A/HRC/30/45
the negative impact of unilateral coercive measures on the enjoyment of human rights and
to provide accountability for the source countries and redress for victims.
37.
There are, in legal terms and in the context of international law, differences between
the concepts of retorsion, retaliation and reprisals, even if the terminology is unsettled and
sometimes fluctuant.20 In summary, retorsion refers to applying pressure on a target
country, the latter being or not in breach of its international obligations, without the source
country itself suspending any international obligation owed to the target country.21
Retaliation refers to the lex talionis, which demands that a wrongdoer be inflicted with the
same injury as that which he has caused to another. It may thus be used to describe a
suspension by a source country, by way of a unilateral coercive measure, of its international
commitments selectively against the target country to an extent that is proportionate with
the wrongful act of the latter, thus staying within the alleged bounds of legitimacy. Finally,
the concept of reprisal, traditionally used to cover otherwise unlawful action, including
forcible action, taken by way of self-help in response to a breach, is now mostly used to
refer to action taken in time of international armed conflict. In that context, reprisals have
been defined as “coercive measures which would normally be contrary to international law
but which are taken in retaliation by one party to a conflict in order to stop the adversary
from violating international law”.22 unilateral coercive measures can be implemented as an
alternative, or as a prelude, to the use of force. They may be invoked for political motives
or for reasons pertaining to human rights. It is recognized that they are not legitimate if they
pursue an economic objective of the source country or group of countries. International law
will only consider such measures as legitimate if: (a) they are a response to a breach of the
international obligations of the target country; and (b) the breach of such obligations causes
injury on a State or group of States giving them the right to retorsion/retaliation. The notion
of extraterritorial source of injury giving rise to the right to retorsion/retaliation is clear for
political or commercial disputes, but less so for claims of violations of human rights
overseas. Be that as it may, the measures taken by the aggrieved State(s) might have been
qualified as wrongful had it not been for the fact that they are a proportionate response to a
breach of the international obligations by the target country. This legitimacy would also
depend on the source countries having given due notice to the target country to have to
comply with its international obligations. However, the legitimacy of retorsion/ retaliation
may be put in doubt if the negative human rights impact of the unilateral coercive measures
undermines basic human rights or if the measures are pursued indefinitely without any
progress in achieving their proclaimed objective. Thus, human rights law mitigates the
rigors of international law.
38.
It may be ultimately that the preferred option to legitimize unilateral coercive
measures is to apply to them the legal regime of countermeasures in the sense of the
International Law Commission Draft Articles on the Responsibility of States for
International Wrongful Acts,23 article 22 of which reads states that the wrongfulness of an
act of a State not in conformity with an international obligation towards another State, as
may be the case for unilateral coercive measures, “is precluded if and to the extent that the
act constitutes a countermeasure taken against the latter State”. However there are
20
21
22
23
See E.S. Colbert, Retaliation in International Law (New York, Kingʼs Crown Press, 1948), pp. 2 and
3, fn. 1.
See “Commentaries on the Draft articles on Responsibility of States for Internationally Wrongful
Acts” (2001) ILC Yearbook, Vol. II, Part Two, p. 128.
See S. Oeter, “Methods and Means of Combat”, Handbook of International Humanitarian Law
(Oxford, Oxford University Press, 2008), p. 232, No. 476. See also S. Darcy, “Retaliation and
Reprisals”, Oxford Handbook of the Use of Force in International Law (Oxford, Oxford University
Press, 2015), p. 879.
See Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 10 (A/56/10).
11
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