How the companies argue

This article is under construction. 

26 May 21
  1. The international companies operating in occupied Western Sahara use a combination of arguments to support their precense. The arguments are not valid.
  2.  
    1. 1. 'Our work is beneficial to Western Sahara.'

      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.

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. 

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.

5. Obtaining consent is impossible

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.

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?

7. 'We have received legal advice that our operations are legal' 

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. ‘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 fulfil that legal obligation. Morocco’s role is one 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 being 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 holding 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 which 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 Counsel 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 to 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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