Human Rights as Moral Investment in the Law:
José Miguel Vivanco and Human Right Watch Americas

Maurice Hong-Cheng Chang & John McDonough

Introduction

José Miguel Vivanco, one of the key figures in the field of human rights in Latin America, is currently the Executive Director of the Americas Division of Human Rights Watch in Washington D.C. Born and raised in Chile, he was a law graduate at the University of Chile, and then at Salamanca Law School in Spain. He also obtained a degree of LL.M. from Harvard Law School. He started working with human rights in Chile during the Pinochet dictatorship as a lawyer for the Catholic Church.[1] During 1986 and 1987 he worked as an attorney at Human Rights Watch, then known as Americas Watch. Later, from 1987 to 1989, he was an attorney for the Inter-American Commission on Human Rights of the Organization of American States (OAS). In 1990 he founded the Center for Justice and International Law (CEJIL) and functioned as its executive director until August 1994. Since September 1994, he has functioned as the executive director of the Americas Division of Human Rights Watch.

This paper will begin by examining Vivanco’s “social/legal capital,” drawing on the Chile Law Project of the Ford Foundation, his education at Harvard, and his career with various NGO’s, most importantly Human Rights Watch. It will then address his recent activities and approaches in the field of human rights throughout the Americas, focusing particularly on the case of Colombia. By drawing on Vivanco’s testimonies before U.S. Congress about the US’s plan to aid Columbia, a better appreciation of Vivanco’s entrepreneurial role will be evident. In presenting this data, it is also important to look at the effect this has had on US – Latin America relations, and the benefits of Vivanco moving into a more authoritative position in Washington.

The “Chile Law Project” of the Ford Foundation

In describing the significant role of human rights lawyers in Latin America, Yves Dezalay and Bryant Garth write that “those who have continued to invest in the field of human rights from the south have tended to go abroad.”[2] According to them Jose Miguel Vivanco is a prime example of such a lawyer. From the perspective of his Chilean nationality, Vivanco can be remarked as a successful “investment” at the Chile Law Project of the Ford Foundation, which imported the idea of law as a tool to better focus on legal education. This Project particularly seized the fact that at this time every Chilean president had been a lawyer, and law faculty “served to train future politicians.”[3] Although the Project became increasingly irrelevant in the Allende period and soon came to an end, the seed of ideas was rooted in the soil and returned to grow up during the reconstruction of the state in Chile.

Studying law was a privileged career in Chile. As mentioned above, attending a law school, especially the University of Chile School of Law (UCSL), was the ticket to the fast paced life of a politician. Yet, anyone who wanted to study law at a school of this prestige must have had social and family connections, as well as proper credentials. This is because the politics in Chile were mainly controlled by the family-dominated state elites.

Regarding this social phenomena, when the Ford Foundation launched a series of projects to help Chile modernize, it also built the Chile Law Project expecting Chilean lawyers to “use their laws to producing all these wonderful effects.”[4] With Augusto Pinochet’s violent prosecutions of the former officials in the Allende government, these politicians were suddenly in the opposition and sought to gain protection through alliance with the Catholic Church. A few bishops joined with lawyers and activists to form a peace committee, evolving into the Vicariate of Solidarity.[5] This peace committee quickly established a legal department headed by José Zalaquett, who graduated from UCSL during the period of the Chile Law Project of the Ford Foundation and was a Christian Democrat. Because of this transformation from democracy to socialism and engagement in US Cold War politics, Chile became the a so-called “international laboratory of human rights.”[6] It was able to build “informal networks” in Latin American countries, and offered a forum for human rights lawyers to learn strategies in the field of international human rights organizations.

Mentioned above, Zalaquett is one of the most famous of the Chilean human rights leaders.[7] Comparing his story with Vivanco’s legal background and working experiences, significant similarities are evident. Graduating from the same law school and serving as lawyer for the Church, Vivanco also learned how to develop his “moral investment” in law and human rights. They then also developed their careers in international human rights organizations: Zalaquett went to work for Amnesty International and Vivanco now works for the Human Rights Watch Americas. Vivanco, however, went to Harvard Law School to obtain his law degree, where this “foreign experience” allowed him to gain more constructive social capital.

Harvard Law School and Professionalization of International Human Rights

Studying law at Harvard Law School (HLS) offered Vivanco the opportunity of becoming “professional” in the field of international human rights. At the beginning of the 1980s, the approaches of civil rights movement in U.S. changed dramatically and also influenced the ways of international human rights movement. Civil rights activists realized that movement should be implied in legal actions rather than political slogans. This “new generation of professionals of human rights” strengthened elite lawyers’ motivations to devote themselves into careers of civil rights movement, and also affected those elite Law Schools to develop the specific programs reproducing the elite.[8] The specialized human rights programs at HLS intended to build its social capital through producing the legal theories of human rights and training the “rising stars” of the human rights organizations.[9] The experiences Vivanco gained from HLS are not only the know-how of this professionalization of international human rights, but also established his “network” by the “nexus of exchange” of the HLS.[10]

The NGO Experience

After a short time working for Americas Watch as a lawyer Vivanco obtained a new position as an attorney for the Inter-American Commission on Human Rights (IACHR), a division of the Organization of American States (OAS). This particular Commission was created in 1959 to aid in the quest for promoting and protecting human rights throughout the Americas. It was, and currently is “designed to carry out its own investigations, conducting on-site visits, requesting specific information from the parties, etc.”[11] Here Vivanco was surely able to gain an appreciation for using the influence of the United States in establishing more productive human rights awareness in Latin America. It was through this experience that Vivanco was able to extend his entrepreneurship in developing the idea for a more far reaching organization.

Vivanco later organized and founded the Center for Justice and International Law (CEJIL) in 1991 with help from other prominent human rights defenders stemming from Latin America and the Caribbean.[12] CEJIL's principle objective is to achieve the full implementation of international human rights norms in the member states of OAS through the use of the Inter-American System for the Protection of Human Rights.[13] As the connection to his prior work demonstrates, Vivanco was able to use the connections and people he worked with at the IACHR and OAS in catapulting this particular NGO.

CEJIL’s mandate is fulfilled through work in three program areas: the Legal Defense Program, the Training and Dissemination Program, and the Campaign to Strengthen the Inter-American System.[14] CEJIL was the first organization to offer an integrated program of defense, free legal consulting, education and oversight of the Inter-American System for the Protection of Human Rights. It selects representative cases whose resolutions could impact the implementation of international human rights norms be it through its effect on the areas of law, domestic practices, individuals cases or state policies.[15]

In establishing the CEJIL, Vivanco was contributing to the spread of international human rights awareness using a more pragmatic approach. Education was the key ingredient in developing this organization, as it seeks not only to just defend those particular human rights violations, but also to educate and train those who want to make such a difference. In this position, Vivanco was successful in implementing a more practical and enforceable methodology in pursuing human rights protections. Vivanco was becoming much more than just a lawyer at this point, and the limited reach of the IACHR, OAS, and CEJIL prompted him to take a bigger step forward.

Access to Power in Washington

Vivanco later left the CEJIL, but made even larger contributions when he received the position of executive director of Americas Division of Human Rights Watch in 1994. It was at this point that Vivanco was able to spearhead a number of human rights campaigns including those found in the cases of Chile, Cuba, Venezuela, and Colombia. With the office based in Washington, D.C., Vivanco seized more visibilities and influences in the U.S. politics and foreign policies by advising or testifying before the U.S. Congress, using U.S. state power as “trade-off” to address human rights. His directorship in the Human Rights Watch Americas can be also understood as the U.S. investing in human rights as an alternative political strategy, which gives legitimacy to the international human rights organizations based in the North America and the U.S. government to influence politics in the South America.

By working with various human rights organizations, Vivanco has secured an excellent platform to pursue human rights in the Americas, with special and much needed attention being paid to Latin America. Even though Vivanco works on a much smaller scale then that of, say, Peter Benenson and Amnesty International, the two can still be thought of in the same respect. Vivanco is using his influence in Washington the best he can in fighting the atrocities committed in Latin America. Even though Vivanco’s work may not be as far reaching as that of Benenson’s his effects in Latin America can be regarding as equal, if not more important to the victims of human rights abuses in Latin America. Vivanco has managed to set up concrete networks throughout the Americas in pushing for his agenda of human rights.

Concentration with the Case of Columbia

Continuing to concentrate his efforts in Latin America, Vivanco has proven to be particularly valuable in the case of Columbia. Political violence has resulted in massive human rights abuses in Colombia, as the internal conflict causes the civilian population to suffer horrifically. According to Amnesty International at least 1,400 civilians were killed or disappeared in 2004 in Colombia.[16] For more than a decade, Vivanco has tried desperately to bring these kind of horrific numbers to the attention of the United States in an attempt to gain stronger international support.

The United States has led the contention that winning the drug war in Colombia is an indispensable element to defeating the guerrillas, who are primarily supported by drug money. The official position of the United States focuses U.S. aid to Colombia on the drug war, while not getting involved in the internal war itself. This aid was formalized in “Plan Colombia”, enacted during the last year of the Clinton administration. Extended by the Bush administration, the plan in 2001 invested $1.3 billion in addition to the previous $330 million already given.[17]

The breakdown of the peace process has increased the risk of human rights violations. Colombian civilians in the demilitarized zone now face being termed "pro-guerrilla" by paramilitary groups merely for the fact that they remained in their homes while the guerrillas where in charge of the zone. Consequently, in a system of blind retaliation, civilians run the risk of being attacked by paramilitaries for being guerrilla sympathizers.

In an address to the Subcommittee of International Affairs, dated Sept. 2001, Vivanco criticized the US involvement in providing aid to Colombia. In his testimony he presents a plan which involves strict regulations in providing the continued assistance of Plan Colombia.

“… [i]n essence, these conditions obligate Colombia's leaders to enforce existing laws by ensuring that cases involving alleged human rights abuses by members of the armed forces be prosecuted in civilian, not military courts, where impunity has been the rule. The conditions also require Colombia to combat illegal paramilitary groups, a goal that would greatly fortify democracy.”

“…[t]he lawlessness of Colombia's war is not divorced from drug trafficking; to the contrary, by seeking that all laws be enforced, including the ones that protect human rights, the United States would contribute significantly to the strength of civilian society and its ability to defend democracy against the rule of the gun or machete.”[18]

Statements such as these describe Vivanco’s vision that while the US’s involvement in the issues of Colombia may be greatly appreciated, it still needs to be evaluated critically to make sure no one is being taken advantage of. By aligning himself with organizations such as Amnesty International and the Washington Office on Latin America, Vivanco is able to show that there is a coalition of sources ready to attack the situation. Vivanco continues to push for the proper human rights attention with support and criticism in Colombia. While supporters see him as fighting for his native people, critics of the US’s involvement in Colombia contend that Vivanco is simply being used as a puppet in the useless war on drugs. [19]

Vivanco’s occupation in the Human Rights Watch Americas can be understood as the fruit of the Chile Law Project. U.S. foreign policy invested in human rights as an alternative political strategy, which gave legitimacy to the international human rights organizations based in the North America and the U.S. government to influence politics in the South America. Those human rights “lawyers” from the south actually also play the “double game” in this field to establish their leadership in the international human rights movement and gain influence in regional politics.

On April 25, 2003, Vivanco was interviewed by PBS’s Bill Moyers, concerning human rights issues in Cuba.[20] At the end of his interview, Vivanco outlined his vision and hopes for the future of human rights:

MOYERS: You are equal… you're an equal opportunity protestor to the violation of human rights. Why do you care so much about what you're doing?
VIVANCO: I grew up in Chile. And I know how it's, you know, what represent to live, and the military government, military junta, when you have no rights, when you feel completely vulnerable and exposed to any kind of abuse by the government.
And at that point, you realize that the only way really to save lives, and to fight for, you know, freedoms and democracy is by appealing to the solidarity and support of the international community. And that is what I try to do in my work, by promoting these values, you know, in this region, as well as in other parts of the world.

Conclusion

Examining the timeline of Jose Miguel Vivanco’s career, it is clear that the man has been heavily influential on both a national and international scale. Though he has chosen to focus more on Latin America, his connections have spread throughout the world and it is hard to tell where he may continue to extend his views next. Is Vivanco being too critical in his quest for human rights? Is he ignoring the more complicated issues that are involved in the countries of Latin America? Has Vivanco simply become a puppet of the US in regard to foreign policy? Vivanco may be aggressive, but as long as he continues to propose plausible solutions to the human rights violations that occur, he is fighting for the right cause. While some contend that Vivanco has in some way become a traitor, he has proven to address the US in a critically-constructive manner, to achieve successful results for international human rights as well as Latin American strength. By playing this double game, Vivanco has arisen as a key leader in the quest for both national and international rights, helping to employ a more universal approach to human rights discourse. It will be interesting to see in the future how far his influence spreads, and where he will continue to use it.

Notes

[1] Mikael Rask Madsen, Towards Peace and Democracy in Guatemala: An Analysis of Changing Societal Patterns with An Emphasis on the Position of El Pueblo Maya 94 (Oñati Master’s Tesinas, IISL, 2000). See Dezalay & Garth, Palace Wars, supra note 3, at 164.
[2] See Yves Dezalay & Bryant G. Garth, Constructing Law Out of Power: Investing in Human Rights as an Alternative Political Strategy, in Cause Lawyering and the State in a Global Era 354-381, at 370 (Austin Sarat & Stuart Scheingold eds., 2001).
[3] See Yves Dezalay & Bryant G. Garth, The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States 116 (2002).
[4] See Dezalay & Garth, Palace Wars, supra note 3, at 116.
[5] See Dezalay & Garth, Constructing Law, supra note 2, at 358.
[6] Dezalay & Garth, Palace Wars, supra note 3, at 145.
[7] Dezalay & Garth, Constructing Law, supra note 2, at 359.
[8] See Dezalay & Garth, Palace Wars, supra note 3, at 164.
[9] Id. at 165.
[10] Id. at 166.
[11] See What is the IACHR?
[12] See Center for Justice and International Law < http://www.cejil.org/main.cfm?switch=i >
[13] See Dezalay & Garth, Palace Wars, supra note 3, at 165.
[14] Id
[15] See Programs
[16] Amnesty International criticizes arms exports to Colombia
[17] Plan Colombia Fact Sheet at .
[18] Committee hearing
[19] See “The War Criminal and The Whore” at .
[20] PBS Interview, NOW with Bill Moyers at < http://www.pbs.org/now/transcript/transcript217_full.html >.

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