The International Court of Justice (ICJ) is currently examining whether International Labour Organization (ILO) Convention No. 87 protects the right of trade unions to collective action, in particular the right to strike. This investigation followed a request for an advisory opinion from the ILO following the 2012 strike by employers' representatives and the subsequent deadlock within ILO institutions.
The right to strike has always been the subject of attempts by states to challenge and restrict it. Nevertheless, it remains a fundamental part of industrial relations and gives unions the opportunity to represent their interests and reduce the gap between the bargaining power of workers and employers. This leads to better working conditions and fairer remuneration for workers. The right to strike not only fulfils a social function but is also an expression of freedom of association, a well-established fundamental civil right, and it is also argued that it is an expression of political freedoms. However, given the current request for an advisory opinion to the International Court of Justice, the status of the right to strike within the ILO is uncertain.
Rather than defending the status of the right to strike within the ILO, which has been addressed elsewhere, this paper discusses whether there is a valid alternative in the current international legal space should the ICJ find that Convention No. 87 does not include the right to strike. The two possible alternatives to the right to strike considered here are those in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the European Social Charter (ESC). The former is the main instrument for socio-economic rights in international law with the broadest geographical scope, having been ratified by 172 states. In contrast, the ESC has a more limited geographical scope, being applicable only within the borders of the Council of Europe, but it is nevertheless relevant as the oldest international legal instrument for socio-economic rights.
The paper will first briefly outline the legal basis, scope and content of the right to strike in the ILO. It will then discuss the scope and content of the two possible alternative expressions of the right to strike and examine whether their own expression of the right to strike exists independently of their ILO counterpart. Since the right to strike is consistently regulated within a highly complex framework, the comparison will focus on two main questions: the permissible forms or modalities and the permissible objective or teleological limitations on collective action. These are generally representative of the substantive and teleological scope of the right in each regime and of the level of protection afforded to it. For the sake of brevity, issues such as procedural and substantive limitations on strikes, such as minimum service standards, will not be considered.
Ultimately, this paper argues that the right to strike under the ICESCR or the ESC is not a viable alternative, either because of its limited scope or because it depends on the ILO's protection of the right to strike.
The right to strike according to the ILO
ILO Convention No. 87 does not explicitly include the right to strike. However, ILO interpretative bodies have gradually interpreted Article 3 of the Convention to include the right of trade unions and employers’ organisations to take collective action. This was because collective action is considered 'inseparable consequence” freedom of association, since without strikes as an essential bargaining tool, workers' or employers' organisations would not be able to effectively represent the interests of their members. As a result of this interpretation, the ILO bodies have developed a complex and multi-layered framework for collective action.
With regard to the two features discussed in this paper, the ILO has established that the scope of protection of the right of trade unions to take collective action is not limited to non-performance such as strikes or lockouts, but includes alternatives such as go-slow or work-to-rule. Next, the ILO has consistently promoted a flexible interpretation of the teleological restrictions on the strike, holding that only the prohibition of purely political strikes can be permissible. This gives workers' representatives more flexibility in negotiating with administrative bodies as well as the direct employers of their members. These rules reflect the broad scope and high level of protection afforded to the right to strike and to trade union rights in general within the ILO.
The right to strike in the regimes
The ICESCR is the most widely used international legal instrument on socio-economic rights. Article 8 deals with collective labour rights, including the right to collective action under Article 8(1)(d). The latter, however, protects the right to strike provided that “It is exercised in accordance with the laws of the respective country', which gives signatory states enormous discretion to restrict the right to strike without limitations based on principles such as proportionality or necessity in a democratic society. The only limitation on states' ability to restrict the right to strike is set out in Article 8(3), which states that the provision does not empower states parties to ILO Convention No. 87 to take measures that 'Prejudice […] the guarantees provided for in this Convention“This means that not only is the content of the right to strike under the ICESCR at least consistent with ILO doctrine, but also that the protection of such a right guaranteed under the ICESCR depends on the status that the right enjoys within the ILO system, since States would otherwise have unfettered discretion in restricting that right. This dependence is further exacerbated by the fact that the ICESCR's interpretative body, the Committee on Economic, Social and Cultural Rights (CESCR), constantly refers to ILO instruments when discussing the scope and content of Article 8(1)(d), and that there is currently no general commentary on Article 8 that would provide much-needed clarification as to the obligations that the provision imposes on signatory States. Thus, should the ICJ find that Convention No. 87 does not protect the right to strike, the status of that right within the ICESCR would be highly uncertain.
Next, the ESC establishes a right for trade unions to take collective action under Article 6(4). The Charter is the lesser-known counterpart of the European Convention on Human Rights and the Council of Europe's second major human rights document, with a focus on socio-economic rights. Therefore, any right protected by the ESC would be limited in its geographical scope to European states. Article 6(4) ESC, when the Charter came into force in 1961, was the first provision in an international legal document to explicitly protect the right to strike, which is therefore not dependent on ILO Convention No. 87. The European Committee of Social Rights (ECSR) has since established a comprehensive framework for the exercise of the right to strike. However, the right under the ESC is more limited in scope and content than its ILO counterpart. First, the Committee has never substantively addressed the question of what forms of action can be protected as collective action, and some state practices found to be compatible with Article 6(4) limit it only to non-performance, i.e. strikes and lockouts. In addition, the right to strike is teleologically limited under the ESC. According to Article 6(4), workers may only participate in collective action if they seek collective agreements and only if theyConflicts of interest'i.e. only in relation to working conditions. This is much more restrictive than the ILO's right to strike, which only allows the prohibition of purely political strikes.
Given its inclusion in the text of the Charter, the right to strike would therefore remain in place in the Council of Europe even if the ICJ were to conclude that Convention No. 87 does not protect this right. However, Article 6(4) ESC would hardly be a viable alternative. In addition to its limited geographical scope, the right to strike under the ESC is significantly more restricted in both substantive and teleological terms.
Diploma
This paper highlights the precarious nature of the right to strike under international law. Although ILO Convention No. 87 does not provide explicit protection, it plays a central role in safeguarding this right. Two possible alternatives were considered: the ICESCR and the ESC. It was argued that while the former has a broader geographical scope, its protection of the right to strike is inadequate as it grants states a wide discretion in regulating collective action, which is only comprehensively limited by the current interpretation of ILO Convention No. 87 as the right to strike. This effectively makes the right to strike under the ICESCR dependent on its ILO counterpart. Next, the paper addressed Art. 6(4) ESC. This too turned out not to be a viable alternative to the right to strike under the ILO as it is subject to more extensive limitations on its substantive and teleological scope. Such limitations come in addition to the limited geographical scope.
