Monica is a barrister at the Bar of England & Wales, practising from Twenty Essex Chambers in London. She is a leading specialist advocate on public international law with over 20 years’ experience in international litigation (both regionally and in world litigation) and a thought-leader in climate change justice. If you want to know more about Monica please visit her profile here and here.
What led you to work on human rights and the environment?
I decided to specialise in international law early in my career. I did an LL.M. at the London School of Economics and had the privilege of studying international human rights law using the teaching materials prepared by Rosalyn Higgins, a member of the Human Rights Committee and back then, a Professor in International Law at the LSE. She became the first woman to be appointed to the International Court of Justice (ICJ). So, I was fortunate to learn from the best.
I remained at the LSE, teaching for a couple of years as Teaching Assistant in Public International Law to Sir Christopher Greenwood, who also became an ICJ Judge. This was a time when I not only learned a great deal about human rights, but most importantly, about human rights as an area within the general field of Public International Law. I had the good fortune to take the examinations for the Diploma of the Hague Academy of International Law under Pierre Marie-Dupuy, a generalist in international law and a formidable advocate, whose expertise included environmental law (from Law of the Sea to the intertwining of Trade law and the environment). I was awarded the Diploma that year, from a mass of students nearing 500 who attended the Hague PIL course that year. The foundational knowledge I received from my teachers was incredibly important to me. I was thirsty for knowledge and continued my specialisation in Geneva (under a UN Fellowship), in Strasbourg (learning the working of the European Court of Human Rights), in Finland (Turko Academy) and in Hamburg (at the International Tribunal for the Law of the Sea). I was interested in the work of international courts and tribunals.
I acquired experience in litigation by working for the UN, at international Courts (ICJ, ICTY) becoming familiar with the manner in which international cases are adjudicated. I worked in cases of world importance using the law as a means to bring justice to some of the most urgent matters of our times. This exposure as a young international lawyer prepared me to become a litigator in my own right. I litigated ground-breaking cases before the Inter-American System which cemented my decision to be an advocate. I was then called to the Bar of England & Wales, becoming a barrister.
It was during the course of my work as a barrister that I became interested in addressing climate change via court cases because I was particularly concerned with enforcement of obligations and remedies. Upon the adoption of the Paris Agreement, I started writing on using international law enforcement mechanisms to tackle climate change. I gave a seminal talk at the Stockholm Chamber of Commerce on “The role of international law and arbitration in enforcing the Paris Agreement” and also wrote more broadly on “The Rise of Environmental Law in dispute resolution” in the Yearbook of International Environmental Law inter alia, providing the first (and widely cited) in-depth analysis about the 2017 Inter-American Court’s Advisory Opinion 23 , in English, obligatory reference to understand the impact of said legal pronouncement on climate change potential issues among others. (See also a shorter version here) This was followed by a publication in the Anuario Colombiano de Derecho Internacional (on the trajectory of environmental law), and pieces of wider reach (see for example: “how international law could help victims of environmental degradation’). I have also taken part in interviews (“International Law Seen as a Path to Fight Climate Change” Law360) and panels as thought-leader on the subject around the world.
In one of the events on which I was a speaker, I argued that it was a fitting time to bring a case before courts of specialised focus, such as human rights organs, to address climate change in the context of contentious procedures. Up to that moment climate change litigation had not yet reached such courts of world impact. I was soon instructed in the first world- case addressing climate change before the United Nations Human Rights Committee, the Torres Strait Islanders case in which I am currently counsel. I have also advised Sovereign States on remedies for climate change before international courts and tribunals, in particular before the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ) and have been instructed in several cases relating to environmental matters. As a barrister specialising in public international law I have the versatility to be able to act in arbitration, litigation both in English courts (often in extra-territorial matters including on environmental cases) as well as in cases before all kinds of international courts.
2. What have you been working on recently and/or what is your next big project?
Recently, I have been working on cases raising sea-level rise issues, sinking islands, environmental degradation, oil spills, transboundary harm, climate change as a human rights issue, environmental harm of waterways, protection of rivers, biodiversity, phasing-out coal mining and the enforcement of the Paris Agreement before a variety of international courts and tribunals, and other mechanisms such as UN Special Procedures and OECD procedures.
In other words, I am not interested in this topic at a merely scholarly level, but it is essential to me, to apply the law, to precipitate change at a time that in most cases there was no blue-print for doing such cases. I have used the law creatively and gained clarity on procedural and substantive issues in doing so. An example of recent work, concerns acting on a case representing a Wayuu community seeking the closure of one of the largest open-pit coal mines in the world and the largest in Latin America. I was instructed on the matter in the midst of COVID-19, a crisis that exacerbated the situation of this community living very close to the mine and no longer having access to running drinking water, let alone for sanitary purposes. They receive water in handouts. They live in the midst of a highly polluted environment which the Constitutional Court of Colombia found to be in violation of their fundamental rights. The case internationalised their predicament at UN level. It also exposed the human and environmental cost of coal-mining; a highly disturbing picture emerged. 7 Special Rapporteurs including Special Rapporteur David Boyd and the Working Group on Business and Human Rights pronounced themselves early this month for the suspension of the pits near the Wayuu population. This unprecedented pronouncement brought great relief to the community I represented. The community is also seeking that a plan for phasing-out coal mining be put into place as Colombia is a party to the Paris Agreement.
Indigenous peoples are being particularly affected by deforestation, unsustainable mega-projects, environmental violations in their ancestral land, loss of biodiversity and now COVID-19. I have worked on several cases which raise issues concerning right to consultation, indigenous peoples’ rights to a healthy environment, and right to water. In a case before the Supreme Court of Mexico, I was invited to act as Amicus Curiae in relation to the Constitutionality of the Federal Mining Law and the notion of right of consultation in relation of laws. On another very interesting development I was invited to be an Amicus Curiae in the first Rights of Nature case (where this right is centrally examined) before the Constitutional Court of Ecuador. The potential loss of cloud forests (primary forests) of enormous value and importance to the modern world cannot be legal today.
Just last week I also delivered pleadings relating to the response of the plaintiffs in the Torres Strait Islanders case against Australia. The Montara Oil Spill case, a case concerning transboundary harm and environmental pollution in Australian territorial seas have also occupied my time. I am acting for 13 regencies seeking acknowledgement of harm and remedies. This is not only a landmark case in the history of the oil industry disasters, but a landmark case on diagonal claims.
Drawing from all these hands-on experiences in applying the law to a variety of contexts of climate degradation and environmental issues, I have three Chapters on books in the pipeline, and I am currently working on a book on climate change litigation. I have also been disseminating thought-leadership in the subject via podcasts. More recently, in a podcast released on 9 September this year entitled “The Changes of Paradigm in Public International Law”, I proposed that the Paris Agreement marked an important shift which has been further crystalised in developments such as the Advisory Opinion 23 of the Inter-American Court on Human Rights, which have unified two areas that in the past appeared (albeit artificially) separated. That is, the law of human rights, and what we knew so far as environmental law. I have called to this important shift, a change of paradigm within the field of Public International Law. I have also shared my knowledge in panels, including more recently at the ‘Human Rights for the Planet” event at the European Court of Human Rights, and webinars such as a recent one organised by GNHRE. I do not see climate change, however, as something that should be discussed in a compartmentalised manner, as “regional” issues. Climate change is fundamentally a transboundary phenomena. It is not true on the other hand that developments in the Americas are “little known”. The world is watching closely all the cases and litigation taking place. There are many databases tracking such efforts.
3. Which scholars, writers or activists do you think are not getting the attention they should be getting?
I think that unfortunately, sometimes the scholarly world losses touch with real ongoing matters and becomes trapped in theoretical arguments divorced from reality. Reality is not going to adapt to the categories I capriciously can come up with before my computer. There is a certain arrogance about that attitude. Grass-roots organisations and communities in the affected places should be heard more. We are at a point where the rational world, ought to listen and learn from a different type of knowledge. The knowledge of the indigenous peoples, the knowledge of the marginalised, the knowledge of those in deep connection with the natural world and their defenders.
4. As briefly but as specifically as you can say, what are the most compelling challenges in HR & Env right now? Can you briefly describe any proposed solutions?
I invite you to read my book once it is published. I believe I discuss a few compelling issues within this field.