From the Hague to New Delhi: The ICJ Advisory Opinion on the Right to Strike and its implications for India

ON MAY 21, 2026, the International Court of Justice (‘ICJ’) delivered its advisory opinion in Right to Strike under ILO Convention No. 87, holding by a ten is to four votes margin that the right to strike of workers and their organisations is protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The opinion, rendered on a request transmitted by the Governing Body of the International Labour Organization in November 2023, resolves more than a decade of institutional uncertainty engineered by the Employers’ group at the International Labour Conference, beginning with the 2012 dispute that paralysed the work of the Committee on the Application of Standards. 

The opinion is of immediate relevance to Indian workers. Just months before the ICJ’s opinion, the Indian Government oversaw one of the most extensive crackdowns on industrial action in recent memory. This essay situates the Court’s opinion against the current situation in the country. It first briefly summarizes the analytical core of the Court’s opinion, and then turns to the domestic Indian framework, surveying the constitutional jurisprudence alongside the legislative regime under the Industrial Relations Code, 2020. Further, it considers the events of early 2026 in India not as isolated acts of repression but as the routinised functioning of the system. Finally, it argues that, notwithstanding India’s non-ratification of Conventions Nos. 87 and 98 (the Convention on Right to Organise and Collective Bargaining), the Court’s advisory opinion is of considerable practical and strategic utility to workers, trade unions, and the lawyers who represent them.

What was the ICJ’s reasoning?

The question put to the ICJ was whether the right to strike of workers and their organisations is protected under Convention No. 87. The Court answered in the affirmative, by ten votes to four, on the basis of the application of the rules of treaty interpretation codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.

The Court reached its conclusion based on the plain text of Convention 87, read in light of its object and purpose. Article 3(1) of Convention No. 87 protects the right of workers’ organisations to organise their administration and activities and to formulate their programmes. Article 10, in turn, defines the term “organisation” by reference to the object of “furthering and defending the interests of workers”. The ICJ concluded, pursuant to Article 31 of the Vienna Convention, that the ordinary meaning of “activities”, read in the light of the Convention’s overarching aim of safeguarding freedom of association, necessarily comprehends the collective withdrawal of labour. To hold otherwise would empty the guarantee of much of its substantive content, given that the strike is, in industrial relations practice, the principal means by which workers compel attention to their collective demands.