The UN’s top court ruled by a 10-4 vote that the right to strike is protected under the 1948 Freedom of Association and Protection of the Right to Organize Convention (Convention No. 87).
However, the Court emphasized that its opinion does not define the precise scope of the right to strike. Judges stated that their findings do not amount to any determination of the full content, scope, or conditions for exercising this right.
The case was referred to the Court by the Governing Body of the International Labour Organization (ILO) in November 2023, following years of disagreement over whether Convention No. 87 protects strikes, despite the convention not explicitly mentioning them.
Core of the Dispute
The central issue was whether the right to organize under Convention No. 87 encompasses the right of workers and their organizations to take strike action.
Employer groups argued that the convention contained no provision implying such a right and that there was no intention to cover strikes during the convention’s drafting process.
Conversely, worker representatives contended that the right to strike is an inherent part of freedom of association and has long been recognized by ILO supervisory bodies.
The ILO had announced that the Governing Body was expected to address the matter and potential follow-up steps at its November session.
Court’s Rationale
While acknowledging that Convention No. 87 does not explicitly refer to the right to strike, the Court stated that the absence of such a provision does not mean the matter falls outside the convention’s scope. Judges determined that strike action could fall within the ordinary meaning of the “activities” of workers’ organizations under the Convention, alongside provisions protecting the rights of workers and employers to establish organizations and defend their interests.
Dissenting Opinions
Although the Court was unanimous that it had jurisdiction and should respond to the ILO’s request, four judges disagreed with the main conclusion. Judge Peter Tomka argued that the majority was extending the convention beyond what states had accepted, asserting that the convention protects the “establishment, autonomy and internal governance” of workers’ and employers’ organizations but not specific forms of collective economic action like strikes. Judge Xue Hanqin suggested the decision could be characterized as “human rights advocacy rather than treaty interpretation,” arguing that the Court should have focused on the text and preparatory history of the convention.
Advisory Opinions
This case marked the second time in the ILO’s history that a question concerning the interpretation of an international labor convention had been referred to the Court, and the first such request to the ICJ since its establishment in 1945. While the ICJ’s advisory opinions are not binding decisions, they carry significant legal and political weight in shaping discussions and national/international law. The Lahey-based ICJ is the principal judicial organ of the United Nations, composed of 15 judges elected by the UN General Assembly and Security Council.
