The International Court of Justice (ICJ) has issued a landmark advisory opinion confirming that the right to strike is safeguarded under the International Labour Organization’s (ILO) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
This decision resolves years of debate within the global labor community about one of workers’ most significant collective bargaining mechanisms.
The advisory opinion, released on May 21, followed a request for clarification by the Governing Body of the International Labour Office regarding a question that had divided governments, employers, and worker representatives for decades.
“Does the right to strike of workers and their organizations receive protection under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)?”
By a 10 to 4 vote, the world’s highest judicial body answered affirmatively, determining that workers and their organizations are entitled to protection for strike actions under Convention No 87.
The court’s President Yuji Iwasawa, Vice President Julia Sebutinde, and eight other judges formed the majority, while Judges Peter Tomka, Ronny Abraham, Xue Hanqin, and Mahmoud Daifallah Hmoud dissented.
The court traced the dispute’s origins to a prolonged disagreement within the ILO over whether Convention No 87, which guarantees freedom of association and workers’ organizing rights, also covers strike actions.
This disagreement intensified over time and was characterized as an “institutional crisis” by labor stakeholders in 2012 after repeated negotiations failed to reach consensus.
In analyzing the convention, the court noted that while Convention No 87 does not explicitly mention strikes, it does not exclude them either.
The court examined Articles 2, 3 and 10 of the convention and found that workers have the right to form organizations, conduct their activities, and develop programs aimed at advancing and defending their interests.
The judges reasoned that strike action falls within the broad meaning of organizational “activities” carried out by workers’ organizations to pursue these objectives.
The court further observed that strikes represent principal methods through which workers and unions seek improved labor conditions.
Consequently, the court determined that protecting the right to strike aligns with the convention’s goal of guaranteeing freedom of association as a means of promoting social justice and better working conditions.
The judges also considered developments in international law, including provisions in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, concluding that these instruments reinforce the understanding that freedom of association encompasses protection of strike actions.
“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,” the court summarized its findings.
It added, however, that determining the extent or conditions under which that right should be exercised falls outside the court’s jurisdiction.
The court therefore declared that the question posed by the ILO was to be answered “in the affirmative.”
President Iwasawa concurred with the majority opinion but emphasized that recognizing a right to strike under Convention No 87 does not make the right absolute.
He stressed that the court deliberately avoided expressing a view on the right’s scope, including whether and to what extent public officials should enjoy strike protections.
Judge Bhandari, who also supported the majority decision, underscored that treaty interpretation should not rely on narrow dictionary meanings but must consider the broader context, purpose, and objectives of the convention.
He agreed that the convention’s wording was sufficiently broad to include strike action as part of freedom of association.
In contrast, Judge Tomka argued that the convention does not expressly mention strikes and was primarily designed to protect the formation, autonomy, and internal administration of workers’ unions rather than guarantee specific forms of collective industrial action.
He maintained that the treaty’s drafters deliberately left the issue of strikes unresolved and warned that reading such a right into the convention risked extending the treaty beyond what states had agreed.
The ruling is expected to have significant implications for workers and trade unions globally by strengthening international legal recognition of strike action as a legitimate tool for advancing labor rights and collective bargaining demands.
In Kenya, where industrial action has been frequently used by teachers, doctors, nurses, university lecturers, and other unionizable workers to advocate for better pay, improved working conditions, and enhanced public services, the opinion aligns with domestic legal frameworks protecting workers’ labor rights.
The right to strike in Kenya is guaranteed under Article 41(2)(d) of the constitution and regulated by the Labour Relations Act, 2007.
However, to receive legal protection from disciplinary action or dismissal, employees must comply with requirements outlined in Section 76 of the Act.
The right to strike is also limited for workers in designated essential services, including healthcare and emergency services.
Workers in these sectors are typically required to maintain minimum staffing levels during industrial action to ensure public safety.
The ICJ judgment has already received praise from the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU).
KMPDU secretary general Davji Atellah described the advisory opinion as a significant victory for organized labor.
“For doctors, healthcare workers, and all trade unionists under Kenya Medical Practitioners, Pharmacists and Dentists Union, this ruling represents a major legal and moral vindication. The right to strike remains an essential safeguard in the fight for fair pay, safe working conditions, dignity at work, and stronger public healthcare systems,” he stated in a response.
“We welcome this progressive and historic decision. It enhances international legal protection for workers globally and reinforces the legitimacy of collective bargaining struggles in Kenya and worldwide.”
Although the ICJ’s advisory opinion is not directly enforceable like a binding judgment between states, it carries substantial legal authority and is expected to influence future interpretations of international labor standards, national labor laws, and decisions by courts and labor tribunals worldwide.