Since 2008, the
prestigious Washington law firm of Covington & Burling has moved into the
forefront of those U.S. companies colluding in the illegal Moroccan and
corporate plunder of the Western Sahara and lobbying American law makers to
legitimize Rabat’s illegal occupation of the territory. While the illegality of the plunder and the
occupation is well-established under international law, Covington is, in
addition, breaking U.S. law by lobbying for the Office Chérifien des Phosphates
(OCP), the fully state-owned Moroccan phosphate company, without registering
under the Foreign Agents Registration Act (FARA) as a foreign agent of the
Moroccan government. In addition, they are also lobbying on behalf of U.S.
energy company Kosmos Energy, which is defying the United Nations by illegally
exploring for oil in the Western Sahara. Furthermore, Covington’s success at
avoiding Department of Justice (DOJ) scrutiny of their OCP lobbying activities
appears suspiciously linked to the lobbyist “revolving door,” with long-time
Covington lawyer Eric Holder currently serving as Attorney General and
reportedly a “list nine pages long” of former
U.S. government lawyers currently employed by Covington (including eleven
who ”used to work in the White House”).
Plunder
The illegality of
natural resource extraction from the Western Sahara has long been recognized
under international law. A recent analysis, The Plundering of the Sahara: Corporate Criminal and Civil Liability for the Takingof Natural Resources from Western Sahara by Canadian law professor and barrister J.J.P. Smith is scathing:
The taking of natural resources from Western Sahara given a continuing forcible occupation and the circumstances of a stalled process for self-determination can only be described as theft. The facts support that allegation. The exploitation of the territory’s two primary resources [phosphates and fish] enriches the Moroccan state, the corporations trading with it, and the European Union as a result of the extended 2007 Fisheries Partnership Agreement (and Russia under its 2010 fisheries agreement). It is widely accepted that the benefits do not reach the Saharawi people, most especially those in the refugee camps at Tindouf. The substantial weight of opinio juris, the uniform refusal of states to recognize Morocco’s sovereignty over Western Sahara, and the earlier cases of non-self-governing peoples’ natural resources make out the failure to satisfy both parts of the “Corell test”. This first stream of international law has been clearly violated.
Covington &
Burling’s collusion with Morocco in the plunder of Western Saharan resources is
related to their client/lobbyist relationships with OCP and U.S.-based Kosmos
Energy. Lobbyist Disclosure Act of 1995
(LDA) filings show that lobbying for OCP began in 2008 with remuneration
through 2012 totaling $510,000 ('08-'11, '12) . A 2008 statement by head of Covington’s
international practice, former high level U.S. government official StuartEizenstat, indicates that the client relationship, however, goes back much
further. LDA filings for Kosmos began in
2009 and list payments of $1,830,000 ('09-'12) through 2012. Under international law, OCP
is illegally extracting and selling Western Saharan phosphates and Kosmos is
illegally exploring for oil in the Western Sahara.
OCP
According to the
their website, OCP “extracts, markets and sells phosphate and its derivatives,
phosphoric acid and fertilizers” and is “the world’s largest exporter of
phosphate rock and phosphoric acid, and one of the world’s largest fertilizer
producers.” Since 1975 when Morocco
invaded the Western Sahara and occupied the portion of the territory where the phosphate
mines in Bou Craa are situated, OCP and Rabat have been systematically looting
the Sahrawi’s phosphate wealth. The current volume and value of this extraction
is estimated at three million tonnes and upwards of a half a billion dollars
annually.
Western SaharaResource Watch (WSRW) has been writing since 2008 about Covington &
Burling’s collusion with OCP. In
particular, WSRW has investigated a secret “independent opinion,” written by
Covington that has “been used by phosphate importing firms to defend their
unethical trade.” Despite repeated attempts to get a copy of that opinion, WSRW
has reported: “the opinion has never
been released to the public. The law firm consistently refuses to reply to
requests from civil society or Saharawis.” An
April 2012 paper from one of the U.S. importers, PotashCorp, titled “PhosphateRock from Western Sahara,” gives us, however, a pretty good picture of
Covington’s point of view. Acknowledging
that they had “recently received, on a confidential basis” two legal analyses
by Covington & Burling and DLA Piper, they tell us that those opinions “concluded
that OCP’s operations in the region directly benefit the people of the region and are consistent
with international legal obligations.” This conclusion is directly contradicted by any number of reports and
analyses that the indigenous Sahrawi benefit little from the phosphate trade,
hold few of the phosphate industry jobs,
and have never been consulted on or acquiesced in the exploitation. While it
would certainly be enlightening to see a copy of Covington’s opinion, they are
obviously basing their conclusion on the condition of the several hundred
thousand illegal settlers who have been lured to the territory with subsidies
and jobs. The Fourth Geneva Convention specifically prohibits colonizing
occupied territories. This is directly akin to concluding that life on the West
Bank is lovely, based on the living conditions of the illegal Israeli settlers.
WSRW supplies us with a good list of Recommended Reading on all this.
Covington lobbying
on behalf of OCP has been hard to trace, specifically because they have chosen
to register their work under the LDA, which does not require the registrant to
list contacts or activities (see more on this below). All we really learn from
the listings is their intention to lobby several governmental agencies and
Congress on “Promoting economic integration in the Maghreb and enhanced
economic relations between the Maghreb and the United States.” It does not appear to be a coincidence,
however, that two of Covington’s registered OCP lobbyists, Stuart Eizenstat and
Marney Cheek, should turn up in 2009 as participants in a thing called the North Africa Policy
Paper Project
that produced the seriously flawed and thoroughly biased policy paper, Why the Maghreb Matters: Threats,
Opportunities, & Options for Effective US Engagement in North Africa.
Eizenstat is listed as co-chair (along with I.William Zartman) and Cheek as
staff. In a nutshell, the report
identifies resolution of the stalemate over the Western Sahara as the key to
unlocking the potential of greater Maghrebian integration and controversially
endorses “the [Moroccan] formula of autonomy/sovereignty now before the UN” as
“a basis for a viable solution.” The
Moroccan autonomy plan has been widely condemned by international legal
scholars – including our foremost self-determination authority, Hurst Hannum -
as illegal under international law because it doesn’t provide for an expression
of the will of the original inhabitants of the territory.
That Eizenstat, in
particular as co-chair of the report, should come out so strongly in support of
an illegal proposal that, in effect, legitimizes Morocco’s and client OCP’s
resource theft is extremely fishy; the perception created is clearly that the
report is nothing more than a Morocco-financed lobbying document. Furthermore,
the decision of these two Covington lobbyists not to even mention in the report
that they are paid lobbyists for OCP makes it even more damning.
Kosmos
By taking on Kosmos
Energy as a lobbying client in 2009, Covington & Burling greatly increased
their exposure to Morocco’s plunderous activities and designs. According to WSRW, “Kosmos Energy got their
first foothold in Western Sahara in October 2004, and has remained since. They
now hold a 75% interest in a block offshore Boujdour.” Kosmos’ exploration activities are ongoing,
and their website indicates that “Initial exploration drilling could commence
in the latter part of 2013.”
In a 2002 Opinion to
the Security Council on the legality of exploration, Hans Corell, the UN’s
Under-Secretary for Legal Affairs, concluded that, “if further exploration and
exploitation activities were to proceed in disregard of the interests and
wishes of the people of Western Sahara, they would be in violation of the
principles of international law applicable to mineral resource activities in
Non-Self-Governing Territories.” While U.S. oil company Kerr McGee
ceased exploration activities in 2006 in the wake of the Corell opinion and a
divestment campaign waged against it spearheaded by WSRW, Kosmos has adamantly continued
with “further exploration” in blatant “disregard of the interests and wishes”
of the indigenous Sahrawi.
Covington’s $1,830,000
worth of work for Kosmos, according to their LDA registrations, consists of
lobbying the Departments of State and Treasury to gain “U.S. government support
with respect to the client’s investment abroad.” While Kosmos’ website lists
operations in Ghana, Cameroon, Mauritania, and Suriname, in addition to those
in Morocco, only the operation in Western Sahara appears sufficiently
controversial to warrant such a sizable lobbying expenditure. (Revealingly, in
its literature, Kosmos stubbornly insists on including the Western Sahara
within Morocco, a sentiment that not one country shares.) And what kind of
support does Kosmos need? In order to
profit from their exploration investment, Kosmos first and foremost needs U.S.
government recognition of Moroccan sovereignty over the Western Sahara. As long as the Western Sahara debacle remains
unresolved, any attempt by Morocco and Kosmos to exploit oil finds would
undoubtedly be met with extreme international condemnation and boycott. While it is anyone’s guess what Alan P.
Larson, Covington’s lead Kosmos lobbyist, is peddling to State and Commerce, I
would say it’s a good bet he’s pushing the same stuff as his old government
buddy and fellow Covington lobbyist Stuart Eizenstat. Ironically, before moving
to Covington, Larson served from 1999 to 2005 as Under Secretary of State for
Economic, Business and Agricultural Affairs -inheriting that position from
Eizenstat who held it from 1997 to 1999 before HE joined Covington.
FARA
I have long been
perplexed by Covington & Burling’s ability to avoid the detailed
requirements of registering with the Department of Justice under the Foreign
Agents Registration Act (FARA) as a Foreign Agent of Morocco, given their
long-term client/lobbying relationship with OCP. They have opted instead to
register with the far less “onerous” LDA.
Foreign Lobbying Influence Tracker, a foreign lobbyist watchdog, gives a
good concise synopsis of the difference between the two systems:
Lobbyists for foreign clients who register under FARA disclose far more information about what they do to further the interests of their clients than traditional lobbyists, who, under the Lobbyist Disclosure Act of 1995, report to Congress. Under the LDA, lobbyists need only disclose the governmental bodies they contact, and need not specify the number of contacts they have or the dates of those contacts.
FARA is explicit
that lobbyists who work for “foreign principals” are required to register as
foreign agents and file very detailed reports of their contacts and activities under
FARA rules. “Foreign principal” is defined as “a government of a foreign
country,” “a foreign political party,” a foreign “person”, or “a partnership, association,
corporation, organization, or other combination of persons organized
under the laws of or having its principal place of business in a foreign
country.” [my emphasis] It is
a mystery to me how lobbying for OCP, clearly a foreign principal under this
definition, does not trigger FARA. It is equally a mystery how Covington &
Burling has managed to avoid censure since they are very overtly breaking the
law here. Finally, one really has to wonder what it is they are trying to hide,
since over the last few years they have apparently had no problem lobbying as
Foreign Agents under FARA for the Philippines, Liechtenstein, and Mexico.
What to Do?
In summary, for
several years Covington & Burling, through their lobbying for OCP and
Kosmos, has been colluding with Rabat to get U.S. government legitimization of
Morocco’s plunder and occupation of the Western Sahara. They are up to their
necks in very dirty business, which includes advocating in favor of several gross
violations of international law regarding occupied and non-self-governing
territories, and lobbying illegally under U.S. law for a foreign principal.
On the plunder, a
good place to start would be to support the extraordinary work being done by
Western Sahara Resource Watch. They have an exemplary record of reporting,
research, analysis, and activism involving Morocco’s illegal exploitation of
Western Saharan resources. This support is getting ever more critical as Rabat
expands their exploitative interests from phosphates, fish, and oil, to include
agricultural products, wind/solar energy, and more, and gets closer to
commencement of exploration drilling for oil.
And if oil is someday discovered off the Western Sahara, all the gloves
will be off.
On the illegal
lobbying, the Department of Justice should audit Covington over their avoidance
of FARA registration. As I detail above, there is plenty of evidence that shows
that they are lobbying for Rabat and thus should be registered as a Foreign
Agent under FARA. When foreign
governments are paying for policy, we have the right to know; and it is clear
to me that paying for policy is exactly what Morocco is doing, directly through
OCP (and indirectly through their proxy Kosmos). One observer – whose main
concern is the Israeli lobby – appears to have hit it on the head: “Since the
1960s white shoe law firms such as Covington & Burling…have worked
diligently to gut FARA and water down its investigative and enforcement
mechanisms.“ Nevertheless, FARA does provide for criminal
prosecutions, as well as “civil and administrative resolution of FARA questions.” Bring
it on.
Everyone who cares
about justice for the Western Sahara should write their members of Congress.
The overall success of the Morocco lobby in garnering congressional signatures
in support of Morocco’s expansionism is based on the assumption that there is
no downside to supporting our good ally Morooco. In addition to the ethical and
legal downside discussed above, there is also a huge downside on the ground. Official
U.S. recognition of Moroccan sovereignty over the Western Sahara would be a
catastrophe, as it could very well precipitate a mass uprising in the region by
the hundreds of thousands of Sahrawi who despise the monarchy and desire the
self-determination that the UN has promised them for fifty years. Furthermore,
any U.S. attempt to resolve the Western Saharan crisis on Morocco’s terms would
destroy U.S. and Moroccan relations with Algeria, not to mention dreams of
greater Maghrebian integration, for years to come.
Finally, I feel that
the time is long overdue to mount a campaign to boycott Moroccan goods and
travel to Morocco. WSRW is more than doing its part to attack the plunder by
companies and countries of Western Sahara’s resources. Consumers should do
their part in countering Morocco. Don’t buy Moroccan clementines. Before you
buy argan oil, think of the smashed faces of Sahrawis beaten up by Moroccan
security forces. Don’t buy anything “made in Morocco.” And certainly don’t
vacation in Morocco or use Royal Air Maroc. Having spent a good chunk of last
year in Tunisia, I wholeheartedly endorse your visiting instead that lovely
nascent democracy.
On Morocco and the Western
Sahara, Covington & Burling is operating as a rogue law firm and must be
reined in and forced to come clean.
No comments:
Post a Comment