Adopted after World War II, Agreement 87 is a cornerstone of international labor law, which guarantees workers and employers the right to train and join organizations of their choice. He does not explicitly mention strikes, but his defenders have long interpreted that freedom of association includes that right.
The president of the ICJ, Yūji Iwasawa, began the debate on Monday reading the formal question to the judges, referring to the resolution of the ILO and the procedural authority of the Court. He highlighted the “tripartite structure of the ILO, which is composed of representatives of governments, employers and workers.”
A rare request
Tomi Kohiyama, legal advisor of the ILO, recalled that the ILO had not appeared before the CIJ as consultation since 1932, which underlines the rarity of this type of requests.
He said that the ILO Secretariat would not take a position on the subject, but it would help the Court clarifying the institutional context and interpretive approaches under the Vienna Convention on the right of treaties.
“The participation of employers and workers’ organizations … is not preceded in the history of its august institution,” he added, referring to the tripartite character of the ILO.
Three ILO voices
Founded in 1919, ILO is unique within the United Nations system for its tripartite structure, which brings together representatives of governments, employers and workers to establish international labor standards.
However, that balance has sometimes led to a dead point, especially in 2012, when employer groups questioned whether agreements no. 87 and 98 recognized the right to strike.
The headquarters of the International Labor Organization (ILO) in Geneva.
Labor and business arguments
Paapa Danquah, speaking in the name of the International Trade Union Confederation (CSI), described strikes as a timeless expression of collective action.
“The strike has been our vital tool … to improve working conditions and defend our human dignities,” he told the court.
He argued that the right to strike is inherently part of the freedom of association and, therefore, should be recognized as protected by virtue of agreement no. 87.
On the contrary, Roberto Suárez Santos, on behalf of the International Organization of Employers (OIE), said that although the right to strike is not objected in principle, Agreement no. 87 does not implicitly cover the right to strike.
He warned that including it now in the agreement would impose a prescriptive regime – defining strike modalities – that could alter the nuances of national labor systems.
He expressed that the appropriate path would be consensus within the ILO tripartite bodies, not the unilateral judicial elevation of the norms.
CIJ consultative opinions
During three days of hearings, 21 countries and organizations are expected to rise to the stand, with 31 written statements already filed in the CIJ registry, reflecting the global interest in the result.
The advisory opinion of the Court, scheduled for the coming months, will not be legally binding but could deeply influence national and international labor law.