TWN Info Service on UN Sustainable Development
25 May 2026
Third World Network

UN: In landmark opinion, ICJ upholds right to strike under ILO convention
Published in SUNS #10450 dated 25 May 2026

Penang, 22 May (Kanaga Raja) — In a landmark advisory opinion, the International Court of Justice (ICJ), the principal judicial organ of the United Nations, has ruled that the right to strike of workers and their organizations is protected under a key International Labour Organization (ILO) convention.

In its Advisory Opinion issued on 21 May, the ICJ, by ten votes to four, ruled 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), settling a long-running dispute within the tripartite organization.

However, the judges clarified that the Court’s conclusion that the right to strike is protected by Convention No. 87 “does not entail any determination on the precise content, scope or conditions for the exercise of that right.”

In a news release issued on 21 May, the International Labour Office (the secretariat of the International Labour Organization) said it has received the Advisory Opinion delivered by the ICJ concerning the interpretation of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), in relation to the right to strike.

The ILO Governing Body (the Executive Body of the Organization) is expected to consider the matter at its 358th session in November, including any follow-up, it stated.

According to the ILO, the matter concerns a long-standing “difference of views” as to whether the right to strike of workers and their organizations is protected under Convention No. 87.

Following a request submitted by the workers’ group and supported by 36 governments, the Governing Body decided at its 349th bis (Special) Session held on 10 November 2023, to refer the long-standing dispute on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) in relation to the right to strike to the International Court of Justice (ICJ) for decision in accordance with Article 37(1) of the ILO Constitution, it said.

The interpretation dispute concerns whether the right to strike of workers and their organizations is protected under Convention No. 87.

According to the ILO, the dispute has persisted for several years and in 2012 gave rise to a major institutional crisis, with the Conference Committee on the Application of Standards being prevented for the first time from exercising its supervisory functions.

For the employers’ group, Convention No. 87 does not contain any provision whose ordinary or literal meaning would imply the existence of a right to strike while the preparatory work that led to its adoption confirms that the intention of the drafters was clearly not to include the right to strike within the scope of Convention No. 87, the ILO said.

In addition, it said that the employers’ group objects to the acceptance by the Committee of Experts on the Application of Conventions and Recommendations of a universal, explicit and detailed right to strike and the Committee’s attempts to produce new “jurisprudence” despite lacking law-making power or the authority to issue binding rulings on the application of national laws and regulations.

In contrast, it said the workers’ group considers that the terms of Convention No. 87 guaranteeing the right to organize must be understood in the context of the relevant provisions of the Preamble to the ILO Constitution and of the Declaration of Philadelphia and taking into account any subsequent practice that establishes general agreement regarding their interpretation, such as the consistent case law of the bodies responsible for overseeing the application of the Convention.

Furthermore, the ILO noted that the workers’ group contends that all ILO bodies involved in supervision necessarily interpret the meaning of standards, and that therefore the Committee of Experts may occasionally perform interpretative functions.

The ILO said under the ILO Constitution, the International Court of Justice is the judicial body competent to provide authoritative interpretations of international labour conventions, and that recourse to the Court for this purpose is “exceptionally rare” in the history of the Organization.

It noted that this was only the second such referral in the ILO’s history. The first request was made in 1932 to the Permanent Court of International Justice, the predecessor of the ICJ, concerning the interpretation of the Night Work (Women) Convention, 1919 (No. 4).

In its Advisory Opinion, the ICJ was unanimous in finding that it has jurisdiction to give the advisory opinion requested, and that it decided to comply with the request for an advisory opinion.

However, four judges at the ICJ dissented from the central ruling concerning the interpretation of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), in relation to the right to strike.

ADVISORY OPINION

In a summary of its Advisory Opinion published on 21 May, the Court recalled that the present request for an advisory opinion originates in a disagreement within the ILO over the interpretation of Convention No. 87 and, more specifically, over the question of whether the right to strike of workers’ organizations or trade unions is protected under that Convention.

The Court examined how that disagreement evolved from 1952 onwards until, in 2012, the divergence of views between the workers’ group and the employers’ group regarding the interpretation of Convention No. 87 led the International Labour Office and other participants to refer to it as an “institutional crisis” at the 101st Session of the International Labour Conference.

The Court noted that, following various unsuccessful attempts to resolve the disagreement over the interpretation of Convention No. 87 through negotiations within the ILO, in 2023 the Governing Body decided to submit the question to the Court.

The Court first observed that Convention No. 87 does not contain an explicit reference to the right to strike.

However, in view of its jurisprudence on the subject, the Court considered that the absence of an express treaty provision governing a certain issue does not necessarily mean that the issue is excluded from that treaty.

The Court recalled that Article 2 of Convention No. 87 provides that “[w]orkers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing”.

It said that Article 3, paragraph 1, further provides that “[w]orkers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes”.

The Court considered that the wording of this provision indicates ways in which the rights accorded to workers’ and employers’ organizations are exercised.

This includes not only internal negotiation and adoption of constitutions and rules, and the election of representatives, but also broader powers enabling workers’ and employers’ organizations to decide on matters relating to their administration, as well as to activities to be performed and programmes to be formulated and implemented in both internal and external contexts.

Article 10 defines the term “organisation” as “any organisation of workers or of employers for furthering and defending the interests of workers or of employers”.

The Court was of the opinion that reading these three provisions together, in good faith and in accordance with their ordinary meaning, suggests that, under Convention No. 87, workers and employers have the right to create and join organizations for the purpose of furthering and defending their respective interests, including to organize their activities and programmes to pursue that purpose.

The Court noted that Convention No. 87 does not include definitions of the terms “activities” and “programmes”, both of which are referred to in Article 3, paragraph 1.

It said that the ordinary meaning of the term “activities”, which generally encompasses any action taken to pursue an objective, and of the term “programmes”, which generally means a set of planned actions pursued to achieve a result, is broad and encompasses the various dimensions of the activities and programmes of workers’ organizations.

“The term “strike” generally means an activity consisting of a temporary work stoppage or slowdown wilfully effected by one or more groups of workers with a view to enforcing or resisting demands or expressing or supporting grievances.”

Consequently, the Court considered that when Article 3, paragraph 1, is read in conjunction with Articles 2 and 10, it suggests that strike action is capable of falling within the ordinary meaning of the term “activities” and, thus, within the scope of Convention No. 87.

The Court also observed that strike action itself is not explicitly excluded under Convention No. 87.

Having noted that Convention No. 87 sets out certain rights and related limitations, the Court considered, in line with its jurisprudence, that the terms of the Convention, in their context and in light of the object and purpose of the Convention, do not allow the inference that other rights, such as the right to strike, are excluded.

Regarding the object and purpose of the Convention, the Court stated that it may be concluded from an analysis of the Convention’s preamble and the texts referred to therein that the object and purpose of Convention No. 87 is to guarantee freedom of association as a means of improving labour conditions and achieving sustained progress.

The Court noted that strike action 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.

At the same time, freedom of association is instrumental in facilitating workers’ organizations to take collective action to further and defend the interests of their members, including through the exercise of the right to strike.

Therefore, the Court considered that the protection of the right to strike is in line with the object and purpose of Convention No. 87.

The Court concluded from the foregoing analysis that the ordinary meaning of the relevant terms of the Convention, read in good faith, in their context and in light of the object and purpose of the treaty, indicates that protection of the right to strike is encompassed in the protection of the freedom of association provided for in Convention No. 87.

In a statement posted on its website on 21 May, the International Trade Union Confederation (ITUC) welcomed the Advisory Opinion of the ICJ, confirming that the right to strike is protected under ILO Convention No. 87.

It said the Court’s opinion reaffirms decades of consistent international labour jurisprudence and restores legal certainty and credibility within the international labour standards system.

The right to strike is an essential component of freedom of association and a fundamental means through which workers defend their interests, secure decent work and contribute to democratic societies, it added.

The ITUC stressed that the ICJ’s advisory opinion is important not only for workers and trade unions, but also for governments and responsible businesses.

It said legal clarity and predictability on such a critical aspect of international labour law and the ILO standards supervisory system are indispensable for stable industrial relations and effective social dialogue. The advisory opinion is therefore a victory for the ILO and its governance structures.

“We thank the world court for this advisory opinion. The Court has confirmed that international law supports the longstanding understanding shared not only by unions, but across large parts of the ILO system for decades,” said

ITUC General Secretary Luc Triangle.

“This is an important moment for legal certainty, for social justice and for the credibility of the international labour standards system,” he added. +