OCP, the Moroccan state phosphate company that illegally exploits phosphates in Western Sahara, is Covington & Burling's client. The legal analysis made by Covington for OCP, which WSRW believes contains a large number of factual errors and the conclusions of which are seriously flawed, is used by phosphate importers in several countries in defence of their imports from the occupied country.

Both the Belgian importer BASF and the Spanish importer FMC Foret refer to Covington & Burling's legal analysis, but neither wish to disclose the report. BASF has urged WSRW to contact Covington & Burling for further questions. However, the prospects for any assistance from those quarters seem slim, at best.

Last week, human rights activist from occupied Western Sahara, Mrs. Aminatou Haidar, received the prestigious Robert F. Kennedy Memorial Human Rights Award. Haidar has spent four years in Moroccan jails for her activism, and is today a strong opponent of the Moroccan plundering of her country's main natural resource, phosphates.

A few days prior to the award ceremony, Western Sahara Resource Watch sent the letter below to the Washington based law firm Covington & Burling. The letter is a follow up on a letter sent to Bruce S. Wilson, Partner in Covington & Burling by WSRW in February 2008. Since the US law firm for months has refused to reply to WSRW in writing, WSRW decided to request a meeting to discuss the matter.

After sending the mail below, Mr. Ronny Hansen of the Norwegian Support Committee for Western Sahara called Mr. Bruce Wilson of Covington & Burling. Hansen was in Washington at the time of Haidar's award ceremony, and had asked for a meeting.

"Mr. Wilson simply refused to engage in any conversation or exchange with us. He stated clearly that 'I completely exclude the possibility of giving you a response to your questions, in writing or otherwise.' He also said that he's 'not at liberty to disclose to you who our clients are, or on what basis. If I were, I wouldn't anyway.' When confronted with the fact that their work on behalf of OCP is public knowledge and posted on their own website, Mr. Wilson said that "I'm not obliged to respond to you. We're not engaging with you at all regarding anything at all. You're not my client, and as far as I can see you have no interest or stake in our company.'

He then proceeded to hang up on Mr. Hansen.

"When researching and campaigning against the powerful vested interests in Morocco's occupation of Western Sahara we're used to tough language, but rarely do we meet such a lack of civility and willingness to engage. Covington & Burling's arrogance and level of secrecy really sets them apart and tickles our curiosity about their activities even further. If importers such as BASF and FMC Foret wish to retain any credibility at all, they should now be the ones to release the legal analysis they base their defence on", says Hansen.


Open letter to Mr. Bruce S. Wilson, Partner of Covington & Burling
Melbourne, 4 November 2008

Catherine Lewis
PO Box 164
Clifton Hill
Victoria 3068
Australia 

Mr. Bruce S. Wilson
Covington & Burling LLP
1201 Pennsylvania Avenue, NW
Washington, DC 20004-2401

25th of February 2008, Western Sahara Resource Watch sent you a letter regarding the legal analysis which your law firm elaborated on the Moroccan phosphate industry in occupied Western Sahara.

In that letter, in addition to requesting a copy of your legal analysis on the industry, we requested an answer to a few specific questions, so we could understand how Covington & Burling could come to the conclusion that the unethical Moroccan phosphate plundering of its occupied neighbouring country could possibly be defended legally.

As far as we understand, the opinion was made on behalf of your client, OCP, which is the same Moroccan state phosphate company that carries out the controversial phosphate exploitation in the Bu Craa mines. 

From what we have learned from one of the phosphate importers, Spanish FMC Foret, the opinion that Covington & Burling produced contains conclusions that clearly misinterprets some very basic principles of international law when it comes to the legal status of the occupied and non-self governing territory Western Sahara, and the exploitation of natural resources in the Bu Craa mines.

We believe it is important that Covington & Burling’s opinion be published, and properly debated, for the interest of stakeholders both within the fertiliser industry, among the investor environment, as well as for the Sahrawi people both living under occupation and in exile. 

We urge you to reply in writing to the letter we sent in February, and make public your opinion. Our former international coordinator, Javier Garcia Lachica, tried personally to follow up your lack of reply, by calling your partner in Brussels, Mr. George Berrish in September, but only to find that he was basically rejected, being told “If we haven't answered your letter is because we have nothing to say. Thanks and goodbye". 

It would be highly contradictory if it is true that your legal analysis on one hand gives evidence that the industry is perfectly defendable, and is actually in respect of the wishes and interests of the people of Western Sahara, while on the other hand it remains out of reach for the Sahrawi people, their representatives and concerned non-governmental organisations like ours. That in itself would be an indication showing that the opinion’s conclusions perhaps could be inherently wrong, and that your arguments perhaps are neither in line with the facts on the ground nor with mainstream understanding of international law.

Seen from the outside, one can say that it seems rather unfortunate that your firm is representing or counselling a client such as OCP. Considering that OCP is involved in supporting a kind of business that the UN General Assembly has repeatedly condemned, and taking into consideration that OCP represents 3 decades of violation of international law, systematic discrimination of its Sahrawi workers, and ignoring of the interests of wishes of the people of Western Sahara, one could wonder whether defending such unethical industry is really something that Covington & Burling wants to be associated with. So if your arguments in the opinion are convincing, and actually well-founded and based on an elaborate analysis of the situation on the ground and international law, we believe will be in Covington & Burling’s own interest to have it published. 

On 13th of November 2008, the Western Sahara human rights activist Aminatou Haidar will receive the Robert F. Kennedy Human Rights Award on Capitol Hill, after her campaigns for Sahrawi human rights and against the natural resource plundering of her homeland. Upon that occasion, a number of representatives of Western Sahara Resource Watch from some of your our 30 member countries will be present in Washington. http://www.rfkmemorial.org/legacyinaction/2008_haidar/ 

On that occasion, we would like to request a meeting with your firm in Washington for either 13th or 14th of November. We believe it could also be possible for you to meet the laureate Mrs. Haidar, if you are interested. Please respond to this meeting request to Mr. Ronny Hansen, chairman of the Norwegian Support Committee for Western Sahara, on info@vest-sahara.no.

In such meeting, we would be happy to brief you on the history of the Moroccan occupation of Western Sahara, the human rights violations committed by Moroccan forces in the territory, the situation for the Sahrawis who have been forced to flee their homeland and living in exile in refugee camps in Algeria, or the illegality of natural resources exploitation from Western Sahara.

We would at last like to underline that a lack of response to a civil society organisation like ours, is in general not a very common strategy for companies that want to give the appearance of being socially responsible.

Looking forward to your reply. 

Yours sincerely,

Cate Lewis
International coordinator,
Western Sahara Resource Watch 
www.wsrw.org 

Copy sent to 
Kathy King, Head of Public Relations, Covington & Burling, klking@cov.com
Mrs. Aminatu Haidar
FMC Foret