Published 14 October 2015
Dear Mr Fanning,
Western Sahara Resource Watch has the privilege to correspond with you. We take note of San Leon Energy’s drilling operation in the Tarfaya Block which revealed gas shows, and of the company’s joint declaration of principles with ONHYM on “investing in the Sahara region” as published on your company’s website on 21 July 2015. We wish to enquire and make comments about both matters.
As positive as the signing of a joint declaration may appear on the surface, this particular one is flawed from the outset. San Leon holds two exploration licenses that correspond to oil blocks that are located along the Moroccan - Western Saharan border, but that largely encompass Western Saharan territory. While it may be relevant to sign a joint declaration of principles with ONHYM for blocks located in Morocco proper, the document has very little, if any, meaning or standing with regard to Western Sahara, as ONHYM - a Moroccan state company - has no legal standing with regard to the territory.
The content of the declaration furthermore contains factual errors. The first and most obvious is the incorrect term “Sahara region”. Western Sahara is not a region, it is a Non-Self Governing Territory without an administering power ascribed to it. Morocco’s purported claim to the territory was rejected by the International Court of Justice in its 1975 advisory opinion. We refer you to the conclusion at paragraph 162 of the opinion.
It is interesting to note that the declaration states the “exploration and production of hydrocarbon natural resources adheres to international principles and standards, to relevant national legislation, including the Mining Code, the Hydrocarbon Code and environmental law”, but fails to make any reference to adhering to international law - the only body of law that applies to Western Sahara given its status as a Non-Self Governing Territory. From this omission it is once again clear that both the Moroccan government and San Leon choose to look away from the Saharawi people’s right to self-determination as a settled principle of international law, but also from international humanitarian law, prohibiting outright the taking of resources under armed occupation as the war crime of pillage, and making it a criminal act for persons and corporations to help in such an act.
The second point in the joint declaration again refers to guidelines issued by a Moroccan governmental institution; the Conseil Economique, Social et Environmental (CESE). Like ONHYM, this institutional body, instigated by the Moroccan monarch, has no legitimate or legal standing vis-à-vis Western Sahara. The declaration goes on to state that “local populations and their representatives are involved and consulted and that they will benefit equitably and effectively therefrom”. The UN Legal Opinion of 2002, which is claimed to be paraphrased in this particular sentence of the joint declaration, does not talk about local populations. Its conclusion, which can be found in paragraph 25 of the Opinion - the final and concluding paragraph - states 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”.
It is important to note the difference between “population” and “people”. While the concept of a population is generally accepted as describing the group of persons residing in the territory at a given time, the term “people” refers to the group of persons that are of the territory. Accordingly, whereas the definition “population” would include Moroccan settlers that have moved into the territory over the years or who spend significant parts of the year there as seasonal workers, the term “people” only applies to the Saharawi people as the sole, original inhabitants of the territory prior to Morocco’s invasion of 1975. Consequently, it is not for the “local populations and their representatives” to be “involved and consulted” and to “benefit equitably and effectively therefrom”. It is for the Saharawi people as a whole to enjoy these prerogatives. It is furthermore not sufficient to consult them; they need to consent.
The Saharawi people have been quite clear in their opposition to San Leon’s presence and plans in their homeland under occupation. And it is precisely this people that San Leon has consistently ignored, in favour of an occupying regime which seeks to perpetuate its ruthless occupation through the activities and support of companies like yours.
WSRW would be most grateful for an answer to the following questions.
1. We take note that San Leon on 23 July 2015, two days after signing the joint declaration, in an interview with Irish Independent labeled the territory “Southern Provinces” of Morocco. Is it San Leon’s opinion that such terminology is in line with the Joint Declaration?
2. We take note that San Leon in an interview with Irish national TV on 4 August 2011 stated that it does not wish to have a line of communication with the Saharawi people since “from our point of view, and certainly from the point of view of the organisation and the government that issues our licence, they are not a representative people". Is it San Leon’s opinion that such an approach in line with the joint declaration?
3. Can San Leon Energy demonstrate unequivocally how the Saharawi people as a whole, including those who had to flee the territory as a consequence of Morocco’s invasion and continuing occupation, have been involved, consulted, and how they benefit from San Leon’s activities in both the Zag and Tarfaya Block?
4. In view of the announced further work on the Tarfaya Block, will San Leon share its Emergency Response Plan and Blowout Contingency Plan with the Saharawi government?
5. Will San Leon share the results of its test drilling in the Tarfaya Block with the Saharawi government?
We look forward to your reply in this crucial matter.
Western Sahara Resource Watch
A copy of this letter was sent to:
- HE Christopher Ross, UN Secretary General’s Personal Envoy for Western Sahara
- HE Kim Bolduc, Special Representative of the Secretary-General and Head of United Nations Mission for Referendum in Western Sahara