Yes, Virginia, there is a right to strike
Yesterday the International Court of Justice released its Decision on the Right To Strike Under ILO Convention No. 87. The Court concluded unanimously that (a) it had jurisdiction to give the advisory opinion requested by the ILO Governing Body, and (b) that it should comply with the request for an advisory opinion.
The Court was, however divided, on whether Convention 87 protected the right to strike. By a 10-4 majority the Court concluded:
139. In light of the foregoing, the Court concludes that, in accordance with the customary rules of interpretation reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, the right to strike is protected under Convention No. 87.
140. The Court’s conclusion that the right to strike is protected by Convention No. 87 does not entail any determination on the precise content, scope or conditions for the exercise of that right.
The Issue
The key issue before the Court was whether the Convention 87 right to "freedom of association and to organise" includes a right to strike. Such a right is not explicitly included in the text of the Convention. For this reason the existence of a right to strike has long been a contentious issue between the employer and worker caucuses at the ILO.
The purported existence of a right to strike came not from the explicit terms of Convention 87 but from the positions taken by the ILO Committee of Experts and the Committee on Freedom of Association. The view that a prohibition on strikes may run counter to Convention No. 87 had concerned the ILO Committee of Experts since 1959 and in 1992 it decided that Article 3 of Convention No. 87 does include recourse to strikes. The Committee on Freedom of Association also affirmed the position that the right to strike is protected by the Convention.
The referral
Since 1989, the employers’ representatives have questioned the position that Convention No. 87 should be interpreted as protecting a right to strike and have challenged the Committee of Experts’ authority to interpret that instrument. For their part, the workers’ representatives within the Committee on Standards have supported the views of the Committee of Experts as well as the role of that Committee in interpreting Convention No. 87
The divergence of views led to something of a crisis in 2012 when the employers’ group and the workers’ group were unable to agree on the list of cases of non-compliance to be examined by the ILO Committees as, according to the employers’ group the consideration of the right to strike was “illegitimate and served to undermine the ILO’s established tripartite standard setting processes”. The employers’ representatives were therefore unwilling to discuss cases concerning that Convention or referring to a right to strike.
As a result there was no discussions of cases of non-compliance in 2012 or later.
In an effort to break this impasse, in 2023 the Governing Body of the ILO adopted a resolution by which it decided to request the International Court of Justice to give an advisory opinion.
Right to strike in the ICESCR
While the right to strike may not be explicitly stated in an ILO instrument this does not mean it is entirely lacking in international law. Article 8(d) of the International Covenant on Economic, Social and Cultural Rights (1966) includes an express right to strike: “(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.
Importance of Convention 97.
Convention 87 on Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) is one of the fundamental ILO conventions and is central to the ILO Declaration on Fundamental Principles and Rights at Work (1988). That Declaration has become important in other contexts and in particular in Labour Chapters in Free Trade Agreements. For example Article X.3 of the NZ-EU FTA requires the parties to respect, promote and realise the principles concerning the fundamental rights at work, which are the subject of the fundamental ILO Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining;
The ILO Declaration is also a key clause in instruments such as Global Framework Agreements which seek to secure labour rights in global supply chains.
New Zealand’s position on Convention 87.
While the Objects of the ER Act include to promote observance in New Zealand of the principles underlying International Labour Organisation Convention 87 on Freedom of Association, and Convention 98 on the Right to Organise and Bargain Collectively New Zealand has not yet ratified that Convention.
It might be noted that the NZ-EU requires that Each Party shall make continued and sustained efforts to ratify the fundamental ILO Conventions if they have not yet done so. It noted that all EU Member States have ratified these conventions.
New Zealand’s refusal to ratify appears to result from interpretations of Convention 87 that allow for non-industrial strikes. As New Zealand law does not permit such strikes ratification would violate New Zealand’s policy of only ratifying international instruments if New Zealand law fully complies with the instrument concerned.
It might be time for New Zealand to reconsider its position, and also to bring strike law into compliance with the Convention!
New Zealand did not make either a written or an oral submission to the Court and the only identified New Zealander in the case was Ms Rita Yip,a member of the Bar of New Zealand and Senior Adviser, International Organisation of Employers
The future
While the ICJ has recognised the right to strike the extent of that right remains open, the Court having stated that the Court’s conclusion does not entail any determination on the precise content, scope or conditions for the exercise of that right.
Defining the extent of the right will no doubt be the next battle although the ICESCR may well turn out to be the default position recognisings that within broad limits the issue may be one of national sovereignty.