By 10 votes to four, the UN World Court ruled that “the right to strike of workers and their organizations is protected” under the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87).
The Court, however, stressed that its ruling did not define the exact scope of the right to strike. Their conclusion, the judges said, “does not imply any determination regarding the precise content, scope or conditions for the exercise of that right.”
The case was referred to the Court by the ILO Governing Body in November 2023, after years of disagreement between the agency’s main constituents (governments, employers and workers) over whether Convention No. 87 protects the right to strike, although the treaty does not explicitly mention them.
The heart of the dispute
The center of the dispute was whether the right to organize under Convention No. 87 includes the right of workers and their organizations to undertake strike action.
Employer groups emphasize that the agreement does not contain any provision whose ordinary meaning implies such a right, and that the treaty’s drafting history shows no intention to include strike action.
Workers’ representatives, on the other hand, maintain that the right to strike is inherent to freedom of association and has long been recognized by the ILO supervisory bodies.
The ILO said its Governing Body is expected to consider the matter at its November session, including any follow-up.
The headquarters building of the International Labor Organization (ILO) in Geneva.
The court’s reasoning
The Court recognized that Convention No. 87 “does not contain an explicit reference to the right to strike,” but said the absence of such a provision “does not necessarily mean that the issue is excluded” from the treaty.
The judges determined that strike action could fall within the ordinary meaning of the “activities” of workers’ organizations under the Convention, together with the provisions protecting the right of workers and employers to form organizations and defend their interests.
Judges divided
While the Court was unanimous that it had jurisdiction and should respond to the ILO’s request, four judges disagreed with the central conclusion.
Justice Peter Tomka argued that the majority had extended the convention beyond what was agreed upon by states, saying that it protects the “formation, autonomy and internal administration” of worker and employer organizations, but not specific forms of collective economic action such as strikes.
Judge Xue Hanqin criticized the ruling for reflecting “an exercise in human rights advocacy rather than treaty interpretation,” arguing that the Court should have focused on the text of the convention and its drafting history.
A view of the Peace Palace in The Hague, seat of the International Court of Justice.
Advisory opinions
The case was only the second time in the history of the ILO that a matter relating to the interpretation of an international labor convention had been referred, the first such request to the ICJ since its creation in 1945.
The ICJ’s advisory opinions are not binding rulings, but they carry significant legal and political weight, shaping national and international law and debates.
Headquartered in The Hague, the ICJ is the principal judicial body of the United Nations and is composed of 15 judges elected by the General Assembly and the United Nations Security Council.