The right to strike is under attack throughout the world, including in the United States. Labor strikes are currently forbidden or restricted in the majority of countries.Now, in a landmark 43-page advisory opinion issued May 21, the International Court of Justice (ICJ, or World Court) has determined that the right to strike is protected under the International Labour Organization’s (ILO) Convention No. 87 on Freedom of Association and Protection of the Right to Organise.“At a moment when workers’ organizations face sustained attacks around the world, this opinion reaffirms that the freedom to withhold one’s labor is not a privilege granted by the powerful, but a fundamental human right grounded in international law,” AFL-CIO President Liz Shuler said in a statement.The ILO is the United Nations agency that sets global labor standards. It has 187 member states and has adopted 191 conventions since its founding in 1919. The ILO considers Convention No. 87 to be one of its 11 fundamental conventions.In 2023, the ILO asked the ICJ to settle an internal dispute about whether Convention No. 87 gives workers the right to strike, which is not specifically addressed in the convention. Although advisory opinions of the ICJ are not legally binding, many courts accept them as authoritative legal decisions.The ICJ ruled in its 10-4 opinion that a strike “is one of the main activities engaged in and tools used by workers and their organizations to promote their interests and improve conditions of labour, thereby ensuring the effective exercise of the freedom of association protected under Convention No. 87.”The Court found “that protection of the right to strike is encompassed in the protection of the freedom of association provided for in Convention No. 87.”In reaching that conclusion, the Court considered provisions in two 1996 Covenants that contain relevant rules of international law regarding the right to strike. Both refer to Convention No. 87.Article 8, paragraph 1 (d) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) expressly protects the right to strike, if it is exercised in conformity with domestic laws.Article 22, paragraph 1 of the International Covenant on Civil and Political Rights (ICCPR) provides for the right to freedom of association. The ICJ noted that for more than 25 years, the Human Rights Committee — which monitors the implementation of the ICCPR — has considered the right to strike to be encompassed in the protection of freedom of association.Due to the high degree of overlap between the states parties to the ICESCR and ICCPR, and Convention No. 87, the ICJ determined there was a common understanding among them on the right to strike. The Court thus concluded “that an interpretation taking into account the relevant rules of international law contained in the ICESCR and the ICCPR indicates that the protection of the right to strike is encompassed in the protection of the freedom of association provided by Convention No. 87.”No Right to Organize Without the Right to Strike“For generations, working people have understood a simple truth: The freedom to join a union means nothing if you cannot withhold your labor when bosses refuse to listen. Now, the world’s highest court has affirmed that truth,” said Jeffrey Vogt, director of the International Lawyers Assisting Workers (ILAW) Network, which issued the call for the ILO referral of this case to the ICJ.The ICJ decision “affirms decades of judicial precedent and what workers around the world know: there is no right to organize and bargain collectively without the right to strike,” Shuler said in her statement. “When workers are barred from taking collective action on the job, they cannot defend their rights and demand the workplace conditions and contracts they are owed. The freedom to join a union becomes an empty formality.”“This is an important day for the International Labor Organization [ILO], and for its continued relevance in the world of work. However, the significance of this opinion extends well beyond the institutional context in Geneva,” the ILAW Network wrote in a statement.The ICJ advisory opinion came “at a moment of acute pressure on the international labour rights system,” ILAW stated. “Across the world, the right to strike is under sustained attack — through restrictive legislation, expansive judicial interpretation of essential services, the criminalisation of trade union activity, and the use of dismissals, injunctions, and damages claims to deter collective action.”Legal restrictions on the right to strike are increasing. In 2022, strikes were outlawed or stringently restricted in 129 of the 148 countries tallied by the International Trade Union Confederation (ITUC), one of the six organizations with consultative status at the ILO Governing Body.The ITUC, which represents 191 million workers in 169 countries and territories, is dedicated to trade union democracy and independence.
