Though the ICJ’s Advisory Opinions are not legally binding, it may directly influence labour laws in 158 countries, who are signatory to the ILO convention No. 87, and indirectly to all the countries of the world. Judiciary around the world may accept the ICJ’s opinion as authoritative interpretation.

In a sense the workers have won the historical battle of ‘right to strike’ again, who have been always asserting that right to strike is their protected right under the ILO conventions No. 87, on which employers differed, and wanted workers’ right to strike’ to be guillotined. Nevertheless, this win is not enough to protect workers, because the ICJ has stated that while the right is protected, its opinion did not determine the precise content, scope, or conditions for exercising it. It means workers have a long struggle ahead, because it leaves a scope for manipulation by employers and the governments supporting them. The issues relating these are therefore bound to come for further considerations to the Governing Body of the ILO.

To understand its full ramification, we will have to recall that 14 Employer members of the Governing Body had made a request on September 12, 2023, that the issue be urgently included on the agenda of 112th Session of the International Labour Conference (ILC) to be held in June 2024. The intention of the request was to guillotine the workers’ right to strike and a lobby was very active to get the worker’s rights curtailed further in respect of even right to association.

It should also be noted that for many years, the ILO Committee of Experts on the Application of Conventions and Recommendations, consisting of independent experts responsible for monitoring the application of ratified Conventions by Member States, had taken the view that the right to strike is a corollary to the right to freedom of association, and that, as such it is reorganized and protected by the Freedom of Association and Protection of the Right to Organise Convention, 1948, (No.87).

Nevertheless, the Employers’ group had been increasingly questioning Committee of Experts’ interpretation of Convention No. 87. The controversy gradually intensified and in 2012 gave rise to a major institutional crisis, with the Conference Committee on the Application of Standards being prevented for the first time from exercising its supervisory functions.

The issue of collective bargaining had come in May 2022 before the tripartite screening group, which had decided to place the strategy for promotion and implementation of the right to collective bargaining on the agenda of the Governing Body. It was included in March 2023 meeting, and discussed in detail in the 349th Session of the Governing Body 30th October – 9 November 2023. However, the issue could not be decided, and hence a special two-day session was held on November 10-11, 2023 outside the governing body meeting. It was a rare event, only the fourth in the history of ILO’s existence since 1919, the three others were held in September 1932, October 1935, and May 1970.

ILO Governing Body had just endorsed the proposed ILO integrated strategy for the promotion and implementation of the right to collective bargaining and requested the DG ILO to take into account its guidance in implementing the strategy and submit a progress report at its 352nd Session in November 2024.

Even then the ILO Governing Body could not resolve the issue in the special session. The employers’ lobby was adamant on curtailing workers’ right. Then following a request submitted by the Workers’ group and supported by 36 governments, the Governing Body decided on November 10, 2023 to refer it to ICJ for Advisory Opinion, under article 37 of the Constitution of the ILO.

The conclusion of the ICJ now is significant not only in respect of the workers’ ‘right to association’ and ‘right to strike’, but also because the Employers’ group had objected the ILO Committee’s attempts to produce new “jurisprudence” saying that they lacked law-making power or the authority on the application of national laws and regulations.

It was the seventh time that the ILO had requested an advisory opinion under article 37 of its Constitution but only the second time with regard to the interpretation of an international labour Convention and the first time ever to seize the International Court of Justice since its creation in 1945.The first request on interpretation was made in 1932 to the permanent Court of International Justice, which was the predecessor of the ICJ, concerning the interpretation of the Night Work (Women) Convention, 1919 (No. 4).

Now, when the ILO has received the Advisory Opinion delivered by ICJ, its Governing Body is expected to consider the matter at its 358th session in November 2026. The Governing Body will have to do follow-up actions, especially on the issued that are not determined by the ICJ’s Advisory Opinion, such as precise content, scope, or conditions for exercising the right to strike.

It should be noted that workers have won the ‘right to strike’ after a great struggle and loss of lives. The first strike action in recorded history of humanity was recorded on November 14, 1152 BC under Pharao Ramses II in ancient Egypt. The artisans walked off their jobs because they had not been paid. Workers were made slaves for centuries until the Industrial revolution in 1830s when a true and widespread ‘workers consciousness’ emerged in Britain.

In 1842, the demands for fairer wages and conditions culminated into first modern general strike in England. In 20th century strike got legal recognition a tool but only through a recognized trade union, such as the US Steel recognition strike of 1901 and the subsequent coal strike of 1902.In the first half of 20th century, about 40 per cent of the strikes were just for getting recognition for trade unions. ILO adopted the Convention No.87 in 1948 to protect the workers’ right to association and the right to strike. (IPA Service)