ICJ publishes 31 written opinions on the right to strike under the International Labour Organization Conventions – JURIST

The International Court of Justice (ICJ) announced in a press release on Tuesday that 31 written observations had been submitted on the right to strike under Convention No. 87 on Freedom of Association and Protection of the Right to Organise (1948).

The written submissions follow the request by the Governing Body of the International Labour Organization (ILO) for an urgent advisory opinion from the ICJ on whether the right to strike is protected by the Convention. The responses include the authorization of the United States, Brazil and the Organization of African, Caribbean and Pacific States to participate in the proceedings.

The dispute over whether the right to strike is included in the Convention, without there being an explicit provision for this right, has been an ongoing issue for several years. As the ILO explained in its dossier to the International Court of Justice, the interpretative controversy resulted in the ILO Committee of Experts on the Application of the Conventions and Recommendations being unable to exercise its supervisory function for the first time in 2012, as employer groups challenged the Committee’s interpretation.

The ILO describes the dispute as the absence of any provision enshrining the right to strike, and as the preparatory work to the Convention confirming the drafters’ intention not to include the right to strike within the scope of the Convention. This interpretation is supported in particular by employers’ associations. On the other hand, the Preamble to the ILO Constitution contains a reference to fair working conditions and the recognition of the principle of freedom of association. This interpretation is supported in particular by workers’ associations and includes an interpretation that allows ILO bodies to exercise interpretative functions on occasion.

The ILO’s request for comment states that the body is “aware of the fact that serious and persistent differences of opinion exist”. This is only the second time the ILO has requested an advisory opinion on an international labour convention and the first time it has turned to the International Court of Justice.

By decision, the ICJ has set 16 September 2024 as the deadline within which States and organisations that have submitted written observations may submit written comments on the other written observations.