The international companies operating in occupied Western Sahara use a combination of arguments to support their presence. None of these are valid.
The EU Court of Justice on 29 September 2021 specifically ruled that the question of benefits has no relevance: what matters is whether the people of Western Sahara have granted their “free and genuine” consent. To pretend to do something for the benefit of the people of Western Sahara, without even asking for their approval, is reminiscent of colonial times. The facilitation of settlement of Moroccans in the territory further entrenches the occupation and constitutes a war crime according to the ICC Statute.
Enel, ACWA and ENGIE all claim to possess social impact assessments that demonstrate these alleged benefits. None of these documents are public, neither are their terms of reference. It is thus not possible for the people of the territory to comment on the content of these reports. It is also not possible to know whether the studies have taken into account that the projects themselves take place in violation of the Saharawis’ consent. All studies seem to have been made by Moroccan or international organisations, and WSRW is not aware of a single Saharawi group advocating self-determination, including their UN-recognised representation Polisario, to have ever been approached by any of the agencies producing the documents. Seemingly, all studies address the benefits to “local populations”. An impact assessment cannot substitute for the right to consent of the people of the territory.
2. ‘We do not engage in politics’
Signing contracts with the Moroccan government or state bodies for the construction of infrastructure in Western Sahara, while partnering with a company owned by the very monarchy responsible for the invasion and occupation of the territory, is a highly political act.
"As we have told you in our previous correspondence we are not able to provide answers directly related to any local and/or international political situation, since it is and remains Enel Group’s policy not to take any position on political matters", Enel has written to WSRW.
In the same way, Enel is only willing to “engage with any interested stakeholders as long as this relates to the project and its benefits and not to any political issue”. In this way, Enel is phrasing self-determination - which is a right of the Saharawi people - as a political issue that it does not want to address. Yet, it refers to the location of its projects as “located in the country’s south” with reference to Morocco, failing to distinguish between the territories and ignoring applicable international law. That is politics.
3. 'We do not engage in international public law’
Siemens has written WSRW that “Companies like ours, on the other hand, refrain as a matter of policy from taking positions or making judgments on such issues [international public law].”
At the same time, Siemens Gamesa labels Western Sahara “Southern Morocco” as late as in September 2020.
Such an approach is not about refraining from taking a position on questions of international law, but ignoring international law completely.
4. ‘It does not involve physical removal of natural resources’
“Wind farms are fundamentally different from, say, mines, which extract finite resources in an irreversible way. The wind in Western Sahara, in contrast, is a renewable source of energy, and the operation of wind farms in no way diminishes it”, Siemens wrote to WSRW in October 2016.
Enel echoed that statement in June 2020, stating that “we also like to recall that the Boujdour project is a wind farm with no exploitation nor depletion of any non-renewable resources in that territory”.
First, from the perspective of public international law, Morocco has no right to exploit resources – renewable or not – inside the internationally recognised borders of Western Sahara.
Second, all currently operational wind farms are providing energy to industrial end-users in the territory that are in the business of extracting finite resources, and several future projects are reported to follow suit: 95% of the energy required for the exploitation of Western Sahara’s phosphate reserves comes from the Foum El Oued farm. As such, the renewable sector in the territory facilitates Morocco’s ongoing plunder of Western Sahara.
5. ‘Obtaining consent is impossible’
After years of asking whether Siemens had obtained consent from the people of Western Sahara, the company stated in April 2020 that their external legal assessment had confirmed “the impossibility around seeking consent of the population in an area where an administrative power exercises sovereignty de facto”.
There is a lot to unpack in that sentence.
First, the concept ‘de facto sovereignty’ does not exist in international law. The usage of the term ‘de facto’ is exactly to disassociate it from ‘de jure’ and does not address Morocco’s legal relationship to the land that it has militarily invaded.
Second, it is not clear what is meant with ‘administrative power’. The UN has assigned each Non-self-governing territory with a relevant ‘administering power’, except in Western Sahara. The only country bearing such an obligation in Western Sahara is Spain. The concept of a de facto administering power does not exist in international law: either administration is carried out legally or illegally, but never ‘de facto’.
Third, it is not the population in Western Sahara that ought to express consent, but the people of Western Sahara. There is a fundamental difference: today’s population of the territory consists overwhelmingly of Moroccan settlers, whereas the people of the territory live scattered under occupation, in refugee camps in Algeria or as residents in other countries. The difference is also explicitly spelled out by the EU Court of Justice on 29 September 2021.
Fourth, the UN has recognised Polisario as the representation of the people of Western Sahara and Polisario represents the Saharawi people in every aspect of their right to self-determination, including the economic dimension. This was also underlined by the EU court on 29 September 2021. For instance, Polisario represents Western Sahara before the UN Economic Commission for Africa. Foreign companies can contact the Saharawi authorities at their administrative offices in the Saharawi refugee camps and in Western Sahara, or through their representatives in many countries, including e.g. Spain and Germany.
6. ‘It is in accordance with applicable laws’
“The formulation of Siemens Gamesa’s corporate strategy […] will be guided by the relevant legal framework”, stated Siemens CEO Joe Kaeser in July 2020 when asked about the company’s involvement in Morocco’s wind farms in Western Sahara. The notion of “applicable legal frameworks” is a classic in companies’ responses on the matter, but they never actually explain what legal framework they are referring to. Which country’s laws? How can Moroccan law govern contracts for projects in a territory that has a separate and distinct status from Morocco, located outside of its internationally recognised borders?
The erection and maintenance of energy infrastructure in Western Sahara can only be delivered by the Saharawi authorities in line with the rule of consent. Any permits and authorisations delivered under Moroccan law have no legal validity in Western Sahara. Siemens’ operations in the territory take place in a legal vacuum and undermine the sovereign rights of the Saharawi people over their national territory and their natural resources.
7. ‘The company has received an “external legal assessment”’
Are these legal opinions public? Who wrote them? What were the terms of reference? Do the legal opinions assess the legal status of the territory, the legality of Morocco's presence in the territory and the right to self-determination? If such opinions are not public for the Saharawi people or third parties to analyse, in WSRW's opinion, they have no relevance.
8. ‘The rulings of the Court of Justice of the EU relate to state practice, not companies’
The right to consent is universally accepted. The principle of relative effect of treaties - i.e. a treaty does not create obligations or rights for a third party without its consent - is a general principle of contract law that exists in every legal system, be it international or domestic.
9. ‘This situation requires a political solution, involving governments and not companies’
This is for instance stated by Siemens Energy. No one has asked the companies to solve the conflict in Western Sahara. All that is asked is that they do not fuel the conflict, and that they do not violate the rights of the Saharawis.
10. ‘There are no international sanctions’
Companies understand the opportunities offered by the absence of corporate regulation in international law. “We are not aware of any international sanction regime that would impede such investments in Western Sahara”, Enel wrote. Despite the moral and legal objections linked to the energy infrastructure in Western Sahara, there are no international sanctions in place, as the EU has imposed in Crimea. However, foreign investors do not need international sanctions to respect the sovereign rights of the Saharawi people under international law.
11. ‘Operating in a non-self-governing territory is allowed’
There are two elements to this approach: first, the deliberate omission of what sets Western Sahara apart from other Non-Self-Governing Territories (NSGTs), and second, drawing false comparisons to other NSGTs on the back of that.
The UN today considers 17 territories to be non-self-governing. Western Sahara is indeed on the UN list for such territories, but there is a fundamental difference setting it apart from the other 16 NSGTs on the list: it is the only one that does not have an administering power appointed to it.
An administering power is crucial. That state has the responsibility to make sure that the right to self-determination is respected. Spain today refuses to fulfill that legal obligation. Morocco’s role is that of occupier, as declared in UN Resolution 34/37. Morocco rejects the UN terminology of Western Sahara being a NSGT.
Additionally, the people in the other 16 NSGTs on the UN list have had a chance to decide whether they accept being administered by another nation, which then went on to be recognised internationally as the administering power of the NSGT. Despite promises by the international community and a UN mission in place with the express mandate to organise such a referendum, the people of Western Sahara have not yet had a chance to exercise self-determination. While Morocco initially agreed to hold a referendum, it changed its mind and will not allow a referendum that includes independence as an option. The people of Western Sahara have never accepted Morocco’s military presence in part of their land.
There is however an international consensus that the people of Western Sahara have a right to self-determination: the right to decide what the status of the territory should be, and as a corollary, the right to the natural resources of the territory. The Saharawis have not yet had the chance to exercise that right, and as a result, it is the status of the territory – not the sovereign rights that have been settled in 1975 by the International Court of Justice – which remains undecided. The people of Western Sahara thus have a decisive voice on their land’s resources. As pointed out by the Court of Justice of the EU, the UN Human Rights Committee and the UN Council for Economic, Social and Cultural Rights, the consent of the people of Western Sahara to any project or operation in their land must be secured for such an operation to be lawful.
Operating in a non-self-governing territory is certainly allowed, provided the relevant authorities have okayed it. In Western Sahara, the sovereign right to grant such an approval still lies with the people of the territory, pending the process of decolonization – which is blocked by Morocco.
Under International Humanitarian Law, an occupying power - Morocco - can use the resources of a territory, but on condition that such activities are geared towards the exercise of self-determination. Morocco does the exact opposite in Western Sahara: Morocco’s interest in the territory’s economic potential is geared exclusively toward the purpose of furthering acceptance of its illegal occupation of the territory.
Some companies will however deliberately obfuscate these key-differences, and simply point to other NSGTs for comparison. On its website, Ballance Agri-Nutrients writes that “Western Sahara is a non-self-governing territory, one of 17 worldwide, including Tokelau, which is administered by New Zealand”. Ravensdown singles out the examples of Gibraltar and the Falkland Islands in its position paper on Western Sahara. Soluna’s “A note on Dakhla, Morocco” reads that “the UN status of Western Sahara is the same as the UN status of the British Virgin Islands or Cayman Islands”.
But just like the people in all NSGTs minus Western Sahara, the people of Gibraltar, the Cayman Islands, the British Virgin Islands, and the Falkland Islands have been able to express whether they accept their appointed administering powers, which are also recognised internationally. Tokelau even had a referendum on self-determination and chose for a free association with New Zealand.
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