The ICJ said yes to the right to strike, but ducked the hard questions

ON MAY 23, the International Court of Justice (‘ICJ’) delivered a resounding ‘YES’ in its verdict to the question, referred to it by the International Labor Organization (‘ILO’) to draw advisory opinion on “whether the right to strike is protected under the international legal framework of the Convention No. 87 ‘Freedom of Association and Protection of the Right to Organize’ (‘Convention No. 87)? While the Court upheld this labor right in principle, the devil lies in the details of judicial analysis that formed this affirmative advisory opinion. The larger constitutional question regarding the ILO’s Committee of Expert (‘CoE’) is left unanswered.

This affirmation has sought to tie several loose ends within the ILO itself. First, it has answered the question of legal interpretation. Second, it has also addressed the question of the status of supervisory bodies of ILO in its own way. Third, and most importantly, it has also redressed the internal tension simmering in ILO from within for long that the ILO itself called an “institutional crisis”. The verdict, hence, re-booted and re-invigorated the global labor governance system of ILO.  

Background of the crisis

The crisis was in-making for the last many decades and revolved around one of ILO’s crucial international treaties, Convention No. 87. Convention No. 87 was drafted in the background of the Second World War and the consequent polarization of the world through political ideologies which affected industrial behavior in return. The purport of Convention No. 87 was, in words of the then-ILO Chairperson, to provide “a statement of fundamental principles” rather than minutely specifying each aspect of trade union activities or workers organizations’ liberty. Two main supervisory bodies of the ILO, the Committee of Experts on Application of Conventions & Recommendations and the Committee on Freedom of Association (‘CFA’), were entrusted to detect and report cases of violations by State-parties in respect of the Convention No. 87 and direct corrective measures.

The Convention No. 87 is now part of ILO’s Fundamental Principles and Rights At Work (1998). Hence, it applies to all ILO member-States whether they have ratified it or not due to their membership to ILO. 

It is the CoE that prepares the Annual Survey, offering a kaleidoscopic report on the overall compliance of States Parties with the treaties they have ratified, including Convention No. 87, regarded as a fundamental convention. Another tripartite supervisory body of the ILO, the Committee on Application on Standards (a tripartite body consisting of ILO representatives) would deliberate the issues of Annual Survey and mull possibility in terms of future course of action. 

The Court noted that “since the adoption of the Convention No. 87 in 1948, the interpretation of this treaty has continuously been evolving under the supervisory system.” In 1952, the CFA asserted that “the right to strike was an essential part of trade union rights and did not refer to it as part of fundamental freedom under Convention No. 87.” Similarly in 1959, the CoE reasoned in its General Survey of 1959, that “there is a possibility that a prohibition on strikes may run counter to Convention No. 87.” 

It is surprising to note that the employer group never openly opposed such interpretation except in 1989 when they, for the first time, questioned “the interpretation of the right to strike within the fold of Convention no.87 and constitutional competency of these supervisory bodies to pass ‘conclusive interpretations’ and fix liabilities on State-parties.” Labour scholars like Prof. Tonia Novitz and Jeffery Vogt, who represented the Workers’ Group at the proceedings, showed this trend in detail in their book that the Court also quoted in its opinion.