In a landmark decision, the UN World Court has ruled by a 10-to-four vote that the right to strike for workers and their organizations is protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). This ruling addresses a long-standing disagreement within the International Labour Organization (ILO) regarding the treaty’s scope.
The Court clarified that while the right to strike is protected, its opinion does not define the exact scope or conditions for exercising this right. The case was brought before the Court by the ILO’s Governing Body in November 2023, following years of debate among governments, employers, and workers on whether Convention No. 87 implicitly includes the right to strike, despite strikes not being explicitly mentioned in the text.
Core of the Dispute
The central issue revolved around whether the right to organize, as outlined in Convention No. 87, encompasses the right of workers and their organizations to engage in strike action. Employers’ groups argued that the convention’s text and drafting history did not support the inclusion of strike action. Conversely, workers’ representatives asserted that the right to strike is intrinsically linked to freedom of association and has been historically recognized by ILO supervisory bodies.
Court’s Reasoning and Dissent
The Court acknowledged the absence of an explicit reference to the right to strike in Convention No. 87. However, it reasoned that this omission does not necessarily exclude the issue from the treaty’s purview. Judges found that strike action could be considered an ‘activity’ of workers’ organizations under the Convention, aligning with provisions that protect the right of workers and employers to form organizations and defend their interests.
Despite the Court’s unanimous agreement on its jurisdiction, four judges dissented from the main conclusion. Judge Peter Tomka argued that the majority had interpreted the convention too broadly, suggesting it protects organizational aspects rather than specific collective economic actions like strikes. Judge Xue Hanqin criticized the ruling, stating it leaned more towards human rights advocacy than strict treaty interpretation, emphasizing a need to focus on the convention’s text and drafting history.
Significance of Advisory Opinions
This marks only the second time in ILO history that an interpretation of an international labor convention has been referred for an advisory opinion, and the first such request to the ICJ. While ICJ advisory opinions are not legally binding, they carry substantial legal and political weight, influencing ongoing discussions and the development of national and international law. The ILO’s Governing Body is expected to discuss the matter further at its upcoming November session.
