THE RIGHT TO STRIKE AS A FUNDAMENTAL HUMAN RIGHT IN INTERNATIONAL LABOUR LAW: REFLECTIONS ON THE INTERNATIONAL COURT OF JUSTICE’S ADVISORY OPINION OF 21 MAY 2026 ON THE INTERPRETATION OF THE ILO CONVENTION NO. 87 (1948)

This article was prompted by the recent Advisory Opinion of the International Court of Justice (ICJ) concerning the interpretation of the International Labour Organization (ILO) Freedom of Association and Protection of the Right to Organise Convention, 1948 (Convention No. 87). The Advisory Opinion sought to resolve the long-standing dispute that has emerged – particularly over the past fifteen years – between workers’ and employers’ representatives within the ILO regarding whether Convention No. 87 protects the right to strike, notwithstanding the absence of any express provision to that effect. The Court answered this question in the affirmative, holding that the right to strike falls within the protection afforded to freedom of association under Article 3(1) of Convention No. 87, when read in conjunction with Articles 2 and 10. In reaching this conclusion, the Court adopted an innovative application of the interpretative rules codified in the Vienna Convention on the Law of Treaties, embracing a purposive method of interpretation that gave an expansive reading to the relevant provisions of Convention No. 87. The Court further relied upon supplementary means of interpretation, each of which reinforced its conclusion that the Convention protects the right to strike despite the absence of an explicit textual guarantee. Although the Advisory Opinion represents a landmark victory for the protection of collective labour rights at the international level, the Court’s interpretative methodology has already generated considerable scholarly debate and criticism.