The right to strike is protected under major labor treaties, the UN World Court says

By 10 votes to four, the UN World Court command “The right to strike of workers and their organizations is protected” under the Convention Convention on Freedom of Association and Protection of the Right to Organize, 1948 (No. 87).

But the Court emphasized that his opinion did not explain the exact scope of the right to strike. In conclusion, judges said“does not require any determination regarding the content, scope or precise conditions for the exercise of that right.”

This case was referred to the Court by ILO‘S Management Body in November 2023, after years of disagreement among the body’s core constituents – namely government, employers and workers – over whether Convention no. 87 protects the right to strike, even though the treaty does not explicitly mention strikes.

The crux of the dispute

The crux of the dispute is whether the right to organize under Convention No. 87 includes the right of workers and their organizations to strike.

Business groups stressed that the convention does not contain provisions whose general meaning would imply such a right, and that the drafting history of the treaty does not indicate an intention to include strikes.

In contrast, worker representatives argued that the right to strike is inherent in freedom of association and has long been recognized by the ILO supervisory body.

ILO said Its Governing Body is expected to consider the issue at its November hearing, including follow-up action.

court reasons

The Court acknowledged that Convention no. 87 “does not contain an explicit reference to the right to strike,” but says the absence of such a provision “does not mean that the issue is excluded” from the agreement.

The judges argued that strikes could fall within the general definition of workers’ organizational “activities” under the Convention, along with provisions protecting the rights of workers and employers to form organizations and defend their interests.

The judges were divided

Although the Supreme Court agreed that it had jurisdiction and should respond to the ILO’s request, four justices dissented on the main conclusion.

Justice Peter Tomka argued that the majority had expanded the convention beyond what states had agreed to, saying it protects the “formation, autonomy and internal administration” of workers’ and employers’ organizations, but does not protect certain forms of collective economic action such as strikes.

Judge Xue Hanqin criticized the decision as reflecting “the exercise of human rights advocacy and not the interpretation of the treaty”, arguing that the Court should focus on the text of the convention and its historical construction.

Advisory opinion

The case is this is the second time in the history of the ILO that questions regarding the interpretation of international labor conventions have been raised, and the first request is addressed to ICJ since its founding in 1945.

The ICJ’s advisory opinion is not a binding decision, but it has significant legal and political weight, making it subject to debate and national and international law.

Based in The Hague, the ICJ is the UN’s principal judicial body and consists of 15 judges elected by the UN General Assembly and Security Council.