Is right to strike protected under international law? ICJ to examine

• The International Court of Justice (ICJ) opened hearings on October 6 to determine whether the right to strike is protected under international law — the first time the world’s top court has been asked to weigh in on the balance between workers’ rights and employers’ interests.

• The case stems from a 2023 request by the Governing Body of the International Labour Organisation (ILO), which asked the ICJ for an advisory opinion on whether the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) includes the right to strike.

• Over three days of hearings, 21 countries and organisations are expected to take the stand, with 31 written statements already filed in the ICJ Registry, reflecting global interest in the outcome.

• The Court’s advisory opinion, expected in the coming months, will not be legally binding but could profoundly influence international and national labour law.

Convention No. 87

• Adopted in the aftermath of World War II, Convention No. 87 is a cornerstone of international labour law, guaranteeing workers and employers the right to form and join organisations of their choosing. 

• It does not explicitly mention strikes, but advocates have long interpreted freedom of association to include that right.

• Everyone has the rights to freedom of peaceful assembly and association, which are essential components of democracy. 

• The right of peaceful assembly includes the right to hold meetings, sit-ins, strikes, rallies, events or protests, both offline and online. 

• The right to freedom of association involves the right of individuals to interact and organise among themselves to collectively express, promote, pursue and defend common interests. This includes the right to form trade unions. 

• Freedom of peaceful assembly and of association serve as a vehicle for the exercise of many other rights guaranteed under international law, including the rights to freedom of expression and to take part in the conduct of public affairs. 

• The right to freedom of peaceful assembly and association is protected by article 20 of the Universal Declaration of Human Rights.

• The interpretation dispute concerns whether the right to strike of workers and their organisations is protected under the Convention No. 87. 

• The dispute has persisted for several years.

The International Court of Justice

• The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.

• It is informally known as the “World Court”.

• It was established by the United Nations Charter in June 1945.

• The first members of the ICJ were elected on February 6, 1946, at the first session of the UN General Assembly. The Court held its inaugural sitting at the iconic Peace Palace in The Hague, on  April 18, 1946.

• The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations. 

• The seat of the Court is at the Peace Palace in The Hague (Netherlands).

• Of the six principal organs of the United Nations, it is the only one not located in New York, USA. 

The Court has a twofold role:

1) To settle, in accordance with international law, through judgments which have binding force and are without appeal for the parties concerned, legal disputes submitted to it by States.

2) To give advisory opinions on legal questions referred to it by duly authorised United Nations organs and agencies of the system.

• The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

• The Court can only hear a dispute when requested to do so by one or more States. It cannot deal with a dispute on its own initiative. Neither is it permitted, under its Statute, to investigate and rule on acts of sovereign States as it chooses.

• States which are not members of the United Nations may become parties to the Statute of the Court on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.

Composition of the Court

• The ICJ comprises 15 judges, who are each elected to a nine-year term of office and may be re-elected. 

• In order to ensure a measure of continuity in the composition of the Court, one-third of the membership is renewed every three years. 

• Judges must be elected from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognised competence in international law.

• The Court may not include more than one national of the same State. Moreover, the Court as a whole must represent the main forms of civilisation and the principal legal systems of the world.

• Once elected, a member of the Court is a delegate neither of the government of his own country nor of that of any other State. 

• Unlike most other organs of international organisations, the Court is not composed of representatives of governments. Members of the Court are independent judges whose first task, before taking up their duties, is to make a solemn declaration in open court that they will exercise their powers impartially and conscientiously.

• Members of the Court are elected by the General Assembly and by the Security Council through parallel procedures. 

• Both organs vote at the same time but independently of one another. 

• This system is intended to ensure, as far as possible, that the vote in one organ does not influence the vote in the other. 

• In order to be elected, a candidate must obtain an absolute majority of votes both in the General Assembly and in the Security Council. 

• Currently, 97 votes out of 193 constitute an absolute majority in the General Assembly. 

• In the Security Council, where no right of veto applies for the purpose of the election and no distinction is made between the votes of the permanent and non-permanent members of the Council, eight votes out of 15 constitute an absolute majority.

How is ICJ different from ICC?

• The International Criminal Court (ICC) is an independent judicial body with jurisdiction over persons charged with genocide, crimes against humanity and war crimes.

• The ICC is not part of the UN.

• Situated in The Hague, Netherlands, the ICC is governed by the Rome Statute adopted by the UN in 1998. It entered into force in 2002 upon ratification by 60 States. 

• The ICC is established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community. 

• International Court of Justice (ICJ) is the principal judicial organ of the United Nations for the settlement of disputes between States.

• The ICJ has no jurisdiction to try individuals accused of war crimes or crimes against humanity.