Portrait of Prof. María Teresa Infante Caffi

Judge Infante, you are Professor of the University of Chile, one of the most prestigious universities of Latin America and since 2020 Judge of the International Tribunal of the Law of the Sea (ITLOS) in Hamburg. How would you describe the differences or parallels of these two jobs?

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There are many differences, although they are closely interconnected if I see the sequence of events that have marked my life. I have also had responsibilities at the Ministry of Foreign Affairs and as the head of the embassy of Chile to the Kingdom of the Netherlands.

 

I have always been a teacher. The academia is a very open area, where you must build up your own career. There might be some collective efforts, and most of the time, you coordinate your work with a common plan. But a difference with a judicial function is that you do not have to elaborate ideas to apply legal norms, like in a tribunal or in a collective body with authoritative power. The collective process in the academic environment is mostly about management, guiding students, participating in planning discussions, auditing results, doing research, but you do not have to decide on issues, take positions in favor of one side. There are big differences between one setting and the participation in a highly regulated judicial body.

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The Tribunal, on the other hand, is a very systematic and disciplined body. As a member, you go through a process from step one to step ten, from an initial deliberation to the next deliberation, collecting and analyzing facts and elaborating arguments in search of the most accurate application of law. The collective effort aims at reaching a final decision. That does not necessarily mean, that there is a unique opinion at the outset.

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Normally, in all tribunals we may assume the presence of different views in a process of debate which is essential to build agreed views. You may figure out that this is a very dynamic undertaking subject to a strong discipline. Personally, to participate in the tribunal is part of a career to be performed with pride and realism.

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What do you particularly like about your job?​

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What I particularly like is to have direct contact with the Law of the Sea with independence from national positions. Moreover, to guess and identify the interests and opinions of the different parties in a particular situation is quite unique. When I was younger, I appreciated the highest legal value of judgements and I was intrigued by the process behind such conclusions. Considering the experience of these years, I am more sensitive to look at the role of the tribunals, to find value in their decisions and to pass review to the declarations and separate opinions. Given that the Tribunal has a mandate to apply the United Nations Convention on the Law of the Sea (UNCLOS) and other rules of international law not incompatible with it, developments in those domains have also become relevant over the years.

 

During my work at the Ministry of Foreign Affairs, I have enjoyed the wide spectrum of subjects to deal with and the negotiation dynamics and requirements. My former academic career helped me a lot to face those experiences. In the academic field, I always found it very important to study and read, in order to be ready to present rational positions. This required another form of analysis. Sometimes I believe that I could have never achieved certain tasks in my diplomatic career without the academic background. For example, at the Ministry of Foreign Affairs in Chile, I had to participate in negotiations with Argentina about integration issues such as mining near to the border area, demarcation in an area of Southern icefield, and the application of free transit with Bolivia through the ports of Arica and Antofagasta. Throughout different procedures and negotiations, I had to incorporate knowledge and points of references provided by highly knowledgeable persons and to look at the potential of the academia. It may be considered that in international relations there are cases where domestic debates are highly relevant, alongside with a thorough assessment of the expectations of the countries concerned. During the negotiations of some treaties, we had to carefully consider all sorts of related issues to better understand the limits and possibilities to reach an agreement and to frame the internal and external dynamics between states. Consequently, the academic background was very important to assess a situation. I always remember the leaderships of ambassadors Jorge Berguño, Santiago Benadava, Oscar Pinochet, and Fernando Zegers and of professors Francisco Orrego, Rudiger Wolfrum and Alberto van Klaveren, who, among others, gave examples of professionalism and independence. I thought that these values were important in the spheres of the Law of the Sea, Antarctic affairs, and frontier integration. Thus, during my career as a diplomat, I always tried to remember that there had been other persons from whom I had learned through the years.​​​​​

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You studied law in Chile in a time, when it was not so common for a woman to study in Chile. How did it come to it?

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At my time, it was normal that women aspired to go the university. Decades before I started to study, it was rather unusual, but it got normal when I started in my years. In earlier times, it was quite usual that women got married at a younger age, and that careers chosen by them were shorter or oriented to other roles. In my case, my parents were very happy that my sisters and I wanted to study. We were four girls at home, and each of us would choose a different career. There were also very talented and committed female students at the university. Their number, although not majoritarian, was rather high.

 

The greater question was what to do afterwards. To find a job, that was the main problem, because the job as a litigating lawyer was a male dominated career, with able men participating in discussions and politics. Nowadays, things look very different. Law firms increasingly support the applications of women and express their adherence to diversity and inclusiveness. During my life, I have met many very fine female lawyers, for example, specialized in taxation or in labor law, civil law, mining law, criminal law, etc.

 

Among the opportunities I had upon finishing my studies, there was the idea to study abroad, to collaborate within the academia, and to get more involved in international affairs. At university, we had to study very heavily and while preparing lessons, there were not so much time and energy left to apply for other jobs. If I had the chance to go back to class, I would have loved to become a practitioner or a judge, because I love to work with people and for people. Some of my friends started working in the private sector, others went to specialized agencies or collaborated as consultants for the ministries. Nowadays, I think, the law firms are very demanding; especially those specialized in international commercial and investment law. Young people are working very hard and the system seems highly demanding including for women. The issue of children and family care becomes an important issue. 

 

In my case, I liked to combine the academia with a stronger training on international studies and international law, not only on technical, legal issues, but also on practical issues, questions of integration and cooperation. Those subjects also caught my interest.​

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Did you notice any differences in the treatment between women and men?

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There are differences. When I studied, we had a completely different relationship to the professors. We looked at a professor as a very high-ranked person to whom we owed politeness and reverence. 

 

Nowadays it is completely different, in all sorts of subdisciplines, including public and international law. According to my experience, I do not find any different treatment anymore. However, in political affairs in a broad sense, in negotiations and debates, you sometimes find these men who behave as if they would know everything better, and that women are there to learn. At the beginning of my career, this behaviour was a bit daunting for me, but after some years, I had the chance to work in very cooperative environments and things went smoothly. 

 

Today, I would say, the treatment between men and women is equal, especially at the university. Limits and conditions are more related to personal capacities and the support given by the social and family environment. This makes a difference, because usually women are more dedicated to take care of family needs. However, apart from that, I do not see any differences.

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Your interest in international law started early. What caught your interest in international public law and Law of the Sea, in particular?

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My attention was drawn by the diverse topics encompassed in International Law. Here, I could see politics, persons, alliances, formal areas such as the law of treaties, and other specific areas, like the Law of the Sea, regionalism and human rights. We did not study all of these subjects in depth, but the focus was rather on the jurisprudence of the International Court of Justice (ICJ), and the question of the evidence of the existence of customary law and the law of state responsibility. I was attracted by the idea that there was a normative area, very dynamic, working hand in hand with politics and economics, which emerged in every contemporary issue and in conflicts. I loved that. There were also the very permanent issues of agreements, delimitation, and borders. 

 

I did not have detailed lessons on the Law of the Sea, but the subject was present in the process of formation of the exclusive economic zone, the emergence of the common heritage of humankind, and in several lectures about what was going on in Latin America. As a leading case in the definition of baselines, I remember the case of the United Kingdom versus Norway before the ICJ (Fisheries case) regarding the question of straight baselines and delimitation, the existence of permanent rights and the extension of the territorial sea. It was just one lecture, but I was fascinated and I wanted to know more about it. Also, the question of nationalization and expropriation in the case of investments in foreign countries was very much discussed, during my years at the law school. Nowadays, it is part of the study of investment law. We also worked on the law of contracts between government and private entities. The interplay between sovereignty and international law was very appealing at that time.

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You did your master’s degree in Geneva, Switzerland, worked and traveled already in many countries, were i.a. ambassador of Chile to The Netherlands and since 2020 Judge at ITLOS in Hamburg. Which differences, but also which similarities do you see between the European and the Latin American societies in general and understanding of law in particular? ​

 

There are many differences. In Europe, you would notice the long-lasting roots going back to centuries and on the other hand, there have been extended wars over the years. This has left footprints in history and in our society. In Latin America, the regional integration is still going on, it is alive, it is a mixture of populations of different origins and stories. In these countries, you see a sort of a new world. I cannot say that I prefer one or the other. America is still the "new world"; a community that has been formed throughout two centuries, enriched by the presence of indigenous people. We have still many issues to work on. When I visited Europe for the first time, before the European Union was created, when it was still the European Community, it was already much more integrated than Latin America, despite the multiple languages. Also, people were very much in favour of a deeper integration of Europe, starting with the possibility of unlimited traveling from one country to the other. That was impossible in Latin America for a long time, when you needed a visa to go to several countries. Nowadays, you can travel with your ID to most of the countries.

 

In Geneva particularly, a remarkable Swiss city, the international imprint was very present. The students came from every part of the world, including from the other side of the iron wall, like Poland, Hungary, Czechoslovakia, and from Yugoslavia.

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The world community recently adopted the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ treaty) after nearly twenty years of negotiations. Which changes and challenges might this new agreement bring with, in particular, for the future Law of the Sea? 

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This new agreement will certainly face challenges. First, to attract the participation of a representative number of states and their scientists, we need that participating countries keep the interest on the subject and the benefits of the treaty. On the other hand, the BBNJ treaty will not be strong enough, if it does not reflect the diverse composition of the international community. All sorts of states, from those involved in the genetic resources research and in the elaboration of patented products to states of a lesser development, Small Island Developing States, etc. 

 

Secondly, the quality of cooperation is important, because the agreement is based and will function on different levels of cooperation. There is the scientific and technical body, which should reflect the best science in terms of knowledge and capacities and the other bodies created by the Agreement which will interact with the conference of state parties. Expectations are raised by a committee of compliance.

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Additionally, we have to face the challenge consisting of the different approaches in respect of the agreement, and the question whether the states just "live with" the agreement or if they also take the opportunity to share knowledge and training, alongside with giving access to the data that will be collected. I think, that is essential. It is of absolute importance that a big majority supports this agreement. I have seen that many states have adopted policies to work in this new environment. The advantage of this sort of cooperation will be tremendous.

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However, a challenge will be the definition and integration of the Marine Protected Areas (MPAs). There will be areas to be accessed by different parties with different interests, for example, fishing or research etc. Another challenge will be the accommodation with the seabed regime and its developments. You see, there are many challenges to face. We reached the stage of adoption already and now we must fight for it entering into force. We can conclude that it reflects the whole international community, not only one side of it. That is a good starting point for the agreement.

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Your home country Chile applied for the seat of the BBNJ Secretariat. What chances do you see coming for Chile with this application? 

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I guess Chile wants to be seen as an international player, alongside Latin Americans. The idea is to provide a good location for an efficient and strong secretariat for the BBNJ, to provide services for participants according to UN rules and standards. There are also some other competitors for the seat, so the expectations are high. 

 

Chile has a tradition in Law of the Sea, and in maritime affairs. The level of scientific research has increased in the last years, and in addition, the academic field is strongly working in areas of biodiversity and natural resources, besides oceanography. Moreover, there is a strong tide with the oceanic studies, in the Pacific, the Southern Ocean or in the internal waters. The main purpose of the future secretariat is to serve the states, other participants, and multiple actors; the purpose is to place Chile in the heart of the agreement and to make it a useful agreement of the Global South. The secretariat will be a complex body with many subgroups and will need to use tools of high technical and scientific standards. 

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ITLOS just gave its advisory opinion submitted by the Commission of Small Island States on climate change and international law about the question of sea level rise and the responsibility of the developed countries. Which role does Law of the Sea play or will play in the future in the matter of climate change? 

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I think the Law of the Sea has been energized through the advisory opinion. The decision highlights some very important provisions of Part XII of UNCLOS that must be read in a way, that it integrates the climate change problems, which is the warming of the sea, and other phenomena such as ocean acidification. The sea level rise is also prompting Law of the Sea issues. The focus of the advisory opinion lays more on ocean warming and the secondary effects of this warming, for example, that species are moving to other places and the need to enhance the role of the oceans. We must understand the advisory opinion not only as a reading of UNCLOS, but also as an exercise to bring more action to the provisions of UNCLOS and to encourage the states to do more to prevent climate change. 

 

What was also important in the advisory opinion was the integration of the international climate change regime, the reference to the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. Because these provisions deal with the issues of climate change, focusing on the polluter-pays-principle and effects of pollution, which is the point where the Law of the Sea intervenes. Until now, you can see that UNCLOS was very visionary at the time of drafting in 1982, because it describes several phenomena that are encompassed by pollution (land-based pollution, pollution from vessels etc.). These provisions gave the possibility to integrate new problems, like questions of ocean warming and other issues.

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How important is networking for women in general? How important is networking for you? 

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Networking for women is important, because they usually confront subtle obstacles and even prejudices. Therefore, networking is of utmost importance. 

 

Sometimes, I did not feel confident of my own strengths and experienced stress when talking to people who have a higher position. That has improved with the years and some academics, politicians, judges have been generous to me, encouraging me to continue networking and taking part in initiatives. 

 

Networking is also very important, for example, when you would like to understand how international entities work, and how international law is looked at by advisors and decision makers. Sometimes, external persons suggest investing more energies in networking with high-ranking persons up to a point that exaggerate the benefits and opportunities. For example, that judges can be approached easily or that you can penetrate what is going on in a case in the hands of a tribunal. 

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How do you network? 

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I normally participate in academic gatherings in Chile and in Latin America and have been participating in programs that reunite scholars from different academic backgrounds. I may also have happened that I would participate in an event where I did not know many persons what implied to double efforts to feel integrated and to engage in a good conversation. In those cases, I tried to behave professionally, open-minded, and show interest, instead of looking distant. 

 

Sometimes, I have emailed a person to get in touch for academic and professional reasons opening a pathway of new connections. There is also the situation where you are invited to a meeting because the host expects that you deliver something interesting, and you must prepare yourself not to disappoint the audience.

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I believe that networking is very important in the academia, and in diplomacy. As a professor, I was also aware of the importance of introducing students and assistants to other people, to facilitate contacts. Not for your personal advantage, but more to enhance the paths that facilitate their insertion in the professional world. That was the case when I arrived at the Law of the Sea Conference and started building very rich bonds with other colleagues, and diplomats. In the end we did reach a high degree of mutual trust.

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Which advice would you give today's young female lawyers, in particular, if they are interested in an international law career, or more concrete: if they want to become a judge at an international tribunal? 

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Regarding becoming a judge at an international tribunal: that is a question of chance, because nowadays there might be a vacancy and you may apply, but the chance to be elected is not fully under your own control. Imagine that it took until 2011 that the first female judge at ITLOS was elected!

 

Nowadays, I can say, it is helpful to study and to get good contact with the professors and colleagues which will render easier the application for jobs. To be ready to travel abroad, to participate in different positions and tasks, and look ready to perform functions that go along with our own personality.

 

There are different levels of engagement, might it be in international organizations or programs, the national state, or in educational, non-governmental entities, and companies, to mention a few. On the other hand, some people succeed without direct political support of the national state. I do believe that in the case of men and women external support may be important. It is always better to have a good relationship with persons who can support you, without creating a form of dependence. The openness towards understanding needs and beliefs, serve to create bridges among people. In this respect, I think there is a lot of space for women in the international areas, like in political science, in law and history or international relations. This is a field which is not only for lawyers, but law will always be of interest to get positions of authority. This is my personal experience, considering the special privileges embedded in international positions.

 

In my country, the current situation is one where women are working in various diplomatic arenas, including in international arbitration. The integration of foreign women in roles of relevance has become more frequent. 

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Which female lawyer would you like to nominate as a role model for breaking.through? Why? 

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I have had female professors at the law school, in public law and in private law, who were very professional. In Geneva, I also had very good professors, some of them quite young. I remember jurists with a great future in diplomacy and in academia. I cannot say that they were role models as they are considered nowadays, but they have been a source of inspiration. To mention some names could do injustice to those omitted, but it suffices to say that women represented countries from all continents and legal traditions. 

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Thank you very much for this interview!

 

Rhodes, Greece, 9 July 2024. The interview was conducted by Mara Alin Brinker.