The Right to Strike and ILO Convention: the historic advisory opinion of the ICJ affirms its protection

On May 21, 2026, the International Court of Justice (ICJ) issued a historic advisory opinion. For the second time since its establishment, the United Nations’ principal judicial body ruled on a labor matter, determining that the right to strike is inherently protected by the 1948 Freedom of Association and Protection of the Right to Organize Convention (No. 87).

Before addressing the merits of the case, the Court had to determine whether it had jurisdiction under Article 65 of its Statute. Since the request was made by a specialized agency, the International Labor Organization (ILO), admissibility was subject to three conditions: the existence of proper authorization, the purely legal nature of the question, and the relevance of the matter to the scope of activities of the requesting body.

All requirements were deemed to have been met. From a formal standpoint, the ILO is authorized to seek advisory opinions from the United Nations General Assembly pursuant to a 1946 agreement, the implementing powers of which were conferred on the Governing Body in 1949. Substantively, the subject of the dispute—the interpretation of an international treaty—constitutes a matter of pure international law, falling fully within the ILO’s mandate.

The request for an advisory opinion stems from years of internal disagreement within the ILO among governments, employers, and workers’ organizations regarding the application of Convention No. 87, due to the fact that the 1948 text does not explicitly mention the word “strike.”

The General Council focused its analysis on Article 3 of the Convention, which recognizes the right of workers’ organizations to freely organize their “activities” and formulate their “programs.” Since collective abstention from work constitutes the primary means by which professional interests are defended, it falls within the ordinary meaning of these terms. In support of this, the Court noted that the only explicit exceptions in the text concern exclusively the armed forces and the police, thus precluding the extension of the prohibition by analogy to other categories of workers.

To reinforce its position, the Court adopted a systemic approach, placing Convention No. 87 within the broader framework of international human rights law. The opinion refers to the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which expressly protects the right to strike, and the International Covenant on Civil and Political Rights (ICCPR), whose established interpretation includes collective action within the freedom of association.

Significant weight was given to the ILO’s internal practice. The Court recognized the authoritative value of decades of case law from the Committee of Experts and the Committee on Freedom of Association, which have consistently characterized the right to strike as an essential corollary of trade union activity. This interpretation is also reflected in regional protection systems and in the case law of the European Court of Human Rights.

In conclusion, the Court held that, in accordance with the customary rules of interpretation set forth in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, the right to strike is protected under Convention No. 87. The judges did not define the operational details, limits, or specific procedures for exercising this right, as the regulation of such matters remains the exclusive competence of individual national legal systems.

Furthermore, although the ICJ’s advisory opinions are not binding, they carry significant weight both legally and politically, influencing debates and the law at both the national and international levels.

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