The right to strike is fundamental for workers to get a fair deal and for democracy. For nearly 10 years, there has been an impasse on the right to strike at the International Labour Organization between the worker representatives, who support that the right to strike derives under international law from ILO Conventions 87 (Freedom of Association) and 98 (Right to Organise and Collective Bargaining), and the representatives of employers. In a crucial decision, the ILO Governing Body has voted in favour of seeking a resolution from the International Court of Justice (ICJ)* over the long-standing dispute. Trade unions are satisfied.
ILO is a United Nations agency whose mandate is to advance social and economic justice by setting international labour standards. In a proposal ahead of the 112th session of the International Labour Conference in June 2024, the employers’ group call for a protocol to be attached to C87 to “regulate” the right to strike, while at the same time denying that Convention 87 protects the right to strike. The unions' view is that this proposal is fundamentally flawed and had to be rejected. The constitutional objective and mandate of the ILO is to protect the rights of workers.
In a special session, held on 10 November, ILO Governing Body delegates took a decision by vote not to endorse the employers' proposal, but urgently refer the matter to the International Court of Justice.19 government representatives on the Governing Body voted with the 14 worker delegates to send the issue to the ICJ. Just seven voted with the employer group, which also has 14 members, while two governments abstained.
For many years, the ILO Committee of Experts on the Application of Conventions and Recommendations, consisting of independent experts responsible for monitoring the application of ratified Conventions by Member States, has taken the view that the right to strike is a corollary to the right to freedom of association, and that, as such, it is recognized and protected by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
However, the Employers’ group began increasingly to question the Committee of Experts’ interpretation of Convention No. 87. The controversy gradually intensified and in 2012 gave rise to a major institutional crisis, with the Conference Committee on the Application of Standards being prevented for the first time from exercising its supervisory functions.
In 2015 the International Labour Organization (ILO) employers’ group and certain governments challenged ILO Convention 87, which is ratified by 153 countries, and up-holds the right to strike. Unions around the world protested to protect this fundamental right, but the right to strike has been under increasing attacks since.
The special session of the ILO Governing Body agreed that conscious of a ‘serious and persistent disagreement within the tripartite constituency of the ILO’ on the interpretation of Convention No. 87, with respect to the right to strike, in accordance with article 37 of the ILO Constitution, to “request the International Court of Justice to render urgently an advisory opinion….. on the following question: ‘Is the right to strike of workers and their organizations protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).”
It instructs the Director-General to transmit the resolution to the ICJ and to seek the participation in the advisory proceedings of the employers’ and workers’ organizations that enjoy general consultative status with the ILO.
The decision is welcomed by the trade unions
IInternational Trade Union Confederation (ITUC) General Secretary Luc Triangle said: “We welcome this decision and look forward to putting our case to the ICJ. We are confident that this process will validate the decades of ILO jurisprudence on the right to strike in international law.”
*: The International Court of Justice is the principal judicial organ of the United Nations. Its role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.