HIGHLIGHTS

ICJ Confirms Right to Strike under ILO Convention No. 87

Introduction

On 21 May 2026, the International Court of Justice (ICJ) delivered an important Advisory Opinion regarding workers’ rights under International Labour Organisation (ILO) Convention No. 87.

The Court confirmed that the right to strike is legally protected under the Convention, even though the Convention does not expressly use the words “right to strike.”

This decision is considered a landmark development in international labour law and freedom of association rights.

Background of the Dispute

• For many years, the ILO’s expert bodies stated that workers have a right to strike under Convention No. 87.
• However, employer groups disagreed with this interpretation and argued that the Convention does not specifically mention strikes.
• This disagreement created a major institutional dispute within the ILO, especially after 2012 when discussions on labour violations became deadlocked.
• Due to this continuing conflict, the ILO Governing Body requested an Advisory Opinion from the ICJ in 2023.

Main Findings of the ICJ

1. The ICJ Had Jurisdiction to Hear the Matter

• The Court held that it had full legal authority to give the Advisory Opinion.
• The ILO Governing Body is empowered under the ILO Constitution to seek legal guidance from the ICJ on important questions.
• The Court also rejected the argument that all internal ILO procedures had to be exhausted before approaching the ICJ.

2. Convention No. 87 Protects the Right to Strike

• The Court noted that Convention No. 87 does not explicitly mention the words “right to strike.”
• However, the ICJ clarified that a treaty right may still exist even if it is not directly written in exact words.
• Article 3 of the Convention gives workers’ organisations the right to organise their “activities” and “programmes.”
• According to the Court, strikes are one of the main activities used by trade unions to protect workers’ interests.
• Therefore, the right to strike is naturally included within freedom of association.

3. Freedom of Association Includes Collective Worker Action

• The Court emphasised that the main purpose of Convention No. 87 is to protect workers’ freedom to organise collectively.
• Workers’ organisations cannot effectively defend labour rights without the ability to take collective action.
• A strike is one of the most important methods used by workers to demand fair wages, safe conditions, and labour protections.
• Because of this, the Court held that the right to strike is closely connected to the freedom of association guaranteed under the Convention.

4. International Treaties Support the Right to Strike

• The ICJ also examined other international human rights treaties.
• It referred to:
• the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
• The International Covenant on Civil and Political Rights (ICCPR).
• These treaties strongly protect trade union freedoms and labour rights.
• Since most countries are parties to these treaties as well as Convention No. 87, the Court found a broad international understanding that workers possess a right to strike.

5. Importance of ILO Expert Bodies

• The Court gave significant importance to the opinions of ILO supervisory bodies, such as:
• the Committee of Experts; and
• The Committee on Freedom of Association.
• For decades, these expert bodies consistently interpreted Convention No. 87 as protecting the right to strike.
• Although their views are not legally binding on the ICJ, the Court stated that their expertise deserves “great weight.”

6. Regional Human Rights Systems Also Recognise the Right

The Court observed that several regional human rights systems connect freedom of association with the right to strike.

African System

• African labour and human rights institutions recognise strike action as part of workers’ rights.

Arab System

• The Arab Charter on Human Rights links trade union activity with the right to strike.

European System

• The European Court of Human Rights treats the right to strike as an important part of freedom of association under Article 11 of the European Convention on Human Rights.

Important Clarification by the Court

• The ICJ confirmed that the right to strike exists under international law.
• However, the Court did not define:
• how strikes must be conducted;
• procedural conditions for strikes; or
• restrictions allowed under domestic law.
• These matters remain under the control of national legal systems and labour regulations.

Conclusion

The ICJ’s Advisory Opinion of 21 May 2026 is a landmark decision in international labour law.

The Court clearly affirmed that the right to strike is protected under ILO Convention No. 87 as part of the broader principle of freedom of association.

The ruling strengthens global recognition of workers’ collective rights while leaving individual countries free to regulate how strikes are organised and conducted under domestic law.

Reference

• Frey, D. F. (2017). Conflict over conflict: The right to strike in international law. Global Labour Journal, 8(1).
• Gamonal C, S. (2025). Dignity and the right to strike. Comparative Labor Law & Policy Journal, 45(2), 266.
• Jeffrey, V. (2024). The right to strike and the ILO: The legal foundations. University of Bristol.
• Zhou, Y. (2025). Missing from the right to strike? The ILO's Committee of Experts is in controversy. Industrial Law Journal, 54(3), 663.
• On the History of the Dispute & Interpretive Roles: The conflict over whether the right to strike is protected under Convention No. 87 dates back heavily to shifts in employer positioning after 1989, leading to the 2012 breakdown at the International Labour Conference and the subsequent 2023 referral to the ICJ (Zhou, 2025).
• On the Legal Authority of ILO Supervisory Bodies: An expert panel analysis demonstrates that the ILO's supervisory frameworks, including the Committee of Experts and the Committee on Freedom of Association, have consistently interpreted Convention No. 87 as protecting the right to strike, a position heavily supported by regional human rights frameworks and customary international law (Jeffrey, 2024).
• On Broader International Treaty Context: The controversy is deeply embedded within a wider network of international human rights obligations; for instance, while Convention No. 87 does not explicitly name the right, it is directly buttressed by explicit protections found in Article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (Frey, 2017).