the point I felt I wasn't able to, and so the IACHR gave me a job I did not expect I would have to do.
What was the job exactly?
In civil law systems, you have an inquisitorial way of dealing with justice. Proceedings are not just moved by the parties (as in an adversarial system in common law) - courts, organs can actively investigate and seek evidence on a case. When carrying out an investigation, they can go in situ, they can look for the witnesses, and so on. My job was to actually do all of that: to individualise name by name the victims, to assert case by case whether they had been killed or injured, in what manner, and to present witnesses for each of those instances, and I had to do all this from London. I felt this was a test that did not correspond to a State Responsibility test (which is what I brought the case for) but criminal liability.
It was quite a hard job. I had just finished my LLM and it was quite a big challenge. There was no means for such a huge demanding task. I was new in the field and there was no openness on any organisation that might be interested in this. I had the amazing challenge to think carefully and see how I was going to do this. Out of a sense of outrage I said, "Sure, I'm going to show this massacre happened". That was the first ever case where an international human rights tribunal ordered the prosecution of a former head of state for crimes against humanity.
From a legal perspective, what did the case change?
It changed the law in the Inter-American system, not just at the level of legal consequences, but it also created new law. The Miguel Castro Castro Prison v. Peru case was a landmark in the history of the Inter-American jurisprudence and the protection of human rights in the Americas. It went into certain practices that had not been previously been acknowledged as torture, such as falanga beatings, the use of unmuzzled dogs on defenceless prisoners, positional torture, sensory deprivation (including manipulation of sleep patters and use of music to torture), torture by means of electric batons, forced nudity and prolonged incommunicado. I had brought the case on behalf of a prison population of around 600 male and female prisoners.
It was the first time that an approach was taken considering the gender of individuals being subjected to torture. Up to that point, the Inter-American system had never acknowledged a case of rape being a violation of international law under the American Convention. It was the first time that the Court held that the Convention on Violence Against Women had been violated. It was done because I was the candid person that came and said, "Why haven't you ever used the Convention of Belém do Pará? It has been protecting women for 11 years in the Americas?" It had never been used or invoked. I was really amazed because there were so many NGOs working on the area, but it had never occurred to anyone raise that in a court case. So I did it. I did it, and it was like a tunnel; you went through it and then you did your job and then there were amazing results because the job had been done very thoroughly. So it was quite a moment. I'm glad that it happened in terms of creating new precedents, because it was high time.
You had just left the LSE when you undertook this work, what was the logistics of it?
It was a real challenge. Early on, I found myself litigating the case from my own living room. I didn't even have a fax machine. I asked the corner shop to give me their fax number, so I was litigating this big case using the fax machine from around the corner at the Indian shop. It had to do with being creative and not taking no for an answer, and always finding ways. Eventually I partnered up with the UN Voluntary Fund for Victims of Torture to afford the litigation costs because they were overwhelming. I found ingenious ways to partner with international organisations to produce forensic expertise. Partnering with the UN enabled me to move the case. It still required a lot of brainstorming and being extremely resourceful: fundraising, being entrepreneurial, being a self-starter and being able to break ground.
What did you learn about yourself doing this case that you've been using since in your career?
It was quite a difficult test in all senses. Legally speaking, it was an enormous task. More recently, I worked for the ICTY on a case concerning a massacre in central Bosnia, and I worked with issues of command responsibility. That was my focus. To assert the facts in that massacre you had an entire tribunal. You had an entire prosecution team and in our chambers you could have quite a few paid legal officers working on the case. Whereas on the Fujimori case, which raised extremely complex issues in international law and encompassed over 800 victims, for which I had to assert one by one what had happened to each, I was pretty much on my own. So it was a big challenge, but I had been given great academic foundations at the LSE and at The Hague Academy. I proved to myself that I could apply knowledge I had acquired in the field to a case. Procedurally, I learned I could handle complex litigation and navigate through hundreds of pieces of evidence with a clear mind. I became experienced in developing strategy, in thinking fast on my feet. I learnt to make good judgements as an advocate and became an effective litigator. With the Fujimori case, I learnt that I was ready. This was not a theoretical test, this was a life test, and this was a test as a jurist. I think above all I saw myself as a jurist and I realised I was equal to the task that I had been assigned. I could represent such demanding cases well.
Having done a case of crimes against humanity single-handedly makes any case feel easy now. It also taught me what fearless advocacy truly means.
Who were your teachers?
I am grateful to Prof Christopher Greenwood, from whom I learned a lot as his teaching assistant at LSE, and who I saw in action pleading the Pinochet case. I am thankful to Prof Pierre-Marie Dupuy, my examiner in The Hague Academy diploma. I am thankful to Vaughan Lowe with whom I worked on an early hearing for the case and who taught, by example, how a barrister approached a case like the one I had at hand. So I am very thankful to many distinguished public international lawyers who taught me the standards and the technical aspects of our work - that's what I used and applied to make justice to something close to my own experience.
A few years on and now you're a public international law barrister. What’s your practice like?
Public international law is quite a broad field. I’ve been specialising in this field for some years, so I cover the full spectrum of areas: sources (e.g. Treaty Law), immunities, state responsibility, boundary delimitation, law of the sea, use of force, international criminal law, laws of war, international human rights law, the UN System, regional systems… I act for States and for private parties. I have advised States on immunities, on aspects where PIL and commercial law intersect; I have also acted as legal adviser for a State at a Diplomatic Conference. I have appeared before the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights and the UN Human Rights Committee and I have worked for the ICTY and the International Court of Justice. Since coming to the Bar I have also worked on cases before ITLOS (The International Tribunal on the Law of the Sea), on issues preparing for litigation before the International Court of Justice and on domestic cases raising international law issues before the Court of Appeal and commercial courts in England. I am currently instructed on a large case concerning Africa.
Having a broad knowledge of the field has enabled me to be effective as an advocate. For example, some people only interested in human rights sometimes forget about the importance of foundational areas. In some cases I've represented, even when they were about human rights, the answer was not in the specific substantive right but was in interpreting a treaty correctly.
My work often involves the intersection of Public International Law with other areas of law. I am currently instructed on a case concerning one the largest hydro-electrical projects in Asia, by Chinese and Thai investments, in Myanmar. It's an investment in the Energy sector, and I am going to deal with aspects of Public International Law that regulate everything from the UN Standards for Business and Human Rights to right to consultation, to regulatory practices in banking law and so on. My practice intersects with commercial law often, including in the area of trade and investment arbitration. There is also the connection between public international law at a purely international level and domestic issues. International law has relevance even in domestic cases, because it connects with domestic law. I can appear before international courts, represent international cases, but I also appear before domestic courts here in England. Sometimes there may be issues of international law before the Court of Appeal or before the Supreme Court, in cases that have public law aspects.
How did you get to be in chambers at 20 Essex Street?
I applied there because of the tradition for excellence of 20 Essex Street. Quite a lot of remarkable public international lawyers passed through 20 Essex Street, such as Hersch Lauterpacht, who had an amazing influence in international law, including coining the term 'crimes against humanity.' He also had an immense impact on what we know now as the European Convention of Human Rights. 20 Essex Street was also the chambers of Lord McNair who became a judge of the International Court of Justice and later the first president of the European Court of Human Rights.
Sir Arthur Watts, one the authors of the Oppenheim’s International Law, a classic in Public International Law textbook, was a tenant here. He was Chief Legal Adviser to the Foreign Office, as have been other current members of Chambers. I feel very honoured to be in such company and follow that lineage in international law.
The process to become a tenant entails qualifying as a barrister, being called first to the bar, being accepted as a pupil in chambers after successfully applying, and at the end of pupillage, it is decided whether you are invited to stay as a tenant or not. I had a very interesting pupillage period at 20 Essex Street. I worked on quite a few very interesting cases, some of them concerning inter-state litigation, others before the domestic courts in the UK.
What is the most interesting case you worked on during your pupillage?
I was involved in one of the most important environmental law cases to reach the UK, which concerned Colombia and BP. It comes to my mind because of its unprecedented features. It was about massive damage to land and property rights in Colombia. It had been filed by Colombian farmers. Members of my chambers were instructed in the case, led by Alex Layton QC. Once I just found the Colombian farmers going up and down in the elevator! They didn't speak English and they were lost, and they were on their way out with their big hats. This is the amazing thing about the bar and about London. Matters occurring far away end up being adjudicated in London. In this case, the violations happened in Colombia, but because BP is a company incorporated in England, English courts had jurisdiction.
To be part of that, to be involved in this process of establishing facts that have happened so far away from England, was amazing. It lasted several months. Proceedings used a very sophisticated technology to upload thousands of pieces of evidence; witnesses were heard in Spanish and English, with simultaneous translation, sometimes via video-link. The procedural law was English law but the applicable law was Colombian. This was a case that could not be adjudicated in Colombia, given the context over there. So, it was litigated here. London is a centre for the resolution of many international disputes. I feel quite privileged to be able to practice from chambers in London and to have an impact on issues that happen all over the world.
What are you most proud of in your career?
What I feel more proud of, certainly, has been so far to nail a dictator, particularly because of how I had to fight that fight.
What gives you satisfaction in your job?
In 2000, when I was at the International Court of Justice working on the Genocide case between Bosnia and ex-Yugoslavia, I was going through a lot of evidence that was quite... strong. When I was in the middle of that, sometimes I had to stop and go for a walk, because the facts were shocking and horrid.
Terrible things happened during in this war. But I was also aware that terrible things were happening in many other jurisdictions for which nothing had been done, and nothing had been said. One example was the Mozote Massacre in El Salvador. Guatemala was another example, where atrocities during the Civil War had gone unpunished at that point. It wasn't a list of people being killed; it was entire towns being massacred. At that point, nothing had been done about Guatemala, and that shocked me.
That's the point where I felt I had achieved a level of knowledge in my field that few people coming from my region may have reached. This was just after I had obtained the Hague diploma. So I felt responsible to give back to my region, and to work on cases that were connected to Latin America.
This impact you may make on the lives of others gives me tremendous satisfaction. Let's say I had something to discuss on Myanmar; during a conference call with New York and Myanmar, we discuss energy projects that are going to affect communities, the environment and entire species of fish or trees. Then you are asked, as an expert, to act on specific points and your work is having an impact on the lives of so many people.
The next day, you may have a call from Africa, perhaps for a case in a State that underwent war, where major issues occurred, affecting people, and they ask your input, so you are instructed on representing these hundreds of people. I have been instructed to go to South Africa on another matter, to train advocates. What is rewarding is that you not only work with your intellect on something that interests you, but that there are specific results for specific people and you can see a change. It also gives me great satisfaction contributing with my work as an advocate to maintain the rule of law, assist to state the law, to be part of the civilising power of the law.
What is your advice to a reader who would like to have a career similar to yours?
Dive into law with all your might, because learning is fundamental. There is a moment when you will have to be really thirsty for knowledge. That's the foundational moment. Learning will never end, but when you are talking about becoming a barrister in public international law, you can't just be an expert in one field. You have to have a knowledge that is broad, that enables you to make the right connections among different areas to better represent your clients.
The second thing is to go out of your comfort zone. This is key because it's how you grow. You cannot be scared to dive into completely new waters - that will enable you to grow professionally. That has been quite good in my experiences, going into something completely new. Eventually, there is a point where it all makes sense and it's just like a flow.
The third, you have to take initiative. Be a self-starter, be entrepreneurial, creative.
My last advice for anyone going into law would be to read the Nicomachean Ethics, a book that, in my opinion, deals with fundamental questions underlying the practice of law and notions of justice, courage, virtue and happiness.
Monica Feria-Tinta | Public International Law Barrister | 20 Essex Street Chambers
Over 20 years' experience
CV in brief
Languages spoken English, Spanish, French, German
Exclusive interview by Lucie Goulet on 3 February 2016