Right to Strike Under ILO Convention No. 87 (Request for Advisory Opinion)

1. Case Citation and Basic Information 

• Full Case Name: Right to Strike under ILO Convention No. 87 (Request for Advisory  Opinion) 
• Citation: ICJ Reports 2026, p 101 
• Jurisdiction / Court: International Court of Justice (ICJ), The Hague
• Date of Decision: 21 May 2026 
• Bench Composition: 14 Judges Sitting; President Yuji Iwasawa presiding, Vice President Julia Sebutinde, Judges Tomka, Abraham, Xue, Bhandari, Nolte, Gómez  Robledo, Cleveland, Hmoud, Tladi, and others (Judge Okowa recused). 

2. Introduction 

In May 2026, the International Court of Justice delivered a landmark Advisory Opinion that  resolved more than a decade of institutional deadlock within the International Labour  Organization (ILO). The central question before the Court was whether the Freedom of  Association and Protection of the Right to Organise Convention, 1948 (No. 87) implicitly  protects the right of workers and their trade unions to take industrial strike action, despite  containing no express statutory mention of the word “strike.” 

This case represents one of the most critical developments in international labour law and  human rights jurisprudence in modern history. For over twelve years, an intense disagreement  between employer representatives and worker delegations paralyzed the ILO’s supervisory  machinery. By issuing this Advisory Opinion, the UN World Court affirmed that collective  economic action is an essential component of freedom of association under international  labour safeguards decision provides authoritative legal clarity, ensuring that fundamental  labour safeguards cannot be eroded through narrow statutory interpretations. 

3. Facts of the Case 

The origin of this dispute dates back to the adoption of ILO Convention No. 87 in 1948.  While the Convention expressly guarantees the right of workers and employers to establish  organizations and draw up their constitutions and programs, it does not explicitly contain the  phrase “right to strike.” For decades, the ILO Committee of Experts on the Application of  Conventions and Recommendations (CEACR) and the Committee on Freedom of  Association (CFA) consistently interpreted Article 3 of the Convention as encompassing an  intrinsic right to strike as a necessary tool for workers to defend their socio-economic  interests. 

However, in 2012, the Employers’ Group at the International Labour Conference formally  challenged this long-standing interpretation. The employers argued that the supervisory  bodies had overstepped their mandate by creating a binding right that member states had  never explicitly agreed to during treaty negotiations in 1948. They asserted that while Convention No. 87 protects organizational autonomy, it leaves the regulation or prohibition  of strikes entirely to domestic legislation. 

This stance led to a severe institutional breakdown. For over ten years, employer  representatives refused to participate in the examination of individual country cases involving  strike restrictions, effectively crippling the ILO’s supervisory mechanisms. Unable to resolve  the conflict internally through diplomatic consensus or tripartite negotiations, the Governing  Body of the ILO voted in November 2023 under Article 37(1) of the ILO Constitution to  refer the question to the International Court of Justice for an authoritative advisory opinion. 

4. Legal Issues 

The International Court of Justice was called upon to resolve two primary legal issues: 

1. Jurisdictional Issue: Whether the International Court of Justice possessed  jurisdiction under Article 65 of its Statute and Article 37(1) of the ILO Constitution to  answer the request for an advisory opinion submitted by the ILO Governing Body. 
2. Substantive Issue: Whether the right of workers and their organizations to take strike  action is protected under the Freedom of Association and Protection of the Right to  Organise Convention, 1948 (No. 87). 

       5. Arguments Presented 

5.1 Workers’ Representatives and Supporting Member States 

• Textual and Teleological Interpretation: Counsel for the International Trade Union  Confederation (ITUC) and supporting governments (including South Africa,  Germany, and France) argued that treaty interpretation under Article 31 of the Vienna  Convention on the Law of Treaties (VCLT) requires reading text in light of its object  and purpose. Article 3(1) of Convention No. 87 explicitly guarantees trade unions the  right to organize their “activities” and formulate their “programmes.” Strike action is  the primary collective activity by which workers defend their employment interests. 
• Inherent Nature of the Right: They submitted that freedom of association would be  rendered illusory if unions were stripped of their primary economic leverage. Without  the right to withdraw labour, collective bargaining becomes mere collective begging. 
• Subsequent Practice and Custom: They highlighted over seven decades of  consistent jurisprudence from ILO supervisory bodies (CEACR and CFA), alongside  state practice across national jurisdictions that recognized the right to strike as an  essential element of freedom of association. 

5.2 Employers’ Representatives and Dissenting State Submissions 

• Strict Plain Meaning Rule: The International Organisation of Employers (IOE) and  opposing governments argued that under Article 31(1) of the VCLT, treaties must be  interpreted according to the ordinary meaning of their terms. Since the word “strike”  appears nowhere in Convention No. 87, reading such a right into the text distorts the  clear intent of the drafting parties. 
• Travaux Préparatoires (Drafting History): Citing Article 32 of the VCLT, the  employers emphasized that during the 1947 and 1948 drafting conferences, explicit proposals to include the right to strike were deliberately omitted or rejected to allow  sovereign states flexibility in regulating industrial relations. 
• Institutional Authority: They argued that non-binding observations by expert  committees cannot amend or expand treaty obligations without formal state consent,  and that judicial creation of international rights undermines state sovereignty. 

6. Court’s Reasoning and Analysis 

The Court unanimously established that it possessed jurisdiction to hear the matter and that  there were no compelling reasons to refuse giving an advisory opinion. On the substantive  issue, the Court applied settled rules of customary international law as codified in Articles 31  and 32 of the Vienna Convention on the Law of Treaties (VCLT). 

1. Ordinary Meaning in Context (VCLT Article 31) 

The Court acknowledged that Convention No. 87 does not contain an explicit textual  reference to the right to strike. However, the judges held that the absence of an express term  does not automatically mean the subject matter is excluded from treaty protection. Exclusion  is only justified if the text, context, and object of the treaty unequivocally require such a  restrictive reading. 

The Court focused its textual analysis on Article 3(1) of Convention No. 87, which provides  that workers’ organizations have the right to “organise their administration and activities and  to formulate their programmes.” The Court reasoned that the ordinary meaning of “activities”  logically encompasses industrial action. Withholding labour is one of the most fundamental  collective activities undertaken by trade unions to further and defend the socio-economic  interests of their members. 

2. Object and Purpose of Convention No. 87 

The Court stressed that the primary purpose of Convention No. 87 is to protect workers from  economic subordination and state interference by guaranteeing genuine freedom of  association. Freedom of association cannot be reduced to the simple act of forming an  association; it must include the freedom to pursue the legitimate objectives for which the  association was created. Denying protection to strike action would strip trade unions of their  core functional purpose, leaving workers powerless in negotiations with employers and the  state. 

3. Evidentiary Weight of ILO Supervisory Bodies 

While noting that the pronouncements of expert supervisory bodies like the CEACR do not  create binding precedents in the strict sense, the Court affirmed that their consistent  jurisprudence over seventy years constitutes persuasive guidance regarding the operational  scope of ILO conventions. This long-standing interpretation aligns with the evolving  international consensus across regional human rights courts, including the European Court of  Human Rights and the Inter-American Court of Human Rights.

7. Judgment and Ratio Decidendi 

7.1 Final Holding 

By a 10 to 4 majority vote, the International Court of Justice concluded that: 

“The right to strike of workers and their organizations is protected under the Freedom of  Association and Protection of the Right to Organise Convention, 1948 (No. 87).” 

7.2 Scope and Limitation 

Crucially, the Court clarified that its finding was strictly limited to establishing the existence  of the right under the Convention. The Court stated that its decision “does not entail any  determination on the precise content, scope or conditions for the exercise of that right,” leaving detailed operational regulations, essential service restrictions, and procedural  conditions to national laws and future international standards. 

       8. Ratio Decidendi 

1. The right to organize collective activities under Article 3(1) of ILO Convention No.  87 inherently includes the right of workers and their trade unions to take strike action  as a legitimate means of defending their economic interests. 
2. Treaty interpretation under the VCLT mandates a holistic assessment where the  absence of express statutory wording does not exclude fundamental guarantees that  are necessary to give full effect to the treaty’s object and purpose. 
3. Critical Analysis 

8.1 Significance of the Decision 

This Advisory Opinion marks a historic victory for international labour law and human rights  jurisprudence. By formally settling a twelve-year institutional paralysis, the ICJ restored the  legal authority and operational functionality of the ILO supervisory machinery. It firmly  anchors labour rights within the broader framework of fundamental human rights, confirming  that economic rights cannot be divorced from civil and political liberties. 

8.2 Implications and Impact 

The decision carries profound domestic and international legal ramifications: 

• Protection Against Legal Regression: The ruling prevents national legislatures and  courts from using the silence of Convention No. 87 as a legal pretext to rollback  domestic labour protections or impose blanket bans on strikes. 
• Impact on Domestic Injunctions: National courts such as the National Industrial  Court of Nigeria (NICN) must now evaluate requests for interim strike injunctions through an international human rights lens, ensuring that judicial orders do not breach  ratified international treaty obligations. 
• Strengthening Collective Bargaining: By confirming that the right to strike is  international law, the ruling restores balance to labour negotiations worldwide,  preventing state entities and corporate employers from disabling trade unions through  procedural technicalities. 

8.3 Critical Evaluation and Dissenting Opinions 

Despite its historic nature, the decision revealed sharp methodological divisions within the  World Court: 

• Judicial Overreach vs. Evolutionary Interpretation: Dissenting judges (including  Judges Tomka and Xue) criticized the majority for adopting an overly activist,  teleological approach. Judge Xue argued that the majority engaged in “human rights  advocacy rather than treaty interpretation,” warning that reading implied obligations  into treaties risks undermining state consent as the founding pillar of international  law. 
• Unanswered Operational Questions: By refusing to define the scope, limitations, or  conditions for exercising the right to strike, the Court left critical questions  unresolved. Issues surrounding strike prohibitions in essential services, notice  requirements, and mandatory arbitration procedures remain subject to intense  domestic litigation. 

9. Conclusion 

The ICJ’s Advisory Opinion on Right to Strike under ILO Convention No. 87 represents a  crucial milestone in international law. By affirming that freedom of association inherently  protects collective strike action, the World Court ensured that international labour standards  remain relevant, dynamic, and capable of protecting workers in a changing global economy. 

While debates regarding the exact operational boundaries of the right will continue before  domestic tribunals, the core legal principle is now firmly settled. Freedom of association is  not merely a passive right to assemble, but an active, protected freedom to bargain, act, and  strike in pursuit of social justice. 

10. Reference(S): / Bibliography 

Primary Sources & International Cases 

1. Right to Strike under ILO Convention No. 87 (Request for Advisory Opinion),  Advisory Opinion, ICJ Reports 2026, p 101. 
2. Freedom of Association and Protection of the Right to Organise Convention, 1948  (No. 87), International Labour Organization, 68 UNTS 17. 
3. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155  UNTS 331 (entered into force 27 January 1980), arts 31 & 32. 
4. Constitution of the International Labour Organization, 15 UNTS 40, art 37(1).

Secondary Sources & Legal Commentaries 

5. International Labour Office, Written Statement of the International Labour Office:  Advisory Opinion on Convention No. 87 (ICJ 2024). 
6. International Trade Union Confederation, Written Submission on the Right to Strike  under ILO Convention No. 87 (ICJ 2024). 
7. International Organisation of Employers, Legal Position Paper on the Scope of ILO  Convention No. 87 (IOE Geneva 2024). 
8. Jeffrey S Vogt, ‘The Right to Strike and the International Labour Organisation (ILO)’  (2016) 27(1) King’s Law Journal 110.