Right to Strike at the International Court of Justice, so the Workers Voice…

1.     The Question

There has been long-standing disagreement among the constituents of the International Labour Organization (ILO) concerning the exact scope and meaning of certain provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948, Convention No. 87, particularly whether the right to strike is protected by the Convention. The ILO has therefore requested an advisory opinion from the International Court of Justice (ICJ) under Article 37(1) of the ILO Constitution, which states that “any question or dispute relating to the interpretation of this Constitution or of any subsequent Convention concluded by the Members in pursuance of the provisions of this Constitution shall be referred for decision to the International Court of Justice”. The ILO requested an advisory opinion from the predecessor to the ICJ, the Permanent Court of International Justice (PCIJ), on six occasions, the last of which was in 1932. As the ILO stated correctly in its request: “The fact that a considerable amount of time has elapsed since the ILO’s last request for an advisory opinion does not mean that no questions relating to the interpretation of international labour Conventions have arisen in the past 90 years, but rather that there have not been any disagreements of an intensity and duration comparable to that of the current dispute.”1

The question this time is whether the right to strike of workers and their organisations is protected under Convention No. 87. Thedispute developed around the consistent view taken by the supervisory bodies of the ILO, particularly the Committee of Experts on the Application of Conventions and Recommendations (CEACR), that “the right to strike is an intrinsic corollary to the right to freedom of association and that, as such, it is recognized and protected by Convention No. 87”. For over thirty years, employers’ groups have firmly challenged the Committee’s authority to interpret conventions. On 6 October 2025, the International Court of Justice heard oral submissions from workers’ and employers’ representatives, as well as from several governments. The workers and a large majority of governments urged the Court to answer the question in the affirmative. The litigation is on the very existence of the lawful right to strike at the ILO and its link to freedom of association and “trade union activities”. The sub-questions that follow are: who will interpret the Conventions, or indeed who has the authority to do so; and, perhaps more pointedly, the relevance the ILO itself has.

The Road to ICJ: The Employer Group Strikes Back

At the end of the Cold War in 1994, the employers’ group, led by the International Organisation of Employers (IOE), objected to the CEACR’s view that the right to strike was protected under Convention No. 87 in the Committee on the Application of Standards (CAS). However, the path to the ICJ began when the employers’ group walked out of the CAS at the International Labour Conference (ILC) in 2012, stating that the right to strike should be discussed on “a tripartite basis, rather than left to the experts to develop on their own…”^[2] They have concerns on the issues of “political strikes and essential services”, and they object to the influence of CEACR findings in other courts, implicitly the European Court of Human Rights (ECtHR). The ECtHR has relied heavily on the findings of the ILO supervisory bodies, especially in Turkish cases from the early 2000s. The employers’ group demanded a tripartite political discussion in the CAS, objecting to expert engagement, and refused to recognise that the CEACR’s supervisory findings stemmed from, and were related to, the tripartite Committee on Freedom of Association (CFA). However, the workers' group considered this unacceptable, and consequently the CAS ceased its activities without discussing any cases of non-compliance. Following that, ITUC responded with a legal opinion on Convention No. 87 which proposed a reference to ICJ. Agreement was notionally reached at the ILO in 2015, but employers continue to block CEACR and CFA findings on the right to strike until reference of the current dispute to the ICJ in 2023.

2.     Arguments of the Parties

Is the right to strike of workers and their organisations protected under Convention No. 87? Although not specifically mentioned in Convention No. 87, the CEACR's view is that the right to strike is derived from Article 3 of Convention 87, which states that “workers’ organisations shall have the right to organise their activities and formulate their programmes in full freedom. […] [T]his right includes recourse to strikes, which are one of the essential means through which workers and their organisations may promote and defend their economic and social interests.”^[3]

The CEACR has further specified that “trade unions and employers’ organizations responsible for defending socio-economic and occupational interests should be able to use, respectively, strike action or protest action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members”, and that therefore workers should be able to “exercise their right to strike to defend occupational and economic interests, which do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions”.^[4] In addition, over the course of its 70 years of existence, the CFA has consistently recognized the right to strike by workers and their organizations as a “legitimate means of defending their economic and social interests” and has recognized that “the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests”.^[5] According to the supervisory bodies of the ILO the right to strike is an intrinsic corollary to the right to freedom of association and that, as such, it is recognized and protected by Convention No. 87. Furthermore, the Committee considered, in particular, that monitoring the application of Conventions “logically and inevitably requires an assessment, which in turn involves a degree of interpretation of both the national legislation and the text of the Convention”, and that therefore, it is the Committee who will interpret the articles in order to supervise and monitor the application of the standards.2 According to the ILO, while the primary function of the Committee of Experts is to monitor the application of international labour Conventions, it has often expressed views on the scope and meaning of key provisions and concepts of those texts.^[7]

IOE, on the other hand, argues that right to strike was never recognised in  Convention No. 87, and that the drafters never intended it to recognise such right. The word “strike” is not expressly mentioned in the text of the treaty, nor is it indicated in the treaty's name. Referring to the title of Convention No. 87, “Freedom of Association and Protection of the Right to Organise Convention”, the IOE argues that “the focus of C87, per its title, is on the ability to associate, and protection of the right to organise; whilst, at the same time, there is no reference to a right to strike, or even to collective bargaining (cf. C98).”^[8] The IOE argues that the right to strike cannot be derived by interpreting Article 3 of Convention 87, since Article 3(1) does not clearly answer whether those words cover a right to strike, and because it is general and broad.3 The IOE states that Convention No. 87 only protects activities internal to workers’ (or employers’) organisations, excluding all activities external to their governance or regulation, or affecting non-members.4 Furthermore, the definition of “organisation” in Article 10 serves only to distinguish which organisations qualify for protection under the Convention. In its view, Article 10 has no other significance.^[11] This argument was also supported by some states. According to the IOE, the right to strike should be discussed on a tripartite basis rather than being left to supervisory bodies, which have no right to do so. According to the IOE, if Convention No. 87 “protected the right to strike, the majority - if not all - State parties to C87, would be found in violation of the Convention under the CEACR’s guidance of the right to strike” due to the diversity of industrial action and industrial relations in the world. The IOE alleges the violation of the “rule of law” and “principle of legal certainty” in “bypassing the ILO specific tripartite consensus-based process”.^[12] Finally IOE suggest that other existing forums can resolve the question based on tripartite consensus.

3.     Evaluation

The requested ICJ advisory opinion is about the very existence of the lawful right to strike at the ILO and its link to freedom of association and “trade union activities”. The conflict is a matter of treaty interpretation under articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT). Article 31(1) states that interpretation should be “in good faith in accordance with the ordinary meaning to be given to the terms … in their context and in the light of its object and purpose”.

The VCLT obliges the interpretation to be in accordance with the ordinary meaning of the terms. Strikes are among the “activities” and “programmes” of workers organisations for “furthering and defending the interests of workers”, as set out in Articles 3(1) and 10.^[13] Article 3 of ILO Convention 87 states clearly that “workers’ and employers’ organisations shall have the right to …..organise their administration and activities and to formulate their programmes”. The object and the purpose of the Constitution of the ILO and Convention No. 87 furthermore support that the right to strike is protected by Convention No. 87. The Preamble to the Constitution of the International Labour Organisation declares that “recognition of the principle of freedom of association” is a means of improving conditions of labour and of establishing peace. The Declaration of Philadelphia reaffirms that “freedom of expression and of association are essential to sustained progress”. Furthermore, Article 10 of Convention No. 87 states that the organisation's aim is to further and defend the interests of workers and employers. Therefore, the recognition of the right to strike under Convention No. 87 is a natural consequence of the terms of Article 3(1), read alongside Article 10. Contrary to the arguments of the IOE and others, there is no ambiguity in these terms. A textual reading of Article 3(1), together with Article 10 in good faith, brings us to the conclusion that the right to strike is protected by Convention No. 87.

The ITUC rightly argues in its written statement that the context of Articles 3(1) and 10, as set out in the Convention's actual text, conclusively confirms that Convention No. 87 does not exclude the right to strike. Conversely, the restriction is clearly defined in Convention No. 87. For instance, Article 9 expressly allows states to exclude the police and armed forces; therefore, the convention contains no indication that the right to strike is excluded from its scope. Additionally, the Chairman of the drafting committee stated that the purpose of Convention No. 87 is not to provide a detailed code, but rather “a concise statement of certain fundamental principles”.5

Once again, the VCLT requires that the interpretation be made in good faith. Two arguments can be put forward. Firstly, without the right to strike employers would have little incentive to negotiate in good faith. It has frequently been observed that, in the absence of a right to strike, collective bargaining would be nothing more than “collective begging”.6 The right to strike is a prerequisite for trade unions to be effective in protecting workers' interests. Not only effectiveness, but also the right to strike is related to the concept of solidarity. The solidarity allows workers to overcome the power imbalance inherent in employment contracts to achieve fair working conditions. The right to strike and the principle of solidarity are instrumental in enabling workers to participate in decisions that influence not only their conditions of employment but also the broader societal framework. It is difficult, if not impossible, to make their voices heard in the absence of a right to strike, given the unequal power dynamic in the employment relationship.7 Secondly, where the parties to a treaty have previously agreed on an interpretation, there may be circumstances where, according to the principle of good faith, a party has acquiesced to that interpretation, or is estopped from later contesting it. Article 31(3)(b) of the VCLT requires taking into account, “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;”.  There are other relevant ILO instruments that confirm that Convention No.87 protects the right to strike, which was not objected to by the employer group.8 Furthermore, VCLT Article 31(3)(b) requires that human rights treaties applicable to the parties confirm the interpretation of Convention No. 87. There is widespread legal recognition of the right to strike, even if there is some diversity in the details of its application. This is evident in the United Nations Covenants of 1966, the ECtHR's interpretation of Article 11 of the ECHR, the European Social Charter of 1961 (Article 6(4)), the European Union Charter of Fundamental Rights (Article 28), and the Inter-American and African human rights systems. Finally, member states recognise strikes either in law or through the interpretation of their respective courts. 9The IOE also argued that the CEACR has no authority to interpret the conventions.^[19] This argument should be evaluated according to the role and the mandate of supervisory bodies at the ILO in particular CEACRI would argue that the CEACR is not creating a new obligation or right; the right to strike is a natural consequence of the ILO Constitution and Convention No. 87. As the Committee also stated, it is very difficult, if not impossible, to monitor the application of the Conventions without assessing the meaning of the text.

Finally, I argue that the true foundation of the right to strike lies in the principle of social justice. Viewed through this lens, strike is more than a mere tool for industrial relations; it is a fundamental mechanism that enables workers’ participation in decision-making, and ensures their voices are heard, influencing not only their conditions of employment but also societal well-being at large. Fundamentally, protecting the right to strike is a public interest mandate that serves social justice by addressing the inherent power imbalance between capital and labour.

In conclusion, the right to strike is an inherent corollary to the principles of freedom of association and the right to organise. All participants agree that the purpose of Convention No. 87 was to protect freedom of association and the right to organise. Then it follows that the right to strike must come within the ordinary meaning of the terms in Articles 3(1) and 10. Regardless of the outcome of the ICJ's advisory opinion, strikes will continue. I believe that the ICJ will also conclude that the right to strike of workers and their organisations is protected under Convention No. 87.

• 1Interpretation of the ILO Freedom of Association and the Protection of the Right to Organise Convention,
• 2See, ILO, Written Statement, para. 65.
• 3See, ILO, Written Statement, para. 326.
• 4See, ILO, Written Statement, para. 327. In its General Survey of 1994, the Committee of Experts elaborated on the reasoning underpinning its position as follows: The words “activities and … programmes” in this context acquire their full meaning only when read together with Article 10, which states that in this Convention the term “organization” means any organization “for furthering and defending the interests of workers or of employers”. The promotion and defence of workers’ interests presupposes means of action by which the latter can bring pressure to bear in order to have their demands met. In a traditional economic relationship, one of the means of pressure available to workers is to suspend their services by temporarily withholding their labour, according to various methods, thus inflicting a cost on the employer in order to gain concessions. […] The Committee therefore considers that the ordinary meaning of the word “programmes” includes strike action, which led it very early on to the view that the right to strike is one of the essential means available to workers and their organizations to promote their economic and social interests. Under Article 3(1) of Convention No. 87, the right to organize activities and to formulate programmes is recognized for workers’ and employers’ organizations. In the view of the Committee, strike action is part of these activities under the provisions of Article 3; it is a collective right exercised, in the case of workers, by a group of persons who decide not to work in order to have their demands met. The right to strike is therefore considered as an activity of workers’ organizations within the meaning of Article 3
• 5See, ILO, Written Statement, para. 347.
• 6ILO, Written Statement, para. 66.
• 7ILO, Written Statement, para. 217.See; The Committee of Experts itself noted on numerous occasions that “in order to carry out its function of determining whether the requirements of Conventions are being respected, the Committee has to consider and express its views on the content and meaning of the provisions of Conventions and to determine their legal scope, where appropriate” See, ILO, Written Statement, para. 222.
• 8Written Statement of the International Organisation of Employers, para. 157.
• 9Written Statement of the IOE, paras. 146.