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.
By 2012, this had already become a full-blown ‘institutional crisis,’ when the employer group refused to shortlist any item pertaining to the right to strike in the 2012 Survey. This not only called into question the CoE’s competency to prepare the Annual Survey based on its expert discretion but also prevented, for the first time, the CAS from considering an issue that had been shortlisted for it by the CoE in the Survey.
The crisis with passage of time deepened as the employer, joined by some Government-parties, would not relent their assault on the CoE’s consideration of the right to strike. Consequently the entire presentation machinery of the ILO’s supervisory system got stuck. And so, the Governing Body was compelled to refer the matter to the ICJ under Article 37 of its constitution. It was the first time that the ILO had referred a matter to the ICJ for an advisory opinion on any controversy.
The Court was confronted not only with a legal quandary but also with an existential crisis stemming from the internal disharmony and polarization within the ILO system (thirty-six governments, along with the Workers’ Group, recommended judicial intervention, while other factions opposed this move). The Court took recourse to the Vienna Convention on Laws of Treaties (‘VCLT’) for interpretation of the Convention No. 87. The Court examined the question referred under Articles 31 and 32 of the Vienna Convention.
The holy trinity
Firstly, the Court examined impugned articles of the Convention no. 87 namely Article 2, 3 and 10. These articles exist in an organic cycle, resembling a Holy Trinity of the legal framework of Convention No. 87, and act as the primary bulwark protecting the collective interests of workers when they unite.
The ICJ granted international customary law status to the right to strike as it found that many State-parties to the Convention No. 87 also share common membership with international human rights instruments that contain protection of the right to strike as a legal obligation under international law
The Court referred to them in unison to signify that the heart and soul of the Convention No. 87 lies in this trinity. The Court analyzed the ordinary meaning of the keywords contained in this trio in accordance with the rules of interpretation laid out under Article 31(1) of the VCLT. The Court noted that Article 2 allows workers to form or join organizations of their choosing whereas Article 10 gives these organizations an objective or mission to “further and defend their interests.”
It is to be noted that to avail the protection of the Convention No. 87, a worker can’t act alone but has to undertake concerted “activity” under Article 3. The Court then turned to the last part of the trio – Article 3, that has been in the eye of the storm since 1952. The Court connected the dots of Article 2 and 10 with “activities” and “programs” protected under Article 3 to materialize how organizations maintain and secure their interests under the framework of the Convention No. 87.
Applying the same principle of ordinary rule to Article 3, the Court concluded that the ordinary meaning of these keywords – activities and programs, are so broad and liberal that it includes all possibilities and dimensions of activities including strike-action. Consequently, the Court pronounced when the Holy Trinity is understood in conjunction, it implies that the right to strike is past the basic framework of Convention No. 87.
Right to strike as an ‘encompassed right’
The Court cemented the right to strike as part of the basic framework of freedom under the Convention No. 87 by analyzing it in light of the context, object and purpose of the VCLT. Article 31(2) of the VCLT provides ‘Preamble’ as a touchstone for examining context, object and purpose. The Court held that the object and purpose of Convention No. 87 is “improving labor conditions and attain sustained progresses” and towards this strike-action is one of the ‘one of main activities and tools’ used by workers.” The Court noted that the effective exercise of fundamental freedom necessitates undertaking of collective action including the right to strike on part of workers’ organizations. Hence, it concluded that the right to strike existed as an encompassed right to freedom of association under the Convention No. 87. This ‘encompassed right’ status of the right to strike has transcended its level beyond merely a trade union activity.
Customary law status of the right to strike
The ICJ examined whether there exists any common ‘subsequent practice’ or ‘subsequent agreement’ regarding the right to strike amidst all State-parties to Convention No. 87 in accordance with the Article 31(1) of the VCLT.
It found that State-parties to Convention No. 87 always had disagreement or acrimony regarding the right to strike within the framework of freedom of association. Hence there exists no subsequent practice or agreement under Article 31 of the VCLT. The Court also ruled out application of Article 32 of VCLT as ‘travaux préparatoires’ or available official records in relation to preparatory works were inconclusive to draw an opinion.
Ultimately, the Court granted international customary law status to the right to strike under Article 31(1)(c) as it found that many State-parties to the Convention No. 87 also share common membership with international and regional human rights instruments like International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights, European Convention on Human Rights, American Convention of Human Rights, and others, that contain protection of the right to strike as a legal obligation under international law.
Aftermath of the Advisory Opinion
The Advisory Opinion of the ICJ has already engendered a ripple effect of delight and dismay across the world of work, as its after-effects continue to unfold. But a complete understanding of its after effect can only be possible when the judgment is carefully examined for what i) it says in explicit terms ii) it left unsaid. It is to be observed then that the Court has clinically and craftily chosen the combination of ‘vocal’ and ‘silent’ forms of communication through its judgment as a balancing act between two pivotal forces; ‘capital’ and ‘labour’. This necessity arose from the fact that the controversy was in the nature of a family dispute within the ILO, and what was at stake was the larger harmony and cooperation that is the guiding spirit of the ILO and the broader world of work.
The vocal part
The vocal part of the judgment not only thunderously affirmed the right to strike but also eloquently waxed on the ‘utopian view’ of the strike as an ‘activity’ under Article 3. This view depicts the right to strike in a superlative form where everything is ideal and noble. The Court stressed that the raison d'être of this right as an instrument is to fight exploitation, injustice, enable better working conditions, shorter hours etc. in the interest of workers.
The ICJ did not give the right to strike a status of primus inter pares. This was the balancing act of the Court to customize utopia to suit the reality of industrial life.
Judge Cleveland latched on to this utopian view more distinctly in her separate judicial analysis. She noted “workers do not form organizations to play cards” but “to improve working conditions and advance their interests.” She described strike-action as “a vital tool for protecting workers from exploitation and defending human dignity in the workplace.” She also reiterated the last resort theory and how strikes maintain a power balance at the workplace through parity bargaining capacity of either side. She referred to ninety-seven constitutions and statutes of various countries to stress that the right to strike is consecrated across nations and a ‘noble tool of transformative justice’. In this analysis, the strike-actors emerge as ‘knights’ gallantly fighting to compensate for the failed mechanism of labour justice by taking matters in their hands. But, overall the Court concludes this utopian view by its characteristic pragmatic shift though with laconic description.
The soft tone
Though the utopian view found more space and emphasis in the judgment, it is the pragmatic shift, arguably, that characterized the advisory opinion. This shift is exemplified by two key aspects of the advisory opinion.
First, the Court itself acknowledged that the advisory opinion does not deal with “the precise content, scope and conditions of the exercise of the right to strike shall be contingent upon pragmatic principles.” The Advisory Opinion only affirms the right to strike in principle, leaving the rest of the discourse to be developed and acted upon by social partners of the ILO.
Secondly, the Court also relegated the right to strike as “one of the main activities” under Article 3, not the “primary or principal one.” The ICJ did not give the right to strike a status of primus inter pares. This was the balancing act of the Court to customize utopia to suit the reality of industrial life. It demands that the right to strike must work within the broader framework of social dialogue and cumulative conversations at the workplace rather than a standalone militant ideology leading to chaos and anarchy.
This pragmatic shift is also due to the fact that the Convention No. 87 itself imposes certain restrictions or curtailments on the “principles of fundamental freedom” in its universal application. Articles 8 and 9 make an exception clause for “the law of land” and sovereign function respectively to exempt certain categories from protection under the Convention.
This shift has also reckoned the principles developed by the supervisory bodies of ILO themselves that scholars like Keith Ewing termed a “reductionist approach”. These principles shape a ‘permissible control system’ on the right to strike by laws of respective countries. This control system includes, by way of ‘procedural requirements’ to be fulfilled before strike action can be exercised such as giving prior notice before a strike, permitting conciliatory proceedings on strike disputes, referring strike disputes to arbitration, imposing minimum service requirements, prohibiting strikes in ‘essential services’ or public utility services, and prohibiting government servants discharging sovereign functions from striking.
The Advisory Opinion only affirms the right to strike in principle, leaving the rest of the discourse to be developed and acted upon by social partners of the ILO.
This whole apparatus of restriction and regulations as a ‘control system’ is what makes the right to strike a pragmatic exercise of labour liberty.
The elephant in the room
This part is the tip of the iceberg that the Court left for the ship of tripartite mechanism of ILO to navigate through. It is regarding the status of the ILO’s supervisory system and its constitutional capacity to pass a conclusive interpretation. The Court ascribed a great weight to the literature produced by these bodies but did not explicate on the binding nature of these literature. Even the Court itself acknowledged that its judicial decision would not supplant the interpretations of these supervisory committees. The lis, from outset, was equally about status, role, and capacity to these committees to bind the State-parties in conclusive interpretation made by these committees. The Court left the fate of this lis unsaid.
Secondly, the Court showed unwillingness to comment on ‘the precise content, scope or conditions for the exercise of the right to strike’. It was not the right to strike that was contested in principle, but the fear that codification may lead to a delimitation of the right and hence blunt its edge as an instrument of ultimate labour justice. It also illustrates the great faith it reposed in the tripartite mechanism of the ILO to come up with a solution.
Lastly, the ICJ did apply ordinary meaning principle to decode range of “activities” an organization can turn to materialize its interests but it did not explicate what shall be contour and nature of “interests” under Article 10 of the Convention No. 87 that would legitimatize such any activity carried out under Article 3. In absence of contouring, strike action may find an ever widening ambit of interests’ to be further and defended to attain improvement of labor conditions.
These unsaid parts of the verdict pose a real challenge to upcoming international labour jurisprudence and the ILO’s tripartite mechanism to find a win-win solution.
South Asian crucible
This Advisory Opinion is very important from the perspective of South Asia, with a special focus on India and Sri Lanka, as these two countries have, in the recent past, experienced ‘twin growth’ i.e., growth in industrial activity and growth in industrial strikes. Recently these countries were stormed by vehement frequent strikes that they tried to curb through conciliation, injunction, declaring essential services and through other prerogative powers. For example, in July 2025, a general strike across India caused a production loss of 241.31 million USD in one-day in Kerala and around 13 million USD in the eastern backward agricultural region which includes Bihar. Similarly in Sri Lanka, a report analyzed how major repetitive strikes like postal resulted in daily loss of 25-30 million LKR or a four-hour strike by employees at the Colombo Port resulted in an estimated loss of at least 300 million LKR.
India has already brought a labour reform wherein new provisions on the right to strike have been introduced. Section 62 of the Industrial Relations Code, 2020 universalized prior notice requirements across the industries (earlier it was only mandatory in public utility industries). Now, en masse leave on a particular working day shall be considered leave without prior intimation. Only a registered trade union can approach the formal conciliatory machinery in the case of strike action. During the pendency of conciliation or mediation by the Tribunal, strike action is prohibited.
Sri Lanka has also started the labour reforms process recently again given a new mandate of its more open economy. Even under existing law, only registered trade unions can go on strike in Sri Lanka. These re-jigs have been made because both India and Sri Lanka have a very large portion of their industrial activity and workforce employment in the MSME sector.
As their economies are progressively merging into the global supply chain, facing disruption from the automation of business processes and businesses becoming more consignment-based, the right to strike is no longer a localized event, even for small enterprises. The question whether such international legal recognition of the utopian view on the right to strike shall engender a ‘strike-mindset’ towards industrial and labour questions in these already afflicted countries or it will be understood in reference to where it belongs ‘a cog in the overall process of social dialogue’.
The ICJ’s pragmatic shift has also reckoned the principles developed by the supervisory bodies of ILO themselves that scholars like Keith Ewing termed a ‘reductionist approach’.
Conclusion
The right to strike was never contested in principle; what was contested was its protection under the international legal system of Convention No. 87. Though the Court has upheld it in principle now and has also embellished with a romantic notion of ‘sentinels of justice and against exploitation’, it has now gained more currency for its reach and depth. A thunderous affirmation of this right shall definitely reach the local level, but the question is how the right to strike shall pan out when the Court kept mum on other crucial aspects, like content and scope, or the capacity of the supervisory bodies that design it. The best guess is that the ICJ has very skillfully returned the question where it belongs – the ILO’s tripartite mechanism.