Client Alert: The ILO requests an Advisory Opinion from the ICJ on the Right to Strike

On 13 November 2023, the Director-General of the International Labour Organization (the “ILO”) transmitted a letter to the International Court of Justice (the “ICJ”) requesting that it issue an Advisory Opinion on whether the 1948 Freedom of Association and Protection of the Right to Organise Convention, which protects workers rights to organise collectively, also includes the right to strike.

The ILO’s request aims to resolve a thirty-year treaty-interpretation dispute between the ILO’s Worker’s Group and Employer’s Group sections of its Governing Body.

The ILO’s request for an advisory opinion emerges from a 30-year-long dispute within the organisation

On 10 November 2023, the Governing Body of the ILO, the ILO’s executive body, authorised the request to the ICJ to issue an advisory opinion on the question, “[i]s the right to strike of workers and their organizations protected by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) [(the “Convention No 87”)]?”

The ILO Governing Body was convened in a special session to ask the ICJ for this Advisory Opinion. The ILO Governing Body is composed of three constituent groups: the Worker’s Group; the Employer’s Group; and the Government Group.

For thirty years, the Worker’s Group and Employer’s Group have adopted different interpretations of worker’s freedoms to organise and formulate programmes in Articles 3 and 10 of Convention No 87:

as supported by the ILO Committee of Experts on the Application of Conventions and Recommendations for decades (see e.g., link, link, link, link). The Worker’s Group views the right to strike as a component of the right to organise and formulate programmes in Convention No 87; but
conversely, in the words of the ILO Secretariat, the Employer’s Group argues that Convention No 87 “does not contain any provision whose ordinary or literal meaning would imply […] the existence of a right to strike”.

The Worker’s Group and Employer’s Group are also divided on the question of whether the Committee of Experts has the power to make binding interpretations of Convention No 87.

Background to the ILO’s power to request an advisory opinion from the ICJ

The ILO requested the ICJ Advisory Opinion under Article 37(1) of the ILO Constitution, which provides that “[a]ny question or dispute relating to the interpretation of this Constitution or of any subsequent Convention […] shall be referred for decision to the [ICJ]”. Under Article 37(1) of the ILO Convention, ICJ Advisory Opinions relating to international labour conventions arguably do have a binding effect.

Prior to this request, the ILO has made six advisory opinion requests to the predecessor of the ICJ, the Permanent Court of International Justice. Two of the requests were made on the initiative of ILO Member States while the other four were made by the ILO Governing body. Of those advisory opinion requests, only one has previously pertained to an interpretation of an international labour convention, namely the 1919 Night Work (Women) Convention.

Next steps

The Court will notify States and/or “international organisations considered by the Court as likely to be able to furnish information on the question” to provide written statements. The ILO requested the Court to allow the participation of the following six organisations: (i) International Organisation of Employers; (ii) International Trade Union Confederation; (iii) World Federation of Trade Unions; (iv) International Cooperative Alliance; (v) Organization of African Trade Union Unity; and (vi) Business Africa. Parties will also be given the opportunity to comment on each other’s written statements. The President of the ICJ will fix the relevant time limits. After this written phase, the Court will likely hold a hearing, before ultimately rendering its Advisory Opinion.

Robert Volterra and Volterra Fietta have successfully advised and represented multiple States before the International Court of Justice. This includes in relation to Advisory Opinions. The firm is currently instructed by a number of States in relation to Advisory Opinions before international courts and tribunals.

For further information, please contact info@volterrafietta.com.

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