The Right To Strike Under International Law

The Right to Strike Under International Law

On May 21, 2026, the International Court of Justice (ICJ) delivered a historic advisory opinion, Right to Strike under ILO Convention No. 87.[1] By a 10–4 vote, the UN’s highest court concluded that the right to strike is protected under international law via the International Labour Organization’s (ILO) landmark 1948 treaty. This pronouncement was the climax of a fierce, decades-long institutional battle: a text-based disagreement that paralyzed global labor governance and ultimately forced a historic judicial intervention. This essay traces the historical development of the right to strike under international law, offers a critical analysis of the ICJ’s reasoning, and considers the provision’s future prospects under the International Labour Convention framework.

I. The Statutory Gap

The need for ICJ intervention arose because the International Labour Conventions do not expressly provide for workers’ right to strike. The Conventions instead contain various provisions recognising the rights of unions to protect their members’ interests. The protection of workers and labour unions under the ILO is anchored in its Constitution,[2] the 1998 Declaration on Fundamental Principles and Rights at Work,[3] and a robust web of specific Conventions, the bedrock of which lies in two core Fundamental Conventions: Convention No. 87 and Convention No. 98.

Convention No. 87:[4] Article 2 guarantees workers the right to establish and join organizations of their own choice without prior authorization from government. Article 3 grants unions the right to draw up their own constitutions and rules, elect representatives freely, organize their administration, and “organise their activities and formulate their programmes” — a provision whose scope became the crux of the later dispute. Article 4 provides that workers’ organisations cannot be dissolved or suspended by administrative authority, while Article 5 guarantees unions the right to form national federations and confederations and to affiliate with international labour organizations.

Convention No. 98:[5] Article 1 prohibits discrimination against any group of workers; Article 2 protects against interference in union activities; and Article 4 requires governments to take measures appropriate to national conditions to encourage and promote voluntary negotiation machinery between employers and workers’ organizations to regulate terms and conditions of employment.

II. A Right Omitted, Not Denied

Although the right to strike was not expressly mentioned in the ILO Conventions, its Constitution, or the Declaration of Philadelphia,[6] it did surface in the preliminary stages of the drafting committee’s work — referenced several times in the portion of the report describing the history of freedom of association and surveying national legislation and practice, and again in connection with the special cases of public servants and voluntary conciliation. This right was nonetheless left out of the final discussions at the 1947 and 1948 Conferences.

By contrast, other international instruments expressly or impliedly provide for the right to strike. Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966,[7] obligates state parties to ensure “the right to strike, provided that it is exercised in conformity with the laws of the particular country.” Likewise, Article 8(1)(b) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), 1988,[8] expressly guarantees “the right of workers to strike” to protect their occupational interests. The ILO’s silence on this point set the stage for the dispute discussed below.

III. What Is the Right to Strike?

A strike action by a labour union or group of workers typically entails a refusal to continue production activities or services within an organisation, arising from a conflict over the interests of union members or workers themselves — usually between employees and an employer, whether government or private. Strike action is generally a last resort, undertaken only after negotiation mechanisms have failed and an ultimatum has been given.

Because a strike can cripple the economic activity of an industry or an entire country, some governments and organisations respond with countermeasures such as sanctions, replacement of protesting workers, or outright legal prohibition. These countermeasures raise serious concerns for the legitimate interests of workers, who may otherwise be forced to labour under grueling and inhumane conditions for fear of punishment — concerns sharpened by the ILO’s historic silence on the issue. Some countries have outlawed strike actions altogether, to the detriment of workers, while others have placed significant restrictions on how the right may be exercised.

IV. The Institutional Crisis (1959–2023)

For over half a century, a stable legal consensus existed within the ILO. The organization’s two main supervisory bodies — the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the Committee on Freedom of Association (CFA) — had consistently held, since 1959, that Article 3 of Convention No. 87 implicitly protects the right to strike, interpreting it as an essential tool for workers to defend their economic and social interests.

The dispute erupted into open crisis in 2012, when the Employers’ Group within the ILO formally withdrew recognition of the right to strike under Convention No. 87, arguing that the supervisory bodies — the CEACR in particular — had exceeded their mandate by “inventing” a right never textually agreed to by member states. Because the ILO operates on a unique tripartite structure of equal decision-making power shared by Governments, Employers, and Workers, the Employers’ Group’s refusal effectively paralysed the ILO’s supervisory machinery. For over a decade, the Committee on the Application of Standards (CAS) was repeatedly deadlocked, as the Employers’ Group blocked the selection and review of country-specific cases involving government restrictions on strike action — leaving the ILO unable to enforce compliance on the issue.

Years of internal negotiation, specialised dialogue rounds, and tripartite talks failed to break the impasse. In 2023, after an eleven-year stalemate and amid a global wave of domestic labour rollbacks, the Workers’ Group forced a vote in the ILO Governing Body. On November 10, 2023, during a special session, the Governing Body voted to trigger Article 37(1) of the ILO Constitution, referring the dispute to the ICJ — only the second time in the Organization’s history that this mechanism has been used to resolve a Convention-interpretation dispute.

V. The ICJ Proceedings and Ruling

During written submissions and public hearings held at the Peace Palace in October 2025, the two principal blocs advanced diametrically opposed arguments. The Employers’ Group contended that, under Article 31 of the Vienna Convention on the Law of Treaties,[9] treaties must be given their ordinary, express meaning, and that the drafters’ silence on the right to strike showed an intent to exclude it. The Workers’ Group countered that the object and purpose of Convention No. 87 is to safeguard freedom of association, which cannot be realised effectively without the right to strike, pointing also to other international treaties that expressly protect it.

By a 10–4 majority, the ICJ held that the right to strike does exist under ILO Convention No. 87. This built on an earlier regional precedent: in its Advisory Opinion OC-27/21 (2021),[10] the Inter-American Court of Human Rights (IACtHR) had already integrated the ILO’s doctrine, interpreting Article 16 of the American Convention on Human Rights’ freedom of association guarantee to implicitly protect the right to strike as a fundamental human right.

VI. Conclusion

Disputes over the right to strike under international law have persisted for decades, but authoritative judicial pronouncements are quite recent. These advisory opinions arrived at a critical moment for safeguarding the interests of workers and labour unions worldwide, and have already begun to influence domestic labour law. While several countries have embedded the right to strike in their constitutions, others have prohibited it outright, and still others have placed restrictions and derogations on its exercise — arrangements that sit uneasily with the spirit and letter of the international treaties and conventions guaranteeing the right.

The protection of the right to strike matters because it remains “one of the essential means available to workers and their organisations for the promotion and protection of their economic interests” — interests concerning not only better working conditions and collective demands of an occupational nature, but also broader economic and social policy questions of direct concern to workers. This development stands to strengthen protections for workers’ rights and conditions and to advance sustainable development, since workers even in states that have not ratified Convention No. 87 may now submit reports to ILO Committees seeking redress.

References

[1] International Court of Justice, Right to Strike under ILO Convention No. 87, Advisory Opinion of 21 May 2026.

[2] Constitution of the International Labour Organization (1919, as amended).

[3] ILO Declaration on Fundamental Principles and Rights at Work, 1998.

[4] Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

[5] Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

[6] Declaration Concerning the Aims and Purposes of the International Labour Organisation (Declaration of Philadelphia), 1944.

[7] International Covenant on Economic, Social and Cultural Rights, art. 8(1)(d), Dec. 16, 1966, 993 U.N.T.S. 3.

[8] Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), art. 8(1)(b), Nov. 17, 1988, O.A.S.T.S. No. 69.

[9] Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331.

[10] Inter-American Court of Human Rights, Advisory Opinion OC-27/21, The Rights to Freedom of Association, Collective Bargaining and Strike, and Their Relation to Other Rights (May 5, 2021).