A barrister for the Earth: Monica Feria-Tinta

Monica and I meet in London, on a sunny day in February. She takes me out for lunch at one of her favourite ramen spots – a hidden gem. There, I discover that Monica is not only a public international law expert and litigator, but also a black belt in Shotokan Karate. ‘Fighter’ is an apt word to describe Monica – a fighter of injustices, a fighter for the rule of law and a fighter for the inherent rights of the fragile ecosystems upon which we so crucially depend – and what she tells me bears this out. She has worked in public international law since 1997, and has a level of understanding and knowledge, combined with an instinct for legal thought and argument, which is only to be envied. Monica is also extremely passionate about her work and empathetic towards the clients and interests she works to defend.

We start with a lively discussion on the relevance of the law when it comes to addressing the climate and ecological crisis.

To Monica, the law is relevant in two ways. First, via what she terms the ‘practical gate’: the Paris Agreement which set obligations on States to reduce greenhouse gas emissions, but did not provide for an enforcement mechanism. ‘The result was a set of binding, but unenforceable, rules,’ she explains. Litigation is filling the enforcement gap and claims against States for failure to adhere to the Paris Agreement are now proliferating.

Second, the significant role of litigation in establishing the interrelationship between the environment and human rights. Monica cites the Inuit case in 2005 – the first attempt to bring climate change as a human rights issue – as the ‘pillar case’. She describes how moved she was when she read the petition presented to the Inter-American Commission on Human Rights by Inuk woman Sheila Watt-Cloutier, Chair of the Inuit Circumpolar Conference. ‘When you see a masterpiece, say, when you look up at the Cappella Sistina [Sistine Chapel], you really value that.’ Watt-Cloutier’s arguments were ‘the most advanced and innovative legal arguments’ seeking to pin human rights responsibility on States for the failure to act on climate. The case was dismissed by the Inter-American Commission so Monica ‘studied the submissions closely to identify gaps, what needed to be improved, to make a case of this sort successful in the future’.

Another key moment in the Inter-American system of human rights (and internationally), a fundamental building block leading to where we are today, is Advisory Opinion OC-23/17 in which the Inter-American Court on Human Rights first acknowledged that the right to a healthy environment and the right to life could no longer be conceived of independently of one another.

This momentous decision in 2017 was in stark contrast with the previous trajectory. It brought together two distinct regimes, environmental law and human rights law – core economic, social and cultural rights (which, under the Protocol of San Salvador, included the right to a healthy environment), and civil and political rights. ‘Traditionally, only the latter were regarded as justiciable while the former were seen as aspirational,’ she says.

With her generalist training, Monica had ‘come to understand the connections between regimes that are looked at separately but are really part of a system’. Back in 2015, a colleague speaking at a conference detailed his conviction that courts of limited jurisdiction (existing under a treaty, unlike the generalist International Court of Justice) would have little role to play in providing answers to the climate crisis. Monica, however, was convinced that such courts would play an important role. And indeed, she points to the extensive jurisprudence that courts of limited jurisdiction are developing in relation to the legal implications of the climate crisis. One of the ‘ones to watch’, she says, is the request for an advisory opinion currently pending before the International Tribunal for the Law of the Sea (ITLOS), focusing on the interpretation of the UN Convention on the Law of the Sea. This is her ‘bread and butter’ and Monica advised Sovereigns on the viability of such a request.

‘The ocean covers 70% of the world and absorbs a massive amount of CO2. I am convinced that oceans will play a defining role in our future... and that how ITLOS decides will be fundamental to the development of international law in the context of climate change.’

Monica was similarly convinced, following Advisory Opinion 23-17, that the Human Rights Committee (HRC) was ready to hear a case focusing on human rights in the context of the climate crisis.

‘That is how the Torres Strait challenge started,’ she explains. ‘At a conference, I was addressing the topic of international courts and climate justice, and said that it was viable to do it before the HRC.’ So, she was instructed by Client Earth to represent Daniel Billy and other Torres Strait Islanders in their ground-breaking claim against Australia for failing to act on climate in defence of their human rights.

She spent hour after hour reading, in minute detail, the facts, stories and descriptions of this fascinating indigenous community, which she sums up as a ‘distinctive group with a distinctive culture’.

‘When I read all these statements, I was in pain, completely shut down for ten days in my flat in London.’ She tells me about the unique connection that the Torres Strait Islanders have to the natural landscape and the ecosystems of their islands. The ebbs and flows of the islanders’ lives had always been traced by the ebbs and flows of the autochthonous flora and fauna that coexisted harmoniously with them.

‘The islanders’ concern was not just that all this was disappearing but that the world they otherwise would have taught their kids was disappearing. This caused a great anguish, on top of the existing anguish felt for losing their ancestral land, which consisted not just of territory but also of the sea.’ Not only was the natural world around them disappearing under the rising seas, but perhaps, most fundamentally, they were concerned that, as a result, their very culture, a culture that had been passed down in stories from elders to the young for generations, was being ‘wiped out’.

What Monica found astonishing was that the Australian authorities knew: ‘I covered all the evidence coming from government sources and this showed that they knew. They went so far as to describe the situation as a human rights crisis.’

And yet before the HRC they contended that they had no responsibility towards the islanders in the light of a phenomenon as global as climate change. The HRC disagreed, and upheld the complaint filed by Billy and others. This was the only right outcome, legally, but also ‘at a fundamental common-sense level… it cannot be right that something like this is happening, and your State is doing nothing, and rather that it is directing resources into more emissions, having assessed the situation as a human rights crisis.

‘This was the first international contentious case bringing climate change to the fore as a human rights issue, filed by people from low-lying islands, that was successful, paving the way for more cases to come,’ she states.

Recently, Monica met one of her clients and his son in London – seeing them together, after their victory, felt incredibly rewarding. ‘This is another good thing about this job,’ she says, ‘realising the impact your effort can have. You can’t put a price on that, being able to have that kind of impact on the lives of a community. And not even just one community; I received so many messages from so many other communities.

‘Once a precedent is set you don’t need many more cases – the decision is there. States parties to the same treaty know it. They don’t need to be sued unless they don’t follow the principle.’

Yet the Torres Strait case was not the only ground-breaking decision Monica worked to secure. Not long ago, she acted in the Los Cedros case, the first case before the Constitutional Court of Ecuador founded on the new Ecuadorian constitutional provision granting rights to nature. ‘A case so special that it hit me, really.’

The proceedings were unique. The claim challenged a mining concession, not on the basis that it violated people’s rights (there were none living in the concession area), but rather on the basis of violations of the rights of the Los Cedros Forest itself, a fragile and special ecosystem which pullulates with endemic species at risk of extinction, and which had never before been touched by human hands.

Taking place during lockdown, the proceedings were entirely online, with hundreds of scientists providing evidence on the inherent value of the Los Cedros ecosystem and on the reasons why it deserved protection. When working on the claim, from her kitchen in London, Monica became immersed in the identity of this forest ecosystem. It was then that she realised she was effectively ‘acting as a barrister for the Earth’.

We talk about two other cases Monica has been involved with; the first challenging the Cerrejon mine in Colombia, and the second representing indigenous people living in the Atacama Desert in Chile, and this prompts a related discussion about the interconnectedness of living organisms.

‘Working with affected communities in both cases highlighted the negative impacts that communities often suffer at the hands of societies living on the opposite side of the globe.’ Demand – whether energy demand or demand for avocados – by the most well-off has a profound impact on the ability of others to enjoy their rights, on their land. ‘The Atacama people were suffering serious issues due to lack of water, and the communities near Cerrejon, one of the largest open-pit coal mines in the world, were suffering from widespread pollution, what struck me as a sort of slow extermination.’

In the case of Cerrejon, communities resorted to international fora, in the case of the Collas peoples from the Atacama Desert, to supporting the constitutionalisation of the rights of Nature.

‘Working in defence of forests and ecosystems has prompted me to realise that the meaning of life and meaning of protection of life is inextricably linked to nature.’ Scientists have always understood that the evolution of man and woman depends fundamentally on the health of the ecosystems which host us – ‘our brains and our biological beings are crafted by many, many years of harmonious evolution alongside the plant and animal species that surround us’. Most indigenous communities have always held a ‘non-hierarchical view of the world’ where living organisms rank equally and deserve equal protection. Monica questions whether our very anthropocentric, post-1945 system of international human rights law is fundamentally wrong. In her view, law’s sole focus on anthropocentric notions is ‘highly problematic’: it cannot be that no cause of action lies if one destroys a forest that is crucial to all life on Earth just because there is no ‘injury’ to a specific person. This, she believes is the second gate in the crucial role that the law performs. Law is capable of evolving. Just as the law needs to develop an understanding of the fundamental role that nature and ecosystems play in guaranteeing life on Earth, so it needs to reckon with the profound inequalities that unsustainable human development and consequent environmental destruction have brought us to.

We end on a positive note, circling back to the start of our conversation on the role of law and lawyers. Monica tells me that I may have asked the question on the relevance of law ‘to the wrong person: I am too optimistic about what the law can do.’ She tells me that she originates from a part of the world where ‘there is in essence no rule of law’. Coming to England, she felt the immense privilege of being protected as an advocate, by being disconnected to the cause which one defends: ‘I was amazed that in England you could take up any case and you wouldn’t be persecuted for taking up, say, the case of Los Cedros.’ The protections afforded to her by the rules of the Bar of England and Wales were ultimately what allowed her to be one of the fiercest advocates for the environment and for human rights.

To all aspiring lawyers, Monica has two messages: first, she says, ‘I do believe what Grotius said: consciousness is the ultimate source of law, and, to me, that is very true’ and second, she remembers the words of St Augustine, in Confessions, which she was reading on her train ride into London this morning: ‘Advocates should not throw dust in the eyes of the court.’