In May, the International Court of Justice (ICJ) delivered its advisory opinion brought by the International Labor Organization (ILO). The ILO, appearing in front of the ICJ for the first time since 1932 (when the ICJ was still the PCIJ), asked the question: “Is the right to strike of workers and their organizations protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (87)?”[i] The ICJ in a ten-to-four opinion, concluded that “the right to strike… is protected.”[ii] Although an ICJ advisory opinion is legally non-binding, the recognition of the right to strike in Convention No. 87 would further empower workers globally to use this “vital tool” to defend their human rights.[iii]
Strike action is seen as a last resort measure for workers’ organizations in pursuit of specific demands.[iv] Strikes are a means to an end; workers exercise this right when there is “failure in the process of fixing working conditions through collective bargaining.”[v] A strike action is designed to be disruptive, both for the workers and the employer.[vi] The employer faces industrial operational challenges, whereas workers wager maintaining their employment relationship with the employer.[vii] Depending on the state’s domestic labor law, some strikes may have temporary employment effects on workers, while in other states it might lead to termination and replacement.[viii]
Despite the detrimental risk striking brings to workers, workers still see the right as an essential part of freedom of association that workers deserve to exercise.[ix] Strike action benefits workers because it allows them “to avoid being at the complete mercy of employers” which creates “balance between worker and employer power.”[x] It is a necessary component of a symbiotic relationship that prevents worsening working conditions and exploitation.
The right to strike action exists in other international legal sources, most notably in the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Article 8 of the ICESCR outlines labor rights including the right to form and join trade unions (Art. 8(1)(a)) and the right to strike, “provided that it is exercised in conformity with the laws of the particular country.”[xi] The relationship between international and domestic laws is tenuous here: the force of an international human right becomes dependent on individual state application. Furthermore, Art. 8(3) states that this ICESCR article is subject to non-prejudice as to the provisions outlined in Convention No. 87. Art. 8(3) seemingly is straight-forward to apply, but it gets at the heart of the issue: is the right to strike even outlined in Convention No. 87?
Other regional bodies recognize the right to strike action. The right is included in the Charter of Fundamental Rights of the European Union (Art. 28) and the Inter-American Charter of Social Guarantees (Art. 27). These inclusions further emphasize a global backing of labor rights and legitimizing strikes as a fundamental human right.
At its inception, there was no explicit language in Convention No. 87 to expressly establish or deny the right to strike.[xii] This was the result of a compromise to appease the ILO’s unique tripartite makeup, which consists of governments and representatives from workers’ and employers’ organizations.[xiii] Art. 2 of the Convention outlines the right to establish and join organizations, while Art. 10 defines organizations as an entity with the purpose of “furthering and defending the interests of workers or employers.” Yet, neither explicitly touch on the right to strike.
Despite the lack of language, representatives of the workers’ side of the ILO read into Art. 10 to include strike action, claiming that “[the right to strike] is an intrinsic corollary of the right to organize.”[xiv] International Trade Union Confederation (ITUC) representative Paapa Danquah claims the right is deserving of legal protection as it is “a timeless expression of collective action.”[xv] However, the International Organisation of Employers (IOE) representative Roberto Suárez Santos claims the right is neither “explicitly nor implicitly cover[ed].”[xvi] Santos warns that reading it into the Convention would “disrupt nuanced national labor systems.”[xvii] His argument however gets to the core of strikes: they are a fundamental tool for disruption. Representatives of the governmental sector of the ILO tripartite is concerned with civil servants’ rights, which perhaps indicate an assumption that striking is protected under Convention No. 87.[xviii]
Of the 23 states and five international organizations that submitted statements for the ICJ to consider when making their decision before issuing their opinion, a large majority supported Convention No. 87 protecting the right to strike action.[xix] Widespread support confirms the importance of the problem, especially due to the current global “context where workers’ rights are severely threatened.”[xx] An ICJ advisory opinion that recognizes a right to strike is a positive solution to protect “workers and their organizations worldwide.”[xxi] However, Professor Desirée LeClercq, argues that the issue of reading the right to strike action into Convention No. 87 “should never have been raised before the ICJ.”[xxii] She warns that the ICJ finding that the Convention has evolved to read in the right to strike, “risks undermining the Organization’s unique governance structure and Constitutional processes.”[xxiii]
In its Advisory Opinion, the ICJ recognized that although Convention No. 87 does not explicitly refer to a right to strike, that does not mean the right is excluded from the Convention altogether. [xxiv] The Court noted that “activities” is never defined in the Convention, which suggests that “strike action is capable of falling within the ordinary meaning of the term ‘activities’ and, thus, within the scope of Convention No. 87.”[xxv] Also noting strike action’s importance to workers, the Court stated that strike action is “one of the main activities engaged in and tools used by workers and organizations to promote their interests and improve conditions of labor.”[xxvi] The Court referred to the overlap between the Convention and ICESCR, the latter of which does explicitly contain the right to strike.[xxvii] The Court also cited Art. 31 of the Vienna Convention on the Law of Treaties (article on general interpretation of treaties), finding that subsequent action of member states demonstrates the recognition of the strike action as a fundamental right.[xxviii]
With the ICJ choosing to read strike action into Convention No. 87, the Court should take into consideration safeguards for parties involved. Because a strike action is disruptive and potentially detrimental to a worker’s employment status, compensatory guarantees should also be read into the right to strike. Whether those guarantees are conciliation or mediation measures, the parties concerned should “be able to participate in determining and implementing the procedure.”[xxix]
The ICJ’s opinion is considered “expansive” by finding that strike action is a part of organizational activities that labor organizations have a right to organize.[xxx] However, the Court does not define the scope, holding that their opinion “does not entail any determination on the precise content, scope or conditions for the exercise of that right.”[xxxi] Dissenting Judge Hanqin criticizes the expansiveness of the decision as “an exercise of human rights advocacy rather than treaty interpretation.”[xxxii]
Reading strike action as a fundamental right for workers within freedom of association under Convention No. 87 is a major advancement for workers and trade unions worldwide. In order to safeguard the right, the ICJ may include guardrails to ensure collective bargaining in the strike process. Strike action is disruptive, but it is a means to an end for better working conditions and should be seen as a fundamental right on the international stage.
[i] Desirée LeClercq, The ILO’s Right to Strike: Distinguishing Non-Binding Principles from Binding Conventions at the ICJ, EJIL:Talk!, https://www.ejiltalk.org/the-ilos-right-to-strike-distinguishing-non-binding-principles-from-binding-conventions-at-the-icj/, 2025.
[ii] International Court of Justice, The Court gives its Advisory Opinion and responds to the question posed by the International Labour Organisation, https://www.icj-cij.org/sites/default/files/case-related/191/191-20260521-pre-01-00-en.pdf, 2026.
[iii] See Interpretation of Peace Treaties with Bulgaria, Hungary, Romania, https://www.icj-cij.org/case/8. Vibhu Mishra, In landmark labour case, UN World Court weighs in on right to strike, United Nations News, https://news.un.org/en/story/2025/10/1166044, 2025.
[iv] Freedom of Association and Collective Bargaining, International Labour Conference 81st Session, https://www.ilo.org/sites/default/files/wcmsp5/groups/public/%40dgreports/%40jur/documents/genericdocument/wcms_453472.pdf, 1994, 61.
[v] Id.
[vi] Id.
[vii] Id.
[viii] Id.
[ix] 5 reasons why we still need the right to strike, IndustriALL Global Union, https://www.industriall-union.org/5-reasons-why-we-need-the-right-to-strike, 2024.
[x] Id.
[xi] Art. 8(1)(d).
[xii] Freedom of Association and Collective Bargaining, 63.
[xiii] The ILO’s Right to Strike.
[xiv] Id.
[xv] UN World Court weighs in on right to strike.
[xvi] Id.
[xvii] Id.
[xviii] Jeffrey Vogt, From the Shop Floor to “World Court”: the Right to Strike and the Scope of International Labor Law, On Labor, https://onlabor.org/from-the-shop-floor-to-world-court-the-right-to-strike-and-the-scope-of-international-labor-law/, 2025.
[xix] Written Comments of the International Trade Union Confederation, International Court of Justice Right to Strike Under ILO Convention No. 87 (Request for Advisory Opinion), https://www.icj-cij.org/sites/default/files/case-related/191/191-20240913-wri-01-00-en.pdf, 2024.
[xx] Id.
[xxi] The ILO’s Right to Strike.
[xxii] Id.
[xxiii] Id.
[xxiv] Right to Strike under ILO Convention No. 87, Summary of the Advisory Opinion of 21 May 2026, https://www.icj-cij.org/sites/default/files/case-related/191/191-20260521-sum-01-00-en.pdf, 4.
[xxv] Id. at 5.
[xxvi] Id.
[xxvii] Id. at 7.
[xxviii] Id. at 8.
[xxix] Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), International Labour Organization, https://normlex.ilo.org/dyn/nrmlx_en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312232, 1950.
[xxx] Julian Arato, Treaty Interpretation in the ICJ’s Opinion on the Right to Strike, EJIL:Talk!, https://www.ejiltalk.org/treaty-interpretation-in-the-icjs-opinion-on-the-right-to-strike/, 2026.
[xxxi] Vibhu Mishra, Right to strike protected under key labour treaty, says UN World Court, UN News, https://news.un.org/en/story/2026/05/1167571, 2026.
[xxxii] Id.