At The Hague, a Global Debate on the Right to Strike

ICJ hearings on ILO Convention No. 87 mark a defining moment for international labour law

For decades, the ILO’s supervisory bodies, including the Committee on Freedom of Association (CFA) and the Committee of Experts on the Application of Conventions and Recommendations (CEACR), have interpreted the Convention as implicitly protecting the right to strike. In 2012, however, the Employers’ Group broke from that consensus, arguing that the drafters never intended to include such a right. The resulting deadlock paralyzed the ILO’s ability to monitor one of its most fundamental labour principles.

With this background, the ICJ was asked to settle a dispute that has divided the organization for more than a decade  and could shape the balance between freedom of association, national sovereignty, and social justice across more than 150 member states.  (Mishra, 2025)

Opening the proceedings on 6 October, ICJ President Yūji Iwasawa read the formal question to the bench, emphasizing the ILO’s tripartite structure, which unites governments, employers, and workers in setting international labour standards.

Tomi Kohiyama, the ILO’s Legal Adviser, reminded the Court that the organization had not appeared before the ICJ in a consultative capacity since 1932, highlighting the historic nature of the request. She stated that the ILO Secretariat would remain neutral, assisting the Court only by providing the institutional context and interpretative principles under the Vienna Convention on the Law of Treaties (1969). “The participation of organizations of employers and workers,” she noted, “is without precedent in the history of your august institution.”

Founded in 1919, the ILO is the only UN agency where representatives of governments, employers, and workers sit on equal footing a model that has ensured legitimacy but also created friction when consensus breaks down. (Institute of Employment Rights, 2025)

Over three days, 21 countries and organizations presented oral statements and 31 written submissions were filed, reflecting global interest in the issue.

Representing the International Trade Union Confederation (ITUC), Paapa Danquah argued that the right to strike is a “vital tool to improve labour conditions and defend human dignity.” Counsel for the ITUC, including Professor Phoebe Okowa, described strike action as an “indispensable corollary” of freedom of association. “Without the right to strike,” Okowa told the Court, “freedom of association would be hollow, a right to form unions that cannot act.”

The ITUC pointed to decades of ILO practice, jurisprudence from regional courts, and international human rights instruments such as the International Covenant on Economic, Social and Cultural Rights (Article 8) and the Universal Declaration of Human Rights (Articles 20–23) as evidence that the right to strike has become a settled norm of international law.

On the opposing side, Roberto Suárez Santos, Secretary-General of the International Organisation of Employers (IOE), argued that the Convention “neither explicitly nor implicitly recognizes a right to strike.” He warned that reading such a right into the treaty would create a “prescriptive regime”, disrupt national labour systems, and undermine the ILO’s tripartite integrity. “The word ‘strike’ does not appear anywhere,” he said. “If the ILO wants to enshrine such a right, it must negotiate a new convention, not rewrite an old one through judicial interpretation.”

During the hearings, several governments aligned with the ITUC’s position, including Brazil, Spain, Mexico, Mauritius, Norway, and the United Kingdom.Spain’s representative noted that her country’s Constitution treats freedom of association and the right to strike as inseparable, while Brazil described strike action as “the essential counterweight to the structural inequality of the employment relationship.” (International Court of Justice, 2025)

Panama and Indonesia opposed this view. Panama argued that Convention No. 87 concerns only freedom of association, not collective action, while Indonesia urged the Court to refrain from ruling altogether, calling the dispute a political issue that should be resolved internally through the ILO’s tripartite dialogue. (International Court of Justice, 2025)

On the final day, Uruguay, Somalia, Vanuatu, and the International Cooperative Alliance (ICA) defended the right to strike as implicit in the Convention, while Switzerland adopted a cautious stance, acknowledging the importance of the right but noting its absence from the treaty text. Business Africa sided with the employers, warning that a universal interpretation could “disadvantage developing economies” and destabilize national systems. (International Court of Justice, 2025)

The right to strike is already recognized in numerous international and regional instruments, including the European Social Charter, the EU Charter of Fundamental Rights, and the American Convention on Human Rights. Yet, practice varies widely. According to the 2025 ITUC Global Rights Index, workers faced “little or no access to justice” in over 70 percent of countries, and the right to strike was violated in 87 percent — a worsening trend from 2024.

At stake is not only the right to strike, but also the future of tripartism itself, the principle that governments, employers, and workers negotiate collectively to set international labour standards.

If the ICJ sides with the ITUC and supporting states, it would reaffirm the long-standing consensus linking freedom of association and the right to strike, strengthening protections for workers globally. If it sides with the employers, the decision could prompt a renegotiation of international labour standards and shift power away from trade unions.

Either way, the Court’s advisory opinion, expected in 2026, will not be legally binding, but it will carry enormous moral and political weight, shaping the direction of international and domestic labour law for years to come.

Whatever the outcome, the hearings at The Hague have already reignited a century-long debate at the core of the ILO’s mission: how to balance freedom, fairness, and peace in the world of work.

Cited articles

(s.d.).

Institute of Employment Rights. (2025, October 8). Tratto da https://www.ier.org.uk/news/right-to-strike-international-court-hearings-take-place-in-the-hague/

International Court of Justice. (2025, October 6). Tratto da https://www.icj-cij.org/sites/default/files/case-related/191/191-20251006-ora-01-00-bi.pdf

International Court of Justice. (2025, October 6). Tratto da https://www.icj-cij.org/sites/default/files/case-related/191/191-20251006-ora-02-00-bi.pdf

International Court of Justice. (2025, October 7). Tratto da https://www.icj-cij.org/sites/default/files/case-related/191/191-20251007-ora-01-00-bi.pdf

Mishra, V. (2025, Ottobre 6). United Nations News. Tratto da https://news.un.org/en/story/2025/10/1166044