World Court ends a fourteen year ILO deadlock: Convention 87 protects the right to strike, ten to four

The International Court of Justice held on 21 May 2026, by ten votes to four, that the right to strike of workers and their organisations is protected under the International Labour Organization's Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Court's own summary immediately qualifies the finding: it "does not entail any determination on the precise content, scope or conditions for the exercise of that right".

The operative clause, reproduced in the Court's press release 2026/15, has three limbs. The Court found unanimously that it had jurisdiction, decided unanimously to comply with the request, and then split. In favour were President Iwasawa, Vice-President Sebutinde and Judges Bhandari, Nolte, Charlesworth, Brant, Gomez Robledo, Cleveland, Aurescu and Tladi. Against were Judges Tomka, Abraham, Xue and Hmoud.

The question came from the ILO, not a state. On 10 November 2023, at its 349th bis (Special) session, the Governing Body of the International Labour Office invoked Article 37, paragraph 1, of the ILO Constitution and Article IX, paragraph 2, of the agreement between the ILO and the United Nations to ask a single 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 reached the Court by letter dated 13 November 2023. Thirty-one written statements and 15 written comments were filed, and hearings ran from 6 to 8 October 2025.

The reason a specialised agency needed a world court is set out in the Court's own account of the history. The disagreement inside the ILO ran from 1952 onwards. In 2012 the divergence between the workers' group and the employers' group over Convention 87 was described by the International Labour Office and others as an institutional crisis at the 101st session of the International Labour Conference. The ILO's own statement on the referral says the Conference Committee on the Application of Standards was, for the first time, prevented from exercising its supervisory functions. The ILO Committee of Experts had long read the right to strike into freedom of association; employers' representatives increasingly refused that reading. Negotiation failed, and in 2023 the Governing Body sent the question to The Hague.

The Court's route to yes was textual. Convention 87 does not mention strikes. Article 3, paragraph 1, protects the right of workers' organisations to organise their administration and activities and to formulate their programmes. Read with Articles 2 and 10, the Court said, strike action is "capable of falling within the ordinary meaning of the term 'activities'". It observed that strike action is not explicitly excluded, and that the Convention's terms do not permit the inference that other rights are excluded. It framed the exercise as the customary rules of interpretation reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.

The four dissents attack that method rather than the merits of strikes. Judge Tomka's concern, as summarised by the Court, is institutional: that treaty interpretation must stay anchored in the consent of states and the agreed methods for giving meaning to treaty texts, to preserve the integrity and predictability of the international legal order. Judge Xue wrote that the majority's response "largely reflects an exercise of human rights advocacy rather than treaty interpretation", drawing its conclusions from states' undertakings elsewhere rather than from the text and the drafters' intention. Judge Hmoud wrote that the opinion, read as a whole, suggests the majority "appears to have inverted the judicial process, starting from a conclusion and, thereafter, assembling its reasoning to support it".

Even inside the majority the finding is hedged. President Iwasawa, in a separate opinion, stressed that the Court is not suggesting the right is absolute and expresses no view on its scope, in particular on whether or to what extent Convention 87 requires the right to strike to be guaranteed for public officials.

The reach of the ruling is nonetheless wide. Convention 87 was adopted on 9 July 1948 in San Francisco and entered into force on 4 July 1950. As of February 2024 it had been ratified by 158 of the ILO's 187 member states.

What happens next is unsettled. The ILO said in 2023 only that the Governing Body would "consider appropriate follow-up action" once the opinion arrived, and a proposed agenda item on standard setting for strike rights at the 2024 International Labour Conference was not approved. Advisory opinions do not bind anyone. Whether the Conference Committee on the Application of Standards resumes normal supervision, and where the boundaries of a right the Court refused to define will be drawn, in essential services, in the public sector, and in national law, is not answered by the opinion. Employer and worker reaction to the ruling could not be verified from retrievable sources for this article.