The case before the International Court of Justice (ICJ) originates from a 2023 request by the Governing Body of the International Labour Organization (ILO), seeking an advisory opinion on whether the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), includes the right to strike. Adopted in the aftermath of World War II, Convention No. 87 is a foundational element of international labour law, guaranteeing workers and employers the right to form and join organizations of their choosing. Although it does not explicitly mention strikes, labour advocates have long argued that the freedom of association inherently includes the right to strike.
ICJ President Yūji Iwasawa opened the proceedings by formally presenting the ILO’s question to the judges, noting the organization’s tripartite structure, which uniquely includes representatives from governments, employers, and workers. The request itself is rare — ILO Legal Adviser Tomi Kohiyama highlighted that it has been more than 90 years since the organization last appeared before the ICJ in a consultative role. She explained that while the ILO secretariat would not take a position on the issue, it would provide institutional context and interpretative guidance under the Vienna Convention on the Law of Treaties. Kohiyama emphasized that the participation of employers’ and workers’ organizations in the ICJ process was unprecedented in the Court’s history.
Established in 1919, the ILO’s tripartite framework is central to its work in setting international labour standards, but it has also led to occasional disagreements. One of the most significant disputes arose in 2012, when employer groups questioned whether Conventions No. 87 and 98 actually recognized the right to strike. During the current hearings, this long-standing debate resurfaced. Paapa Danquah, representing the International Trade Union Confederation (ITUC), argued that the right to strike is an essential part of freedom of association and a vital tool for workers to defend their dignity and improve labour conditions.
On the other hand, Roberto Suárez Santos, representing the International Organisation of Employers (IOE), contended that Convention No. 87 does not explicitly or implicitly include the right to strike. He cautioned that interpreting the Convention to include such a right could impose rigid standards that might disrupt national labour systems. Instead, he advocated for consensus through the ILO’s tripartite bodies rather than through judicial reinterpretation by the ICJ.
Over three days of hearings, 21 countries and organizations are scheduled to present their positions, with 31 written statements already submitted to the ICJ Registry — highlighting the global importance of the issue. While the Court’s advisory opinion, expected in the coming months, will not be legally binding, it is anticipated to have significant influence on the future interpretation of international labour law and the protection of workers’ rights worldwide.
