Background and Relevance
From October 6 to 8, the International Court of Justice (ICJ) is holding public hearings on the right to strike as part of the OIT Convention 87, following disputes among employers, governments, and workers regarding its scope as part of the freedom of association.
Following a request from the Workers’ Group, backed by 36 governments, the OIT’s Governing Body decided in its 349.ª bis (Special) Session on November 10, 2023, to refer a long-standing dispute to the ICJ. The controversy concerns the interpretation of the Convention on Freedom of Association and Protection of the Right to Organize, 1948 (No. 87) in relation to the right of strike.
Context and Significance
This marks the seventh time the OIT has sought a consultative opinion based on Article 37 of its Constitution. However, it’s only the second time related to the interpretation of an international labor convention and the first time the ICJ has been approached since its founding in 1945.
Fifteen written statements from states and organizations have been submitted to the ICJ Secretariot (as of October 1, 2024). Mexico will intervene on October 7 from 14:30 to 15:00 local time in The Hague.
Hearings and Arguments
During the first hearing, the International Confederation of Free Trade Unions (ICFTU) argued that the right to strike is inherent to Convention 87 and directly linked to freedom of association. They based their position on the OIT Constitution of 1919, the Declaration of Philadelphia, the Declaration of Workers’ Fundamental Rights, and various international human rights treaties.
In contrast, the International Organization of Employers (IOE) maintained that the right to strike is not explicitly or implicitly included in Convention 87. They further argued that the strike is not an absolute right and, therefore, requires limitations and regulations, justifying its exclusion from the Convention.
Governments of South Africa, Germany, Australia, and Colombia all supported the recognition of the Right to Strike within Convention 87.
The day concluded with Bangladesh’s government expressing opposition to that interpretation.
Expert Opinion
According to Alejandro Avilés, a labor expert at STUNAM, “the first day reflected a majority of positions favoring the inclusion of the Right to Strike as an integral part of Convention 87, emphasizing its connection to freedom of association and international human rights instruments.”
Key Questions and Answers
- What is the dispute about? The disagreement revolves around whether the right to strike is inherent to OIT Convention 87 and its relationship with freedom of association.
- Who initiated the ICJ consultation? The Workers’ Group, supported by 36 governments, requested the ICJ consultation.
- What is the significance of this case for the OIT? This is only the second time the OIT has sought a consultative opinion related to an international labor convention, and the first time it has approached the ICJ since its founding.
- What arguments were presented during the hearings? The ICFTU argued that the right to strike is inherent to Convention 87 and linked to freedom of association, while the IOE contended that strikes are not explicitly or implicitly included in Convention 87 and require limitations.
- Which governments supported the recognition of the Right to Strike within Convention 87? Governments of South Africa, Germany, Australia, and Colombia supported this recognition.
- What was the expert’s observation on the first day of hearings? The labor expert observed a majority favoring the inclusion of the Right to Strike as an integral part of Convention 87, emphasizing its connection to freedom of association and international human rights instruments.
