International Court of Justice advisory proceedings
Interpretation of Convention No. 87 with respect to the right to strike
Following a request submitted by the Workers’ group and supported by 36 governments, the Governing Body decided at its 349th bis (Special) Session held on 10 November 2023, to refer the long-standing dispute on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) in relation to the right to strike to the International Court of Justice (ICJ) for decision in accordance with article 37(1) of the ILO Constitution.
The interpretation dispute concerns whether the right to strike of strike of workers and their organizations is protected under the Convention No. 87. The dispute has persisted for several years and in 2012 gave rise to a major institutional crisis, with the Conference Committee on the Application of Standards being prevented for the first time from exercising its supervisory functions.
For the Employers’ group, Convention No. 87 does not contain any provision whose ordinary or literal meaning would imply the existence of a right to strike while the preparatory work that led to its adoption confirms that the intention of the drafters was clearly not to include the right to strike within the scope of Convention No. 87. In addition, the Employers’ group objects to the acceptance by the Committee of Experts on the Application of Conventions and Recommendations of a universal, explicit and detailed right to strike and the Committee’s attempts to produce new “jurisprudence” despite lacking law-making power or the authority to issue binding rulings on the application of national laws and regulations.
In contrast, the Workers’ group considers that the terms of Convention No. 87 guaranteeing the right to organize must be understood in the context of the relevant provisions of the Preamble to the ILO Constitution and of the Declaration of Philadelphia and taking into account any subsequent practice that establishes general agreement regarding their interpretation, such as the consistent case law of the bodies responsible for overseeing the application of the Convention. In addition, the Workers’ group contends that all ILO bodies involved in supervision necessarily interpret the meaning of standards, and that therefore the Committee of Experts may occasionally perform interpretative functions.
This is the seventh time that the ILO has requested an advisory opinion under article 37 of its Constitution but only the second time with regard to the interpretation of an international labour Convention and the first time ever to seize the International Court of Justice since its creation in 1945.
The interpretation dispute concerns whether the right to strike of strike of workers and their organizations is protected under the Convention No. 87. The dispute has persisted for several years and in 2012 gave rise to a major institutional crisis, with the Conference Committee on the Application of Standards being prevented for the first time from exercising its supervisory functions.
For the Employers’ group, Convention No. 87 does not contain any provision whose ordinary or literal meaning would imply the existence of a right to strike while the preparatory work that led to its adoption confirms that the intention of the drafters was clearly not to include the right to strike within the scope of Convention No. 87. In addition, the Employers’ group objects to the acceptance by the Committee of Experts on the Application of Conventions and Recommendations of a universal, explicit and detailed right to strike and the Committee’s attempts to produce new “jurisprudence” despite lacking law-making power or the authority to issue binding rulings on the application of national laws and regulations.
In contrast, the Workers’ group considers that the terms of Convention No. 87 guaranteeing the right to organize must be understood in the context of the relevant provisions of the Preamble to the ILO Constitution and of the Declaration of Philadelphia and taking into account any subsequent practice that establishes general agreement regarding their interpretation, such as the consistent case law of the bodies responsible for overseeing the application of the Convention. In addition, the Workers’ group contends that all ILO bodies involved in supervision necessarily interpret the meaning of standards, and that therefore the Committee of Experts may occasionally perform interpretative functions.
This is the seventh time that the ILO has requested an advisory opinion under article 37 of its Constitution but only the second time with regard to the interpretation of an international labour Convention and the first time ever to seize the International Court of Justice since its creation in 1945.
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The ILO and the World Court: A historical perspective
In the period 1922-1932, the ILO sought legal guidance from the Permanent Court of International Justice on six occasions, as provided for in Article 37 of its Constitution. Five of the advisory opinions concerned the interpretation of the ILO Constitution and one related to the interpretation of an international labour Convention.