UN Court Hears Landmark Case on Right to Strike

Trade union members France during a nationwide strike. (file)

The International Court of Justice (ICJ) opened hearings on Monday to determine whether the right to strike is protected under international law — marking the first time the world’s top court has been asked to weigh in on the balance between workers’ rights and employers’ interests.

The case stems from a 2023 request by the Governing Body of the International Labour Organization (ILO), which sought an advisory opinion on whether the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) includes the right to strike.

Adopted after World War II, Convention No. 87 is a cornerstone of international labour law, guaranteeing workers and employers the right to form and join organizations of their choice. It does not explicitly mention strikes, but advocates have long argued that freedom of association inherently includes that right.

ICJ President Yūji Iwasawa opened Monday’s proceedings by reading the formal question to the judges, referencing the ILO’s resolution and the Court’s procedural authority. He noted the “tripartite structure of the ILO, comprised of representatives of governments, employers, and workers.”

Tomi Kohiyama, ILO Legal Adviser, recalled that the ILO had not appeared before the ICJ in a consultative capacity since 1932, underscoring the rarity of such a request.

She said the ILO secretariat would not take a position on the issue but would assist the Court by clarifying the institutional context and interpretative approaches under the Vienna Convention on the Law of Treaties.

“The participation of organizations of employers and workers is without precedent in the history of your august institution,” she added, referring to the ILO’s tripartite nature.

Founded in 1919, the ILO is unique within the UN system for its tripartite structure, bringing together representatives of governments, employers, and workers to set international labour standards.

That balance, however, has sometimes led to deadlock — most notably in 2012, when employer groups challenged whether Conventions No. 87 and 98 recognized a right to strike.

Paapa Danquah, speaking for the International Trade Union Confederation (ITUC), described strikes as a timeless expression of collective action.

“Strike action has been our vital tool to improve labour conditions and to defend our human dignity,” he told the Court.

He argued that the right to strike is an inherent part of freedom of association and should therefore be recognized as protected under Convention No. 87.

In contrast, Roberto Suárez Santos, representing the International Organisation of Employers (IOE), asserted that while the right to strike is not objectionable in principle, Convention No. 87 neither explicitly nor implicitly covers it.

He warned that interpreting the Convention to include a right to strike could impose a prescriptive regime that might disrupt diverse national labour systems. He suggested that consensus should be reached within the ILO’s tripartite bodies, rather than through unilateral judicial interpretation.

Over three days of hearings, 21 countries and organizations are expected to take the stand, with 31 written statements already submitted to the ICJ Registry — reflecting widespread global interest in the case.

The Court’s advisory opinion, expected in the coming months, will not be legally binding but could significantly influence both international and national labour law.