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Siemens Gamesa stated that “an improvement of energy infrastructure will bring real value to communities and people – nationally and locally”. The company adds that jobs are created for “locals” and that they support community projects ranging from planting trees to installing trash bins.
The EU Court of Justice stipulated that the question of benefits has little relevance: what matters is whether the people of Western Sahara have granted their consent. That is the critical point here. 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.
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 WSRW.
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.
Siemens' approach is not about refraining from taking a position on questions of international law, but to ignore international law completely.
“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.
First, from the perspective of public international law, Morocco has no right to exploit resources – renewable or not – inside the borders of Western Sahara.
Second, both the Foum El Oued and the Aftissat wind farm are providing energy to industrial end-users in the territory that are in the business of extracting finite resources: 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.
After years of asking whether Siemens had obtained the consent from the people of Western Sahara, the company told 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. However, to simply “administer” a territory does not say anything about the legal status of the government that administers it. To add, as pointed out by the EU Court of Justice has been clear that 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.
Fourth, the UN has recognised Front Polisario as the representative of the people of Western Sahara. They can be contacted at their administrative offices in Tindouf (Western Sahara) or through their representatives in many countries, including e.g. Spain and Germany. It is far from impossible to reach out to them to seek their consent.
“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?
7. ‘Operating in a non-self-governing territory is allowed’
For a little while, ENGIE had published on its website hints about who it had actually "consulted" when doing business in occupied Western Sahara.
The German building materials giant sides with Morocco in the Western Sahara conflict, avoiding any questions on its own legal obligations in the occupied territory.
The French company Alcatel Submarine Networks SpA, partially owned by Nokia, has laid telecom cables in occupied Western Sahara.
India and New Zealand stand out as the main importers of phosphate rock from occupied Western Sahara, in WSRW’s newest annual report on the controversial trade.