Clarity from ILO 'matters enormously for workers, unions, governments and employers alike,' says Canadian Labour Congress
The highest court in the world has confirmed that the right to strike is protected under a core International Labour Organization (ILO) convention.
In an advisory opinion delivered on May 21, the International Court of Justice (ICJ) held – by 10 votes to four – that “the right to strike of workers and their organizations is protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).”
"Strike action is one of the main activities engaged in and tools used by workers and their organizations to promote their interests and improve conditions of labour, thereby ensuring the effective exercise of the freedom of association protected under Convention No. 87," according to the ICJ.
The Canadian Labour Congress (CLC) welcomed the statement.
“This is a victory for workers everywhere,” said Bea Bruske, president of the CLC. “The world’s highest court has made it clear: workers do have the right to strike under international law. That clarity matters enormously for workers, unions, governments, and employers alike. And we’re proud of the role that CLC played in securing this decision.”
Questions about freedom of association
The court – the principal judicial organ of the United Nations based at the Peace Palace in The Hague – issued its opinion at the request of the Governing Body of the International Labour Office. The decision clarifies the scope of a long‑standing ILO freedom of association standard that underpins national labour law regimes in many jurisdictions.
The Governing Body of the International Labour Office turned to the court after acknowledging it was “conscious that there is serious and persistent disagreement” among the ILO’s tripartite constituents – governments, employers and workers – over whether Convention No. 87 covers the right to strike.
At its special session on Nov. 10, 2023, the Governing Body adopted a resolution requesting the ICJ to clarify the issue under Article 37 of the ILO Constitution. It asked the Court “to render urgently an advisory opinion under Article 65, paragraph 1, of the Statute of the Court, and under Article 103 of the Rules of Court, on the following 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 (No. 87)?”
The request was transmitted to the ICJ by the director‑general of the ILO in a letter dated Nov. 13, 2023. During the written phase, 31 written statements and 15 written comments from States and organisations were submitted. The court then held public hearings from Oct. 6 to 8, 2025, during which 18 States and five organisations presented oral statements.
The right to strike confirmed
In its advisory opinion, the Court first confirmed its authority to act, stating that it “unanimously … finds that it has jurisdiction to give the advisory opinion requested” and “unanimously … decides to comply with the request for an advisory opinion.”
It then addressed the substance of the question, concluding, again in the formal dispositif, that it “is of the opinion that the right to strike of workers and their organizations is protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).”
The advisory opinion is accompanied by several separate and dissenting opinions and declarations. President Iwasawa, Judges Nolte, Gómez Robledo and Tladi appended separate opinions, while Judges Tomka, Abraham, Xue and Hmoud issued dissenting opinions. Vice‑President Sebutinde and Judges Bhandari and Cleveland appended declarations.
The ICJ’s advisory opinions are not legally binding in the same way as judgments in contentious cases between States. However, they are treated as highly authoritative interpretations of international law by UN organs, specialised agencies such as the ILO, and many domestic courts.
Notwithstanding clause in Canada
The ruling comes as workers in Canada face growing pressure on collective bargaining rights and job action, notes the CLC.
“In Alberta, Danielle Smith’s provincial government used the notwithstanding clause to override Charter-protected rights of striking teachers. Federally, the government has increasingly used section 107 of the Canada Labour Code to break legal strikes and weaken workers’ bargaining power. Unions in federally-regulated industries are warning that the government’s broad and rushed consultations on changes to the Labour Code could further restrict the ability of workers to take job action.”
Bruske concluded: “This ruling must be a line in the sand. The Canadian Labour Code cannot become a tool to erode one of the most fundamental democratic rights workers possess. The right to strike must be protected, respected, and upheld.”
