In a landmark labour rights case, the International Court Of Justice in the Hague opened hearings between October 6th – 8th on the right to strike to determine whether the right to strike is protected under international law – 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 asked the Court for 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 in the aftermath of World War Two, Convention 87 is a cornerstone of international labour law, guaranteeing workers and employers the right to form and join organisations of their choosing. It does not explicitly mention strikes, but advocates have long interpreted freedom of association to include that right.

Over the three days of hearings, 21 countries and organisations gave their opening statements, with 31 written statements already filed in the ICJ Registry – reflecting global interest in the outcome.

Trade unions were represented by the International Trade Union Confederation lead by Luc Triangle, General Secretary. Among the lawyers and legal experts on the ITUC team is Lord John Hendy KC, vice president of the Campaign For Trade Union Freedom. 

Below is a precis of the opening statement given by the ITUC’s legal team to the court, it has been edited to removed long references to case law and opinion.

 “The ITUC is the world’s most representative international workers’ organisation. We address you on behalf of 191 million workers across 169 countries and territories, many of whom suffer intimidation and coercion on a daily basis for reason only of the fact that they are members of a trade union.

These millions of workers invite the Court to confirm the well-established view that the right to strike is protected by the ILO Convention on Freedom of Association and Protection of the Right to Organise of 1948 (“Convention No. 87”). 

Let us begin with what is not in dispute.

First, there is no question what the word “strike” means ⎯ it is the collective withdrawal of

labour by workers to promote and defend their interests and rights. From the first documented strike by tomb-workers in ancient Egypt to the collective actions taken around the world today, strikes are a quintessential expression of industrial action, as old as labour itself. 

Strike action has been our vital tool, to improve labour conditions and to defend our human dignities against exploitation and commodification. Not everyone has gone on strike, but we all are beneficiaries of those who have. Many of the improvements in labour conditions today were simply unimaginable a century ago, when the ILO was created. These were hard-won rights realized through widespread strikes led by workers and their trade unions, be it the eight-hour workday, minimum wages, holidays with pay, parental leave or social protection, among others.

What is also not in dispute, is the broad agreement about “the right to strike” itself. In particular, no participants in these proceedings challenge, (a) that the right to strike is part of the broader right of workers and their organisations to take industrial action to further and defend their interests. The International Organisation of Employers (IOE) itself admits, without qualification, that the right to strike per se is not contentious and is linked to the right to take industrial action. 

Or that the right to strike exists as “part of the fundamental principles and rights at work of the ILO”, specifically “freedom of association”⎯ which is one of ILO’s foundational principles enshrined in the 1919 Treaty of Versailles and reaffirmed in the Declaration of Philadelphia.

Another issue also not disputed ⎯ until recently ⎯ is that the right to strike, though not explicitly articulated, is fully protected by Convention No. 87 as part of freedom of association. Indeed, that was the basis for the consistent and coherent application and supervision of the right to strike under the Convention. For decades, nobody challenged this understanding. For example, commenting upon Convention No. 87 at the Committee on the Application of Standards in 1989, the Employers’ Group stated: “Far from challenging the right to strike . . ., [the Employers] merely wanted the exercise of that right submitted to reasonable restrictions”

Even as late as 2010, the Employers’ Group conceded that Convention No. 87 contained a general right to strike16. So it was, until the Employers departed from the consensus and brought the ILO supervisory system into

a complete standstill in 2012. It did so by adopting the very opposite ⎯ and extreme ⎯ position that the right to strike did not exist at all ⎯ not even as an inherent corollary of freedom of association under Convention No. 8717

The ITUC and the great majority of participants hold the view that the right to strike is embodied in the principle of freedom of association and protected as an inherent and central part of the right of workers and their trade unions to organise under Convention No. 8718. A minority of the participants in these proceedings deny that Convention No. 87 protects the right to strike. We will explain in our submissions today that these participants have either wholly misunderstood or misrepresented the central issue that falls to be determined.

First, the minority argue that the right to strike is only a corollary of freedom of association in ILO law in general and in national laws, but not reflected in Convention No. 8720. 

However, as a threshold matter this position is not logical. In fact, apart from the IOE’s extreme position, the other minority participants ⎯ rather than challenging the right to strike under the Convention ⎯ raise questions about its limitations and who sets them. Nevertheless, neither of these issues is within the scope of the question put before you.

This question only concerns the existence of the right under Convention No. 87, and it turns on the proper interpretation of the Convention.

Second, the minority make their case on the basis that Convention No. 87 does not detail or codify a standalone right to strike, or they overly rely on the absence of the exact word “strike” in the Convention21. To be clear, the issue before you is whether the right to strike falls within the meaning of Article 3 (1), read together with Article 10, under the Convention. As Professor Okowa will demonstrate by applying the rules of treaty interpretation, the answer to that question is plainly: yes. Thus, when we say that the “right to strike of workers and their organisations is protected under Convention 87”, what we mean is that there is no reason to exclude strikes from the activities that workers and their organisations are entitled to organise to further and defend their interests.

Finally, this case certainly has wider implications. But these are not the ones that the IOE identified in their written submissions.

(a) The first wider implication of the Court’s determination will be whether the ILO can continue to maintain a coherent and consistent body of law on freedom of association and the right to organise, as a constitutional imperative. As the ILO stated in its written statement, freedom of association “not only permeates the entire fabric of international labour standards but is also a primal aspect of a multitude of international human rights instruments”.

(b) The other implication is raised by the Government Group, in their statement at the 2015 Tripartite Meeting. They say “without protecting a right to strike, Freedom of Association, in particular the right to organize activities for the purpose of promoting and protecting workers’ interests, cannot be fully realized”. Simply put, the seismic implication is that workers would no longer be able to promote and protect workers’ interests using all available means under the ILO Convention.

As Professor Koh will explain, to conclude that the right to strike is excluded from Convention No. 87 would have far-reaching consequences for national laws around the world, for the established practice of the ILO system, and for international law more generally.

When a legally protected right, which has been accepted and acted upon for decades, is questioned and its support thrown in doubt, social dialogue and the rule of law, themselves, are undermined. This is why we stand before you to defend the existence of this quintessential right.

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