Critical Analysis of the International Organisation of Employers’ Response to the International Court of Justice Advisory Opinion on the Right to Strike
Document Analysed
International Organisation of Employers (IOE):
For more than ten years, the Employers’ Group argued that Convention No. 87 of the International Labour Organization did not protect the right to strike.
On 21 May 2026, the International Court of Justice reached exactly the opposite conclusion:
- the right to strike is protected by Convention No. 87.
International Court of Justice:
International Labour Organization:
The International Organisation of Employers does not challenge this conclusion.
It states:
“The IOE takes note of the conclusion of the ICJ advisory opinion that the right to strike is protected by Convention No. 87.”
This sentence means that employers are officially abandoning the main battle.
It becomes difficult to continue denying the existence of a right to strike within Convention No. 87.
The Real Battle Is Immediately Shifted Elsewhere
The most important sentence in the statement is probably the following:
“this conclusion does not determine the precise content, scope, or conditions governing the exercise of that right”
This formulation lies at the heart of the new employers’ strategy.
Employers now acknowledge:
- the right to strike exists.
But they immediately add:
- no one yet knows precisely where its limits lie.
In other words:
- the battle over the existence of the right to strike has been lost;
- the battle over its practical limits is beginning.
An Attempt to Limit the Political Impact of the Trade Union Victory
Trade union organizations present the International Court of Justice advisory opinion as a historic victory.
The International Organisation of Employers responds that the Court did not answer a number of essential questions.
For example:
- political strikes;
- solidarity strikes;
- general strikes;
- picketing;
- workplace occupations;
- activity blockades;
- essential services;
- notice periods;
- mandatory conciliation procedures;
- disciplinary sanctions.
On this point, the employers’ argument is legally sound.
The International Court of Justice recognized the existence of the right to strike.
It did not precisely define every form that such a right may take.
Defending the Most Restrictive National Systems
Another important sentence in the statement refers to:
“respect for the diversity of national legal systems”
This formulation is not neutral.
It means that employers wish to avoid a uniform interpretation of the right to strike being imposed on all States.
They seek to preserve the particularities of:
- the Swiss system;
- the German system;
- the British system;
- the Japanese system;
- as well as more restrictive systems found in certain parts of the world.
The objective is clear:
to prevent the International Court of Justice decision from automatically harmonizing or strengthening the right to strike in every country.
A Message Directed at Trade Unions
The statement also affirms that the 114th Session of the International Labour Conference should proceed according to established practice.
This sentence is indirectly aimed at trade union organizations.
Why?
Because some organizations might be tempted to demand:
- a revision of the methods used by the Committee on the Application of Standards;
- stronger recognition of the positions of the Committee of Experts on the Application of Conventions and Recommendations;
- a reassessment of certain national cases.
International Labour Organization:
The International Organisation of Employers seeks to prevent a legal victory from leading to an institutional transformation of how the International Labour Organization operates.
What the Statement Does Not Say
One of the most revealing aspects is perhaps what is absent from the text.
The statement contains no assertion that:
- the Court was wrong;
- the advisory opinion should be challenged;
- a new procedure should be initiated.
No request for review is made.
No direct challenge is expressed.
This absence suggests that employers probably regard the legal dispute as concluded.
The New Employers’ Strategy
The emerging strategy appears relatively clear.
Accept:
- the existence of the right to strike.
Focus future debate on:
- proportionality;
- essential services;
- notice periods;
- mediation procedures;
- legal restrictions;
- continuity of operations;
- protection of the economy.
In other words:
The right to strike exists.
But its exercise should remain subject to significant regulation.
Critical Reading
From a trade union perspective, this statement may be read as an attempt to reduce the political significance of a major legal defeat.
From an employers’ perspective, however, it is a particularly skilful text.
It allows them:
- to recognize the authority of the International Court of Justice;
- to avoid direct confrontation with the decision;
- to preserve substantial room for negotiation concerning the practical exercise of the right to strike;
- to maintain the diversity of national systems.
The Real Consequence
The advisory opinion of 21 May 2026 fundamentally changes the terms of the debate.
Before 21 May 2026, the question was:
- is the right to strike protected by Convention No. 87?
After 21 May 2026, the question becomes:
- which restrictions on the right to strike are compatible with Convention No. 87?
It is on this new terrain that future debates between trade unions, employers, governments and the International Labour Organization will be fought.
Sources
International Organisation of Employers:
International Labour Organization:
International Court of Justice:
Convention No. 87:
https://normlex.ilo.org/dyn/normlex/fr/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C087
Vienna Convention on the Law of Treaties:
https://legal.un.org/ilc/texts/instruments/french/conventions/1_1_1969.pdf
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