The International Court of Justice on has ruled that citizens’ right to strike is protected under a core International Labour Organisation convention.
The UN World Court, in a landmark advisory opinion of 10 votes to four, settled a long-running dispute between workers and employers worldwide.
Based in The Hague, the ICJ is the United Nations’ principal judicial organ and is composed of 15 judges elected by the UN General Assembly and Security Council.
ICJ ruled “the right to strike of workers and their organisations is protected” under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
Convention 87 of 1948 guarantees workers and employers the right to establish and join organizations of their own choosing without prior authorisation, ensuring they can operate freely without state interference.
The court, however, stressed that its opinion did not define the exact scope of the right to strike.
Its conclusion, the judges held, “does not entail any determination on the precise content, scope or conditions for the exercise of that right”.
The case was referred to the court by the ILO’s governing body in November 2023, after years of disagreement among the agency’s core constituents – governments, employers and workers.
The disagreement bothered on whether Convention No. 87 protects the right to strike, even though the treaty does not explicitly mention strikes.
At the heart of the dispute was whether the right to organize under Convention No. 87 includes the right of workers and their organizations to take strike action.
Employers’ groups stress that the convention contains no provision whose ordinary meaning implies such a right, and that the treaty’s drafting history showed no intention to include strike action.
Workers’ representatives, by contrast, argue that the right to strike is inherent in freedom of association and has long been recognized by ILO supervisory bodies.
The ILO said its governing body is expected to consider the matter at its November session, including any follow-up. The court acknowledged that Convention No. 87 “does not contain an explicit reference to the right to strike”.
ICJ, however, said the absence of such a provision “does not necessarily mean that the issue is excluded” from the treaty.
The judges found that strike action could fall within the ordinary meaning of workers’ organizations’ “activities” under the convention.
The judges added that strike action could also fall within provisions protecting the right of workers and employers to form organizations and defend their interests.
While the court was unanimous that it had jurisdiction and should answer the ILO’s request, four judges dissented from the central conclusion.
The case was only the second time in ILO history that a question concerning interpretation of an international labour convention had been referred, and the first such request to the ICJ since its creation in 1945.
ICJ advisory opinions are not binding judgments but they carry significant legal and political weight, shaping debates and national and international law.
(NAN)
