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In two recent cases before the Court of Justice of the European Union (CJEU), the General Court (at first instance), the High Court of Justice of England and Wales and the Grand Chamber of the CJEU found that a trade agreement and a fisheries agreement between Morocco and the European Union cannot be applied to occupied Western Sahara without the consent of its people. In spite of the fact that it is the general view that Western Sahara is under belligerent occupation, none of the three courts invoked the law of occupation but based themselves instead on the principle of self-determination and the law governing the administration of non-self-governing territories, including the principle of permanent sovereignty over natural resources. A possible implication of these judgments is that that law and the law of occupation are converging in certain respects, in particular as regards long-term occupation. This pertains not only to the substantive rules on the exercise of authority, which seem to require that the people are heard, but also to the basis for the establishment of that authority, namely bare control.

This chapter traces the prehistory, genesis and application of Article 6(5) of the Second Additional Protocol to the 1949 Geneva Conventions (1977) and its implications for the question of right authority. Under international law, a sovereign government has sovereign rights (and obligations) towards her subjects while the relation between belligerents is different: It is one of enmity and equality, regulated by the law of war (or international humanitarian law [IHL] or jus in bello). Rebels can be punished for using force against the sovereign, but soldiers of a belligerent not; they have the " combatant privilege" to kill other soldiers. In present international law, this right of the sovereign (a right authority) is undermined by certain tendencies in the jus in bello. To the extent that non-state armed groups (NSAGs) can start a war without negative legal consequences and thus acquire belligerent rights, they actually have a de facto authority, or at least they are undermining the state's exclusive authority. Article 6(5) states that " [a]t the end of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesty to persons who have participated in the armed conflict…" The many amnesty agreements concluded since, demonstrates an emerging trend towards " retroactive combatant immunity." Thus, rebel fighters have a reasonable chance of being provided with the " combatant privilege," albeit post factum.

What does authority mean under international law? There are various actors with different forms of authority, but no overarching concept of what characteristic endows an actor with authority, and even less of a coherent conception of legitimacy as a requirement for such authority. In fact, international law recognizes different authorities for different causes and different contexts, allocated to different actors, who base their authority on different characteristics (state legitimacy, representativity, military power, control). After disaggregating the concept of authority and outlining some of the consequences that follow from each type, this article highlights a number of different actors and describes the various authorities each has under international law. For instance, under jus in bello, nonstate actors can create a state of armed conflict in which they can often continue to use military means without legal sanction. While jus ad bellum may still in principle require legitimacy (in the formal sense of being a state), current jus in bello covers a range of non-state actors. Thus, from a practical point of view, the jus in bello regulations undermine any jus ad bellum requirement of legitimate authority.